THERESA L BEDELL, Employee

WALGREEN CO ILLINOIS, 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, and after consultation with the ALJ, the commission makes the following:

The employee worked almost five years as a photo specialist for the employer, a retail pharmacy. The employee has difficulty reading and writing and required special educational modifications in school. During her employment, she was also prescribed medications to help her concentrate. She stopped taking one of her medications in late 2003 and, although she contended it did not affect her work, she admitted that she started "wandering around" and was not where she was supposed to be. Her last day of work was May 11, 2004 (week 19).

On March 31, 2004, the employee and her coworkers signed a written, "How to Control Grazing Policy." The policy set forth specific procedures workers were to follow when purchasing items from the business. While the written policy itself did not define "grazing" and did not set forth the type of discipline that would be imposed for "grazing," the employer's executive manager defined grazing as taking merchandise and eating it on the sales floor without paying for it and further explained that violation of the policy would result in a written warning, with a suspension upon a third occurrence. While the employer also contended that it had a zero tolerance policy for theft, it offered conflicting testimony as to whether such a written policy existed.

During the course of the employee's work for the employer, she had been disciplined for eating items on the retail sales floor, which was also prohibited by the employer's policies. Most recently, on April 17, 2004, the employee received a written warning for eating food on the sales floor. The warning cautioned her that if she was caught "eating/grazing" again she would be sent home and suspended for three days.

On May 10, 2004, the employee ate two candy bars from the employer's business with the intent of paying for them at the end of her shift. Even though she consumed the candy bars and threw the wrappers away, she planned to purchase the items at the end of her shift by taking the same items from the employer's shelf for checkout and then returning those items to the shelf after she had paid for them. This was a deviation from the employer's purchase policy but it was a deviation that the employee had practiced in the past. However, on the 10th, the employee forgot about the candy and did not pay for it at the end of her shift.

On May 11, 2004, the employer accused the employee of stealing three candy bars and a package of string cheese the prior day. The employee was questioned by a loss prevention worker for the employer and admitted to consuming items on the 10th without paying for them. She also admitted to consuming other employer food items. The employee was given the option to reimburse the employer for $40.00 or $50.00 and chose the lesser of the two options. The employee did not believe she could argue with the loss prevention worker about the circumstances of her consuming product prior to paying for it and failed to clarify with the loss prevention worker that, on the prior occasions, she actually paid for the items after consuming them. When the employee was asked to provide a written statement following the interview, she refused citing her inability to write well. The employee was discharged and subsequently filed a claim for unemployment insurance benefits.

Wis. Stat. § 108.04(5) provides that a worker who is discharged for misconduct, connected with the employment is ineligible for unemployment insurance benefits until seven weeks have elapsed and until he or she has earned 14 times his or her weekly benefit rate in subsequent covered wages. As such, the issue before the commission is whether the employee's discharge was for misconduct connected with the employment.

The employer contended that the employee's discharge was for misconduct, specifically intentional theft of product from the employer's business. This contention cannot be sustained. While the employee did consume two candy bars on May 10, 2004 without paying for them, she credibly testified that she did not intend to deprive the employer of the value of those candy bars and planned on paying for them. The commission also finds her claim of no prior theft credible.

While the employee's actions were not intentional theft, it remains to be decided whether her violation of the employer's purchase procedure, its prohibition against eating on the work floor and negligence in forgetting to pay for the product she consumed on May 10, 2004 constitutes misconduct connected with the employment. The commission finds that it does not. In particular, although the commission does not condone the employee's behavior, the employer's implicit assertion that the employee should have known the seriousness of her failures given it's "zero tolerance" for theft is undercut by the employer's confusing evidence regarding its grazing policies. Specifically, based upon the executive manager's testimony, a worker would be allowed to violate the grazing procedures at least three times before discharge. The April 17 warning supports this approach by indicating another incident of "eating/grazing" would result in suspension. This evidence together with the fact that the employee admitted consuming items prior to purchasing them on earlier occasions leads the commission to find that the employer was not vigilant in requiring that workers follow the specific purchase procedures or in implementing discipline for the violations of both the purchase policy and prohibition against consuming product on the workfloor. Given the lax and confusing approach by the employer and the employee's learning disability, the commission finds that her repeated failure to follow the purchase and eating location rules and negligence in remembering to pay for the two candy bars constituted isolated incidents of poor judgment, not misconduct.

The commission therefore finds that in week 20 of 2004, the employee was discharged but not for misconduct connected with the employment, within the meaning of Wis. Stat. § 108.04(5).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance benefits beginning in week 20 of 2004, if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed December 28, 2004
bedelth . urr : 150 : 2  MC 630.16

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission conferred with the administrative law judge before reversing his decision. While the administrative law judge made a specific finding that the employee failed to present competent medical evidence that she did not understand or appreciate her work rule violation, he found the employee's claims of learning challenges credible. The ALJ did not impart any specific demeanor impressions of the witnesses that led to his credibility determinations. The commission reverses the appeal tribunal decision because it found the employee's credible in her assertions that (1) she did not intend to steal on May 10, (2) she only violated the purchase rules previously by paying after consuming the product, and (3) felt she could not challenge the loss prevention worker's characterization of the events or the $40.00 reimbursement amount.

 

cc: Attorney Michael L. Burr, Walgreen Company

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