Opinion
No. 86-102.
Filed July 17, 1987.
1. Employment Security Law: Appeal and Error. Appeals under the provisions of Neb. Rev. Stat. § 48-601 to 48-669 (Reissue 1984) are reviewed de novo on the record made in the district court. It is the duty of this court to retry the issues of fact involved in the findings complained of and to reach an independent conclusion. 2. Employment Security Law. Neb. Rev. Stat. § 48-628 (b) (Reissue 1984) requires that misconduct for which a disqualification from receiving unemployment benefits may result must be committed in connection with the employee's work. 3. ___. Failure to cooperate with an employer which is attempting to furnish a smoke-free environment by a good faith trial and error method constitutes misconduct in connection with the employee's work sufficient to disqualify the employee from receiving unemployment compensation benefits. 4. ___. Failure to furnish medical justification for prolonged absences from employment, when an employee has stated that such justification will be furnished, constitutes misconduct in connection with the employee's work sufficient to disqualify the employee from receiving unemployment compensation benefits.
Appeal from the District Court for Douglas County: ROBERT V. BURKHARD, Judge. Affirmed.
David R. Stickman of Stern, Swanson Stickman, for appellant.
Thomas F. Hoarty, Jr., of Fraser, Stryker, Veach, Vaughn, Meusey, Olson, Boyer Bloch, P.C., for appellee Omaha Public Power District.
Laureen Van Norman, for appellee Sorensen.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
The claimant, Rita Tuma, appeals from an order of the district court for Douglas County affirming a decision of the Nebraska Department of Labor Appeal Tribunal. The tribunal had reversed an award by a department claims deputy awarding unemployment compensation benefits to claimant. The tribunal held that claimant's conduct constituted misconduct within the meaning of the Nebraska Employment Security Law, Neb. Rev. Stat. § 48-601 to 48-669 (Reissue 1984), sufficient to bar claimant from receiving unemployment compensation benefits until after a waiting period. Claimant had been terminated from her employment as a stenographer with Omaha Public Power District for misconduct. Claimant has appealed to this court, alleging as error "[t]he holding of the district court that Ms. Tuma's failure to provide a statement from her physician that Ms. Tuma should not immediately return to a smoke-filled work environment detrimental to her health constitutes misconduct in connection with the claimant's work justifying a disqualification from employment benefits . . . ."
Appeals under the provisions of 48-601 to 48-669 are reviewed de novo on the record made in the district court. It is the duty of this court to retry the issues of fact involved in the findings complained of and to reach an independent conclusion. Smith v. Sorensen, 222 Neb. 599, 386 N.W.2d 5 (1986); School Dist. No. 21 v. Ochoa, 216 Neb. 191, 342 N.W.2d 665 (1984). Bearing this in mind, we must decide whether claimant's conduct constituted misconduct within the meaning of the Nebraska Employment Security Law. Pursuant to 48-628 (b) a claimant may be disqualified for benefits if he or she has been discharged for misconduct connected with his or her work. The term "misconduct" itself is not defined in the statute. This court has defined the term to include
"`behavior which evidences (1) wanton and willful disregard of the employer's interests, (2) deliberate violation of rules, (3) disregard of standards of behavior which the employer can rightfully expect from the employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations.' . . ."
Smith v. Sorensen, supra at 603, 386 N.W.2d at 8; McCorison v. City of Lincoln, 215 Neb. 474, 339 N.W.2d 294 (1983); Stuart v. Omaha Porkers, 213 Neb. 838, 331 N.W.2d 544 (1983).
The record shows that on June 4, 1984, claimant began working as a stenographer for appellee Omaha Public Power District (O.P.P.D.). At the time of trial, an examining physician's report of an examination in 1984 was introduced, showing that claimant had related to him "a history of rather severe hypersensitivity to cigarette smoke."
The claimant worked in an open office area. Before November 1, 1984, she worked at a desk in the middle of the area. In the area then were nine persons who smoked. A diagram of the room showed four smokers in the open area itself, somewhat near claimant's desk. On October 29, 1984, claimant first indicated to her supervisor that she was having problems caused by smoking in the office area. The supervisor referred the problem to the O.P.P.D. employee relations department. The supervisor and members of that department had a meeting and decided to move claimant's desk and create a nonsmoking area. They also discussed the situation with the building manager, who arranged for a check of the airflow in the office and the installation of an extra return air duct to pull air away from the area of claimant's desk. The supervisor informed claimant the next day that the company was working on the problem. The layout of the office where claimant worked was changed immediately.
After November 1, 1984, a nonsmoking area, consisting of about one-half of the office, was created, and claimant's desk was moved and located in that area. O.P.P.D. changed the positioning of desks in the open office area to allow claimant to have a desk as far away as possible from the other workers who smoked. The nearest smoker's desk was more than 20 feet from claimant's. No-smoking signs and an ashtray were placed near the area where claimant worked. Airflow was checked. A cold-air duct was installed on December 5, 1984. The last date that claimant was in the work area was December 6, 1984.
