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

KELLY M DEMULLING , Employee

NEW RICHMOND MEADOWS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07200407NR


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 1.5 years as a part-time (20 hours per week) certified nursing assistant (CNA), primarily on the night shift, for the employer, a nursing home.

Her last day of work was February 8, 2007, and she was discharged on February 14, 2007 (week 7).

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

Prior to February 8, 2007, Michelle Obermuller (Obermuller) one of the night shift nursing supervisors, directed negative comments to the employee about her illegitimate children, her new pregnancy, and the use of tax dollars to fund the food stamps and medical assistance services she utilized. The employee complained to Susan Vlasnik, the director of nursing, and other members of management about these comments. Vlasnik, on two occasions, issued verbal reprimands to Obermuller as a result. After the second verbal reprimand, Vlasnik received no further complaints from the employee until February 8.

CNA's are permitted two 15-minute breaks and one 30-minute break each shift.

On Sunday, February 4, the employee and coworker Natasha divided certain duties. Natasha was supposed to have washed wheelchairs, but apparently failed to do so.

On February 8, Obermuller told the employee, as she went outside to smoke a cigarette, that this would constitute her 15-minute break. Although the employee first testified that Obermuller said nothing to the employee's fellow CNA Rachel as she left to smoke a cigarette, she later testified that Obermuller gave this same message to Rachel, although the employee contends that it was stated to Rachel "jokingly" and to the employee "sarcastically." The employee was accustomed to taking her 15-minute breaks in two- or three-minute intervals in order to smoke, and became upset with Obermuller, stating to her that, "You're just fucking punishing me for Natasha not doing the fucking wheelchairs." Obermuller responded by advising the employee that the 15-minute break requirement was a rule and that it was her responsibility to enforce it. The employee told Obermuller she was going to phone Vlasnik.

The employee did phone Vlasnik at home at 11:50 p.m. The employee mentioned to Vlasnik Obermuller's reference again to her children and the public services she utilized. Vlasnik counseled the employee that she would take care of it when she was again at work, and the employee should let it go for the time being and return to her duties.

The employee then returned to the nursing station where Obermuller was present, and told her she had spoken to Vlasnik. Obermuller told the employee she would be willing to stay after her shift to discuss the matter with the employee and Vlasnik. The employee declined, told Obermuller to "fuck off," and left the nursing station.

The employee was discharged on February 14, 2007, for directing profanity at her supervisor.

The employee contends that she told her supervisor to "fuck off" only once. However, Stephanie Evenson, a CNA who was present during the exchange between the employee and Obermuller, testified that the employee did so three times, as set forth above, not one. Evenson's testimony was very detailed and consistent, and more credible than the employee's. The commission also notes that Vlasnik testified as to what Evenson, who had been sequestered by the ALJ, told her about the exchange between the employee and Obermuller, and Evenson's and Obermuller's testimony in this regard was consistent.

The employer's work rules (exhibit no. 4) provide that obscene conduct, including using vulgar language, is grounds for immediate termination.

Although Obermuller's critical personal remarks were certainly intrusive and offensive, the fact that the employee's use of profanity occurred some time after these remarks were made and in reaction to a different statement by Obermuller; as well as the fact that the employer had addressed the employee's concerns about them on previous occasions by reprimanding Obermuller, and had pledged to address them again, dilutes their effectiveness as reasonable provocation for the employee's actions. This, considered in concert with the repeated and egregious nature of the employee's use of profanity, and the fact that she specifically directed it at her supervisor, supports a conclusion of misconduct.

In correspondence dated February 16, 2007 (exhibit no. 2), the department requested information from the employer in regard to the employee's separation. Department records do not indicate that the employer ever responded to this correspondence, or that it was returned to the department by the postal service. Although Vlasnik testified that she would get this document if it were received by the employer and she had never seen it, she also testified that it could have been received and processed by another staff person who is no longer with the employer. As a result, the employer has failed to show good cause for its failure to provide the information requested by the department during its investigation.

The commission therefore concludes that the employee was discharged in week 7 of 2007 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 $1,691 for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The commission further finds that the employer failed, without good cause, to provide correct and complete information requested during the department's investigation of this matter within the meaning of Wis. Stat. § 108.04(13).

Accordingly, benefits paid to the employee prior to the end of week 13 of 2007, when the appeal tribunal decision was issued, which total $870, will remain charged to the employer's account, and, since there is no evidence of employee fault in this case, pursuant to Wis. Stat. § 108.04(13)(c), no overpayment is created as to this amount.

In addition, an overpayment is created as to those benefits, which total $821 and which did not result from employer fault or department error, paid to the employee after the end of week 13 of 2007, when the appeal tribunal decision was issued, and this overpayment is required to be repaid by the employee to the Unemployment Reserve Fund. Of this amount, $88 is included in overpayment amounts set forth by notices of overpayment (Forms UCB-37) dated June 7 and June 21, 2007, so the total net amount to be repaid by the employee as the result of this decision is $733.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 7 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 $821 to the Unemployment Reserve Fund, of which $88 has been included in overpayment amounts set forth by notice of overpayment (forms UCB-37) dated June 7 and 21, 2007. Due to the employer's failure to provide, without good cause, correct and complete information to the department during its investigation, it remains charged for $870 of the benefits erroneously paid to the employee.

The initial Benefit Computation (Form UCB-700), issued on February 14, 2007, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed July 9, 2007
demulke . urr : 115 : 1  MC 640.05  MC 640.15  BR 319.4

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing interpretation of the relevant law.

 


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