IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
PATRICIA A. MCCARTY,
NOT FINAL UNTIL TIME EXPIRES TO
Appellant, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
v.
FLORIDA UNEMPLOYMENT CASE NO. 1D03-3116
APPEALS COMMISSION and
ST. AUGUSTINE TRAINS, INC.,
Appellees.
___________________________/
Opinion filed July 9, 2004.
An appeal from an order of the Unemployment Appeals Commission.
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:
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
(note: At the time of her discharge on July 3, 2002, Ms. McCarty had worked for St.
Augustine Trains without interruption for more than three years, and off and on since
February of 1989. )
(note: Mr. Wettach clearly testified that merely entering the driveway " in
contradistinction to refusing to concede that the driveway should not have been
entered " was not the rationale for the termination, but the appeals referee overlooked
this testimony in finding that:
The claimant’s deviations from her route, without asking
permission, evince an intentional and willful or wanton
disregard of the employer’s interests. Accordingly, the
claimant was discharged for misconduct connected with the
work as defined in the unemployment compensation law
and she should remain disqualified from receipt of benefits.
Mr. Wettach’s testimony that "[i]t’s my final call she shouldn’t have [pulled into the
driveway] and we weren’t getting anywhere so I dismissed her at that time at our
meeting" does not support the referee’s finding that "deviations from her route,
without asking permission" occasioned the firing. )
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
3Chairman Forst concluded that "the employer has failed to demonstrate that
the claimant’s actions constitute disqualifying misconduct connected with work."
Chairman Forst summarized the operative facts, as follows:
The claimant testified, without rebuttal, that she was
using the center driveway during the incidents at issue in
order to avoid an accident. As such, her actions were taken
with the intent of furthering the employer’s interests.
Moreover, the employer’s president testified that he did not
terminate the claimant because of these [] incidents, but
because of her being uncooperative when he questioned her
about the [] incident. However, the record indicates that the
claimant did inform the employer’s president that she used
the center driveway to avoid a head-on collision and
repeatedly implored the president to speak with the other
bus driver. As such, the record does not support a
conclusion that the claimant was insubordinate.
Additionally, the claimant had worked for the employer, on
and off, for approximately seven years and there is no
indication in the referee’s decision that the claimant had
been previously disciplined.
"Misconduct" includes, but is not limited to, the following,
which shall not be construed in pari materia with each other:
(a) Conductevincing 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 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, 29 Fla. L. Weekly D734 (Fla. 2d DCA
Mar. 26, 2004)." Ash v. Unemplmt. App. Comm’n, 29 Fla. L. Weekly D1079, D1080
(Fla. 1st DCA May 4, 2004).
Ms. McCarty’s discharge resulted from a single, isolated incident, 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 confronted her, and ended in
claimant’s discharge); see also Cullen v. Neighborly Senior Servs., Inc., 775 So. 2d
392, 393-94 (Fla. 2d DCA 2000) (holding that an argument in a private office during
which the claimant raised his voice and accused the supervisor of not being truthful
was an isolated incident that did not preclude unemployment compensation benefits).
(note: Mr. Wettach specifically testified at the hearing that there was nothing else in
Ms. McCarty’s employee file that contributed to her discharge. )
While an isolated incident can be disqualifying, if sufficiently egregious, the
single-incident cases cited by the Commission involve unexcused, unequivocal, and
deliberate disobedience. The present case is devoid of any evidence that Ms.
McCarty deliberately or intentionally acted against her employer’s interests, even
though a policy was violated. See Finish Line Feed, Inc. v. Acosta, 748 So. 2d 1089,
1090 (Fla. 4th DCA 2000) ("[P]roof of the claimant’s violation of the employer’s
known policy did not rise to the level of disqualifying misconduct connected with
work. The employer cites . . . cases in which a single act of misconduct was found
as disqualifying. A common thread running through all of the cited cases is a finding,
supported by competent substantial evidence, that the claimant acted in deliberate and
intentional disobedience (in some instances, in flagrant disregard) of a supervisor’s
order."). While it was disputed whether safety really required Ms. McCarty to use the
forbidden driveway, the evidence that Ms. McCarty "firmly believed that she should
have" done it " in her employer’s as well as her own interest " was clear and
uncontroverted, and expressing these views to Mr. Wettach after the fact was not
disqualifying misconduct.
