AMBER R TRUJILLO, Employee
KWIK TRIP INC, 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, the commission makes the following:
The employee worked for nine years as a cashier/front end specialist for the employer, a convenience store. Her last day of work was May 5, 2005 (week 19), when she was discharged.
The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constituted misconduct connected with the employment.
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 insurance 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 employer had a written loss prevention policy. The policy provided for complimentary coffee, cappuccino, latte, fountain drinks and frozen slush drinks to workers while on duty. Other products were to be purchased by the worker and rung up by a co-worker, if one was present in the store. The policy further provided that "[s]amples intended for customers may not be consumed by co-workers." In spite of the written policy, workers occasionally helped themselves to a customer sample.
The employee's job was to take care of the front area of the store, especially the coffee area, and to work at the cash register. Among other things she was responsible for putting out samples of doughnuts, cookies and other bakery products for customers.
During her last month of employment, the employee was observed by several co-workers cutting up doughnuts and other bakery products and eating samples, often more than one sample at a time. On numerous occasions, she removed the product from the bakery case and took it to the back room where she cut it up and ate some or all of it. At times, she appeared to be eating the doughnut in the back area as quickly as she could. She was also observed dispensing a milk shake for her daughter one day and not paying it (1), as well as sampling soup in a small container before she chose which soup to order. The store leader decided to watch her more closely to determine whether she was violating store policy.
On April 26, 2005, the store leader observed the employee eating a doughnut and he asked her if she had paid for it. She told him that a customer (a friend of her husband's) had bought it for her. The store leader reviewed a videotape of store activities that day and the employee pointed the customer out to him. The customer's receipt did not show the purchase of any doughnuts.
On May 2, 2005 (week 19), the employer initiated an investigation into the matter of the employee's consumption of store products. The employee initially denied sampling product, but then admitted that she consumed some samples, the same as "everyone else does". She said that she always paid for other products that she consumed and she denied that she did anything wrong. She was suspended from work that day pending investigation. She was discharged on May 5, 2005 (week 19), after the store leader spoke with the employee's co-workers about their observations and was unable to confirm (after viewing store receipts and questioning her co-workers) that the employee had paid for the bakery products that she had eaten on previous occasions.
The evidence established that the employee consumed products intended for customers. However, the evidence also established that other workers likewise consumed products intended for customers. While the employer may have made a distinction between the employee's consumption and that of other workers, or believed the employee's sampling was excessive or at least at an unacceptable level, it should have conveyed such beliefs to the employee. Given that other workers also consumed product intended for customers the employer was obligated to warn the employee that her conduct was jeopardizing her employment to alert the employee that it considered her conduct a substantial interference with its business interests.
The commission therefore finds that in week 19 of 2005, the employee was discharged but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).
The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 19 of 2005, if she is otherwise qualified.
Dated and mailed December 8, 2005
trujiam . urr : 132 : 1 : MC 630.14 MC 630.16
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ generally indicated that she found the employer's witness credible and did not find the employee credible. The ALJ did not impart any demeanor impressions she had of the witnesses that led to her credibility assessment.
[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]