ALDORAY K ROBINSON, Employee

CENTRAL PARKING SYSTEM OF WISCONSIN INC, Employer

On April 15, 2003, the Department of Workforce Development issued an initial determination which held that the employee had been discharged for misconduct connected with his employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on May 21, 2003 in Milwaukee, Wisconsin before a department administrative law judge. On May 22, 2003, the administrative law judge issued an appeal tribunal decision amending and affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

The employee worked over four years as a cashier for the employer, a parking lot operator. The employer discharged him on March 29, 2003 (week 13) for a fourth incident of sleeping while on duty and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that the employer's evidence is legally insufficient to establish the alleged misconduct, and so reverses the appeal tribunal decision.

Of the first three instances of the employee's alleged sleeping while on duty, the employer only had competent evidence regarding the first instance. The employer's facility manager (who is also the employee's supervisor) was a witness at hearing, and testified that he himself had witnessed the employee sleeping while on duty on July 1, 2002. The manager had come to the site in order to pick up monies for a deposit, at which time he observed the employee sleeping in his cashier's booth. The employee received a written warning for this failure.

The employee was also disciplined for alleged instances of sleeping while on duty on October 12 and November 14, 2002. The allegations came from a security guard (not employed by the employer) assigned to the area of the parking garage the employee worked at. The employee received a second written warning and a suspension, respectively, for these failures. The employee disputed the charges and, indeed, the employer has only hearsay evidence (if not second-level hearsay) to support its allegations regarding these two instances. The employee testified that he asked to see the videotape of one of these instances but was not allowed to do so; the employer's manager could not recall whether the employee had asked to see it.

The incident precipitating the discharge was the employee's allegedly having been asleep on two occasions the morning of March 22, 2003. With regard to the first, the manager testified that he viewed a videotape, that it showed a customer "hitting her horn" and then knocking on the employee's window, before the employee responded. During this time, the employee's head was down. With regard to the second incident, which occurred a few minutes later, one of the employer's maintenance men hit his horn in order to get the employee's attention.

The employee countered that he was not asleep at these times, that he takes high levels of Ibuprofen for migraine headaches and that he had one the morning of March 22. He responded to the woman who blew her horn and his delay in dealing with the maintenance man was due to the latter's inability to find his parking garage ticket; the employee simply waited for him to do so.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. Clearly, four instances of sleeping on the job generally reflects the substantial disregard of an employer's interests which is misconduct for unemployment insurance purposes. Allegations of misconduct must be proven by competent evidence, however, and that is lacking in three of the four incidents at issue. The employer had only hearsay or second-level hearsay to support its allegations that the employee was sleeping while on duty on October 12 and November 14, 2002. The employer's evidence of the incident precipitating the discharge does not meet the so-called "best evidence" rule and thus is deficient on that ground. The employee throughout has disputed the employer's interpretation of the employee's conduct on the videotape; given this, it was the employer's evidentiary obligation to have produced the videotape or other direct evidence of the employee's alleged sleeping while on duty on that date.

The commission therefore finds that, in week 13 of 2003, the employee was discharged but not for misconduct connected with his work with the employer, within the meaning of Wis. Stat. § 108.04(5).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 13 of 2003, if he is otherwise qualified.

Dated and mailed December 16, 2003
robinal . urr : 105 : 1 MC 659.02  PC 714.07 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission concluded that the employer's evidence was deficient as a matter of law.

cc: Central Parking System (Milwaukee, Wisconsin)

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uploaded 2003/12/22