DAVID A FRANZWA, Employee

ASHLEY FURNITURE INDUSTRIES INC, 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 about 11 and a half years for the employer, a furniture manufacturing business. His position for approximately the last four years was as a foil splitter operator. His last day of work was March 17, 2008 (week 12), when he was discharged by the employer.

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

The employee was absent Monday and Tuesday, February 25 and 26, 2008 (week 9). He notified the employer of his absences each day. The human resource manager contacted the employee and encouraged him to take a leave of absence. Paperwork for the leave of absence was completed. The employee's doctor indicated that the employee had pneumonia in one of his lungs and was to be off work from Friday, March 7, 2008 (week 10), and return to work on Monday, March 10, 2008 (week 11).

Toward the end of the week of February 22, the employee had been spitting up blood. When it continued, he sought medical attention for it. An estimated three to four months prior to that the employee had had damage to his lungs upon opening a barrel with toxic materials in it. The employee believed that something sprayed on the air conditioning unit at the employer's facility toward the end of 2007 or sometime in 2008 that aggravated his lung condition.

During the two weeks that the employee was on leave, the employee drove on numerous occasions to a casino approximately an hour from his residence. Shortly after the employee's return to work other workers reported that the employee had been to the casino when he was off because they had seen the postings with his winnings there.

The casino is pervasive with the odor of smoke. The non-smoking area is not separated from the smoking area. The employee usually played machines that were located in or near the bar area, which was a smoking area.

The employee was discharged for "falsification and abuse of FMLA. While he was supposedly incapacitated and unavailable for work, he was gambling at the Majestic Pines Casino/Resort."

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 his discharge was not for misconduct. The commission agrees. The employee's medical certification form indicates that the employee could not work between February 25 and March 10. The form indicated that the employee was receiving medical treatment and taking prescription drugs for his condition. The employee did not work anywhere during this period of time. The employer equated the employee's visits to the casino as involving the same type of activity that he would have done had he reported to work. The employee's doctor provided him with a note that indicated that his visits to the casino did not negatively affect his health condition. The employer did not have a medical expert to verify its position that if he could go to the casino he could also go to work. The employee was legitimately ill and there is nothing in the record to support any conclusion that he falsified his request for time off so that he could go to the casino and gamble instead.

The commission therefore finds that in week 12 of 2008, the employee was discharged but that his discharge was not for misconduct connected with his work 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 12 of 2008, if otherwise qualified.

Dated and mailed August 20, 2008
franzda . urr : 145 : 1 MC 630. 09

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing her decision. The facts in this case were not disputed. The commission reversed the ALJ's decision as a matter of law.

cc: Attorney Carol Dittmar
Attorney Justin Silcox

Appealed to Circuit Court.  Affirmed, February 23, 2009.  [Summary of Circuit Court decision]

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