Reversed and remanded.
LEWIS, J., CONCURS; ERVIN, J., DISSENTS.
ERVIN, J., dissenting.
Although not clearly stated by the appeals referee, the finding that Patricia
McCarty’s "deviations from her route, without asking permission, evince an intentional
and willful or wanton disregard of the employer’s interests," is, in my judgment, a tacit
finding of insubordination, on evidence showing that claimant on two separate
occasions willfully and intentionally refused to follow her employer’s express
directions to operate her tram on a driveway in front of the employment headquarters
other than on the center driveway. As such, I consider the finding supported by
competent, substantial evidence.
After first being told by the dispatcher of the company’s policy to avoid using
the driveway in question because of the management’s concern for the safety of its
customers, Ms. McCarty was seen three days later again entering the center drive, and,
when confronted by her employer asking why she had disregarded established policy,
she became defensive and argumentative, resulting in her then being relieved from her
duties. When she returned to work the following day, she met with her employer,
James Wettach, and her attitude had not improved. Wettach described the meeting in
the following terms: "[W]e met the next day[;] the conversation . . . did not go much
better and she would not really admit that she should not have pulled in there. She
firmly believed that she should have. It’s my final call she shouldn’t have[,] so I
dismissed her at that time at our meeting."
Obviously, the claimant’s willful refusal to comply with the employer’s policy
cannot be viewed as "[a] single, isolated act of negligence." Ante at 4. Moreover, a
single act of insubordination can establish misconduct. See Pascarelli v.
Unemployment Apps. Comm’n, 664 So. 2d 1089 (Fla. 5th DCA 1995). Indeed, an
employee’s noncompliance with an employer’s known policy on only one occasion
has been held to constitute misconduct. In Ford v. Southeast Atlantic Corp., 588 So.
2d 1039 (Fla. 1st DCA 1991), this court affirmed a finding of misconduct on evidence
showing that an employee was terminated because of his single act of failing a drug
test in violation of his employer’s policy that no employee be present at work with
drugs in his or her system. In answering his argument that he could not be disqualified
from benefits because of only one infraction, we stated:
[W]e reject appellant's argument that repeated
instances of misconduct were necessary before he could be
found guilty of misconduct, because repeated acts in
violation of company policy are not necessary to constitute
misconduct within the meaning of Chapter 443, Florida
Statutes. See, e.g., Clay County Sheriff's Office v. Loos,
570 So.2d 394 (Fla. 1st DCA 1990) (employee who
attended radar training course in direct disobedience of
superior's denial of his request was guilty of misconduct);
National Ins. Servs., Inc. v. Unemployment Appeals
Comm'n, 495 So.2d 244 (Fla. 2d DCA 1986) (employees
who refused to perform requirement that they clean the
coffee area acted unreasonably and were guilty of
misconduct); Sears, Roebuck & Co. v. Unemployment
Appeals Comm'n, 463 So.2d 465 (Fla. 2d DCA 1985)
(employee who admitted kissing minor female employee on
the cheek during working hours in violation of company
policy was guilty of misconduct); Rosa v. Jefferson's
Stores, Inc., 421 So.2d 818 (Fla. 4th DCA 1982) (employee
who allowed her son to use her employee discount card
against company policy was guilty of misconduct).
Moreover, although there is case law which stands for the
proposition that a single negligent act cannot support a
finding of misconduct, and that a single act of bad judgment
by the employee does not constitute bad faith, this is not a
case of negligence or bad judgment, but rather a direct
violation of company policy.
Nor can I agree with the majority’s characterization that the "present case is
devoid of any evidence that Ms. McCarty deliberately or intentionally acted against her
employer’s interests, even though a policy was violated." Ante at 6. Insubordination
and a refusal to comply with a legitimate work order constitutes misconduct,
disqualifying a claimant from benefits. See Fort Myers Pump & Supply, Inc. v. Fla.
Dep’t of Labor & Employment Sec., 373 So. 2d 429 (Fla. 2d DCA 1979). It is well
settled that the appeals referee is the finder of fact in an unemployment claims
procedure, and that the referee’s findings must be upheld if supported by competent,
substantial evidence. See Ford, 588 So. 2d at 1040. Under the circumstances, I
consider that we have no reasonable alternative other than to affirm.