PHYLLIS D MILLER, Employee

MILWAUKEE TEACHER EDUCATION CENTER, Employer

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:

The employee worked for the employer, an alternative teacher training center, for approximately nine months as a marketing program coordinator. Her last day of work was July 18, 2002 (week 29), and she was discharged on July 24, 2002 (week 30).

During the last portion of her employment, the employee was required to meet with her supervisor on a daily basis in an attempt to improve the quality of her work. The employee was upset about the daily meetings and suggested that they meet one time per week and monthly with the executive director in attendance.

On July 18, the employee had her daily meeting with the supervisor. She felt that the supervisor was speaking with her in a demeaning manner. During the meeting, the employee stood up and said, "Let me go do my work before I cut your ass up." The supervisor heard the remark and followed the employee from the room into the general office area. The supervisor informed the employee that her language was inappropriate for the office. The employee waived her finger in the supervisor's face, and in a loud and angry tone, told the supervisor that she was an adult, could do whatever she wanted, and that the supervisor should get the hell out of her face. The employee then started to speak in a high childlike voice, and said to the supervisor, "Yes mommy, whatever you say mommy. Get out of my face mama."

The supervisor then called to talk with the executive director, who was on vacation, for directions on how to handle the employee. After talking with the executive director, the supervisor called the employee and left a voice mail message for her. The supervisor told the employee that she talked with the executive director and that the employee was suspended for the day because of her actions. On that same day, the employer's business coordinator sent the employee a letter confirming the one-day suspension and informing her that she was expected to report for work as usual on July 22. The employee contacted the executive to remind him that she had a pre-approved vacation for July 22 and 23 and also stated her doctor did not want her to work for the remainder of that week. The executive director told the employee that it would be necessary for her to submit a doctor's excuse. The employee immediately sent the doctor's excuse to the employer. However, on July 24, the executive director sent the employee a letter informing her that she was being discharged for her actions on July 18.

The issue to be decided is whether the employee's discharge was for misconduct connected with the employee's employment. 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's comment to her supervisor that she would "cut your ass up" was reasonably considered a threat by the supervisor. The employee engaged in insubordinate and disruptive behavior in the office area, in the presence of other workers. The employee shook her finger at her supervisor and directed her to get the hell out of her face, after the supervisor informed the employee that her language was inappropriate. The employee engaged in further inappropriate, insubordinate, and childish conduct when she mocked her supervisor by repeatedly referring to her as "mommy." The employee's conduct constituted an intentional and substantial disregard of the minimum standards of professionalism and respect for authority that the employer had a right to expect of the employee.

The commission therefore finds that in week 30 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 $5,776.00 for week 52 of 2002, and weeks 1 through 19 of 2003, 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 30 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 $5,776.00 to the Unemployment Reserve Fund. The initial benefit computation (Form UCB-700) issued on December 6, 2002, is set aside. If benefits become payable based on other 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 May 19, 2003
milleph . urr : 132 : 1 :   MC 640.06  MC 665.04  MC 699.05 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

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 consider the employee's conduct to constitute an intentional and substantial disregard to the employer's interests. The ALJ concluded, however, based in part on the employer's written correspondence about the incident, that the employer only intended to suspend the employee's employment for one day due to her conduct, and did not establish that the employee engaged in misconduct after imposition of such discipline. The commission disagrees that the supervisor intended to suspend the employee only for a day. Rather, the commission concludes that the suspension was to remove the employee from the work setting until the next week when the employer's executive director would be back to address the matter. The executive director testified that the suspension was for such purpose. The discharge letter reflects that it was after investigation of the employee's conduct that the executive director decided to discharge the employee.

cc: Attorney Michael Aldana

Appealed to Circuit Court.  Affirmed  April 27, 2004.

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uploaded 2003/05/30