KATHRYN M KING, Employee

WINGATE INN COUNTRY INN & SUITES, 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 as the front office manager for about two years for the employer, a hotel. The employee was tardy from 3 to 70 minutes on ten occasions from December 25, 2007 to January 21, 2008 because she used her telephone alarm clock to wake her for her 7:00 a.m. shift, which she knew was ineffective. She was also late for work on June 2, 4, and 11, 2008 from 15 minutes to one hour. She received written warnings for tardiness on January 3, 2008 and June 4, 2008.

In late September of 2008 or early October of 2008, when the vending machine on the premises did not release a candy bar the employee had purchased, the employer's sales director overheard the employee loudly state, while working at the front desk, that she wanted to "fucking kill herself or someone else" and that she "fucking hated this place . . ." The employee was slamming front desk items around at the time as well. On or about the same date, the executive housekeeper overheard the employee say as she was exiting the hotel that she was going to kill someone and that she wasn't scared. Both co-workers reported the employee's behavior to the general manager sometime between October 13 and 17, 2008.

The employee left work early on October 14 due to illness after a replacement arrived. She called in sick on October 15 and was absent part of the day on October 16 and all day of October 17 because her child became ill. She was discharged by the general manager on October 20, 2008 (week 43) because of her attitude in front of guests and co-workers. The employee replied that it was "bullshit" and that she couldn't "fucking" believe that she was being discharged instead of a co-worker who was frequently late for work.

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 commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his or her job is in jeopardy or will be if he or she engages in the subject conduct. This is a case where the employee's conduct was so egregious that no warning was necessary. The employee repeatedly stated that she want to kill herself and others. The employee made such comment in a loud voice at the employer's front desk, while slamming items around, where she could have been overheard by guests. The employer is in the hospitality business and the employee's conduct clearly demonstrated an intentional and substantial disregard of the standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 43 of 2008 the employee was discharged from her employment and 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 $2,189.00 for weeks 43 and 44 and 49 through 52 of 2008 and weeks 1 through 5 of 2009, 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).

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 43 of 2008, 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 $2,189.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on October 23, 2008, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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 February 13, 2009
kingkat . urr : 132 : 1   MC 668

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not consult with the ALJ who presided at the hearing prior to reversing the All's decision. The ALJ's findings reflect that the ALJ credited the employer's testimony regarding the employee's conduct. The commission agrees with that credibility determination but disagrees with the ALJ's conclusion that the employee's conduct did not rise to the level of misconduct connected with her work for the employer.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

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uploaded 2009/02/16