LINDA S MERKEL, Employee

LEARNING SHOP, 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, a chain of six retail stores, for over four years, most recently as an assistant manager.  Her last day of work was October 9, 2001 (week 41).

On September 11, 2001, the employee had a conversation with the employer's co-owner, in which he referred to the closing of shopping malls for the day as "retarded."  That day the employee sent an e-mail to other store managers on the subject of how to deal with staffing on the day of the terrorist attacks, in which she stated that she disagreed with management's opinion that closing malls was "retarded."  The employee did not specifically attribute this statement to the employer's co-owner, and he was not mentioned by name.  The employer had talked to the employee on past occasions about challenging management decisions in private, rather than in public, and the employee had been given a paid day of "think time" for challenging a decision made by the employer in a manner it deemed inappropriate.

On October 9, 2001, the employer discharged the employee because of the comment made in the September 11 e-mail.  The issue to be decided is whether the employee's discharge was due to misconduct connected with her employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The employee was discharged for criticizing the employer's management in an e-mail to other management staff.  The employee had been talked to about challenging decisions in private, rather than in public, and had been given a paid day of "think time" for challenging a decision made by the employer in a manner it deemed inappropriate.  The commission believes that the employee's actions in including the employer's comment in an e-mail to staff members and indicating her disagreement with that comment evinced a deliberate and substantial disregard for the employer's interests and the standards of conduct the employer had a right to expect of her.

The commission, therefore, finds that in week 41 of 2001, the employee was discharged for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in weeks 41 of 2001 through week 9 of 2002 in the total amount of $6,161, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 41 of 2001 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $6,161 to the Unemployment Reserve Fund.

Dated and mailed March 13, 2002
merkeli . urr : 164 : 1  MC 610.06  MC 640.06  MC 690

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission conferred with the administrative law judge about witness demeanor and credibility. The administrative law judge indicated that he did not credit the employer's explanation as to why the employee was discharged, based upon the fact that the employee was not fired until a month after the incident in question. The administrative law judge stated that if the employer believed the employee's conduct was egregious enough to warrant her discharge, it would have discharged her immediately. However, the commission finds credible the employer's testimony that it delayed in discharging the employee because it was busy with other matters related to the closing of one of its stores.

cc: Attorney John D. Uelmen

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