THALIA M ANTHONY, Employee

WALGREEN CO ILLINOIS, 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 11 years for the employer. Her last day of work was October 21, 2002.

The employer's policy requires workers to verify the age of any customer who appears younger than 40 by obtaining a photo identification. The employee failed to follow this policy on one occasion because she was busy, nearing the end of the shift, and believed the customer was over 20 years of age.

On October 17, 2002, it was reported to the employer that the employee had sold cigarettes to a minor. She was informed on October 22, 2002 (week 43), that she was being suspended in connection with the incident. She was discharged on October 28, 2002 (week 44).

The initial issue to be decided is whether the suspension of the employee's employment during week 43 of 2002, was a disciplinary action for good cause connected with the employment.

The evidence presented did not establish the specific purpose of suspending the employee during week 43. It is unknown whether the employer wished to further investigate the matter during this suspension, whether the suspension was used for the purpose of reviewing the facts and determining the outcome, or whether it was meant as a separate and distinct disciplinary action. Thus, it cannot be found that the disqualifying provision of the law covering suspensions applies in this case.

The remaining 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 was aware that the employer's policy required that she check the identification of any customer who appeared under 40 years old. The employee was busy and nearing the end of her shift. While she believed the customer was under 40 years of age, she did not believe the customer was under 21 years of age. The employee clearly made in error in judgment when she failed to follow the employer's policy. However, the commission finds that such error did not rise to the level of an intentional and substantial disregard of the employer's interests.

The commission therefore finds that in week 43 of 2002, the employee's work was suspended but not as a disciplinary action for good cause connected with that work, within the meaning of Wis. Stat. § 108.04(6).

The commission further finds that in week 43 of 2002, the employee was discharged but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 43 of 2002, if she is otherwise qualified.

Dated and mailed August 13, 2003
anthoth . urr : 132 : 8 : MC 687

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission did speak with the administrative law judge who presided at the hearing regarding his impressions of witness credibility and demeanor. The administrative law judge indicated that he found nothing inherently incredible in the employee's testimony. The commission does not disagree with the ALJ's credibility assessment. The commission finds that the employee's actions were not done in an intentional disregard of the employer's actions

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Walgreen Co. Illinois - St. Francis, WI
Continental Consultants

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uploaded 2003/08/25