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Vargas v. Northwest Area Foundation

January 20, 2004

MARIO S. VARGAS, RELATOR,
v.
NORTHWEST AREA FOUNDATION, RESPONDENT,
v.
COMMISSIONER OF EMPLOYMENT AND ECONOMIC DEVELOPMENT, RESPONDENT.



Department of Employment and Economic Development File No. 12590 02

Considered and decided by Toussaint, Chief Judge; Anderson, Judge; and Poritsky, Judge.*fn1

SYLLABUS BY THE COURT

Refusing to participate in a reasonable employment-performance plan is an intentional disregard of employment duties and constitutes employment misconduct disqualifying a discharged employee from receipt of unemployment benefits.

The opinion of the court was delivered by: G. Barry Anderson, Judge

Affirmed

OPINION

Relator appeals the commissioner's representative's decision disqualifying him from the receipt of unemployment benefits as a result of a discharge for employment misconduct for refusing to participate in the employer's performance-improvement plan. Because we find that relator refused to attempt performance of the improvement plan and because refusal to attempt performance of any part of the improvement plan is employment misconduct, we affirm.

FACTS

Relator Mario Vargas was employed as an Associate Community Liaison for Northwest Area Foundation (NWAF) from June 2000 until June 19, 2002. Ellery july,*fn2 NWAF's new Director of Community Activities and Learning, became concerned with various aspects of Vargas's job performance: Vargas was late and unprepared for meetings; he did not treat team members with respect; and he charged excessive amounts to business credit cards. Vargas's direct supervisor, Lisa Hinickle, further noticed that Vargas failed to follow through with assignments and reacted negatively to constructive criticism.

On April 9, 2002, Vargas orally complained of a hostile work environment to NWAF's human resource department and on April 25, he submitted a formal, written complaint. NWAF decided to investigate Vargas's complaint separately from the company's concerns with his job performance and gave Vargas's supervisors permission to continue to work with the employee on the performance issues. After several requests, however, Vargas failed to provide specific instances or documentation for his complaint. NWAF conducted a formal investigation and on June 14, 2002, concluded that Vargas's complaint was unfounded.

Before notification of Vargas's complaint, july emailed Vargas to inform him of both july's concerns and his desire to make clear july's expectations. On April 18, july met with Vargas to discuss july's concerns. Vargas asserted that july was a liar and was, among other allegations, racially harassing him. But, when asked to expand, Vargas did not answer. After the meeting, july sent Vargas a second email stating his desire for the two to reach a positive outcome. Hinickle, july, and Vargas met again on May 14, 2002. Vargas was unable to provide july with any specific allegations of harassment as requested but again accused july of harassment and retaliation. When july asked Vargas if he wished to be involved in resolving NWAF's performance concerns, Vargas refused.

On June 10, 2002, july and Hinickle presented Vargas with a performance-improvement plan they had created and informed him of the requirements, deadlines, and need to complete it in order to remain employed. The first part of the plan, to be completed within seven days, required Vargas to research training programs on the issues july had discussed with him. Vargas said he understood the requirements, and on June 12, 2002, Vargas sent a memo to Hinickle stating that he had fully cooperated with july by attending the meetings, the performance plan was in retaliation for his complaint, and he would only reluctantly be involved.

Seven days later, Vargas had not fulfilled any of the requirements of the plan. Hinickle and july stated that when they asked Vargas whether he intended to complete the plan, he said no. Vargas was sent home, and after another unsuccessful meeting, Vargas's employment was terminated on June 19, 2002. The commissioner's representative found that Vargas was discharged for ...


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