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

PETER  J  LOOMANS, Employee

WAL MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01602370WK


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 as a sales associate from September, 2000 for the employer, a retail store. He was discharged on January 15, 2001 (week 3).

The employer discharged the employee for inappropriate behavior with customers on several occasions. On December 11, 2000, the employee's manager received a complaint that the employee had hugged and kissed a customer. When he was confronted by the employer, he admitted the conduct and was promptly discharged. He was rehired on December 15, 2000, on the condition that he not repeat the conduct and with the understanding that a further such incident would lead to discharge. On his last day of work the employee again hugged and kissed a customer who was offended and complained to the employer. The employee was discharged the same day.

The employee suffered a traumatic brain injury in the past which caused him residual problems including emotional impulsivity and impulsive behavior towards women. He was undergoing treatment for this condition throughout the period at issue.

The issue is whether the employee's medical condition caused the employee's conduct and if so whether he committed intentional misconduct connected with his 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 argued that his medical condition interfered with his ability to conform his behavior to the employer's requirements. In support of this contention, the employee present expert medical evidence indicating that his condition caused the conduct for which he was discharged. Under the circumstances, the commission sees no reason to conclude that the employee deliberately engaged in the conduct for which he was discharged. Rather, the conduct was the result of a medical condition over which the employee had no control.

In arriving at this conclusion, the commission recognizes that the employee's medical expert also indicated that the employee could understand the warnings he had been issued by the employer. However, the fact that the employee understood the warnings and knew that the employer objected to his conduct does not mean that his repetition of the conduct was undertaken with intent to harm the employer's interests. Where, as here, the employee's unacceptable conduct was caused by a medical condition, it does not amount to misconduct, within the meaning of the law.

Since the medical evidence establishes causation and the employee was actively pursuing treatment for his illness, he has established that he did not intend to harm the employer's interests when he hugged and kissed customers after he was warned not to. The employer had no reasonable alternative but to discharge him since he could not act appropriately, but without employee intent there is no misconduct.

The commission therefore finds that in week 3 of 2001, the employee was discharged but that the discharge was not for misconduct connected with his employment under Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for unemployment benefits beginning in week 3 of 2001, if he is otherwise qualified.

Dated and mailed August 31, 2001
loomape . urr : 178 : 1 MC 610.25   MC 640.03  PC 714.10 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

Since the credibility of the evidence was not at issue, the commission did not consult with the ALJ prior to reversing. The commission accepts the ALJ's findings but reaches a different conclusion of law based on the same medical evidence.

cc: Wal Mart Associates, Inc. (Wisconsin)


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uploaded 2001/09/05