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

DAMIAN G SCHMITT, Employee

MILWAUKEE JOURNAL , Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02402180SH


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 for about two years as district sales manager for the employer, a newspaper. His last day of work was May 7, 2002, and he was discharged on May 10, 2002 (week 19).

The issue to be decided is whether the employee's actions, for which he was discharged, constitute misconduct connected with his employment.

On January 14, 2001, a manager told the employee not to make sexual references because a female co-worker complained that he discussed sexual matters with her.

The employer's policy on sexual harassment specifically prohibits off-color remarks and risqué‚ jokes among other things.

During the summer of 2001, the employee told a female subordinate who was wearing a tank top and short shorts that if she was wearing that clothing while she was out selling for the summer campaign, she would get a lot more attention. This same woman was half an hour late for work on one occasion. She asked what she could do to make it up to him and he told her she could clean his apartment. He told her to buy a mop and gave her $20. He also told her he would be out of town on Thursday, Friday and Saturday. In about March or April of 2002, the employee told this same woman that she pushed her husband around a lot, "getting around stuff." He told her she could be a "dominatrix." The employer alleged that in addition, the employee made numerous sexual comments to this woman. However, the employer failed to present firsthand evidence to support these additional allegations.

The employee presented evidence to establish that the workplace was informal and that there was some sexual humor in the office.

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 employer contended that the employee's actions amounted to misconduct. The commission agrees. While the co-worker did not testify, and did not establish that the employee's comments were unwelcome or unwanted, the comments were prohibited by the employer's work rules. The employer's policy indicates that it will consider an extremely broad range of behavior to be sexual harassment, and specifically lists that behavior. In addition, the employee had been told, prior to making these comments, that he should refrain from making comments of a sexual nature. This communication was clear and unambiguous. Yet the employee continued to make sexual comments. The cleaning comment is not sexual, although it may be perceived as sexist. The comment regarding the co-worker's clothing was and calling the co-worker a "dominatrix" was clearly sexual. The commission further notes that in this instance, the employee made these comments to a subordinate. The employee should have been aware that he needed to refrain from sexual comments. The employee's failure to follow the employer's policy demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 19 of 2002, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 20, 21 and 23 through 52 of 2002 and 1 through 4 of 2003, amounting to a total of $11,664.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

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 19 of 2002, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The initial benefit computation (UCB-700) issued on May 9, 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. The employee is required to repay the sum of $11,664.00 to the Unemployment Reserve Fund.

Dated and mailed February 6, 2003
schmida . urr : 145 : 1  MC 687  MC 668  MC 673 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

 

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ. The ALJ did not indicate that he had any specific credibility impression of the employee. Because the employer failed to present the testimony of the co-worker, the employee's testimony was undisputed. However, the commission finds that the employee had been previously instructed to refrain from making sexual comments and failed to do so. The commission considers his violation of the employer's very reasonable instruction to be misconduct, in particular as this kind of conduct is prohibited by the employer's rules.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other 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 over payment.

cc: Attorney Ralph Sczygelski


Appealed to Circuit Court. Affirmed March 4, 2004.

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