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

MELISSA M LAPPEN, Employee

CHYS RED STEER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08200434RH


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 four years and nine months as a waitress for the employer, a supper club. Her last day of work was February 2, 2008 (week 5).

The employer had talked to the employee and other workers about not using their cellular telephones at work too much. Workers were allowed to check messages a couple of times while working, but only for a very short time. On February 1, 2008, the employee was in the employer's break room using her cellular telephone to send a text message. The employer's manager saw her and told her in a stern voice to "put down the phone." The employee replied "Whatever." The manager then said, "No, put down the damn phone now." The employee yelled "What the fuck is your problem?" The manager said the employee should go get a job at another place of employment and see if they let her use her telephone there. The manager then started to tell the employee that she was neglecting her customers and she yelled, "You are such a fucking asshole!" She then slammed her telephone down and walked out of the break room.

The next night the employer's owner told the employee that the owner and the manager wanted to meet with her on February 3 (week 6) in the morning and that they wanted to meet with the employee alone. The employee came in the next day with her husband, who also worked for the employer. The owner told the employee's husband to leave several times and the employee and her husband refused to allow the employee to meet alone with the owner and manager. The manager then discharged the employee for the language she used to the manager on February 1, 1008.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the 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 employee argued that her language was not inappropriate in the context of her relationship with the manager. The manager was frank about the fact that the two swore at each other regularly and that the employee had never been warned about her language. Both witnesses distinguished what language was acceptable between them and what was permitted to the owner.

Since the parties had a history of swearing at each other at work and the employee had not been placed on notice that it would no longer be tolerated, the commission concludes that the employee's conduct did not demonstrate any deliberate or substantial disregard of the employer's interests.

The commission therefore finds that in week 6 of 2008, the employee was discharged from her employment but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 6 of 2008, if otherwise qualified.

Dated and mailed May 29, 2008
lappeme . urr : 178 : 1 MC 640.15

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission does not reverse based on any differing assessment of witness credibility. The commission accepts the findings of the ALJ but reaches a different legal conclusion when applying the law to the facts.

cc: Attorney Frederick J. Voss


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