Opinion
No. PP-404.
June 25, 1980.
Appeal from the Unemployment Appeals Commission.
Richard H. Powell, of Estergren, Fortune, Anchors Powell, P.A., Fort Walton Beach, for appellant.
James R. Parks, Gen. Counsel, and Dana C. Baird, Tallahassee, for appellees.
Okaloosa Guidance Clinic appeals an order of the Unemployment Appeals Commission finding that appellee, Walter Davis, was eligible for unemployment compensation.
The record reflects that the Clinic's alcohol detoxification unit hires nondrinking alcoholics to assist with, and serve as models for, patients. Davis, who had been sober for some ten months, was hired on October, 1977. At his employment interview, he was advised that sobriety was a condition of employment. He performed his duties satisfactorily until August 26, 1978, when he began drinking again. The next day, he called his supervisor, who told him to stop drinking and report to work the next morning. He failed to do so, however, and later that day was delivered in an intoxicated state to the detoxification unit. Officials sent him to a Pensacola detoxification center because they thought it would be detrimental for the patients to learn that one of the staff had resumed drinking. Davis remained in Pensacola only four hours before checking himself out. He reported to work in an intoxicated condition. He then was offered treatment at appellant's clinic but refused it. On August 29, his supervisor recommended he be fired, and he was.
A claims examiner determined that Davis' actions were not misconduct which would disqualify him from unemployment compensation under § 443.06(9)(a) or (b), and this conclusion was affirmed by an appeals referee as well as the Commission.
We REVERSE. Davis was terminated for misconduct, which included failure to report to work as ordered, removal of himself from an employer-provided opportunity to be treated, subsequent refusal to be treated by the employer, coming onto the employer's premises in an intoxicated condition, and absence from his duties, all of which placed a burden on the employer to perform its function with a reduced staff. Davis' actions constituted misconduct as defined by § 443.06(9)(a):
The stated grounds for termination were: (1) violation of a condition of employment, i.e., sobriety, (2) reporting to work in an intoxicated state, (3) failure to report to work as instructed, (4) refusal to seek treatment, (5) the detrimental effect of the employee's behavior on the alcohol rehabilitation program, and (6) the employee's inability to return to work for an undetermined length of time, causing manpower problems.
Carvin, "`Misconduct' Under Florida Unemployment Compensation," St.Fla. Bar Journal 489 (June 1980).
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 employee . . .See, Tucker v. Florida Department of Commerce, 366 So.2d 845 (Fla. 1st D.C.A. 1979); Castillo v. Florida Department of Commerce, 253 So.2d 162 (Fla. 2d D.C.A. 1971).
The employer here hires known alcoholics. Termination of such employees for work-related misconduct under § 443.06 is not precluded simply because the grounds of that misconduct are related in some manner to the employee's resumption of drinking. Appellant does not argue that the alcoholic employee who relapses is thereby guilty of misconduct under § 443.06. On the contrary, because appellant seeks to hire and maintain a staff of sober alcoholics, both by way of affording jobs for those hired and to set an example for those being treated, appellant clearly recognizes the recurrent problems associated with alcoholism. It is not the purpose of Florida Statutes, Chapter 443 to penalize the termination, under proper circumstances, of such an employee.
Appellees, as support for their argument that the decision below should be affirmed, cite Rule 8B-2.17(5)(d), FAC:
Where the individual's use of alcohol and drugs is a factor in his being discharged, consideration must be given to the possibility of the individual's being addicted to these substances. When it is determined that the individual is suffering from alcoholism or drug addiction, in the medical sense, and that condition is a factor in his separation from employment, it is appropriate to consider the alcoholism or drug addiction as an illness in determining the individual's eligibility for benefits.
We need not consider the administrative rule because it was not in effect at the time of Davis' termination and because he was not fired for alcoholism.
Accordingly, the order below is REVERSED.
ROBERT P. SMITH, Jr. and BOOTH, JJ., concur.
SHAW, J., dissents with opinion.
