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

TAWANA M BRIDGES, Employee

GOODWILL RETAIL SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06607072MW


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 six months as a clerk/cashier for the employer, a retailer. She was discharged on September 21, 2006 (week 38).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with her employment.

In 2003, the employee set fire to property of an acquaintance (Sekeia). The employee was convicted of a criminal offense as a result, and a condition of her probation was that she have no contact with the victim. This "no contact order" also applied to the victim's cousin Nicole. The employee's probation was scheduled to continue until some time in 2007.

The employee was issued a first written corrective action notice on September 2, 2006, for leaving her register several times without alerting a supervisor.

The employee was issued a second written corrective action notice on September 15, 2006, for sitting at her register without permission while checking out customers. The employee was sitting in order to relieve back pain. The employee's supervisor noted on the corrective action notice that the employee was required to maintain a high level of professionalism with customers and other sales associates at all times on the sales floor, and that this needed "to start immediately."

Both notices stated that further violations would result in corrective action up to and including termination.

On September 20, 2006, Sekeia and Nicole came into the employer's place of business. Nicole selected certain clothing items and then got into the employee's checkout line. Nicole apparently observed that the employee had neatly folded clothing items purchased by other customers before placing them in a bag. When the employee crumpled Nicole's purchases into a ball and placed them in a bag, Nicole objected.

The employee called her supervisor (Bouldin) over and told Bouldin that Nicole wanted the sale cancelled. Nicole disagreed, stating she still wanted to purchase the clothing, but had asked the employee to neatly fold the clothing before putting it in the bag, as she had seen her do for other customers, but the employee had refused to do so.

Bouldin then summoned the assistant manager (Riske). Nicole told Riske that she was upset that the employee had not neatly folded the clothes she had purchased as she had seen her do for other customers; and she had not requested that the sale be cancelled, but simply wanted the clothes neatly folded before she paid for them. The employee refused to finish the sale and wanted it cancelled. Riske did not cancel the sale, but instead neatly folded the clothing, and placed it in the bag. The employee refused to handle the money offered by the customer, so Riske took the money from the customer and handed it to the employee, the employee made change and handed it to Riske, and Riske handed the change to Nicole.

The employee was discharged the next day.

Even if Nicole, as the employee alleges, had called the employee a bitch and threatened to slap her, the employee was obligated to try to calm her and complete the sale. Instead, the employee, who described Nicole as her "enemy," refused to do so, stating to her supervisor and to the assistant manager that she would not complete the sale and they should cancel it. Because of this refusal, the assistant manager had to complete the sale by taking the clothes out of the bag and neatly folding them, and receiving the customer's cash and handing the customer her change. Regardless of what transpired between the employee and Nicole, the employee's refusal to complete the sale while her supervisors were present was insubordinate and constituted misconduct.

The commission therefore concludes that the employee was discharged in week 38 of 2006 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 in the amount of $1,921 for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1),and that the employee is required, pursuant to Wis. Stat. § 108.22(8)(a), to repay this amount to the Unemployment Reserve Fund.

The commission further 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, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

The commission further finds that department records do not show that the employer failed to provide correct and complete information requested during the department's investigation of this matter within the meaning of Wis. Stat. § 108.04(13).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 38 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 1,921 to the Unemployment Reserve Fund.

Dated and mailed May 23, 2007
bridgta . urr : 115 : 1  MC 610.25  MC 640.03

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did consult with the administrative law judge before reversing his decision. The reversal was not based upon any differing view as to witness credibility, but instead upon a differing view of the applicable law.

 

cc: Goodwill Retail Services (Milwaukee, Wisconsin)


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