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

TRAVIS L STEINKE, Employee

PIZZA HUT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02200571MD


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 less than two years for the employer, a restaurant business. His most recent position was as a shift manager at the employer's Menomonie, Wisconsin location. His last day of work was January 12, 2002 (week 2).

Upon hire, the employee received a copy of the employer's policies and procedures. Those policies prohibit harassment and encourage a positive and productive workplace. Further, under the employer's policies, the employer may discharge a worker without prior warning depending on the severity of the infraction.

On January 9, 2002 (week 2), the employer's area manager was visiting the employer's Menomonie restaurant location. At that time, a server complained to the area manager that she felt the employee's conduct was inappropriate and made her feel uncomfortable at work. She did not go into detail and the area manager did not question her about the specifics of his conduct. Even without any detailed information, the area manager warned the employee that his behavior at work was making a co-worker feel uncomfortable and was inappropriate for the workplace. In particular, the underlying conduct that generated the complaint, was the employee's sexual touching of another worker and joking about sexual matters with that worker and other workers, including the server.

After the warning, the employee was next scheduled to work with the server on the evening of January 10, 2002. On that date, the employee ignored the server. The employee did not speak to the server or acknowledge her presence. When the server's pizza orders were ready the employee did not notify the server of the fact as would be normal. In addition, at the end of the server's shift the employee assigned her duties that would not normally be hers to perform.

The next day, January 11, 2002 (week 2), the server again complained to the employer's management about the employee's treatment of her. Based upon this subsequent complaint, the employer discharged the employee. He was notified of the discharge on January 14, 2002 (week 3). Following the discharge, the employee filed a claim for unemployment insurance benefits.

The issue to be decided is whether the employee was discharged for misconduct connected with his 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 did not appear at the hearing to explain his conduct. The commission finds that the most reasonable inference from the testimony presented at the hearing was that the employee was retaliating against the server for making a complaint to management about the employee's inappropriate behavior. The employee was in a supervisory position over the server and used that position to punish the server for making a valid complaint about the employee's inappropriate conduct. The employer had a right to expect that the employee would refrain from such retaliatory conduct.

The commission therefore finds that in week 3 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 $3,341.00 for weeks 5 through 25 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 3 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 $3,341.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on January 23, 2002, is set aside. If benefits become payable based on work performed in other covered 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 October 9, 2002
steintr . urr : 132 : 8 :   MC 666.01  MC 673 

/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 did find the server's testimony that the employee gave the server the "cold shoulder" and assigned the server additional duties to be credible. The commission's reversal is not based on a different assessment of witness credibility and demeanor.

cc: Pizza Hut - Menomonie, WI 54751


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uploaded 2002/10/18