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04/04/88 DOROTHE G. STEPP v. REVIEW BOARD INDIANA

Filed: April 4, 1988.

DOROTHE G. STEPP, APPELLANT (PLAINTIFF BELOW),
v.
REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION, JOHN C. MOWRER, AND JOE A. HARRIS AS MEMBERS OF AND AS CONSTITUTING THE REVIEW BOARD OF AND AS INDIANA EMPLOYMENT SECURITY DIVISION, AND, THE MEDICAL LABORATORY, APPELLEES (DEFENDANTS BELOW)



APPEAL FROM THE INDIANA EMPLOYMENT SECURITY DIVISION REVIEW BOARD, Cause No. (87-A-3548) 87-R-756.

Conover, J., Miller, P.j., and Staton, J., concur.

Author: Conover

CONOVER, J.

Plaintiff-Appellant Dorothe Stepp (Stepp) appeals the decision of the Review Board of the Indiana Employment Security Division (Review Board) finding she was dismissed for just cause by the Medical Laboratory of Indianapolis, Indiana (Laboratory) when she refused to perform her assigned tasks on vials of bodily fluids with Acquired Immune Deficiency Syndrome (AIDS) warnings attached.

We affirm.

Stepp presents two issues for review,

1. whether the Review Board erred in finding Stepp had been dismissed for just cause, and

2. whether the Laboratory waived its right to compel Stepp to perform any tasks on fluids with an AIDS warning label attached.

The Laboratory presents one additional issue, whether Stepp waived any error by failing to adequately brief the issues.

The Laboratory performs chemical examinations on bodily fluids submitted by physicians. Some of the fluids come from individuals who may have AIDS. These fluids are in vials with warning labels attached. Stepp was employed by the Laboratory as a staff technician from April 1, 1977, until her discharge on February 27, 1987. Her duties included performing tests on fluids submitted to the Laboratory.

Stepp's supervisor, Christy Zurface (Zurface), had Discussions with Stepp concerning AIDS specimens being tested at the Laboratory and the proper safety procedures to be used with these specimens. Subsequent to this Discussion, Stepp refused to perform tests on specimens with AIDS warning labels attached. On February 10, 1987, Stepp was asked by Zurface to perform a test on a specimen with the AIDS precautionary label. She refused. On February 13, Stepp was informed a refusal to perform a test on any specimen would be considered insubordination and subject her to termination. Again, Stepp refused to test samples with AIDS precautionary labels. For this refusal, Stepp was suspended for three days in accordance with the Laboratory's disciplinary policy for insubordination.

On February 16, Stepp, Zurface and the Laboratory's business manager, Patricia Wynne (Wynne), met to discuss Stepp's suspension. Stepp contended she had refused to perform the tests for more than a year and was therefore exempt. Zurface and Wynne discussed with Stepp the safety precautions for handling specimens with AIDS precautionary labels. Stepp said she was not concerned with safety and refused to perform the tests because "AIDS is God's plague on man and performing the tests would go against God's will."

The Laboratory had a safety manual informing employees of precautions they should take when performing tests on potentially infectious specimens. The Laboratory provided masks, aprons, gloves and disinfectants for protecting workers from infectious specimens. Although the Laboratory had no specific safety policy for the handling of AIDS specimens, the topic was discussed at in-service education seminars and meetings.

After returning from her suspension, Stepp was again asked to perform tests on specimens with AIDS precautionary labels. Stepp refused and was discharged. After Stepp was discharged she sought unemployment compensation. A deputy from the Indiana Employment Security Division denied her benefits because she had been discharged for just cause. An appeals referee affirmed the deputy's decision. The Review Board ...


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