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

REGGIE NELSON, Employee

MARSHALL & ILSLEY CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01609020MW


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 approximately 11 months as a security guard for the employer, a banking institution. The employee's last day of work was July 30, 2001 (week 31) when the employee was discharged for sexually harassing a female co-worker and violating the employer's written sexual harassment policy.

On December 15, 2000, the employee received a verbal warning and counseling concerning his comments and observations toward female customers and employees. On May 30, 2001, the employee received a written warning for behavior that created an uncomfortable environment for the employer's female employees. The employer's warning referenced the employee's comments on an employee's weight loss, asking female employees if they were married or in love, asking for rides home from females and telling females what the employee liked about them. The May 30 warning indicated that if the employee failed to make substantial improvement, and maintain an acceptable performance level he would be subject to further discipline up to and including termination of his employment.

The final incident that led to the employee's discharge occurred on July 30, 2001. While the employee was standing in the cafeteria line behind a female human resource trainee, the cashier asked the female trainee why she was smiling. The female trainee responded to the cashier that "God made her smile." The employee interrupted by saying to the female co-worker, "God can bless you up there but I can bless you down here." The female trainee reported the comment to management.

The employer discharged the employee for violating its harassment policy which prohibits, in part, unwelcome sexual advances, sexual comments, jokes, stories or innuendoes.

The issue for review is whether the employee's discharge is for misconduct connected with his employment within the meaning of the law. 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 argues that his July 30 comment was not sexual in nature but religious in nature. The commission disagrees. Based upon the context of the employee's comments, a reasonable inference can be made that it was sexual in nature as well as harassing, intimidating and offensive. Additionally, the employee was discharged for failing to improve his relations and treatment toward female co-workers and customers. The employee received several warnings and counseling concerning the nature and expression of his comments toward female employees and customers. The employee failed to follow the employer's warnings and directives as reflected by his July 30 comment. Therefore, the employee's overall conduct, despite warning and counseling, violated the employer's harassment policy and as such constitutes an intentional disregard of the employer's interests and of the standard of conduct the employer had a right to expect of the employee.

The commission therefore finds that the employee was discharged in week 31 of 2001, for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04 (5).

The commission further finds that the employee was paid benefits amounting to a total of $4863 to which he is not eligible and to which he is not entitled, with in the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), be cause although the over payment 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 31 of 2001, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay $4863 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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed March 15, 2002
nelsore . urr : 135 : 3  MC 668  MC 673

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission conferred with the administrative law judge as to his credibility impressions of those who testified. The administrative law judge explained that he found the employee's testimony that the July 30 comment was religious in nature credible, in part, because the employer did not bring the human resource trainee to the hearing. While this witness's appearance may have been helpful, the commission believes on this record a reasonable inference can be made that the employee comment was sexual in nature. Therefore, the employee's July 30 comment, coupled with his previous behavior for which he was warned, constitutes misconduct connected with his employment within the meaning of the law.

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uploaded 2002/03/20