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

EVAN F SASMAN, Employee

BAD RIVER BAND OF THE LAKESUPERIOR TRIBE OF CHIPPEWA INDIANS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05002678AS


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 18 of 2005, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed November 2, 2005
sasmaev . usd : 150 : 8  PC 714.09  MC 690

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The employee petitioned the appeal tribunal decision that found his discharge was for misconduct connected with his employment. To support his position that his discharge was not for misconduct, the employee argued that the Ashland County district attorney, when presented with the same evidence as the unemployment insurance administrative law judge, subsequently declined to prosecute him even on misdemeanor charges. Yet, the decision not to prosecute the employee does not negate a finding of misconduct in this case. It only establishes that, for whatever reason, the Ashland County district attorney decided not to pursue charges against the employee.

More importantly, the commission's rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. This was explained in the "Attending a UI Hearing" pamphlet sent to the parties. Also, although the commission does have the discretion to order the taking of additional evidence, that authority is only exercised in a few exceptional circumstances that have not been established to exist in this matter. For these reasons, no additional hearing will be scheduled and the commission cannot consider and will not further address the factual assertions made in the petition for review, which are not supported by the record

Based upon the commission's review of the record in this case, it finds that the employer presented credible firsthand evidence regarding the employee's sole use of a computer at a time during which illegal pornography sites were accessed. At the hearing in this matter, the employee refused to answer specific questions relating to his behavior. The employee explained that his refusals were at the direction of his attorney, who was not present for the unemployment insurance hearing. Presumably, the employee was declining to answer based upon his right against self-incrimination. Yet, in administrative cases, the fact finder is entitled to draw inferences adverse to the interests of the witness based upon a refusal to testify under Fifth Amendment grounds. Wittlieff v. Greendale Public School, UI Dec. Hearing No. 97607841MW (LIRC November 4, 1998) affirmed Wittlieff v. LIRC and Greendale School District, No. 98 CV 009379 (Wis. Cir. Ct., Milwaukee County, November 29, 1999).

Under these circumstances and drawing an adverse inference from the employee's refusal to answer specific questions related to his behavior, the commission finds that the employer met its burden to establish that the employee violated the employer's policies as it related to computer use, that he understood the standards that he should not access inappropriate sites and that his discharge was for misconduct. The appeal tribunal decision is affirmed, as written.



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uploaded 2005/11/07