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

RICHARD J LUDENIA, Employee

MOODYS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01200125NR


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 one and one-half years as a parts counter worker for the employer, an automobile dealership. His last day of work was December 26, 2000 (week 53), when he was discharged for sleeping on the job.

In November of 2000 the employee began taking medication that can cause drowsiness. On November 6, 2000, he was preparing for an inventory. He was sitting on the floor in an aisle and fell asleep. The manager warned him that sleeping on the job was not permitted.

On December 26, 2000, the employee fell asleep at about 4:40 p.m. sitting in the parts manager's office with his feet up on the desk. The lights were turned off. The manager watched the employee sleep for about eight minutes. The employee was then discharged.

The issue to be decided is whether the employee was discharged for 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.

In order to find that the employee engaged in misconduct it must be demonstrated that he was acting intentionally when he fell asleep at work. See, Seelow v. Scapa Rolls (Neenah) LP, UI Dec. Hearing No. 00403067AP (LIRC Dec. 20, 2000).

The employee fell asleep on the job on two separate occasions. He was warned after the first occasion that sleeping on the job was not acceptable. The facts surrounding his second occasion of sleeping on the job indicate that he did not inadvertently fall asleep. There was no reason for the employee to have been in the parts manager's office at the time he was found asleep. The employee was in the office with the lights off. The employee did not provide a credible explanation for being in the darkened office. The employee testified he was in the office reading literature for the new trucks that were coming up. He also testified the lights were off because he had a migraine. The commission does not find the employee's testimony credible. It does not make sense that the employee would have the lights off if he went to the office to read. Further, it does not make sense that someone with a migraine headache would be reading or reading in the dark. Finally, neither after the first incident nor after the second incident did the employee indicate that his sleeping was related to medication he was taking. While the medication indicates it can cause drowsiness the directions indicate it is to be taken before bed.

The commission therefore finds that in week 53 of 2000, the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $4484.00 for weeks 1, 15 and 16, and 32 through 43 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 53 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 $4484.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on December 27, 2000, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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 February 8, 2002
ludenri . urr : 132 : 1 : MC 659.01

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding her impressions of witness credibility and demeanor. The ALJ credited the employee's testimony that the medication he was taking caused drowsiness and led to his falling asleep. As noted above, the medication was to be taken before bedtime. Further, at the times he was found asleep he did not mention that he was on medication that caused drowsiness.

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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