DONNA WRIGHT, Employee

WAL MART ASSOCIATES INC, 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 about two years as a sales associate for the employer, a firm which operates retail stores. Her last day of work was November 8, 2002 (week 45), when she was discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with her 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 was working in the fitting room. There were several customers present as well as three other co-workers. The employee and one of the co-workers became involved in an argument about a shirt that one of the customers wanted to buy. The employee basically told the co-worker to mind her own business. The employee stated she knew how to do her job and the co-worker was "a lazy black nigger." The co-worker is African American. Another worker intervened and asked the employee and the co-worker to finish the argument elsewhere because there were customers in the store. The employee was speaking loudly. The employee told the co-worker that the co-worker was a crippled person. The employee then told the co-worker that her "kind" was lazy and that the co-worker should go on welfare. Another worker testified at the hearing that she found the comments disrupting and disturbing. The employer has a policy that prohibits rude or abusive conduct toward a customer or a co-worker. The employer's policy provides that a single instance of such conduct can result in immediate discharge.

The commission is aware that this was an isolated incident and the employee had not made such comments in the past. The employee had worked for the employer for two years without incident. However, the comments were extremely demeaning. The employee used a racial epithet several times in the presence of three co-workers and about five or six customers. The employee's actions were extremely damaging to the employer's interests. The commission did not find that the provocation was sufficient to amount to extenuating circumstances. The employee's actions in calling a co-worker such names, in particular in front of customers and co-workers, demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 45 of 2002 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 for weeks 46 of 2002 through week 31 of 2003, amounting to a total of $4,375.00 for which she was not eligible and to which she 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 45 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 employee is required to repay the sum of $4,375.00 to the Unemployment Reserve Fund. The initial benefit computation issued on November 10, 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.

Dated and mailed August 13, 2003
wrighdo . urr : 145 : 1  MC 668  MC 675

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not reverse the ALJ's decision based on a different opinion of witness credibility but rather because the commission reached a different conclusion when applying the law to the facts in the record.

cc: 
First Blondis Albrecht & Novotnak SC
Labor Management Consultant Robert Tibbits
Wal-Mart Associates, Inc. (Milwaukee, Wisconsin)

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uploaded 2003/08/25