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


KENISHA E PATTON, Employe

GOODWILL INDUSTRIES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98601933MW


On March 3, 1998, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with her employment. The employer timely requested a hearing on the adverse determination, and hearing was held on April 3, 1998 in Milwaukee, Wisconsin before a department administrative law judge. On April 9, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge regarding credibility, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case worked approximately five months as a cashier for the employer, a goodwill store. The employer discharged her on February 2, 1998 (week 6), following an incident the previous Friday, January 30. The commission concludes that the employe's act, essentially jumping on a security guard from behind, was misconduct for unemployment insurance purposes and therefore reverses the appeal tribunal decision.

On or about January 30, 1998, the employe was preparing to leave the work site at the end of her shift. The locker area where the employe kept her personal belongings was locked, as was customary. The employe and a co-worker paged the employer's security personnel on the employer's telephone system several times. Two security guards came to the area, at which point the employe asked them to unlock the lockers so the employe and co- worker could obtain their personal belongings. One of the security officers told the employe "no," and turned to walk away. The employe then came up behind the security officer and jumped on him, simultaneously putting his neck in an arm lock. Shortly thereafter, the employer discharged the employe for the physical assault upon the security officer.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The commission believes the employe's conduct in this case meets that standard. Essentially, the employe committed a physical assault and battery against the security officer. The employe had argued that her contact with the security officer was provoked, that the security officer unreasonably had refused to unlock the locker in question, even though it was his job to do so. This may be, but it was insufficient provocation to excuse the employe's attack.

The commission therefore finds that, in week 6 of 1998, the employe was discharged for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employe was paid benefits for weeks 7 through 20 of 1998, totaling $1,437, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employe fault as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.


DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 6 of 1998, 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 employe must repay $1,437 to the Unemployment Reserve Fund.

For the purpose 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 employe 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: September 30, 1998
pattoke.urr : 105 : 3 MC 670

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. The employe had testified that she did no more than put her hand on his shoulder to get him to turn around and unlock the lockers. The employer's witness testified that the employe essentially jumped on the security officer's back and grabbed him around the neck. The commission conferred with the administrative law judge to determine which version he believed happened; the administrative law judge believed the employer's witness's characterization was more accurate. The commission's reversal of the appeal tribunal decision therefore is not based upon a differing assessment of credibility from that of the administrative law judge, but rather is due to its legal conclusion that the actions in question meet the misconduct standard.

cc: JAMES B SCHMIDT
CONTINENTAL INVESTIGATIONS & SECURITY LTD


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