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

CYNTHIA A GAMMON, Employee

EMBASSY SUITES HOTEL OF BROOKFIELD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02603034MW


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 nine months as a sales manager for the employer, a hotel meeting facility. The employee's primary job function was to telephone businesses in an attempt to get businesses to book the employer's rooms and other facilities. The employee was to meet minimum weekly sales goals. The employee was required to make a minimum number of telephone contacts. The employer required that the employee actually speak with someone who could make a decision about whether to use the employer's facility. The employee was required to make 15 new contacts and 10 follow-up contacts each day.

On November 15, 2001, the employer warned the employee that she was not meeting her revenue goals or call quotas. The warning noted that a 90-day review of the employee's activity indicated that she had contacted her boyfriend more than two hundred times during that time period. The employer alerted the employee that it would no longer accept excuses for not making daily calls as required. On January 4, 2002, the employer again noted that the employee was not meeting her goals. The employer placed the employee on probation for 30 days and warned her that she faced termination if her performance did not improve. The employer's director of sales audited the employee's February 18 calls. The employee made a total of 8 calls, 5 were new and 3 were maintenance calls. The total amount of time she spent on the telephone that day was 35 minutes.

On February 19, 2002, the employer noted that the employee had shown some improvement but that she was still falling behind on call quotas. The employee's probation was extended for 30 days. The employer continued to monitor the employee's activity reports. The employee was not making her sales quotas. The employee was not meeting her contact quotas. The employee was not dialing the minimum number of follow-ups required by the employer. From the date of her last warning, February 19, through February 28, the employee did not even dial 10 follow-up calls, let alone make actual contact. The employer discharged the employee on April 4, 2002 (week 14), for her continued unsatisfactory performance.

The issue to be decided is whether the employee's discharge was for misconduct connected with her work for the employer. 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 attributed her performance problems to a lack of sales experience before working for the employer. The employee also blamed the start of the warnings on her boyfriend leaving his position at the Convention Bureau, and the employer hiring a sales manager who was friends with the director of sales and who was given corporate accounts and leads. Finally, the employee attributed her failure to meet the employer's goals on the need to complete paperwork and proposals, attend meetings, and give clients tours. The commission does not find the employee's contentions to be persuasive.

The employee's lack of sales experience may have contributed to her failure to meet revenue goals, but does not explain her failure to meet the call quotas. Further, even if the employee's performance decline began with her boyfriend leaving his position, the employee does not explain why she was unable to meet the employer's expectations in the months that followed. The hiring of another sales manager likewise did not prevent the employee from making new and follow-up calls. The employee's activity report covering the period of January 2 to February 28 indicated very few dates on which the employee had appointments or walk-ins. The contracts and proposals that the employee completed were canned forms with only a few items that had to be individually completed such as the date, client's agenda, room rates, and room numbers. The commission credits the employer's testimony that paperwork would not even take up two hours of the employee's workday. Since the employee was not meeting the employer's revenue goals, she had less paperwork to complete than someone who was meeting those goals did. Further, given that the employee was not making the minimum necessary contacts resulting in new business, it is difficult to believe that any significant amount of time was spent on completing proposals and contracts.

The employee has provided no credible evidence that she lacked the time to meet the quotas set by the employer. It is understandable that every call dialed would not end in a contact as defined by the employer, however, the employer's records indicated that the employee was not even dialing the minimum number of contacts required by the employer.

The commission therefore finds that in week 10 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 $735.00 for weeks 10 through 12 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 10 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 $735.00 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 September 12, 2002
gammocy . urr : 132 : 1 : MC 657 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission did speak with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he found the employee credible regarding her reasons for failing to meet the employer's standards. The commission disagrees with the ALJ's credibility determination for reasons set forth above.

Finally, the commission notes that the synopsis reflects that the employer was referring to and being questioned about graphs and charts that were not introduced as exhibits. It appears that such documentation merely supported the employer's contention that the employee was not meeting the goals it set for her, a fact the employee did not dispute at the hearing.

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.


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uploaded 2002/09/30