Wis.LIRC UC Decision: Robinson - January 31, 2001 - MC 640.05 - Insubordination, Dispute with superior - under the circumstances, employee's "angry outburst" at supervisor was not misconduct; MC 665.08 -Relation of offense to discharge - Acts committed or discovered after discharge - employee's attack on supervisor occurred after he discharged her, decision to discharge was thus not based on it, and commission cannot consider it in determining if discharge was for misconduct

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MARIA L ROBINSON, Employee

NUTRITION FIRST PROCESSING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00002421JF

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about 17 months as a packer and office manager for the employer, a pet food manufacturer. Her last day of work was March 27, 2000 (week 14), when the employer terminated her employment.

The issue to be decided is whether the employee's actions, for which she was discharged constitute misconduct connected with her employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The plant manager began having a romantic relationship with the employee in early December of 1999. The plant manager offered the employee an opportunity to fill the vacant position of office manager. On about January 30, 2000, the employee told the plant manager that she would no longer date him. The plant manager would then tell the employee she was "stupid" among other things. On about February 14, the plant manager hired another person to fill the office manager position, and demoted the employee to a packer.

On February 17, 2000, the plant manager suspended the employee's employment for half a day because she had a co-worker punch in for her while she remained in the parking lot until the bus arrived to take her children to school. The co-worker was not disciplined and the employee believed that she was being disciplined because she had broken off the romantic relationship with the plant manager. After she returned to her job as a packer, her supervisor stated that the plant manager told him to keep her and another co-worker separated by assigning them to different jobs in different parts of the plant because the plant manager suspected that they were having an affair. The employee became concerned that the plant manager would terminate her employment in the near future.

On March 14, 2000, the employee had an argument with her supervisor, and told him to stay out of her private affairs.

The following Monday, March 17, the plant manager spoke to the employee about the argument with her supervisor. The employee stated that the plant manager could tell her what to do at work, but not what she could do with her personal life. The argument escalated and both sides began yelling at each other. The employee did swear at the plant manager. The plant manager then told the employee to sweep the warehouse until she calmed down. The employee left the plant manager's office and went to get a broom when the plant manager came out of the office. They stood by the office door and the employee asked the plant manager why he was treating her in this manner. The plant manager told her she was suspended and punched her timecard out. The employee followed him and said she had a family to feed and that she was not suspended. She punched herself back in. She went back into the office and the argument continued. Thereupon the plant manager discharged the employee. The employee thereupon "lost it" and threw a bran muffin and coffee at the plant manager. She also physically attacked the plant manager.

The employee's actions in attacking the plant manager were egregious and the commission cannot condone them. However, the attack did not occur until the employee had been discharged and the decision to discharge the employee was not based on it. Therefore the commission cannot consider the attack in determining whether the discharge was for misconduct connected with the employee's employment.

The employee was also at fault for both arguing with her supervisor and the plant manager. The plant manager had treated the employee poorly, however, and the employee testified that she was upset about this. Further, the employee had been suffering from depression, and although she was taking medication prescribed by her doctor, she was not taking enough medication because she was concerned with being drowsy at work. The employee's certified medical report indicates that anxiety symptoms are nervousness, fear, and anger, however, the report does note that the employee's medication should have helped resolve these problems. The employee's doctor further noted that his understanding was that the employee's "angry outburst" was caused by the plant manager's unfair treatment of the employee rather than as a result of medication or any defect in the employee's personality. The commission notes that the testimony of the employee and Mr. Stelse was that both the employee and the plant manager were talking with raised voices. While her actions are certainly not to be condoned, the employee was upset by the circumstances of her employment and her engaging in the argument amounted to an isolated instance of poor judgment and do not rise to the level of misconduct connected with her work.

The commission therefore finds that in week 14 of 2000, the employee was discharged but that the discharge was not for misconduct connected with her work, within the meaning of Wis. Stat. � 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 14 of 2000, if she is otherwise qualified.

Dated and mailed January 31, 2001
robinma.urr : 145 : 3 MC 640.05 MC 665.08

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. However, the commission did not reverse the ALJ's decision because of a different impression of witness credibility and demeanor but based on the evidence adduced at the remand hearing and because it reached a different legal conclusion based on the facts in the record.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. First, I do not condone the plant manager's conduct in having an affair with the employee and then demoting her after she no longer wanted to date him. A major problem with the case from the employee's point of view is that she was fired, she did not quit. The employee was insubordinate when she did not following the employer's instructions to go sweep until she cooled off. Even if the plant manager had instructed her supervisor to keep her separated from a co-worker because he believed they were having an affair, the employer had the right to do that at work. If the employee had quit, then how she was treated by the employer would have been an issue.

When the employee asked the employer why he was treating her this way, the employee continued the argument and the employer suspended her and punched out her time card. The employee disregarded the employer's decision and punched the card in again. The discharge does not depend on the employee throwing the muffin at the employer or physically attacking him. The employer did give her a second chance and she did not take the chance. Instead she escalated the fight. The employee was clearly insubordinate and that is misconduct.

The majority mentions the employee's depression but there is no support that she was not able control her behavior so that does not excuse the insubordination.

For these reasons, I agree with the administrative law judge and would affirm his decision.

__________________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY JOHN CHAVEZ
LONIELLO JOHNSON SIMONINI & CHAVEZ

NFP

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