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

CARLA L MICKEY, Employee

AMERICINN LODGE & SUITES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06400242AP


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, except that it makes the following modifications:

The third sentence of the seventh paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is deleted and the following substituted:

The fact that the employee repeatedly interrupted the general manager while she was questioning him at the hearing tends to support a finding that she did so as well on June 7.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 1 of 2006, 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. The employee is required to repay the sum of $2,076 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on January 3, 2006, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed May 12, 2006
mickeca . umd : 115 : 4   MC 640.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION


The administrative law judge (ALJ) credited the general manager's testimony that the employee had shouted at him when she called him at home on December 20, had accused him of trying to short her hours, and had hung up on him. There is no persuasive reason to overturn this credibility determination.

The ALJ concluded that this final incident of insubordination constituted misconduct. The commission agrees.

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that her job is in jeopardy or will be if she engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Munoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003). Since the prior written warning would reasonably have led the employee to believe that she would receive one additional written warning before termination, the record here does not show that the employee had reason to be aware that her job would be in jeopardy if she again was insubordinate to the general manager. However, this prior warning certainly placed the employee on notice that shouting at and hanging up on her supervisor was unacceptable and would lead to further discipline if repeated.

The remaining question, then, is whether the subject conduct was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that her job would be in jeopardy if she continued to engage in it. The commission agrees with the ALJ that it was.

The record shows that the employee shouted at her supervisor without reasonable provocation, aggressively continued to do so despite his directive that she calm down, repeatedly interrupted him as he tried to talk to her, accused him of intentionally shorting her hours, which he had not done, and hung up on him as he was speaking.

Particularly given the prior warning, this constituted a deliberate violation or disregard of a standard of behavior which the employer had the right to expect of the employee within the meaning of Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941). See, Howe v. Wausau Hospital, Inc., UI Hearing No. 99002053WU (LIRC Nov. 24, 1999) (employee's unfounded accusation and loud confrontation with shift leader misconduct); Jenks v. Thyssenkrupp Waupaca, Inc., UI Hearing No. 04004765MD (LIRC Nov. 30, 2004) (employee's angry outburst at superiors at investigatory meeting and violation of directive that he calm down was misconduct). Moreover, unlike the fact situation in Jurasovich v. Van Ru Credit Corp., UI Hearing No. 0360670MW (LIRC March 12, 2004), there were no extenuating circumstances here, i.e., the employee's outburst was not reasonably justified by the employer's actions and she made no effort to defuse the situation.

cc: Amercinn Lodge & Suites (Sturgeon Bay, Wisconsin)


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2006/05/24