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

MARILYN R CREAPEAU, Employee

MOHICAN BINGO ENTERPRISE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06402250WU


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 modification:

The following paragraph is inserted after the fourth full paragraph on page 2 of the administrative law judge's FINDINGS OF FACT and CONCLUSIONS OF LAW:

"The appeal tribunal further finds that in week 32 of 2006 the employee's employment was not terminated because a license required by law to perform her customary work for the employer was revoked due to her fault."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits as of week 32 of 2006 and thereafter, if she is otherwise qualified.

Dated and mailed January 29, 2007
creapma . usd : 164 : 1    MC 630.05  AA 130

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The question presented in this case is whether the employer presented clear and convincing evidence of employee theft. At the hearing the employer presented documentary and videotape evidence from August 9, 2006. The documentary evidence reflects three separate instances in which customers signed for $50 payouts, which appear to have been later voided and reentered into the system as $250 payouts. However, the payouts and the voided transactions all appear under the name of a co-worker, and the employee insisted that other workers had access to her log-in and could have voided transactions and entered new payouts. She testified that there were about nine other workers who might have had such access. The employee also testified that a void could be done at any computer, and that in addition to the two computers in the back room, there is a computer near the outside cashier that could be used. The employee admitted to having typed in one of the three voids, but explained that she was making a correction because her co-worker told her that two games had been entered as one, something she described as a common problem. While the commission does not find the employee's explanation to be entirely satisfactory, it is unpersuaded that the evidence establishes she was attempting to defraud the employer. The videotape evidence is similarly ambiguous, and is insufficient to warrant a conclusion that the employee was stealing cash from the employer as alleged.

In its petition for review the employer explains that the videotape was not intended to be a "smoking gun" that would show the employee taking cash from the cash drawer, but was intended to show that "another layer of investigative work had been performed by the commission." The employer contends that its witness, Janet Miller, testified that 30 days of video showed the same pattern of conduct by the employee. It maintains that it would have been unduly time consuming and burdensome to bring in its records and videotapes going all the way back to November of 2005. This argument is without merit. A pattern of conduct cannot be proved based on only one day's evidence, and the commission sees no reason why the employer could not have brought in videotapes and data spanning several days. While the employee's conduct on August 9, 2006 raises some suspicions, the commission finds the evidence insufficient to warrant a conclusion that she was stealing money from the employer on that date, let alone that she was systematically defrauding the employer in the manner it suggests.

In the petition the employer also argues that the appeal tribunal decision contained no finding regarding the license suspension issue. The employer is correct that the license suspension issue was noticed for hearing and should have been addressed in the decision. However, if the evidence is insufficient to establish the employee was discharged for misconduct, then it is also insufficient to establish that she lost her gaming license due to her own fault. The commission has therefore modified the appeal tribunal decision to include a finding with respect to the license issue, but affirms the ultimate conclusion that the employer did not meet its burden of establishing that the employee is not eligible for benefits.

cc: Attorney Douglas Houck



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