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

SAMUEL D LUCKOW, Employee

AMERITECH SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04605073MW


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 about four years as a maintenance administrator for the employer, a telecommunications company. His last day of work was February 26, 2004 (week 9).

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

The employer has a policy that prohibits its workers from accessing, viewing or sending pornographic, sexually explicit or otherwise offensive material on or with their company computers. The employee was aware of that rule.

On or about February 24, 2004 (week 9), the employee received an unsolicited e-mail from someone he knew outside of the company. The e-mail contained pictures of about two dozen women exposing their breasts as well as four photos of completely nude women. None of the photos depicted or insinuated explicit acts of sex. The employee opened the e-mail and then forwarded it to his home computer and to a friend. He then deleted the message and photos from his work computer. This all took place within a matter of minutes after the employee received the initial e-mail.

The employer discovered the e-mail message that same day and investigated the matter. The employer found hundreds of pictures of women in thong bikinis on the employee's computer. The employee had access to a manager's ID and was using that ID when viewing women in thong bikinis. The employee on at least 12 occasions between December 3, 2003, and February 24, 2004, came up against the employer's web site warning for inappropriate viewing. The employee also received and forwarded on February 6 an e-mail entitled "embarrassing funnies" which contained inappropriate material including exposed genitalia.

After the employee admitted his involvement, the employer suspended and then ultimately discharged him on March 22, 2004 (week 13).(1)

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."

This is not a case of a one-time incident of forwarding inappropriate mail. The employee was on the Internet attempting to access inappropriate sites. The employee had prior to February 24 forwarded inappropriate e-mail over the employer's firewall. The employee was aware that the employer had a zero tolerance policy for accessing pornographic or sexually explicit material. The employee maintained that he was not aware that he was to immediately delete inappropriate e-mail until after he had sent it home. However, the policy specifically stated that sending such e-mail was a violation of the employer's policy. Given the employee's other inappropriate activities, the commission does not credit the employee's claim that he did not intentionally attempt to access websites on the "forbidden list."

The commission therefore finds that in week 13 of 2004 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $2,303.00 for weeks 13 through 19 of 2004, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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 departmental 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 13 of 2004, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $2,303.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on March 23, 2004, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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.

Dated and mailed February 11, 2005
luckosa . urr : 132 : 1 :  MC 690

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility. The ALJ generally indicated he had no reason to doubt the employer's testimony and found that testimony to be credible. The ALJ found the employee less than credible particularly regarding the reason for accessing thong bikini sites. The commission agrees with the ALJ's credibility assessment. The commission finds that the employee's actions as established by the employer did demonstrate violations of the employer's policy and that those violations rose to the level of an intentional and substantial disregard for the employer's interests.

 

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.

 

cc:
Ameritech Services, Inc. (Hoffman Estates, IL)
Ameritech Services, Inc. (Milwaukee, WI)
Sam Butler



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Footnotes:

(1)( Back ) The employer testified the employee's last day on the payroll was April 19, 2004 (week 17). In his testimony the employee indicated he was informed of his discharge on April 19. However, the commission believes the employee was using the date supplied by the employer. The employee initiated his claim in week 13 of 2004, and indicated at that time that he had been discharged. The file reflects that during his March 31, 2004, conversation with the adjudicator the employee indicated he had been discharged on March 22, 2004 (week 13). In week 9 though 12 of 2004 the employee's employment was suspended for investigation purposes. The employee did not file for UI benefits during his suspension from employment.

 


uploaded 2005/02/22