GENTSCH, LARSEN, TRAAD, M. D., ET AL., APPELLANT,
v.
FLORIDA DEPARTMENT OF LABOR AND UNEMPLOYMENT SECURITY, UNEMPLOYMENT APPEALS COMMISSION AND MARILEY G. NEIN, APPELLEES
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The Florida District Court of Appeal affirmed the Unemployment Appeals Commission's decision granting unemployment benefits to a medical office employee who was terminated for poor performance rather than misconduct. The court held that because the employer chose to discharge the employee based on failure to meet performance standards rather than the employee's earlier unauthorized letter-writing incident, the employee was entitled to unemployment compensation.
The employee is entitled to unemployment compensation benefits because the employer discharged her for failure to meet performance standards, which is distinct from misconduct under the unemployment compensation statute. The court affirmed the Commission's finding that the discharge was based on poor performance, not misconduct.
[1] An employee discharged for failing to meet performance level requirements is entitled to unemployment compensation benefits, as this is distinct from misconduct.
[2] An agency's findings of fact in unemployment compensation cases are not subject to substitution by a reviewing court.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Her employer chose not to utilize this act as a basis for termination but waited until August 3, 1979 to discharge her for a poor performance level, which is obviously different from misconduct pursuant to the cited statute.”
Establishes the critical distinction between discharging for misconduct versus poor performance, which determines eligibility for unemployment benefits.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMs. Nein worked for a medical professional association. In March 1979, she wrote an unauthorized letter on behalf of a patient regarding pacemaker sur…
The full statement of facts, procedural history, and disposition for this case are member content.
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NESBITT, Judge.
The issue before us is whether a terminated employee is entitled to unemployment compensation benefits. Finding that the record supports the conclusion of the Unemployment Appeals Commission that the employee is so entitled, we affirm.
Ms. Nein was discharged by Drs. Gentsch, Larsen, and Traad on August 3, 1979. She applied for unemployment compensation on August 26, 1979, which claim was allowed by an examiner on September 27, 1979. The employer filed an appeal of that award which was affirmed by an appeals referee. Pursuant to Section 443.07(4)(c), Florida Statutes (1979), the findings of the referee were then appealed to the Commission which also affirmed the allowance of the benefits. The employer now brings this appeal to this court as authorized by Florida Rule of Appellate Procedure 9.110(a)(2).
The sequence of events leading to Ms. Nein’s discharge was as follows:
On March 19, 1979, Ms. Nein composed a letter for a patient of the professional association stating that the patient had undergone surgical removal of a defective pacemaker because of its premature failure. Ms. Nein was not authorized to write such a letter and the act of doing so ultimately placed the professional association in an embarrassing legal dispute between the pacemaker company and the patient. The professional association first became aware of Ms. Nein’s alleged misconduct on May 23, 1979. Her annual performance evaluation was then pending. The employer decided not to discharge Ms. Nein at that time because of the length of her employment and because “she should be given the opportunity to never do it again.” The decision on her performance evaluation was postponed.
On June 28, 1979, Ms. Nein insisted upon a determination of her pending performance evaluation as a favorable report would increase her salary. She also requested that any raise be made retroactive to May when raises for other employees went into effect. Her performance evaluation culminated in a determination that she did not meet the required performance levels for which reason her employment was terminated on August 3, 1979. Ms. Nein then filed for unemployment benefits and a series of appeals leading to the instant one commenced.
We need not and do not determine whether the previous alleged act of misconduct on the part of Ms. Nein would have warranted her termination without entitlement to unemployment compensation benefits pursuant to Sections 443.06(l)(b) and 443.06(9)(a), Florida Statutes (1979).1 Her employer chose not to utilize this act as a basis for termination but waited until August 3, 1979 to discharge her for a poor performance level, which is obviously different from misconduct pursuant to the cited statute.
We are not authorized to substitute our judgment for that of the agency on disputed questions of fact. § 120.68(10), Fla.Stat. (1979); Andrus v. Florida Department of Labor and Employment Security, 379 So. 2d 468 (Fla. 4th DCA 1980); Perez v. Department of Labor and Employment Security, 377 So. 2d 806 (Fla. 3d DCA 1979). Here, the employers admitted and the agency found that Ms. Nein was discharged not because of the alleged act of misconduct but because of her inability to meet their performance level requirement.
Affirmed.
. 443.06 Disqualification for benefits.-An individual shall be disqualified for benefits:
(1) ...
(b) Disqualification for being discharged for misconduct connected with his work shall continue for the full period of unemployment next ensuing after having been discharged and until such individual has become reemployed
(9) For purposes of this section, misconduct includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) 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; or
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Cited By
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Doyle v. Fla. Unemployment Appeals Comm'n & Mid-State Fed. Sav. & Loan Ass'n, 635 So. 2d 1028 (Fla. 2d DCA 1994)…deciding this issue, we recognize that we have no authority to reweigh the evidence or to substitute our judgment for that of the UAC as to any disputed finding of fact. Gentsch, Larsen, Traad, M.D. v. Florida Dep’t of Labor & Unemployment Security, 390 So. 2d 802 (Fla. 3d DCA 1980); § 120.-68(10), Fla.Stat. (1991). We also acknowledge that we cannot overturn its decision unless we determine that there is a lack of competent, substantial evidence in the record to support its action. Andrus v. Florida Dep’t of…
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Odom v. Unemployment Appeals Comm'n, 586 So. 2d 504 (Fla. 5th DCA 1991)…. See Rycraft v. United Technologies, 449 So. 2d 382 (Fla. 4th DCA 1984) (inefficiency and substandard performance are not misconduct where they result from inability): Gentsch, Larsen, Traad v. Florida Department of Labor and Unemployment Security, 390 So. 2d 802 (Fla. 3d DCA 1980) (employee who was discharged because of her inability to meet performance level requirement of employer was entitled to unemployment compensation).…1 / 2
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Morales v. Miccosukee Tribe OF Indians & Fla. Unemployment Appeals Comm'n, 658 So. 2d 641 (Fla. 3d DCA 1995)…PER CURIAM. Affirmed. See Gentsch, Larsen, Traad, M.D. v. Florida Dep’t of Labor and Unemployment Sec., 390 So. 2d 802 (Fla. 3d DCA 1980).…
Authorities Cited
- Perez v. State, 377 So. 2d 806 (Fla. 3d DCA 1979)
- Andrus v. Fla. Dep't of Labor & Emp. Sec., 379 So. 2d 468 (Fla. 4th DCA 1980)