Although the COBRA statute never defined gross misconduct — leaving it up to the courts — no dictionary is needed when an “out-of-control” employee screams profanities at and makes seemingly threatening hand gestures toward another employee, saying she would “get” hers. This behavior was “so manifestly so outrageous and extreme as to constitute gross misconduct,” a federal magistrate judge found. So ironically, the upset employee got his — he was fired and was deemed, along with his family, ineligible for COBRA continuation coverage.
Here’s what happened, in brief. Michael Berry was employed by Frank’s Auto Body Carstar, Inc. Both he, his wife and his three children were covered under the group health plan. Berry got into an admitted “shouting match” with another employee, calling her derogatory names, using profanities, telling her she would “get yours” and making “hand gestures” toward her. Other employees witnessed this, and even said he was “lunging at” the employee. After an investigation, Berry was fired. He and his family sued Carstar for COBRA notice violations (and other employment-law claims) because he did not get a COBRA election notice. By the way, COBRA provides that if a covered employee is terminated from employment due to gross misconduct, COBRA coverage does not have to be offered.
The judge noted that although the term “gross misconduct” is not statutorily defined, and courts have not come to a universal definition, courts have generally defined it as conduct “so outrageous that is shocks the conscience[,]” or as “misconduct that is ‘intentional, wanton, willful, deliberate, reckless or in deliberate indifference to an employer’s interest.” However, mere negligence, incompetence or inadvertent misbehavior does not constitute gross misconduct. Accordingly, courts have found gross misconduct to be present in situations such as: “where a drunken employee crashed an employer-provided car; where an employee called a co-worker a racial slur and threw an apple at her; where an employee battered a co-worker, placing her in the hospital; where an employee stole from her employer; and where an employee repeatedly and persistently refused to follow the instructions of his supervisor ….”
Applying those principles to this case, the judge noted that Berry’s misconduct was not inadvertent, nor did it stem from negligence or incompetence. It was clearly gross misconduct. And the ramifications of his wrath impacted his family, who also lost out on COBRA coverage. The judge pointed out that courts have persuasively held that if an employee is terminated for gross misconduct, the plan administrator does not have to provide COBRA coverage to the employee and the covered family members.
The case, Berry v. Frank’s Auto Body Carstar, Inc., Case: 1:10-cv-00378-JGW (S.D. Ohio, Sept. 19, 2011) can be found below.