BRIAN D HOLLENBECK, Employee

AIR FORCE 440 AW/DPC (AFR) , 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 and one-half years for the employer, the Department of the Air Force. The employee was an information technology specialist, responsible for monitoring network security over the entire installation and monitoring the use of the Internet and email systems on the base. Essentially, the employee was the "watchdog" who ensured that all workers on the base followed the Internet and email rules. The employee's last day of work was June 20, 2003, (week 25) when he was placed on administrative leave. He was discharged in week 46 of 2003.

The issue to be decided is whether the employee was discharged for misconduct connected with his work.

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 employer discharged the employee because it believed he breached security by allowing an 18-year-old student worker to enter a controlled area, and allowing her to bypass the base cache flow, which functioned like a firewall. As such, the employer asserted the employee and the intern were allowed access to pornographic Internet sites. Further, the employer discharged him because it believed that he violated its policy with respect to the personal use of the employer's email and Internet. Further, the employer asserted that the employee violated its policies by having an affair with the intern.

The employee testified that he had only one sexually explicit email on his computer, rather than several as the employer claimed. The intern saved the content of a chat and emailed it to him. The employee denied knowing it was a violation of the employer's rules to have sexually explicit material on his computer. The employee further asserted that he had a folder containing pornographic pictures and movies, as well as some games. He was aware that this was a violation of the employer's policies. He had these on his computer because he was the investigator of things such as this and found it on a computer a year to a year and a half earlier. He indicated he was told to save it. The commission finds this testimony to be self- serving and inconsistent with his earlier testimony that he did not know it was a violation of the employer's rules to have sexually explicit material on his computer. If he was saving another worker's sexually explicit material as part of an investigation, he must have known it was against the employer's policy to have this material himself. In addition, his position involved enforcing the employer's computer policies and it is not credible that he was not aware of these policies given his position.

The employee also shared two folders containing music files with the intern. He agreed he sent emails to the intern and another worker, but was not aware if there was email on his computer about sexual relationships. The employee testified that exchanging personal email was not necessarily a violation of the rules in the sense that while it violated the rules, he mentioned it to his supervisor who told him "it was impossible to control all of it." The employee evidently interpreted this to mean that he could use the employer's computer to send and receive personal emails.

The employee also testified that he granted the intern rights to her computer, including group administrative rights. This allowed her to get information from the shared drive on the network. This allowed the intern to get into the computers of other workers.

The employee also allowed the intern to visit the 440th Network Control Center on two occasions, once to pick up a document and once to look around. The employee testified that it was an every day occurrence for people who were not on the list to enter the area and his supervisor informed him that as long as he was with the intern it was not a problem. He agreed he sent some email to the intern and received some from her, but was unaware of the amount. He testified he generally exchanged email with her at work, and during work hours. He also exchanged personal email with another reservist, with whom he has a daughter. Some of the email from this other reservist concerned thong underwear and sexually transmitted diseases.

The employee denied falsely justifying his need for overtime or claiming overtime for hours he did not work.

The employee further agreed he was in a position of trust and failure to do his job could have serious consequences for network security. He testified he was not familiar with the rules regarding email and Internet use so he would question his supervisor about them.

The employer did not present firsthand evidence to establish a number of its allegations. Evidently this was because it incorrectly believed that in a misconduct case, only management's rationale for a decision mattered. For example, the employer failed to present any evidence that would establish the employee was claiming pay for time he did not work. The employer also failed to challenge the employee's assertion that his supervisor knew and approved of his affair with the intern.

However, the employee specifically testified that he was aware that it was a violation of the employer's rules to send and receive personal email with the employer's computer. He admitted to sending personal email, including email of a pornographic nature, to at least two co-workers. While he did assert he believed he had the permission of his supervisor to do so, the mere fact that his supervisor said it was impossible to completely stop personal email did not amount to permission for him to send and receive personal email. Further, he never asserted that his supervisor instructed him that he could send and receive pornographic personal email, even if personal email was allowed. His assertion that he was not aware that pornographic material was not permitted is incredible.

The employee further admitted that he gave the intern administrative rights that allowed her access into the computers of other workers on the base. The employee explained that he had a business reason for giving her access to the computers of other people. The commission did not find his explanation convincing. Even if, as he asserted, he merely wanted to install Office Publisher on her computer, given his experience and his job duties, he should have been able to perform this function without giving her access to the computers of others.

The employee also admitted having pornographic movies and other material on his computer. While he asserted that this was evidence for an investigation, the commission did not find his assertion in this regard credible, given that the investigation had not progressed in the year to year and a half he had the information on his computer and because the employee testified it was not known who the material belonged to. As such, there seems little evidentiary value to this material.

The commission concludes that the employee's actions in violating the employer's policies on numerous occasions demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 46 of 2003 the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 46 through 49 of 2003 and weeks 1 through 9 of 2004, amounting to a total of $3,948.00 for which he was not eligible and to which he 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 46 of 2003, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $3,948.00 to the Unemployment Reserve Fund.

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. The initial Benefit Computation (Form UCB-700), issued on November 24, 2003, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed June 17, 2004
hollebr . urr : 145 : 1      MC 690

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found that the employee was not particularly credible and that his testimony was not the most believable testimony that the ALJ had ever heard. The ALJ had the distinct impression that the employee was aware of the employer's rules and playing fast and loose with them. The ALJ's decision specifically indicates that the employer failed to meet its burden of proving that the employee's discharge was for misconduct connected with his work. However, the commission notes that the employee made admissions with respect to personal emails, giving the intern access to co-workers' computers and having files and sending and receiving emails with sexual content. While the employee had explanations for his actions, the commission did not find his explanations believable.

The employer sent its investigative file with its petition for commission review and requested that this file be made part of the record. The commission's rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. The law requires that the commission's review be based solely on the testimony and documents presented at the hearing before the administrative law judge. The employer should have presented this material at the hearing and as such, the commission will not remand this case for further hearing to make this material part of the record. The commission reached the conclusion that the employee's discharge was for misconduct based on the material in the record and did not base its conclusion that the employee's discharge was for misconduct on this new information.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

Appealed to Circuit Court.  Affirmed April 11, 2005.  [Summary of Circuit Court decision]

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uploaded 2004/06/21