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

BRADLEY J ANDREWS, Employee

PRIME INVESTMENTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02200402HU


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 eight months for the employer, a restaurant. He first worked as a cook for the employer. After approximately three months, he became a shift supervisor. In November of 2001, he became a manager in training. The employer had in place during the employee's employment a sexual harassment and offensive behavior policy.

On December 13, 2001, a worker reported to the general manager that he was offended by the employee's comments about blowjobs. On December 14, 2001, the general manager met with the employee and informed him of the co-worker's complaints. The general manager told the employee that his comments violated the employer's policy. The employee agreed to refrain from such comments in the future.

On January 5, 2002, while in his office, the general manager heard the employee, who was working in the kitchen, make a comment about blowjobs. The general manager decided to turn the matter over to his superior since he had already spoken to the employee about the matter. On January 6, 2002, a customer called the general manger and reported that he, his wife, and his daughter were sitting at the counter in the employer's restaurant on January 5 and heard a kitchen worker make a comment about blowjobs. The customer was upset because his daughter was asking what a blowjob was. The employer suspended the employee's employment on January 9, and discharged him on January 11, 2002 (week 2), for making rude and crude comments.

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's comment was clearly inappropriate in a work setting. The employee had been instructed not to make such comments in the future. The employee's comment was said with sufficient volume to be heard by the general manager in his office and customers at the counter. It was clearly foreseeable that a customer would hear and be offended by such comment. The employee's comment jeopardized the employer's relationship with a customer. The employee's conduct was not the result of a good-faith error in judgment or discretion. Rather, such conduct demonstrated 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 2 of 2002, 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 $5,959.00 for weeks 3 through 11, and 18 through 33 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 $5,959.00 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 August 23, 2002
andrebr . urr : 132 : 1 : MC 668  MC 610.25

/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 her impressions of witness credibility and demeanor. The ALJ indicated that she found the employee credible that he was only advised not to make such comments in front of the co-worker who had made the complaint. The commission disagrees with the ALJ's credibility assessment. The commission finds the general manager's testimony to be credible. The commission finds it is more credible that the employer would advise a worker who is in training for a management position to refrain from making such comments at all.

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: 
Attorney Stephen J. Dunlap
Denny's Classic Diner


Appealed to Circuit Court.  Affirmed September 2, 2003.

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


uploaded 2002/09/03