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

SCOTT R BOLLMAN, Employee

WISCONSIN BELL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01603126MW


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 about 21 years for the employer, a telecommunication company. He was last employed as a customer specialist up to February 5, 2001, his last day of work, when he was suspended by the employer. He was notified of his termination by the employer on February 23, of 2001 (week 8), for violation of the employer's work rules.

The issue which must be addressed 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."

On January 31, the employee arrived at work, and heard a co-worker complaining about the vacation schedule of an African American co-worker. The employee then saw the co-worker make a noose and hang it over the African American co-worker's desk. The employee added a note, saying "it's a black thing" to the noose. When the African American co-worker observed the noose and note he became upset and commented that this had gone too far. After an investigation the employer decided to terminate him for violation of the employer's policy against harassment in the workplace.

The employer's policy forbade this type of conduct. The employee testified that he intended to write, "it's not a black thing. 4 weeks?" on the note, but omitted the "not" when he placed it on the rope. The commission did not find this to be particularly credible. The employee stated that the African American co-worker had mentioned watching a Western movie the prior evening. If the employee intended to identify the noose as symbolizing the Old West, he should have explicitly done so. His use of the word "black" identifies the noose as being associated with race, whether he said it was or was not a "black thing."

The employee's co-workers testified that racial and ethnic jokes were common at the employer's workplace, and that the African American co-worker participated in racial jokes. This individual also made jokes of a violent nature. The employee also testified he was a friend of the African American co-worker and they would see each other socially. However, even if the commission credited his testimony that he did not intend to upset the co-worker, the fact remains that the employee's note was discriminatory, threatening and inexcusable. As such, the employee's actions amounted to such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 8 of 2001 the employee was discharged 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 for weeks 9 through 18 of 2001, amounting to a total of $3,130.00 for which he was not eligible and to which he is not entitled, within 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), 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 8 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. He is required to repay the sum of $3,130.00 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 April 23, 2002
bollmsc . urr : 145 : 8   MC 666.01  MC 673 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ thought that the employee intended the note to be a joke. The ALJ stated that he thought this was in part because the evidence demonstrated that he and the co-worker were friends. As such, the ALJ thought the employee had no motive to make a statement like this unless he intended it as a joke. The ALJ also found the co-workers who testified to be very credible. The ALJ pointed out that the co-workers uniformly backed up the employee, stating that these were efforts to create a little levity in the workplace. They also gave specific examples of give and take in the workplace. As a result, the ALJ found credible the employee's testimony that he had written the note as a joke. Even if the employee meant the note as a joke, the commission simply cannot find his statement that the note was not meant to attach a racial meaning to the noose to be credible. Additionally, the employee's actions in attaching a racially charged note to the noose, even if he intended no harm, were so far beyond what is socially acceptable as to amount to misconduct connected with his work.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other 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 over payment.

cc: 
Ameritech
Robert C. Tibbits


Appealed to Circuit Court. Affirmed November 27, 2002. [Summary of Circuit Court decision]

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uploaded 2002/04/26