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“Take this claim and shove it.”

Paul Fletcher//September 2, 2010

“Take this claim and shove it.”

Paul Fletcher//September 2, 2010

If you and your law firm ever have had to deal with a “difficult” employee, here’s one for you.

A medical clinic in Salem hired a guy named Jones to serve primarily as their receptionist. As in the guy who answered the phones. Who greeted patients. Who was their “Director of First Impressions.”

That didn’t work out so well, according to Jones v. VEC (VLW 010-8-151):

* Mr. Jones was discourteous to patients and gave them wrong information.

* He didn’t get along with his boss or the rest of the staff too well, either. He was insubordinate, ignored directions and failed to communicate with his supervisors.

* At least three patients took their business elsewhere because of him.

His supervisor counseled him. Repeatedly. You know where this is headed. They fired him.

He did what a lot of fired employees do: He filed for unemployment compensation. And he got it. Presumably there was some kind of informal hearing, probably over the phone, but the guy was awarded benefits.

Ex-employees who seek unemployment comp generally will get it, unless they were discharged for “misconduct related to the work.” The Supreme Court has set a pretty high bar to snuff out benefits: The behavior, according to a 1978 case, must be a deliberate violation of a company rule, or acts which are “of such a nature and so recurrent as to manifest a willful disregard” of the employer’s interests and the duties owed by the employee.

The leaders at the clinic probably looked at the piece of paper awarding benefits, then they looked at their presumably thick personnel file on Jones. The boss probably remembered all the conversations and the degree of aggravation. Then they probably thought about the three patients he ran off, the ones that they knew about. It’s doubtful they thought, “Heavens. This isn’t right. That man manifested such a willful disregard for our interests!” No, their thoughts were probably more vernacular, something along the lines of “WTF?”

So the clinic said, in so many words, “Take this claim and shove it.” They appealed to the full employment commission. And they won.

But Mr. Jones took the litigation one step further, appealing to circuit court. His argument, according to Judge Robert P. Doherty: I didn’t mean to do it.

Doherty noted that Jones admitted that a number of incidents cited by the clinic took place. And Jones acknowledged that his boss talked with him. He did not challenge the fact that three patients were lost.

But apparently appearing pro se, he argued that his acts were “accidental mistakes” and that he was not being “deliberate or willful.” Put another way, he was arguing, that’s just the way I am.

Doherty didn’t buy it. The circuit court acts as an appellate court when hearing an unemployment comp case, he noted. The judge said that he therefore was bound to give great deference to any factual findings of the commission.

Jones claimed the commission wrongly gave more weight to the clinic employees’ testimony. But Doherty said the burden of proving that was high. Jones would have to show that no reasonable person would have reached the same conclusion as the commission.

So go back to the person who originally awarded unemployment to Mr. Jones. How reasonable was that?

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