The responsibility of the district court of appeal on review of administrative action is to determine whether there is substantial competent evidence to sustain the agency's action. Boyette v. State, Professional Practices Council, 346 So.2d 598 (Fla. 1st D.C.A. 1977); § 120.68(10), Florida Statutes (Supp. 1978). The court's reversal of agency action granting unemployment compensation benefits is predicated upon its conclusion that Davis is guilty of misconduct defined as:
Conduct evidencing 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 employee . . .
The conduct resulting in discharge occurred during an alcoholic relapse. Critical to a review of the appeal referee's decision to grant benefits is a determination of whether the record contains competent substantial evidence to support a conclusion that the alcohol-induced conduct of Davis was nonvolitional. Ann McBride, the supervisor on whose recommendation Davis was fired, testified that her recommendation was based upon his continued drinking after being told to desist; his failure to report for work, and his refusal to take treatment.
Supportive of the referee's determination to award benefits was the testimony of Mrs. McBride, the mental health nurse; Mr. Jacobson, the clinic director, and Mr. Speece, program administrator. A fair capsulization of their testimony reflects their concurrence in the American Medical Association's conclusion that alcoholism is an illness. Their aggregate testimony further supports the conclusion that once an alcoholic takes his first drink he must continue to drink and is no longer in control of his actions. The logical conclusion to be drawn from such testimony is that once Davis began drinking his behavior towards his employer was neither deliberate, willful or wanton, but rather conduct wholly consistent with that of an imbibing alcoholic; conduct that should have been expected by a clinic that employs and deals in the treatment of alcoholics.
The majority opinion relies, in part, upon the court's determination that termination of employment for work-related misconduct is not precluded simply because the grounds of that misconduct are related in some manner to the employee's resumption of drinking. This approach, in my opinion, misses the issue. No one questions the clinic's right to fire a disruptive or unmanageable employee. The employer's election to fire the employee does not, however, automatically disqualify the employee relative to unemployment compensation entitlement. The disqualification must be based upon a showing that the employee has willfully engaged in disqualifying conduct. The present record supports the referee's conclusion that once Davis began drinking his illness exacerbated and his conduct towards his employer was neither deliberate, willful or wanton and it therefore afforded no basis for disqualification.
Medical opinion is divided on whether the alcoholic's first drink is volitional. Courts, in attempting to come to grips with the issue, are equally divided. California has concluded that it is a factual determination to be made by the trier of fact. Jacobs v. California Unemployment Insurance App. Bd., 25 Cal.App.3d 1035, 102 Cal.Rptr. 364 (1972). This position is apparently adopted by Florida as evidenced by the agency's promulgation of Rule 8B-2.17(5)(d), FAC. Minnesota, on the other hand, takes the position that it is unrealistic to think that an alcoholic will maintain total abstinence. In reversing agency action denying unemployment benefits the Minnesota court states:
. . . This finding by the Commissioner ignores the nature of the disease of alcoholism and is predicated on the belief that once an alcoholic begins treatment he is able to control his actions. Alcoholism is a chronic illness characterized by remissions and exacerbations. . . . Given the nature of the disease, it is unreasonable to require the employee to maintain total abstinence even after he enters treatment.
Moeller v. Minnesota Dept. of Transp., 281 N.W.2d 879 (Minn. 1979).
By ignoring the volitional or nonvolitional aspect of the appellee's conduct, this court appears to take a third approach; one of strict accountability. This, in my opinion, runs counter to the public policy underlying enactment of unemployment compensation law and the liberal construction to be accorded the claimant for whose benefit it exists. Spaulding v. Florida Industrial Commission, 154 So.2d 334 (Fla. 3rd D.C.A. 1963); Post-Times Company v. Turner, 123 So.2d 359 (Fla. 1st D.C.A. 1960). Under the majority approach, an alcoholic employee who has a relapse and is discharged for disruptive conduct will invariable be denied unemployment compensation.
I find the agency action in this instance supported by competent substantial evidence and see no reason to disturb the referee's decision.