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

JOSEPH A LYMON, Employee

BURGER KING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09604760RC


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 1.5 years as a crew member for the employer, a restaurant. He was discharged on March 17, 2009 (week 12).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

The employee was discharged for allegedly directing profanity at two managers, and demonstrating a bad attitude at work by implying that he did not care about or intend to carry out a manager's directive.

On Friday, March 13, the store manager (Giovanni) asked another manager (Della) to direct the employee to tuck in his shirt. The employee stated to Della, in reference to Giovanni and so that Giovanni could hear him, "Fuck that faggot." Giovanni discussed this incident with the employee.

On Sunday, March 15, Della reminded the workers, including the employee, that they needed to keep the drive-through times in mind in serving customers that day. The employee said, "Fuck the drive-through times. I don't fucking care." The employee repeated this statement to Della when she asked him what he had said. Della asked the employee why he came in to work that day when he had that attitude and the employee said he needed the money. Della told him if that was his attitude, he should go home. Della wrote the employee up and sent him home.

The employee was discharged for the March 13 and March 15 incidents.

The employee was not warned about insubordination and use of profanity prior to March 13.

The employee asserts that 'Everybody that worked there was cussing...managers and everybody."

The employee testified (see page 5 of synopsis) that, "I knew I could be discharged for swearing or insubordination, but I never cussed at [Della]." Not only does this establish that the employee had reason to be aware his job would be in jeopardy if he directed profanity at a superior or was insubordinate, but also undermines his contention that swearing was commonplace and acceptable in the employer's workplace.

The employee denies that he used profanity in speaking with the employer's managers on March 13 and 15. The ALJ did not credit this denial and the commission found no persuasive reason to overturn this credibility determination.

The employee's conduct, directing egregious profanity at two supervisors within a two-day period, and, in the last incident, clearly implying that he did not care about a manager's directive and did not intend to follow it, demonstrates an intentional disregard not only of a standard of behavior an employer has a right to expect of a worker, but also of an employer's legitimate business interest in having a job performed in a particular manner, within the meaning of Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), and constitutes misconduct. See, Horn v. Toms Tables, UI Hearing No. 08602372MW (LIRC July 18, 2008)(directing profanity at superior and refusing to carry out management directive misconduct).

The commission therefore concludes that the employee was discharged in week 12 of 2009 for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $2,340 for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1),and that the employee is required, pursuant to Wis. Stat. § 108.22(8)(a), to repay this amount to the Unemployment Reserve Fund.

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, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

The commission further finds that department records do not show that the employer failed to provide correct and complete information requested during the department's investigation of this matter within the meaning of Wis. Stat. § 108.04(13).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 12 of 2009, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $2,340.00 to the Unemployment Reserve Fund.

This determination also results in an overpayment of federal additional compensation (FAC) benefits that must be repaid. You will receive a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that must be repaid.

Dated and mailed December 8, 2009
lymonjo . urr : 115 : 1 MC 640.05

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did confer with the administrative law judge (ALJ) before reversing his decision. The commission agrees with the ALJ's credibility determinations, and reversed his decision as a matter of law.


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