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

LYNNE K FULLER, Employee

ANCHOR BANK FSB, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02001060MD


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 six years, most recently as a personal banker for the employer, a bank. Her last day of work was January 4, 2002. The employer discharged her on January 7, 2002 (week 2).

The employee was on a family medical leave of absence, which was to expire on December 10, 2001. The employer's assistant VP for human resources, Ms. McPeak, advised the employee in a November 30, 2001, letter as follows:

If you will not be able to return to work upon the completion of your leave, please notify me of this fact immediately. If you believe you are disabled, but could return to work with an accommodation, please contact me to discuss potential accommodations which would allow you to return to work upon the expiration of your leave.

If your leave does go longer than the anticipated date, please forward your Dr's certification to confirm the extension.

The employee did not return on December 11, did not contact the employer regarding any needed accommodations, and did not provide the employer with medical documentation to extend her leave. On December 19, 2001, the employee's doctor released her to light-duty work. The employee did not return to work at that time or notify the employer that she was released to light-duty work.

On December 28, 2001, a supervisor called the employee regarding returning to work. The employee did return to work on January 4, 2002, at which time she submitted the medical documentation, which released her to return to work on December 19.

On January 7, 2002, the employer's vice-president of human resources, along with the assistant VP of human resources and Ms. Moore, the branch manager of the Sun Prairie office, met with the employee regarding her failure to return to work prior to January 4. The employee's explanation for failing to return to work on December 19 was that her doctor had left the matter up to her. The employer telephoned the employee's doctor's office and learned that the doctor had not left it to the employee to decide when to return to work. The employer discharged the employee for failing to contact the employer after the December 10 and December 19, 2001, medical appointments and for failing to return to work when released to do so.

The issue to be decided is whether the employee was discharged for misconduct connected with her work. 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 had been given explicit instructions designed to address a number of scenarios that might arise during and at the end of her leave. If she could not return to work on December 11 she was to contact the employer and provide medical evidence justifying her continued absence. The employee failed to do so. The employee likewise failed to contact the employer after her December 19 appointment. She was released to light-duty work and, as reflected in the November 30, 2001, letter was expected to contact the employer to discuss accommodations. She failed to do so. The employee was absent from December 19, 2001, until January 4, 2002, without valid reason and without notice to the employer. Such conduct evinced an intentional and substantial disregard of the employer's interest in having workers appear for work as scheduled, unless absent for a valid reason and with notice to the employer.

The commission therefore finds that in week 2 of 2002, 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 $4,254.00 for weeks 3 through 28 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 2 of 2002, 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 $4,254.00 to the Unemployment Reserve Fund. The initial benefit computation (form UCB-700) issued on January 9, 2002, is set aside. If benefits become payable based on work performed in other 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 July 26, 2002
fullely . urr : 132 : 1 : MC 605.03

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he found the employee to be a credible witness. The ALJ accepted the employee's testimony that she called a supervisor after her stitches were removed on December 10, and was advised that the employer did not expect her during December, and that the supervisor would pass on the information to human resources. The employee maintained that on December 20 she was still dizzy and in pain when a friend stopped by asking if she wanted a ride. The employee indicated she would like to go to the bank. She claimed that she spoke with Ms. Moore on that day who indicated the employer was fully staffed. The ALJ found it plausible that the employee had been told that she was not expected in December. The ALJ considered that the employee had not expected to be confronted on January 7, which may have contributed to her failure to recall her conversations with the supervisor on December 10 and Ms. Moore on December 20.

The commission does not find the employee's explanations to be credible. First, at the January 7, 2002, meeting the employee never indicated that she had the discussion with a supervisor on December 10. Second, at the January 7 meeting the employee never mentioned speaking to Ms. Moore on December 20. Ms. Moore actually attended the January 7 meeting. One would expect that either the employee or Ms. Moore would have raised this December 20 conversation had it occurred. Further, it is not credible that the employee accepted a ride from Columbus to Sun Prairie to speak with Ms. Moore at the bank, rather than telephone Ms. Moore, if she was dizzy and in pain. Finally, at the January 7 meeting the employee did provide the employer with an explanation for not returning to work. It was not simply a matter of the employee forgetting the reason she did not return to work sooner, but of the employee supplying a false reason for not returning to work sooner.

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: 
Anchor Bank (Sun Prairie, Wisconsin)
Attorney Barry L. Chaet


Appealed to Circuit Court.

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uploaded 2002/07/26