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

CARRIE M MYRICK, Employee

CREATIVE LIVING ENVIRONMENTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05606422MW


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 six months as a caregiver for the employer, a corporation operating group homes. Her last day of work was July 8, 2005. She was discharged on July 12, 2005 (week 29).

The employee was discharged as the result of a single incident that occurred on the day she was discharged. As part of her employment, the employee received free room and board in the basement of the group home where she worked. The other employee who roomed in the basement was male. They had an on-going dispute over putting down the toilet seat in their shared bathroom. The employer had counseled them both on July 7, 2005 about their 'personal feud.'

On July 12, 2005, at approximately 7:05 a.m., the employee entered the bathroom. She fell into the toilet when she sat down because the seat had been left up. She became enraged because she believed that the seat had been left up on purpose. She pounded on her roommate's door and yelled at him. She slammed several doors and then returned to her room. The altercation was overheard by a co-worker and the residents upstairs who became concerned. The employer discharged the employee because of her outburst. It considered her conduct a temper tantrum and expressed concern that she might erupt with violence with a resident at some future time.

The issue to be decided is whether the employee was discharged for misconduct connected with her employment.

The employee was provoked into losing her temper when she fell into the toilet on first waking. She did not damage any property or inflict any injury. She shouted, pounded and slammed doors. The entire incident lasted fewer than 5 minutes. While the outburst was disruptive, the commission considers this an isolated instance of poor judgment. The employer appeared partly motivated by concerns over future outbursts with residents. However, the employee had no history of acting out against residents.

The commission therefore finds that in week 29 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).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 29 of 2005 if she is otherwise qualified.

Dated and mailed December 21, 2005
myricca . urr : 178 : 1 MC 666.01   MC 669

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing. Its decision is not based any differing assessment of witness credibility. Instead, it reaches a different conclusion when applying the law to the facts found by the ALJ.


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