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

REBECCA L KEELE, Employee

HANDLEMAN ENTERTAINMENT RESOURCES LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05003618BO


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 three years as a sales representative for the employer, a music products wholesaler. The employer was generally flexible with the employee's starting time except on Tuesdays. On Tuesdays it was important that representatives be in the stores because new recording products were released and delivered to retailers on that day.

In February of 2005 the employee received a performance review that indicated she needed to have a more regular and consistent schedule. In May of 2005 Mr. Barbeau became the employee's manager. On June 7, Mr. Barbeau spoke to the employee regarding her service hours. Specially, the employee was to appear for work by 10:00 a.m. on Tuesdays. On June 14 the employee arrived for work at 2:55 p.m. Mr. Barbeau informed her that if she again failed to appear for work by 10:00 a.m. she would be discharged. On Tuesday, June 21, 2005 (week 26), the employee appeared for work at 10:25 a.m. and was discharged.

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 employee maintained that Mr. Barbeau never gave her a specific time that she had to arrive by. The employee's testimony is not credible in light of Mr. Barbeau's testimony and documentation submitted. Further, while the employee acknowledged that she received a last warning she maintains that she was only told to get there "earlier in the day." It is difficult to believe that an employer would not specify the time the employee had to appear in order to avoid termination, or that the employee would not seek out a specific time. The employee presented a medical report completed by a psychotherapist. The document indicates that the employee was suffering from major depressive disorder which made her anxious and depressed and caused functional impairment. A notation indicates that the employee was undergoing medication changes and significant new life stressors when the employer required significant changes in her work hours and schedule. The psychotherapist indicated that the employee was experiencing increasing symptoms and requested flexibility by the employer. The medical report was not completed by a doctor. Further, the report does not state that the employee's failure to appear for work by 10:00 a.m. on Tuesdays was because of her medical condition. The medical report does not state that the employee was unable to appear for work by 10:00 a.m. The employer had a right to expect the employee to appear for work on time. The employee was warned that her failure to do so was jeopardizing her continued employment. The employee's conduct demonstrated an intentional and substantial disregard for the standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 26 of 2005 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $4,612.00 for weeks 27 through 49 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 26 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 $4,612.00 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 December 14, 2005
keelere . urr : 132 : 1 :  MC 678   PC 714.10

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding his impressions of witness credibility and demeanor. The ALJ indicated that the employee was not a focused individual. The employee's evidence however did not establish that she was unable to meet the employer's reasonable expectations. It is not enough to allege a potential relationship between a psychological condition and conduct. The employee must establish through medical evidence that her psychological condition caused the behavior that led to her 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.

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: Handleman Entertainment (Fond du Lac, Wisconsin)


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