ALFRED J BONNELL JR, Employee

YOUNG MENS CHRISTIAN ASSN
OF FOND DU LAC, 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 a year and seven months for the employer, an athletic-based community service center. He most recently worked as a maintenance worker/handyman. His last day of work was March 30, 2009 (week 14), when the employer discharged him.

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

In March of 2009, a manager complained that the employee was taking up the time of some female workers in the daycare department with continued conversation. His supervisor warned him that he could face discipline if his behavior continued.

Around March 23, 2009, the employee cleaned out a garbage can in a sink because he was in a hurry. He left staples, hair, and other items in the sink, which upset a cook. After his supervisor approached him about the incident, he called the cook at home to apologize. He considered her a friend. She only considered him an acquaintance and was uncomfortable with the call to her home. His supervisor instructed him to only contact the supervisor if he was having problems with a co-worker.

Around the start of business on March 29, 2009, the employee asked a female front-desk person if she had Chapstick in her pocket or was just happy to see him. He later asked when she was going to take him to lunch. He suggested a fast-food restaurant because it was cheap. When she stated that the food was too greasy, he suggested that she come to his house for dinner. She declined. When he recalled that she was attending school, he suggested that she become a massage therapist so that she could massage him and his roommate. He and his roommate have back problems but he did not communicate this fact to her. The conversation ended when a lifeguard and the building supervisor entered the area. The conversation made the front-desk person feel uncomfortable, and she reported it to the employer.

The employer's policy on "unlawful harassment" notes that sexual harassment includes unwanted and verbal sexual advances or propositions. The policy also notes that a worker who feels that she has experienced offensive behavior should tell the offender that the conduct is unwelcome and unacceptable. If the offensive behavior does not stop, the worker is to report the conduct to the employer. The employee received a copy of the policy around the time of his hiring.

After an investigation, the employer discharge the employee for sexual harassment on March 30, 2009 (week 14).

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 employer argued that the employee was discharged for misconduct connected with his work. The commission agrees. The employer had warned the employee about talking with co-workers and what it considered "flirting" with female workers. The employer discussed the final incident with the employee and the employee informed the employer that he was a "flirt" and that he would not change his ways. The employer made the decision to discharge the employee because the employee would not admit his behavior was wrong and he said that he would do it again. He had also continued to talk to a worker after being asked not to. The employer was concerned because the employee and the co-worker would have to be alone in the building at times. The employee's failure to abide by its reasonable directives and his stated intention of continuing to violate the directive, amounted to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 14 of 2009, the employee was discharged for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for each of weeks 15 through 33 and weeks 46 through 50 of 2009, amounting to a total of $3,665.00; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), is required to repay such sum 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 as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 14 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 $3,665.00 to the unemployment reserve fund. This determination also results in an overpayment of Federal Additional Compensation. 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 28, 2009
bonneal . urr : 145 : 5 MC 666

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission reversed the ALJ's decision because it reached a different conclusion when it applied the law to the facts found by the ALJ.

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.

cc:
Geoffrey Hermsen, Agent
Fond du Lac YMCA

Appealed to Circuit Court.  Affirmed, August 27, 2010.      [Summary of Circuit Court decision]

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