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

JAMES MOORE, Employee

AMERICAN BUILDING MAINTENANCE CO OF ILLINOIS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01611579RC


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 maintenance supervisor for the employer, a janitorial service. His last day of work was November 15, 2001 (week 46). He was discharged on November 28, 2001 (week 48).

On September 21, 2001, the employee received a written warning because he did not report to work in his uniform. Thereafter, he complied with that warning. On October 2, 2001, the employee received three written warnings concerning various aspects of his work performance. Thereafter, he complied with those written warnings. On November 1, 2001, the employee received a written warning urging him to follow a chain of command when submitting concerns about the workplace. He was warned that similar situations in the future could result in his demotion or suspension. He was further informed that he was on probation until November 30, 2001.

On November 14, 2001, the employer's project manager asked the employee to assist a worker in moving furniture. The employee replied that he was restricted to light-duty work. The project manager checked the medical documentation on file for the employee. That documentation indicated that the employee was restricted to using his left hand to assist only. The documentation did not limit the employee's use of his right hand or limit the amount of weight that he could lift. The project manager directed the employee to obtain medical documentation that supported his contention that he was restricted to light-duty work. The employee returned to the workplace on November 15, and provided the employer with medical documentation that stated he could use his left hand to assist only. The documentation did not restrict the employee's use of his right hand or limit the amount of weight he could lift. The project manager indicated that the documentation was inadequate. A heated argument ensued during which the employee threatened to do something to the project manager's "cracker ass." The project manager feared for his physical safety and for that reason contacted the police. On November 28, 2001 (week 48), the employer notified the employee that he had been discharged.

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 warned a number of times about his poor work performance and inappropriate behavior. For that reason, the employee was placed on probation in November of 2001. That same month, while on probation, the employee engaged in a verbal dispute with the project manager. The project manager was within his rights to seek medical substantiation for the employee's claim that he was limited to light-duty work. The employee was not justified in engaging in a verbal dispute with the project manager. The employee should have taken any concerns about perceived unfair treatment by the project manager to upper management. The employee referred to the project manager using a derogatory term, and threatened the project manager with physical harm. The employer was not required to tolerate such insolent and potentially dangerous statements and conduct.

The commission therefore finds that in week 48 of 2001 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 $1,166.00 for weeks 48 through 52 of 2001, and week 1 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 48 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 $1,166.00 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 28, 2002
mooreja . urr : 132 : MC 640.05

/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's testimony that he did not threaten the project manager or direct a derogatory term at the project manager to be credible. The commission does not believe that the project manager would have involved the police if he was not genuinely concerned over the employee's statements. The ALJ considered that the employer was making the employee jump through hoops with respect to his medical documentation. However the employee had refused work that was within the restrictions on file with the employer. The employer requested documentation to establish that the employee was restricted to light-duty work and thus could not lift more than ten pounds. The documentation the employee provided on November 15 did not restrict him to light-duty work. The commission believes the employer was being reasonable in requiring additional medical documentation.

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 Matthew MacKelly
Robert Tibbits


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