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

KATHERINE A SMITH, Employee

PIZZA HUT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01002476MD


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 six months as a shift manager for the employer. Her last day of work was December 21, 2001. She was discharged from her employment on March 22, 2001 (week 12).

The general manager witnessed the employee being rude to customers about three weeks before her last day of work and admonished her to calm down and deal with people better. The employer's employee handbook provides that workers are to be courteous to customers. A week or two before the employee's last day of work the employer had a meeting with managers about treating workers and customers better. The employee attended that meeting.

On the employee's last day of work she was upset with a customer placing a phone order. She hung up the phone and referred to the customer as a "fucking bitch." The shift manager asked the employee what she had just said. The employee replied, "The fucking bitch kept changing her order. She didn't know what she wanted." The customer came in to get the order. The customer told the employee that the order was wrong. As the customer started walking to sit down the employee stated, "I wished I could go out there and pull that bitch's hair out." The customer returned to the counter and asked the employee what the employee had said. The employee replied that she had not been speaking about the customer but about someone else. The shift manager witnessed this exchange. The shift manager spoke with the customer to calm the customer down. The shift manager took $37.00 off the customer's bill and then reported the incident to her supervisor.

The customer called the employer's general manager that night and reported overhearing the employee state that she wanted to pull the customer's hair out. The customer was still upset. The employee was discharged for rudeness to customers.

The issue to be decided is whether the employee was discharged 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 admitted that after she hung up the phone after taking the order on the day in question she said the customer sounded like a bitch. She denied saying anything about pulling her hair out. The commission does not credit the employee's denial. The employee made a threatening comment about a customer in the customer's hearing. The employee's comment followed previous disparaging comments about this same customer. The employee had been rude to customers in the past. The employee had been warned in the past that she needed to be courteous. She had recently attended a meeting at which she was reminded of the need to be courteous to customers. The employee knew she was supposed to be professional, courteous and respectful to customers and co-workers. The employee's repeated failure to maintain a decorous manner with customers evinced an intentional and substantial disregard of standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 12 of 2001, 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 $3,268.00 for weeks 12 through 25 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 12 of 2001, 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 $3,268.00 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 December 12, 2001
smithka . urr : 132 : 1 : MC 610.25

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did speak to the ALJ regarding witness credibility and demeanor. The ALJ believed the employee was speaking to a co-worker and did not intend for the customer to hear the comment. The commission disagrees with the ALJ's finding regarding the employee's intent. The employee did not simply state she did not intend the customer to hear her, she testified under oath that she did not say anything about pulling anyone's hair out. The employee opined that the shift manager just had her confused with someone else on the date in question. The employee was not truthful. The ALJ found as a fact that the employee made the comment and the commission agrees with such finding. This was not an isolated incident. The employee had been warned in the past that she needed to be courteous to co-workers and customers.

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.


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uploaded 2001/12/17