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

LLOYD PITSCH SR, Employee

H & K PARTNERS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04605411MW


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 for the employer, a fast food restaurant, for about five months as a shift supervisor. His last day of work was May 10, 2004 (week 20).

When the employee reported for work on May 10, 2004, the employer's general manager told him she smelled alcohol on him. The employee admitted he had had a few beers before work, but stated he was able to work. The employee, who believed that the manager smoked marijuana at work, then asked the manager about her marijuana problem, and initiated a loud argument with her.

During this argument the manager called the assistant area coach, Jeff Ulicki, and told him the employee was "going nuts" and was swearing and yelling. When Mr. Ulicki arrived at the store he heard the employee saying, "I don't need this bullshit." Mr. Ulicki asked the employee why he was yelling and whether he was drinking, to which the employee responded he had had a couple beers. Mr. Ulicki told the employee it was time to go home, and opened the door for him to leave. Mr. Ulicki followed the employee outside. The employee started swearing at him, then got in his car, slammed the door, and drove off.

Mr. Ulicki contacted Craig Helf, the area coach, who called the employee at home to request his keys. Mr. Helf did not intend to discharge the employee at that point, but meant to suspend his employment. The employee returned to the restaurant about forty minutes later to turn in his keys. The employee asked Mr. Helf if he was fired, and Mr. Helf told him no, but that he always took the keys from employees who were suspended. The employee became upset and began to direct loud, abusive language at Mr. Helf. He complained that he was suspended while the store manager was allowed to work, although she used marijuana. The employee returned the keys and left the store, but then came back and began to yell and swear some more. Although there were customers present at the time, the employee did not attempt to temper his conduct in front of them and became progressively louder. Mr. Helf told the employee to leave or he would call police, to which the employee responded that he was not scared of the "fucking police." The employer did call the police, but the employee left the store before they arrived. The employer prepared termination documents thereafter and removed the employee from the schedule.

The issue to be decided is whether the employee's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The employee was discharged for arguing with and swearing at the employer in the presence of customers. The employee contended that his actions did not amount to misconduct, because they were in response to an illegal act by the employer. Specifically, the employee contended that he was discriminated against by the employer because it tolerated marijuana use, but not alcohol use. This contention cannot be sustained. First, the record does not establish that the employer tolerated marijuana use at the workplace. Although the employee contended that the store manager smoked marijuana at work, the employer testified that it had not seen signs of marijuana use by the manager and that, when confronted with a substance which the employee claimed was marijuana, the manager denied it was hers. Moreover, even if the employee had established that the employer tolerated employees working under the influence of marijuana, but not alcohol, the commission is unaware of any state or federal anti-discrimination law prohibiting it from employing such a double standard. The commission sees no reason to conclude that the employer engaged in an illegal act of discrimination, as alleged, nor can the employee's actions in yelling and swearing at his supervisors be excused by his mistaken belief that discrimination occurred. Indeed, the commission notes that, even if an act of discrimination had occurred, the reasonableness of the employee's conduct in response to such act would be very much in question. The employee could have complained to the employer without yelling and swearing at his supervisors, and without creating a scene in front of customers. The commission believes that the incident for which the employee was discharged, whether or not provoked by allegedly unlawful conduct on the employer's part, evinced such a wilful and substantial disregard for the employer's interests as to amount to misconduct.

The commission, therefore, finds that in week 20 of 2004, 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 in weeks 20 through 37 of 2004 in the total amount of $1999, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 20 of 2004 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. He is required to repay the sum of $1999 to the Unemployment Reserve Fund.

Dated and mailed September 23, 2004
pitscll . urr : 164 : 1 MC 640.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the appeal tribunal about the credibility and demeanor of witnesses. The commission's reversal is not based on a differing assessment of witness credibility.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another 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 overpayment.

cc:
UC Express (St. Louis, MO)
H & K Partners LLC (Madison, WI)


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uploaded 2004/09/27