SANDRA L BOTT, Employee

WEPNER CHIROPRACTIC OFFICE SC, Employer

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:

The employee worked for the employer, a chiropractor, for nine years as an office worker. Her last day of work was January 21, 2008 (week 4).

On January 4, 2008, the employee and the employer's owner had a discussion about scheduling. When the owner left the area, the employee referred to him as a "fucking asshole." The employee made the remark in the presence of the office manager, who notified the employer about it.

On or about January 14, 2008, the office manager informed the employer that the employee had been playing computer games on the job. The office manager showed the employer a game counter on the employee's computer, which registered over 1000 games. On January 21, the employer's owner asked the employee about the matter. At first the employee denied playing games at work, but then acknowledged she had done so. She was discharged as a result of her conduct, and for referring to the employer as a "fucking asshole."

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 testified that she could not recall having made the "fucking asshole" statement, but did not deny having done so. The remark, while intemperate and unprofessional, was an isolated comment which was not made directly to the employer or in front of clients. The commission does not find it sufficiently serious as to warrant a finding of misconduct.

The employee also played numerous computer games on the job. However, the employee offered a reasonable explanation for her actions. She explained that one day a week she had to call insurance companies and would spend a considerable amount of time on hold. The employee testified that when she had other work she could do while on hold she did it, but if not she played games on the computer. The employer has no policy about playing computer games and never discussed the matter with the employee prior to her discharge. If the employer considered the employee's actions objectionable it should have notified the employee and given her an opportunity to conform her conduct to its expectations.

The commission, therefore, finds that in week 4 of 2008, the employee was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 4 of 2008, provided she is otherwise qualified. There is no overpayment as a result of this decision.
Dated and mailed May 15, 2008
bottsa . urr : 164 : 1   MC 640.05  MC 640.15  MC 690

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor prior to reversing. The commission's reversal is not based upon a differing assessment of witness credibility.