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

CAROL R HARDEN, Employee

U S CELLULAR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05605574WK


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 about sixteen months as a customer service coach for the employer, a wireless telecommunications company. Her last day of work was June 13, 2005 (week 25), and she was discharged on June 15, 2005 (week 25).

During the last months of the employee's employment, she began a friendship with a subordinate employee. The employee and the subordinate went to a movie and out to dinner, and went to a gay pride event. While out, they kissed and held hands. They also discussed the subordinate beginning a sexual relationship with the employee and her husband. At the end of her employment, the employee sought to remove the subordinate from her team.

The employer received a complaint from the subordinate that she had received unwelcome sexual overtures from the employee and feared her job was in jeopardy. The employer had a policy which forbade romantic involvements between supervisors and subordinates. It was referenced in the employee handbook which the employee acknowledged receiving when she was hired. The policy was also detailed in intranet materials which provided: "Leaders are forbidden to date or pursue romantic relationships with associates whom they supervise, directly or indirectly. Associates who violate this guideline will be subject to discipline, up to and including termination of employment." The employer investigated the complaint and concluded that the employee had violated its policy against supervisors having romantic involvements with subordinates. The employee was discharged.

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

The employee maintained that she did not initiate a sexual relationship with her subordinate but was willing to become involved with her after the subordinate expressed interest in a relationship. She further maintained that the relationship had not yet reached the stage where it violated the employer's policy.

The commission concludes that the employee's conduct did violate the employer's policy. Although the employee denied looking at the intranet policy, she was aware that she could not have a sexual relationship with a subordinate. The commission does not credit her testimony that she was unaware that her conduct was against the employer's policies. The employee went out with the subordinate socially, kissed her and held her hand. They had conversations about further sexual activity. The employee knowingly pursued a personal relationship with a subordinate contrary to the employer's explicit policies to the contrary prohibiting romantic relationships with subordinates.

The commission therefore finds that in week 25 of 2005, the employee was discharged 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 $5,197 for weeks 25 through 41 and week 43 of 2005; for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

Wisconsin Statute § 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), department 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, 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 department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 department 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 25 of 2005, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $5,197 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 January 31, 2006
hardeca . urr : 178 : 8  MC 666.01 MC 692.02

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission consulted with the ALJ about the credibility of the witnesses before determining to reverse. The ALJ accepted that the employee had some awareness that her conduct with her subordinate might be inappropriate but did not believe that she was aware of the details of the employer's policy and therefore was not on notice that her behavior was unacceptable. For the reasons given above the commission reaches a different conclusion and finds that the employee knowingly pursued a personal relationship with a subordinate contrary to the employer's explicit policies to the contrary.

 

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 offset overpayment 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:
U S Cellular - Waukesha, WI
Labor Management Group


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