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

CAMIYA J BRYANT, Employee

UNITED LUTHERAN PROGRAM FOR THE AGING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07600371MW


An administrative law judge 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.

Upon receipt of the petition for commission review, the commission ordered further hearing in order to give the employer an opportunity to present additional evidence on its behalf that was not available to it at the original hearing. The employee did not appear at either at the original hearing or the remand hearing.

The commission has considered the petition and it has reviewed the evidence submitted at both hearings. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a senior care center, for just under a year as a CNA. Her last day of work was March 1, 2006, and she was discharged on March 9, 2006 (week 10).

On March 2, 2006, an elderly resident reported to the employer that the previous day, while she was in the shower, she pulled back the shower curtain and observed the employee going through her purse. The resident told the employer that she asked the employee what she was doing, but that the employee looked startled and offered no explanation. Nothing was missing from the purse, although a smaller bag that the resident kept inside the purse was found unzipped.

The employer called the employee in to ask her about the incident. The employer told the employee that there was a complaint by a resident, and that it wanted her to tell it what happened regarding the resident's shower. Without waiting to find out what the resident's specific complaint was, the employee explained that she helped the resident to the shower and stated that she was putting stockings on the back of the wheelchair, where the resident kept her purse, and that "maybe the resident thought I was," then trailed off without further elaboration. The employee denied taking anything from the resident's purse. The employee was discharged on March 9, 2006, for violation of the employer's Resident Rights and Misappropriation Policy.

Subsequent to her discharge the employee admitted to police that she had stolen credit cards from two other residents, who resided in close proximity to the resident who reported the employee for going through her purse, and for whose care the employee was responsible.

The issue to be decided is whether the employee's discharge was due to misconduct connected with her employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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 employee was discharged for going through a resident's purse. The employee did not appear at the hearing to testify on her own behalf, although given two opportunities to do so. The employer's witness testified that, when told by the employer that a resident  (1)  had made a complaint about her, the employee proceeded to tell her side of the story, in spite of the fact that the employer had not yet explained the nature of the complaint, and provided the employer with an explanation as to why the resident may have believed the employee was going through her purse. Given these circumstances, and considering that the employee later admitted to police that she had stolen credit cards from other residents of the employer, the commission believes there is sufficient circumstantial evidence to permit an inference that the employee did, in fact, go through the resident's purse.

The employer's business is to provide care for a population of vulnerable, elderly individuals. Going through a nursing home resident's purse without her permission is clearly a wilful and substantial disregard of the employer's interests and the standards of conduct the employer had a right to expect.

The commission, therefore, finds that in week 10 of 2006, 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 in weeks 3 through 19 of 2007 in the total amount of $2,362, for which she was not eligible 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 is required to repay such sum 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 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 10 of 2006 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. She is required to repay the sum of $2,362 to the Unemployment Reserve Fund.

Dated and mailed May 31, 2007
bryanca . urr : 164 : 1 MC 630.14  MC 610.25

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge about witness credibility. The commission's reversal does not rely on a differing assessment of witness credibility.

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 offset overpayment of U.I. 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 overpayment.



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) Although firsthand testimony by the resident would have been preferable, the employer explained in its petition that the resident is deceased. The hearsay statute provides an exception for a statement by a witness who is unavailable which describes an event recently perceived by the declarant, and is made in good faith, and not in contemplation of pending or anticipated litigation in which the declarant was interested, and while the declarant's recollection was clear. See Wis. Stat. § 908.045(2). The incident occurred at about 8:30 p.m. on March 1, and the resident reported it the following day. The employer testified that the resident was alert and oriented, and that it considered her reliable.

 


uploaded 2007/06/04