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

SANDRA D JONES, Employee

CHILDREN'S RAINBOW LEARNING CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02611171MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 48 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.

Dated and mailed May 15, 2003
jonessa . usd : 115 : 9  MC 640.05  MC 640.15

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The employee worked for two years as a teacher for the employer, a child care center.

The commission has found misconduct in certain cases involving the direction of profanity at a supervisor. See, e.g., Gums v. Kelley Co. Inc., UI Hearing No. 00608487MW (LIRC June 19, 2001) (the employee, who had previously received a final written warning and was aware his job was in jeopardy, when asked by a supervisor why he was not performing an assigned job function, slammed his fist on a table and said, "I don't give a fuck if you are the President of the United States, there is no place to put the foam."); Williamson v. Wendys Old Fashioned Hamburgers, UI Hearing No. 01602441EC (LIRC July 12, 2001) (the employee expressed his unhappiness that the manager was late for a staff meeting and, when the director of area operations told him that there was no place in the restaurant for that kind of attitude, the employee said to the director, "You can just fuck off."); Willis v. Dots Inc., UI Hearing No. 99608510MW (LIRC Feb. 24, 2000)(the employee refused to discontinue a personal call despite repeated directions from her supervisor to do so and swore at her supervisor, said she was not going to "kiss" her supervisor's "ass," and left the work site).

Here, the employee was warned four months before her discharge, after she directed profanity at a child, that her job was in jeopardy; she was put on notice the week before the subject incident that the employer was concerned about her lack of professionalism and she signed a document indicating that she understood that she must be and act professionally at all times; and, on November 27, in an office adjacent to a classroom, she raised her voice, swore at her supervisor and slammed the office door when she left. This fact situation is comparable in many respects to that in Gums, Williamson and Willis, supra. Although the employer did not prove that the employee used profanity after she left the supervisor's office, her remaining conduct, particularly after the warnings she had received, was sufficiently egregious to constitute misconduct.


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uploaded 2003/05/27