On December 5, 1984, Tuma was seen by her doctor, Dr. Wallace E. Duff. He prescribed some antibiotics for her condition. The following day Tuma had her husband obtain a statement from the physician's office that recommended she remain away from work for a period of 10 days, and after delivering it to her supervisor, Joyce Finnell, she left work.
Subsequently, Finnell telephoned Tuma and told her that O.P.P.D. wanted her to see a physician of its choice. On December 10, 1984, claimant was examined by Dr. Ronald W. Olnhausen. Dr. Olnhausen reported to O.P.P.D.:
As long as she [Tuma] has symptoms from the exposure to cigarette smoke, she will probably not be able to work in surroundings in which there is a significant amount of exposure. The amount of exposure that she would tolerate could only be determined by trial and error. Certainly there is a pre-existing history of allergy and hypersensitivity which may be a predisposing factor in her current difficulties. It is my feeling that she could return to work immediately if she were in a smoke-free environment.
On December 17, 1984, Tuma again saw Dr. Duff. Claimant did not submit any report from Dr. Duff concerning this visit. Claimant did write a letter, dated December 17, 1984, which her O.P.P.D. supervisor received on December 26. In the letter claimant said that she had seen Dr. Duff on that day and that he advised her "that since there were still unhealed bleeding points and ulcerations and because there have been no steps taken to remedy the smoke pollution in the office area, I should not return to work for at least 4 weeks . . . ." In his deposition testimony, Dr. Duff testified that he did not even know if claimant worked in an office. Dr. Duff further testified that after his December 17, 1984, examination, he determined "by physical examination she was better and subjectively she seemed to be better." At the hearings on this matter, claimant submitted a note on Dr. Duff's stationery dated December 26, 1984, and apparently signed by a nurse, stating that claimant should not return to work for 4 weeks. In Dr. Duff's testimony, however, he did not testify concerning any such recommendation. Dr. Duff testified that he did not remember a specific discussion with claimant on December 17, 1984, concerning her returning to work.
Tuma called Finnell and informed her that she could not return to work for an additional 4 weeks. On December 21, 1984, O.P.P.D. sent Tuma a letter, which she received on December 22 and which read as follows:
Dear Ms. Tuma:
The District has taken all necessary steps to provide a work environment which is in compliance with the Nebraska Clean Indoor Air Act and which provides you a safe and satisfactory work area.
Therefore, you are expected to be at work on Friday, December 28, at 8:00 a.m. In the event that you do not report for work as required herein, the District will conclude that you are no longer interested in retaining your position and that you have voluntarily terminated your employment.
The record shows the following medical letters received in evidence. On December 6, 1984, Dr. Duff wrote to claimant's personal doctor and to her attorney: "We do plan to follow her closely and will see if we can determine if, in fact, she can survive in the present atmosphere she is working in."
The physician who examined claimant on December 10, 1984, submitted a report stating in part:
As long as she [Tuma] has symptoms from the exposure to cigarette smoke, she will probably not be able to work in surroundings in which there is a significant amount of exposure. The amount of exposure that she would tolerate could only be determined by trial and error.
The evidence shows that O.P.P.D. was trying to furnish claimant a smoke-free area. As stated above, the office where claimant worked was changed so as to designate approximately one-half of the office as a nonsmoking area. An air duct was installed to withdraw the air near the smokers' desks, but claimant did not return to work at any time to determine its effect on the situation.
The record shows that claimant did not even attempt to work in the improved environment. The record also shows that claimant could work on the very day she was ordered to return to work at O.P.P.D. On that day, December 28, 1984, claimant filed a claim for unemployment benefits. Section 48-627 (c) provides that a person receiving such benefits must be able to work and available for work. In her application for benefits, claimant answered the question, "Do you have any reasons which would prevent you from accepting immediate employment (i.e. . . . health . . .) if so, explain," by saying, "no — as long as it was in a smoke free area." (Emphasis in original.)
We find that O.P.P.D. was attempting to furnish claimant a "smoke free area." Claimant did not choose to cooperate with her employer's efforts to keep her employed. Such an attitude demonstrates a complete disregard of the employer's interests in getting work done in a difficult situation for all concerned. Failure to cooperate with an employer which is attempting to furnish a smoke-free environment by a good faith trial and error method constitutes misconduct in connection with the employee's work sufficient to disqualify the employee from receiving unemployment compensation benefits.
Insofar as the district court found that claimant was guilty of misconduct in that she did not furnish medical information which she told O.P.P.D. substantiated the requirement that she remain off work for an additional 4 weeks after December 17, 1984, we also agree with the district court. Claimant informed her supervisor that she would furnish medical information from Dr. Duff. The facts, as set out above, show that claimant did not, at any time, have a report from Dr. Duff stating she should not return to work for 4 weeks after December 17, 1984. Claimant's letter of December 17, 1984, so stating, is not supported by any evidence from Dr. Duff.
We further determine, as did the district court, that failure to furnish medical justification for prolonged absences from employment, when an employee has stated that such justification will be furnished, constituted misconduct in connection with her work sufficient to justify a denial of unemployment compensation benefits. The decision of the district court is affirmed.
AFFIRMED.