STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

GAYLE S HOPPE, Employee

PERFECSEAL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04400033OS


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked more than 9 years as a shift supervisor for the employer, a manufacturer of medical devices. She was discharged on November 21, 2003 (week 7).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with her employment.

In June of 2002, the employee received a written warning for permitting her subordinates to engage in inappropriate conduct such as hitting, removal of clothing, and horseplay. She was also warned about spending a disproportionate amount of time with one of her subordinates. This warning (exhibit #5) stated in pertinent part that, "If . . . these complaints resurface, your employment will be subject to disciplinary actions, up to and including discharge."

The employee corrected the cited problems after receiving this warning, although her supervisor counseled her in July of 2003 that he was still receiving complaints that she was spending a disproportionate amount of time with one of her subordinates.

On November 15, 2003, the employee sent a fellow supervisor an email from her home computer to his work computer. Two of the attachments to this email consisted of cartoons with sexual subject matter which, after they were printed, were observed by a co-worker who complained to the employer's human resources unit that they offended her. The employer discharged the employee on November 21, 2003.

The employer's computer policy states as follows, as relevant here:

All Bemis computer system users are expected to understand and follow the policies contained within this document. Failure to do so may result in disciplinary action.

. . . The origination or communication or offensive material, not in keeping with Bemis Company values, is prohibited.

The employee received a copy of this policy on January 4, 2000.

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that her job is in jeopardy or will be if she engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Munoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003).

Here, although the employee was on notice that her job would be in jeopardy if she again engaged in the conduct about which she was warned in June of 2002, the employer concedes that she did not again engage in such conduct. The conduct for which she was discharged was not her condonation of the improper actions of her subordinates, but instead her improper use of the employer's email system.

The employer's computer policy did not place the employee on notice that her job would be in jeopardy for its violation, i.e., it states that failure to abide by the provisions of the policy "may result in disciplinary action." Moreover, a single instance of relaying the type of sexually suggestive images at issue here is not sufficiently egregious to support a conclusion of misconduct in the absence of warning, even considering the higher standard to which the employee is to be held as a supervisor. See, Speltz v. Trane Co., UI Hearing No. 02004222LX (LIRC May 1, 2003) (employee's use of employer's computer system to transmit two email messages/images with sexual, although not pornographic, content, not misconduct). See, also, Smallcombe v. The Noodle Shop Co., UI Hearing No. 02608958MW (LIRC June 10, 2003)(single act of harassing conduct would typically not support a conclusion of misconduct unless unusually egregious even when employee held to higher standard as supervisor).

The commission concludes that, in week 47 of 2003, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 47 of 2003, if otherwise qualified.

Dated and mailed June 29, 2004
hoppega . urr : 115 : 3   MC 690

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

cc: Attorney James Manske


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