PAULA L BLAN NASH, Employee

PARISIAN INC, Employer

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:

The employee worked about one year as a sales associate for the employer, a department store. Her last day of work was December 8, 2000 (week 50), when she was discharged.

The employee was a no-call/no-show on August 20, 2000. On August 23, 2000, her supervisor and a manager were discussing her behavior and scheduling needs with her when she got up and left the room. The employee left the room after being told to retake her seat because the meeting had not been concluded. Later, the employee made a commitment to speak with the supervisor the next day but did not do so. The employee was warned that any further instances of attendance deviations, insubordination, conduct creating discord, or any other behavior that deviated from conduct expected of her, as reflected in the associate handbook, would result in further disciplinary action including termination.

On November 30, 2000, the employee and another worker rearranged another associate's area by moving mannequins, disheveling merchandize, and moving merchandize from its proper area. The employee was getting back at the other worker for messing up her area.

The issue to be decided is whether the employee's discharge was for 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' with in the meaning of the statute."

The employee had been clearly insubordinate on August 23, 2000. She was warned that further inappropriate conduct would result in her discharge. The employee's actions on November 30, 2000, were childish. Her actions were also an unproductive use of work time. The employer understandably did not wish to pay the employee for engaging in such conduct. The employee's actions evinced an intentional and substantial disregard of the employer's interests and standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 50 of 2000 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $4,795.00 for weeks 51 of 2000 through week 23 of 2001, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 50 of 2000, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $4,795.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed July 6, 2001
blannpa . urr : 132 : 1 : MC 610  MC 640.01  MC 656 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The commission did discuss witness credibility and demeanor with the administrative law judge. The administrative law judge found unpersuasive the employee's testimony that she did not engage in the conduct alleged by the employer. The commission likewise does not credit the employee testimony. The commission disagrees with the administrative law judge's legal conclusion that the employee's conduct did not rise to the level of misconduct.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: Boston Store Southridge

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uploaded 2001/07/09