RENEE E THOMAS, Employee

ACE DISTRIBUTION SERVICES 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 five years as an order picker for the employer, a distributor and fulfillment warehouse. The employee's last day of work was November 23, 2005 (week 48) when she was discharged.

During her employment, the employee received a copy of the employer handbook warning employees that engaging in threatening, intimidating or abusive conduct towards supervisors, managers, or co-workers is unacceptable and may result in discipline, up to and including discharge.

In April of 2003, the employee and a co-worker became involved in a shouting match that allegedly began when the co-worker accused the employee of wearing pajamas to work that day. The incident was fueled by a prior comment the co-worker had made to the employee about a belt buckle. After the shouting incident, the employee was verbally reminded that shouting was not acceptable and that further incidents would lead to disciplinary action and possible termination.

In August of 2003, the employee became involved in another shouting incident this time with a manager. The employee was again reminded that she had been warned in the past about shouting at anyone in the warehouse, let alone a manager and was warned that these incidents would have to stop or she would be terminated.

The next incident occurred on January 30, 2004. The employee had sought permission from the human resource director to return late from lunch. She was instructed to let her supervisor know that she would be returning late from lunch but failed to do so. Unaware of this prior approval, the supervisor made a sarcastic comment to the employee when she returned from lunch. The employee told her supervisor to stay out of her business and show her some respect. The employee and her supervisor then began to argue. The employer initially decided to discharge the employee as a result of the behavior but the next day decided to give the employee another opportunity with the understanding that any further incident of this nature would result in her dismissal.

In October of 2004, the employee was again issued another warning stemming from an on-going disagreement the employee had with another co-worker. The employer informed both workers that it would not tolerate the constant disruption caused by their inability to get along and offered them the opportunity of ignoring each other at work since each could do their job without involving the other. Each agreed to do so.

In May of 2005, an incident with this same co-worker occurred again. The employee believed that this co-worker and others were talking about her behind her back and the employee accused the co-worker of doing such. The co-worker disagreed and the two began to shout at each other. The employer informed the employee that she had been warned numerous times about raising her voice in the warehouse and that these incidents were going to lead to her dismissal.

On November 22, 2005, the employee again became involved in a shouting match with a different co-worker. The employee accused the co-worker of talking about her while the co-worker was on the phone. The employer approached the co-worker about this and the two women began to shout. The co-worker informed the employee that she should drop it because the co-worker had nothing further to discuss. The co-worker then asked the employee if she wanted to discuss the matter outside when she got off of work. The employee replied, "I get off at 4 p.m. do you want to wait for me." The co-worker approached the human resource department about the employee's threatening behavior. Shortly thereafter the employee approached the human resource department about the co-worker's similar behavior. Because each employee felt threatened by the other, the employer spoke separately to each informing them that anyone involved in threatening behavior would be subject to discipline. The very next morning the employee and the same co-worker continued their fight. Later that day the employee was discharged for abusive, intimidating, otherwise threatening behavior in the workplace.

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 admitted that in January of 2004 she knew her job was in jeopardy if her abusive and disruptive behavior continued. Despite this knowledge and continued warnings, the employee exhibited abusive, intimidating and threatening behavior toward others in the employer's workplace in violation of its work rule. While it appears that other co-workers may have engaged in similar behavior at times, the employee failed to avoid such disruptive contact with her co-workers despite repeated warnings to stop such behavior. Additionally, the commission has previously held that an employer has a right to expect its employees refrain from behavior that disrupts workflow and office harmony. See Gundlach v. Butler Tile Sales, Inc. (LIRC 07/31/01, affirmed Gundlach v. LIRC, Case No. 01CV8075 (Wis. Cir. Ct. Milwaukee County, 03/12/02). Under these circumstances, the commission is satisfied that the employee's actions constitute an intentional disregard of the employer's interests and of the standard of conduct that the employer had a right to expect of the employee thereby establishing misconduct within the meaning of the law.

The commission therefore finds that in week 48 of 2005 the employee was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits amounting to $5,700.00 for which she is not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a) the employee is required to repay such sum to the Unemployment Reserve Fund.

The final issue is whether recovery of overpaid benefits may be waived.

Wis. Stat. § 108.22(8)(c) provides that the department shall waive 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)-(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, 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. Pursuant to Wis. Stat. § 108.22(8)(c)2 such a reversal may not be treated as establishing "departmental error" when the commission's reversal is based on a different legal conclusion when applying the law to the facts found.

The commission therefore 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.

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 48 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. The employee is required to repay the sum of $5,700 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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

The initial benefit computation (Form UCB-700) issued on November 28, 2005 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 June 15, 2006
thomare . urr : 135 : 8   MC 669 MC 673

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

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.C. 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:
Bryan Goeckermann
Attorney Autumn M. Kruse

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uploaded 2006/06/20