Medcenter One, Inc. v. Job Service North Dakota, 870024

• Decision Date: 31 July 1987
• Docket Number: No. 870024,870024
• Citation: 410 N.W.2d 521
• Parties: MEDCENTER ONE, INC., Petitioner and Appellee, v. JOB SERVICE NORTH DAKOTA, Respondent, and Sharon Krein, Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 521

410 N.W.2d 521

MEDCENTER ONE, INC., Petitioner and Appellee, v. JOB SERVICE NORTH DAKOTA, Respondent and Sharon Krein, Respondent and Appellant.

Civ. No. 870024.

Supreme Court of North Dakota.

July 31, 1987.

Mark D. Mehlhoff, Legal Assistance of ND, Inc., Bismarck, for respondent and appellant.

Lundberg, Nodland, Lucas & Schulz, Bismarck, for petitioner and appellee; argued by Timothy D. Lervick.

MESCHKE, Justice.

Medcenter One, Inc., discharged employee Sharon Krein. Job Service North Dakota awarded unemployment benefits to Krein. The district court reversed, holding that she was discharged for misconduct and, therefore, not qualified for benefits. We affirm the district court.

Krein, a registered nurse, worked at Medcenter One from May 1983. In November 1985, a written warning to her complained:

"1. Increased use of the telephone for personal calls on duty time.

* * *

"3. Talking to personnel about her personal problems, which is affecting rapport with co-workers."

The warning stated that her supervisor "had discussed the phone calls and letting personal problems interfere with job performance before with Sharon" and that "any further infraction would result in a final warning."

On January 29, 1986, Krein was given a second written warning and was placed on probation for 30 days for:

"During the p.m. shift on Jan 27, 1986 Sharon was observed by a physician, who reported to me that Sharon was monopolizing the time of a Social Service employee, openly discussing her divorce and ignored a mother with a child for admission.

"The P.M. Supervisor on duty also reported that she received staff complaints about Sharon's need to visit, rather then [sic ] attending to her assignments."

The warning stated that Krein was expected to "[r]efrain from talking about [p]ersonal [p]roblems" and that "[s]atisfactory improvement must be shown within the designated time frame and maintained or the following disciplinary action will be taken: Termination."

On March 16, 1986, Krein's work was favorably evaluated and she received a two percent salary increase. Her supervisor recommended that Krein "[c]ontinue to follow standards & expectations of disciplinary action."

Krein was fired on May 21, 1986, after a patient complained about Krein discussing personal problems with her. This, and other incidents, were detailed by Krein's supervisor:

"1. Patient verbalized the following complaint to nursing staff & attending physician--'I can't believe she told me all that, as if I don't have enough problems of my own. You know, she told me all about her divorce and everything before, the last time I was in. The only thing new she told me was she was going to court Monday for child abuse. She was in here at least an hour. I have so much on my mind the way it is. I sure didn't need that.'

"2. Sharon continues to make personal phone calls on duties [sic ].

"3. Spends lots of time visiting with a correspondence coordinator.

"4. Commented to a physician, 'Have you found a boyfriend for me yet?' "

Krein sought unemployment benefits. Medcenter One reported to Job Service:

"Claimant was released from duty because of a patient complaint. She had been counselled and warned previously regarding discussion of her personal problems."

A Job Service claims deputy denied benefits because Krein was discharged for misconduct.

Krein obtained a hearing. She admitted talking about her personal problems with the patient but claimed that the conversation was started by the patient:

"And when this lady was in, I did not have--I was not taking care of the front block, and I did answer her light one Sunday evening. And she said, 'Well, how are things going?' And I said, 'Everything is just a mess.' And she said, 'Well, why don't you sit down and talk about it?' She said, 'Have a piece of candy and sit down.' I said, 'Well, I'm kind of busy,' because I was working on a different block. And I left and I answered her light later that night, and she said, 'Well, how are things going?' And I had a few minutes, and I stood there and I told her how, some of the stupid things my husband was doing--my ex-husband was doing to me. And that's, you know, what I said. He, you know, turned me in for child abuse which is just a joke, but it's still, you know, aggravating and stuff. And that's more or less, you know, what I had discussed with her then. And she sat and talked to me and things. And the other nurses were in there for long periods of time and, you know, I wasn't the only one in there and stuff, so that's where that came about. Nothing was ever said."

Krein did not contradict the patient's report that Krein was in her room "at least an hour."

The hearing referee also denied benefits, reasoning:

"The claimant had been warned about her personal conduct on the job two previous times and committed another infraction. This showed a substantial disregard of the employer's interests on the part of the claimant and is misconduct in connection with her work."

Krein requested further review by Job Service, which found:

"In May 1986, the claimant was discharged because she discussed a personal matter with a patient and made personal phone calls while on duty. The claimant denies that her phone use was excessive. The employer did not provide any documentation regarding the phone calls. The discussion of personal matters with the patient is admitted by the claimant; however, the discussion was initiated by a patient who knew the claimant from a previous hospital stay."

Job Service reversed the referee's decision and granted benefits, saying:

"The claimant had been warned regarding her performance problems but had corrected them to the extent that she was given a favorable evaluation and raise in March. The evidence is not sufficient to establish that the claimant used the telephone excessively. Although the claimant was previously warned regarding discussing personal problems, her response to an inquiry constitutes a good faith error in judgment. The record does not show that the claimant willfully or wantonly disregarded her employer's interests. Although the employer may have considered the claimant an unsatisfactory employee, the evidence does not establish that the claimant was discharged for reasons that consistute [sic ] misconduct."

Medcenter One appealed and the district court reversed Job Service's decision. The district court concluded:

"It appears, however, that Job Service has attempted to view the last instance of disregard of the employee's instructions in a vacuum and has dissociated that conduct from the previous conduct of the employee. That, of course, is not a realistic nor permissible appraisal of the situation.

"The employee had been warned explicitly on more than one occasion not to discuss her personal problems with patients. She admits that she did so. She does not claim that she forgot the instructions she had been given. It was a deliberate act on her part, and the fact that the patient may have initiated the conversation furnishes her no excuse for disregarding her employer's instructions.

"The agency has attempted to characterize this conduct as 'an error of judgment.' But there was no judgment whatever involved in the context in which we are here considering it. She was told not to do so, and she did it. She intentionally disregarded a reasonable requirement imposed upon her by her employer. The first occasion that she discussed her personal problems with a patient might have been characterized as an error of judgment if she had not been previously warned against doing this. After having been so warned, there is, as I have just noted, no judgment involved.

"The long and short of the matter is that the employee intentionally disregarded a reasonable requirement imposed upon her by her employer as a condition of employment. That is misconduct." (Emphasis in original.)

Krein asks us to reinstate benefits.

One who "has been discharged for misconduct in connection with his most recent employment" is disqualified for unemployment benefits. NDCC Sec. 52-06-02(2). While the term "misconduct" is not defined in our statutes, we have determined that misconduct demonstrating a willful or wanton disregard of the employer's interests disqualifies. Thus, an employee who deliberately violates or...