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

VALEISIA RODGERS, Employee

MILWAUKEE CATHOLIC HOME INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06606972MW


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 17 years as a food service aide for the employer, a nursing home. Her last day of work was on October 10, 2006 (week 41).

On September 29, 2006, the food services supervisor, Marlene Ridgeway, posted the schedule for the next two weeks. The employee was normally scheduled to work every other weekend. On this schedule, Ridgeway scheduled the employee to work on Saturday, October 14, 2006, in addition to her normal weekend shift the previous weekend.

The employee had a baby shower to attend at 3:00 p.m. on Saturday, October 14. She did not realize that she was required to work on that day until Monday, October 9, 2006.

On October 9, the employee told Ridgeway that she could not work on October 14 due to the baby shower. Ridgeway responded that the schedule had been up for two weeks and questioned why the employee had waited so long to ask for time off. While discussing the matter, both parties became upset. Ridgeway believed that the employee made an obscene gesture at her. On October 10, the employer discharged the employee for a series of poor performance issues as well as this incident.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment

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' within the meaning of the statute."

The two witnesses give contradictory accounts of what happened during their argument and about whether the employee actually made a rude gesture to her supervisor. The supervisor testified that the employee gave her the finger. The employee adamantly denies that she did this. The employer did not allege that that the employee had any other history of insubordination during her long tenure with the employer. Nor does the account of the argument show the employee blatantly challenging the supervisor's authority in any other fashion. Taking into account all these circumstances, the commission finds more credible the employee's testimony that she did not make an obscene gesture to her supervisor. Therefore, the commission finds that her discharge was not for misconduct. The employer made a reasonable business decision to discharge the employee after a number of instances of unsatisfactory performance but her conduct did not evince a willful and substantial disregard of the employer's interests.

The commission therefore finds that in week 41 of 2006, the employer discharged the employee, 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 41 of 2006.

Dated and mailed May 16, 2007
rodgeva . urr : 178 : 1 MC 640.05  MC 640.06

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission consulted with the ALJ regarding witness demeanor and credibility before deciding to reverse. The ALJ had no specific recollection of the parties. However, he thought it likely that the employee gave her supervisor the finger given that she was angry. As noted above, the commission reaches a different conclusion when evaluating the same testimony.


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uploaded 2007/05/21