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

QUINN M KIESOW, Employee

BEST BUY STORES LTD PTRSHP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05001411MD


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 retail electronics store, for three years, most recently as a customer specialist in the mobile electronics department. His last day of work was February 24, 2005 (week 9).

The employer's work rules provide that employees may be subject to disciplinary action up to and including discharge for inappropriate conduct, including verbal or physical conduct that harasses, disrupts or interferes with work performance or creates an intimidating, offensive or hostile environment, and for misuse or manipulation of any electronic data or telephone equipment.

One of the employee's job responsibilities was to assign tasks to other workers. On February 20, 2005, the employee sent an e-mail message to a worker, assigning him work for the start of his shift. In the portion of the document labeled "delegation notes," the employee wrote, "Fuckin' Jeep!! Fuckin' Tribute!! Fucking Shit! Funky Boss!!!" In a second work assignment document prepared on February 22, 2005, the employee wrote under "delegation notes" the words "Funky Fuckin Boss!!!"

The employer's general manager saw the delegation notes in the course of validating some reports. On February 24, 2005, he called the employee in to a meeting and showed him the notes. The general manager asked the employee if he realized it was wrong to have written those comments. The employee responded that he never meant to offend anyone, but that he could see why the notes were offensive, and apologized. He was discharged as a result.

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 employer contended that the notations were offensive and that the employee's conduct was in violation of its policy prohibiting misuse or manipulation of electronic data and verbal or physical conduct that harasses, disrupts or interferes with work performance or creates an offensive work environment. However, the employer failed to demonstrate that the employee misused electronic data, nor does the commission believe he engaged in conduct creating an offensive work environment. The terms the employee used in the delegation notes, while juvenile and unprofessional, were not unambiguously or objectively offensive, and the employee explained that they were meant to be references to certain rap songs and rap artists and were part of a running joke in the work place. The workers for whom the notes were intended did not complain about them, and no evidence was presented to suggest they found them offensive.

Moreover, the employer's policy does not mandate discharge for inappropriate conduct, but provides that violation of the rule may result in disciplinary action up to and including discharge. The employee had worked for the employer for three years with no prior disciplinary history. He apologized to the employer and explained that he had not meant to offend anyone, but was given no opportunity to conform his conduct to the employer's expectations. Under all the circumstances, the commission concludes that the employee was discharged for an isolated instance of poor judgment, but not for misconduct within the meaning of the law.

The commission, therefore, finds that in week 9 of 2005, the employee was discharged and not for misconduct connected with his employment, 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 9 of 2005, provided he is otherwise qualified. He is not required to repay the sum of $2,632 to the Unemployment Reserve Fund.

Dated and mailed June 24, 2005
kiesoqu . urr : 164 : 1  MC 668  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 prior to reversing, because the commission's reversal is not based on a differing view of the credibility of witnesses. Rather, the commission has arrived at a different conclusion when applying the law to essentially the same set of facts as that found by the appeal tribunal.

 

cc: Best Buy Stores (Madison, Wisconsin)


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uploaded 2005/06/27