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

GREGORY L GREENWALD, Employee

CUNA MUTUAL INSURANCE SOCIETY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02004775MD


On June 21, 2002, the Department of Workforce Development issued an initial determination which held that the employee's discharge was not for misconduct connected with his employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on August 9, 2002 in Madison, Wisconsin before a department administrative law judge. On August 12, 2002, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee in this case worked approximately eight weeks as an art coordinator for the employer, an insurance concern. The employer discharged him on May 30, 2002 (week 22), and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

The employee's job entailed working on several projects simultaneously. Following an abrupt discussion with one project manager, the employee walked away and another project manager heard him refer to the first project manager as a "fucking bitch." This incident occurred in the employee's second week of employment. On at least one other occasion as well, the employee used that epithet to refer to another co-worker.

The employee's work involved group discussions with teams of the employer's graphic designers. In one such discussion, after a graphic designer had stated her opinion as to how a certain project should proceed, the employee sat back and made a "jerking off" gesture with his hand. The project manager attending this discussion was stunned by the employee's gesture; the group's discussion ceased immediately. The employee occasionally used this gesture in response to co- workers' statements or positions with which the employee disagreed.

During the first month of the employee's employment, his supervisor was on leave. Upon her return, she received complaints from co-workers regarding the above conduct and, on May 30, 2002, discharged the employee.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The employee's actions meet this standard. The employer's work rules expressly prohibit the use of profane or abusive language, as well as graphic gestures or other verbal or physical conduct of a sexual nature. The employee's derogatory epithet about co-workers easily meets the first proscription, and the employee's gesture easily meets the second. In concluding that the employee's discharge had not been for misconduct, the administrative law judge reasoned that, except for the most serious offenses, an employer has an obligation to warn a worker that his or her performance or conduct is not satisfactory and to give the employee an opportunity to improve that performance or conduct. The commission does not believe any employee in a professional, office setting needs a warning to know that the conduct the employee committed is inappropriate.

The commission therefore finds that, in week 22 of 2002, the employee was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee received benefits in weeks 23 through 32 of 2002, totaling $2,783.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 22 of 2002, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employee must repay $2,783.00 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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed December 23, 2002
greengr . urr : 105 : 1  MC 668

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. The basis for the administrative law judge's holding was the employer's failure to have warned the employee of the inappropriateness of his conduct. The administrative law judge reasoned that, except for the most serious offenses, an employer has an obligation to warn a worker that his or her performance or conduct is not satisfactory and to give the employee an opportunity to improve that performance or conduct. The commission believes the employee's failures in this case were serious and also that any employee in a professional, office setting should know of the utter inappropriateness of the conduct committed by the employee in this case.

cc: Cal Lanzel


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