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

ROSEMARIE SCHEIDT, Employee

LEAFGUARD OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04606363WK


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 as a customer service representative and inside sales person for the employer, a home improvement product company, for 14 months. Her last day of work was June 4, 2004 (week 23) when she was discharged.

The employee was counseled on two occasions prior to her last day of work based on the impact her absenteeism was having on the company. All of her absenteeism was attributable to medical appointments and documented personal illness. The employer did not challenge the employee's illness at any time nor did it issue progressive disciplinary warnings required under its policy prior to discharging a worker for absenteeism.

On June 3, 2004, the employee responded to an e-mail inquiry concerning her work schedule in an inappropriate fashion. The e-mail called into question the abilities of the supervisor, and referred to inquiries made by the supervisor as "obsurdities" (sic). She concluded the e-mail with a remark that she was actively seeking other work due to the manager's incompetence, and was eager to leave the employer.

The employee was discharged the next day, June 4, 2004 for absenteeism and insubordination. Following the discharge, the employee initiated a claim for unemployment insurance benefits.

Wis. Stat. § 108.04(5) denies unemployment insurance benefits to a worker who has been discharged for misconduct connected with the employment. Thus, the issue before the commission is whether the employee's discharge was for misconduct connected with her 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.

In attendance matters, misconduct will not be found if the absences are for valid reasons and are promptly reported to the employer. Simmons v. Klemm Tank Lines, UI Dec. Hearing No. 02403991GB (LIRC June 30, 2003). As there is no evidence to reflect that the employee's absences were for invalid reasons or were without proper notice, her absenteeism does not constitute misconduct.

With respect to isolated argumentative or insubordinate comments by workers to supervisors, the commission does not automatically find misconduct but analyzes the severity of the comments and the context in which they are made. Specifically, in Kneubuhler II v. Oscar Mayer Foods Corp., UI Dec. Hearing No. 96001045MD (LIRC July 12, 1996), the commission found misconduct where a worker interrupted a conversation between a supervisor and another worker and, when another supervisor got involved and the worker was warned that he was loud, bordered on insubordination and needed to listen, the worker directed the supervisor to stay out of his business and, loudly said, "No, you listen to me because you don't know what the fuck you are talking about." In contrast, in Boucher v. Walmart Associates Inc., UI Dec. Hearing No. 02404831AP (LIRC August 20, 2003), the commission found no misconduct when a worker, in response to being criticized for not doing his job, told the assistant manager that the assistant manager "was an asshole" in the way he treated the workers. Additionally, in Seydel v. Material Management Group Inc., UI Dec. Hearing No. 02607054MW (LIRC May 28, 2003), a worker was found eligible for benefits after complaining about being asked to train a coworker in light of his recent demotion. In this case, the employee's email was disrespectful and critical of the supervisor, yet it lacked threatening language or, even, profanity. The employee's sending of the email certainly exhibited poor judgement in an attempt to express her frustrations but the commission does not find it so severe, without any other incidents, to rise to the level of misconduct as that phrase has been defined above.

The commission therefore finds that in week 23 of 2004, the employee was discharged but not for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 23 of 2004, if she is otherwise qualified.

Dated and mailed November 24, 2004
scheiro . urr : 150 : 1   MC 640.06

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 


NOTE: Because credibility was not at issue, the commission did not consult with the administrative law judge as to his credibility impressions. Rather, the commission reaches a different legal conclusion when applying the law to the facts found by the administrative law judge.


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uploaded 2004/11/29