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

DEBORAH WOODRUFF, Employee

FELLYS FLOWERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08002590MD


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 a year and 39 weeks as a salesperson/designer for the employer, a flower shop. Her last day of work was on May 27, 2008 (week 22).

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.

On November 7, 2007, the employee requested and was granted a transfer from store manager to a salesperson position and a new store manager was assigned to work at the flower shop. The store manager and a salesperson, usually the employee, would staff the flower shop during daytime hours. At the hearing, the employee explained that the new store manager was changing the way things were done and that they had to be done "her (the store manager's) way. The employee admitted she had conflict "from the beginning" and "day to day" disagreements with the manager.

On November 7, 2008, the employee refused to assemble a flower arrangement as specified by the customer and as directed by the store manager. The store manager did the arrangement instead. On November 29, 2007, the employer warned the employee that she could be terminated if she failed to meet the customer's expectations.

On November 23 and 26, 2007, the employee notified the store manager that she would not be coming to work because her mother was at the hospital and that she would keep the employer informed. The store manager asked that the employee to bring an excuse from the doctor so that she could approve the leave. The employee refused. She did not provide the excuse until after receiving a warning "counseling statement", on November 28, 2007, when she was instructed to provide the information requested by December 10, 2007, and given a copy of the employer's FMLA policy.

On February 25, 2008, the employee walked out of a performance review when she was informed that she would not receive a raise, saying it was a "waste of time." On February 26, 2008, the employee called the store manager a "liar" when the store manager informed her that other workers, including a manager, reported that the employee had been complaining about her job and making negative comments about the store manager. The store manager warned the employee that she could be terminated if she continued to not treat other workers with respect.

On May 20, 2008, it was reported to the employer that the employee was observed going through papers on the store manager's desk when the store manager was not present. The employee denied doing this.

On May 27, 2008 (week 22), the employer discharged the employee, "because your work style and attitude does not fit our company culture."

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."

Certainly, an employer has the right to expect its employees to follow it reasonable directives. The employee's behavior in February of 2008 was inexcusable and calling her supervisor a liar was extremely disrespectful. However, the employer did not choose to discharge the employee at that time. Rather, the employer warned her that she could be discharged for failing to act in a respectful manner. Because she had been disciplined for this conduct, the employer could not rely upon it to support a finding of misconduct absent some subsequent, blameful behavior on the employee's part. The employer alleged that on May 20, 2008, the employee went through papers on the store manager's desk. The employer failed to present any firsthand evidence to support its assertion in this regard. The employee denied going through papers on the store manager's desk. As such, the employer failed to demonstrate that the employee engaged in any blameworthy behavior after her February warning. Furthermore, the employer informed the employee that she was being discharged because her work style and attitude did not reflect its company culture. The employer did not indicate she was discharged for any specific incident, or that her behavior was disrespectful or insubordinate. While the employer may have had valid reasons for discharging the employee, her actions did not evince such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 22 of 2008, the employee was discharged, but that her discharge was not for misconduct connected with her 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 22 of 2008, if otherwise qualified.

Dated and mailed October 23, 2008
woodrde . urr : 145 : 1   MC 640.01  MC 640.05  MC 665.01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing his decision. The commission did not reverse the ALJ based on a different assessment of witness credibility. Rather, the commission reversed the ALJ's decision as a matter of law.

 

Note: This decision is reproduced here as affected by a corrective amendment made on November 12, 2008.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2008/11/17