McCarty v. UNEMPLOYMENT APPEALS COM'N, 1D03-3116.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: BENTON, J.
• Citation: 878 So.2d 432
• Parties: Patricia A. McCARTY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and St. Augustine Trains, Inc., Appellees.
• Docket Number: No. 1D03-3116.,1D03-3116.
• Decision Date: 09 July 2004

878 So.2d 432

Patricia A. McCARTY, Appellant,
v.
FLORIDA UNEMPLOYMENT APPEALS COMMISSION and St. Augustine Trains, Inc., Appellees

No. 1D03-3116.

District Court of Appeal of Florida, First District.

July 9, 2004.

878 So.2d 433

Carol S. Miller, Esquire, Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellant

Geri Atkinson-Hazelton, General Counsel; John D. Maher, Deputy General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission.

BENTON, J.

Patricia McCarty appeals the order of the Unemployment Appeals Commission upholding the appeals referee's determination that she was ineligible to receive unemployment compensation benefits even though she was discharged from her position with St. Augustine Trains, Inc., as tour guide, salesperson, and driver of an articulated tram. We reverse.

A seven-year employee,¹ Ms. McCarty lost her job after she drove into a driveway that she had been told not to use, and — when upbraided — defended her choice as necessary to avoid an accident with another tram driver. James Wettach, the president of St. Augustine Trains, explained the reason² for the termination and the circumstances that gave rise to his decision:

878 So.2d 434

I did not fire [her] for the driveway. As I told her I fired her for the noncooperation when I went down to talk about the driveway. If I was going to fire her I wouldn't have gone down to speak with her. I got no cooperation.... Other than that I think both of us pretty much agree on the facts and how it happened....

The "noncooperation" to which Mr. Wettach alluded consisted of Ms. McCarty's telling him "four times to speak to another driver with whom [Ms. McCarty] alleged she had `almost' had a head-on collision." Ms. McCarty "would not really admit that she should not have pulled in there. She firmly believed that she should have."

A majority of the Unemployment Appeals Commission concluded that Ms. McCarty was guilty of "misconduct" disqualifying her for unemployment compensation benefits under section 443.036(29), Florida Statutes (2002), but we share the views Chairman Alan Orantes Forst cogently expressed in dissent.³

"Misconduct" includes, but is not limited to, the following, which shall not be construed in pari materia with each other:

(a) Conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee; or

(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his or her employer.

Section 443.036(29), Florida Statutes (2002). "In defining misconduct, courts are required to liberally construe the [unemployment compensation] statute in favor of the employee." Mason v. Load King Mfg. Co., 758 So.2d 649, 655 (Fla.2000).

Even if Ms. McCarty's deportment justified her discharge, "`[w]hether an employer has the right to terminate an employee's employment and whether a terminated employee meets the disqualification criteria set out in the unemployment compensation statute are separate issues. See Cooks v. Unemployment Appeals Comm'n, 670 So.2d 178, 180 (Fla. 4th DCA

878 So.2d 435

1996); Livingston v. Tucker Constr. & Eng., Inc., 656 So.2d 499, 500 (Fla. 2d DCA 1995); Hummer v. Unemployment Appeals Comm'n, 573 So.2d 135, 137 (Fla. 5th DCA 1991).' Lusby v. Unemplmt. App. Comm'n, 697 So.2d 567, 568 (Fla. 1st DCA 1997). A single, isolated act of negligence does not constitute disqualifying misconduct. See, e.g., Cooks, 670 So.2d at 180; Johnson v. Unemplmt. App. Comm'n, 513 So.2d 1098, 1099 (Fla. 3d DCA 1987). `While a violation of an employer's policy[ ] may constitute misconduct, `[r]epeated violations of explicit policies, after several warnings, are usually required.' Barchoff v. Shells of St. Pete Beach, Inc., 787 So.2d 935, 936 (Fla. 2d DCA 2001).' Cooksey-James v. Unemplmt. App. Comm'n, 869 So.2d 1209 (Fla. 2d DCA 2004)." Ash v. Unemplmt. App. Comm'n, 872 So.2d 400, 402 (Fla. 1st DCA 2004)

Ms. McCarty's discharge resulted from a single, isolated incident,⁴ and did not amount to disqualifying misconduct. See Donnell v. Univ. Cmty. Hosp., 705 So.2d 1031, 1032 (Fla. 2d DCA 1998) (holding claimant's actions did not disqualify her from receiving unemployment compensation benefits, where she had been a good employee for three years, but failed to follow a new policy regarding garbage can liners, which led to a loud argument with her supervisor when he...