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

CHAD C BURKE, Employee

BEST BUY STORES LTD PTRSHP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05601788WK


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 distributor of consumer goods, for four months, most recently as the lead person in the home theatre area. His last day of work was January 7, 2005. He was discharged thereafter on January 11, 2005 (week 3).

On January 7, 2005, the sales manager met with the employee in the center of the store. The sales manager indicated that the employee needed to be in his department helping customers. The employee indicated that he had come to work to finish paperwork for a meeting the following day. The sales manager repeated that the employee needed to be in his department. The employee replied that the sales manager could "kiss his ass." The employee walked away and told the store manager to "fuck off."

The employee was discharged for insubordination pursuant to the employer's policy. The issue is whether the employee's discharge was for misconduct connected with his work.

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."

The employee's actions were inappropriate, vulgar, and insubordinate. The employee was in the middle of the employer's store when he made the comments to the sales manager. The sales manager's statements to the employee did not warrant such a response from the employee. Whether the employee was or was not able to explain his reason for being at work, it was inappropriate to respond to the sales manager's statements in such a manner. This conduct was excerbated by the fact that he was on the employer's sales floor at the time he made his comments. The employer cannot tolerate such conduct from workers.

The commission therefore finds that in week 3 of 2005, the employee was discharged 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 $8,112.00 for weeks 3 through 28 of 2005, 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 3 of 2005, 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 $8,112.00 to the Unemployment Reserve Fund.

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 August 11, 2005
burkech . urr : 132 : 1 : MC 640.15  PC 714.10

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the administrative law judge. The employee agreed that he made the statements attributed to him. That the employee was having a bad day does not justify his conduct. That the employee may have a mental condition and alcohol problem and be treating for those problems does not establish that either caused his outburst on his last day of work. It is not enough to allege a potential relationship between a psychological condition and conduct. The employee must establish through medical evidence that his psychological condition caused the behavior that led to his discharge. See Lindberger v. LIRC, No. 00-CV-1798 (Wis. Cir. Ct. Dane County Mar. 29, 2001). The employee did not present such evidence at the hearing.

cc:
Best Buy Stores LP (Delafield, Wisconsin)
William H. Rudnick


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uploaded 2005/08/15