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

JUDY P XIONG, Employee

EDUCATORS CREDIT UNION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07602326MW


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 for about seventeen months as a teller for the employer, a financial institution. Her last day of work was March 20, 2007 (week 12), when she was discharged.

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

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance 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 employee, 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 employee'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 employer's employee handbook provides for personal use of the employer's equipment and systems including email. The handbook states that a worker should not have any expectation of privacy and the employer reserved the right to monitor the use of its equipment including emails. The handbook states that workers should treat others equally and justly and should avoid any bias or prejudice based on difference in age, race, creed, national origin, marital status, sex, political beliefs, disabilities, ancestry, religion and sexual orientation. The handbook further states that workers should show respect for others and use good judgment when communicating on the employer's property. The handbook provides that workers should not make derogatory or demeaning comments about others and should not use profanity, vulgar, critical or otherwise disrespectful language that might make the worker look bad or offend someone else. Finally, the employer's anti-harassment policy provides that workers are to avoid offensive communication based on any characteristic protected by law. The anti-harassment policy prohibits, among other things, insults, name-calling, slurs, jokes or other remarks that are sexual or offensive in nature.

On March 15, 2007, the employee was engaged in an exchange with a co-worker at a different branch. The employee wrote the co-worker that a worker at her location was being a crybaby for complaining about receiving the wrong lunch order and should grow up. The co-worker replied, "Why don't they just fire all the ghetto ones...I mean it too...but then that would be almost the entire crew out there including the MFRs." The employee responded, "Yup...but they will always re-hire and they will end up being ghetto too. i swear...the people they keep hiring get ghettower by each year. but what can you do...this is the GHETTO." The co-worker replied, "I know...I think if they hire better unghetto people, the place there will improve a little. Don't you think so too? Over here isn't ghetto but we do have ghetto members and if the workers aren't ghetto then that would make the environment feel not so ghetto. But no one can get away from the ghetto. Except for Racine, then there is probably red necks." The employee responded, "hahaha...i know. that's why they should hire more bilingual people like us HMONG."

The employee failed to sign off of the computer. The next day a co-worker signed on to the computer, found the exchange, and presented it to a member of management.

On March 20, 2007, the employer discharged the employee for making derogatory comments about her coworkers.

The employee testified when she used the term "ghetto" she was referring to unprofessional conduct and not using it as a racial term. The commission does not credit such explanation. In the context of the exchange the reasonable inference is that the employee and her coworker were referring to the race of members and coworkers and not that some workers, members, and businesses in the area were unprofessional. Just as the coworker using the word "redneck" was a reference to race, the employee herself brought up her race. The employee was discharged for making derogatory comments about her coworkers and, whether or not "ghetto" was a reference to race, it and other comments made by the employee in the emails were derogatory toward her coworkers. The employer's policy alerted the employee that she had no expectation of privacy when using the employer's email.

The commission therefore finds that in week 12 of 2007, the employer discharged the employee for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $1,485.00 for weeks 12 through 20 of 2007, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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 departmental 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 12 of 2007, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $1,485.00 to the Unemployment Reserve Fund.

For purposes 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 employee 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 October 18, 2007
xiongju . urr : 132 : 1 : MC 666.01  MC 668  MC 690

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he found the employee to be fairly straight forward in her testimony and believed that she was not making a racial reference. The ALJ indicated that he had no credibility issues with the employer's testimony. The commission has reversed the ALJ's decision for reasons set forth above.

The commission declines to order further hearing to present the testimony of Mr. Demiti. The employer reserved the right to forego progressive discipline. That the employee had a conversation with Mr. Demiti before the hearing during which he told her that he had been warned for alleged sexual harassment does not indicate that at the time of the employee's conduct she was aware of Mr. Demiti's alleged conduct or the employer's discipline and that she relied on the same in assessing the potential consequences of her actions.

cc:
Attorney Alan C. Olson & Associates SC
Attorney Kenneth E. Rusch


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uploaded 2007/10/22