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

REBECCA L MANLEY, Employee  EDIT!

KRIST OIL CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07200609EC


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. The commission ordered further hearing in this matter, which was held on August 20, 2007.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge at the original hearing and the remand hearing. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a convenience store, for approximately eight months, most recently as a store manager. Her last day of work was February 28, 2007 (week 9).

During the course of her employment the employee habitually swore and used foul language. In conversations with one of the store managers the employee "swore like a trucker" and frequently referred to the cashiers as "bitches."

The employee applied for a store manager position in early November of 2006, but was initially not selected. The employee told a co-worker that, when her supervisor notified her she was not going to be promoted, she "flipped him off" and said "fuck you." The employee was issued a written warning for this incident and notified that the continuation of such behavior could cost her her job. Shortly thereafter, the employee was granted the manager position.

On February 22, 2007, the employee received a second warning for using vulgar language and creating a hostile work environment. The employee had commented to a worker that her supervisor told her to give the worker a write-up, but that the employee had stated the supervisor could "kiss her ass." The employee was warned that, should another incident occur, she would be dismissed.

After the final warning was issued the employer received complaints from staff that the employee was continuing to use foul language. In a telephone conversation with another manager the day after receiving the warning the employee commented about "that bitch fuckin' secretary" and used other profanity. On February 28, 2007, the employer discharged the employee for continued use of unacceptable language.

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 the frequent use of foul language in the workplace. The employee had been warned on several occasions that the employer found her language objectionable and that her continued used of such language would result in her discharge. The employer's request that the employee refrain from using inappropriate language in the workplace was not unreasonable, and the commission believes that her refusal to conform her conduct to the employer's reasonable expectations evinced a wilful and substantial disregard for the employer's interests.

The commission, therefore, finds that in week 9 of 2007, 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 12 and 13, 15 through 32, and week 35 of 2007 in the total amount of $1,981, 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 9 of 2007 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 $1,981 to the Unemployment Reserve Fund.

Dated and mailed September 13, 2007
manlere . urr : 164 : 1  MC 668

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


NOTE: The commission conferred with the administrative law judge, who held both the original and remand hearings, about her impressions of witness credibility and demeanor. The commission does not reverse the administrative law judge's decision based upon any differing assessment of credibility or demeanor. The commission reached its decision based, in part, on evidence obtained during the remand hearing which was not available to the administrative law judge.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set overpayment of U.I. and other special benefit programs that are due to this state, another 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.

cc: Attorney Roy Polich


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