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

JENNIFER L KOPPELMAN, Employee

BANK ONE WISCONSIN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02600092MW


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 nine months, most recently as a customer service associate 2, for the employer, a financial institution. Her last day of work was November 16, 2001, and she was discharged on November 21, 2001 (week 47).

The employer's work rules provide, in relevant part, that the closing of a customer's account requires the execution of a savings advice document that contains, among other things, the signature of the customer, identifying information concerning the customer, and the employer's worker initiating the transaction. While the work rules require the presentation of all this information, there are occasions at the workplace when a savings advice will be processed without some of those informational components.

On September 25, 2001, the employee processed a savings advice, which required the closure of a customer's savings account. The savings advice did not contain the customer's signature or driver's license number. The employee presented the savings advice to a teller who executed the advice and gave the employee approximately $3,100.00. The employee completed her workday within ten minutes after the completion of this transaction and left the workplace. Approximately one week after the closing of the account, the customer contacted the employer and informed it that no authorization had been given to close out the account. The customer further informed the employer that he had not received the proceeds from the closed account. Thereafter, the employer conducted an investigation which included questioning the employee's co-workers and reviewing videotape of the workplace which showed the events of September 21 and 25, 2001. During the investigation, the co-worker identified as the private banker on the savings advice informed the employer that he did not initiate the savings advice.

In early November of 2001, the employer met with the employee and reviewed the videotape, asking if she recalled the events of that day and what happened to the cash withdrawn from the account. The employee explained that she processed a number of transactions and did not remember that one specifically. On November 15 and 16, 2001, the employer's investigator met with the employee to again review the transaction. The employee acknowledged that the videotape showed her receiving the cash. The employee stated that she could not recall where she initially found the advice and what she had done with the cash. At first, the employee indicated that she did not know the customer whose account had been closed. She later admitted that she knew the customer's name, and that there was a relationship between the customer and her boyfriend. On November 16, 2001, the employer informed her that she was suspended pending further investigation. On November 21, 2001, the employer informed her that she was discharged from her employment for her involvement in the savings advice processed on September 25, 2001.

The issue to be decided is whether the employee's discharge was 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 commission finds that the employee removed and retained the $3,100.00 from the account of the employer's customer. The employee received the cash but could not explain what she did with the cash. She exited the building soon after obtaining the money. The money was not found at the workplace and has never been accounted for. The employee could not explain how or why she initiated the withdrawal. The circumstances surrounding the incident, particularly the employee's alleged lack of any recall concerning it, and the connection between the employee's boyfriend and the customer, lead the commission to infer that the employee deliberately and dishonestly conducted an unauthorized withdrawal from a customer's account. Her behavior evinced an intentional and substantial disregard of the employer's interests and of standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 47 of 2001, the employee was discharged for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $3,717.00 for weeks 48 through 52 of 2001 and weeks 1 through 16 of 2002, 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).

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 47 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 $3,717.00 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 May 2, 2002
koppeje2 . urr : 132 : 1 : MC 630.05 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the ALJ who presided at the hearing. The ALJ found the employee to be credible and her lack of recall about the incident to be genuine. The commission disagrees with the ALJ's credibility assessment.

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.

cc: Bank One Wisconsin (Fox Point, Wisconsin)


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2002/05/10