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

MARGARITA NEELY, Employee

MOHICAN NORTH STAR CASINO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09402143AP


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 the employer, a casino, for eleven years as a host. Her last day of work was May 5, 2009 (week 19). She was discharged on May 18, 2009 (week 21).

The employer runs a nightly lottery during which a casino guest is randomly chosen each hour to win a $500 prize. A casino host chooses the lottery winner through a computer program which selects names randomly.

On May 2, 2009, the employee was talking to some co-workers when one commented that it would be wonderful if their families could win the $500 prize. The employee agreed that that would be wonderful. The co-worker stated that he could make it possible and explained that on nights when he was the acting supervisor he would arrange to have the names of workers' spouses or family members picked. The workers laughed and joked about what they would do with the money.

The following evening, May 3, 2009, the co-worker who had mentioned he could make it possible for employees' families to win the lottery was assigned to be acting supervisor, and the employee was one of two hosts on duty. The co-worker confirmed with the employee that she was hosting that night, then told her to find out what time the first drawing would be held. The employee assumed the other host on duty would be the one handling the drawing. However, later that evening the employee learned that the other host had gone home, and that she would be doing the drawing. When the employee realized that she was the one expected to handle the rigged drawing, she told the co-worker she did not want to do it. The co-worker laughed and told her not to worry. He stated that, because the employee's spouse was not going to be winning a prize that night, the employee would not get into any trouble and should just go ahead and do it.

The employee then talked to a third co-worker who was part of the plan and told her that she was upset about the matter. The co-worker did not respond to the employee's complaints. She informed the employee that her husband would be in the casino for the 6:30 p.m. drawing.

The employee went through with the rigged drawing at 6:30 p.m., selecting the co-worker's husband's name. The employee then called the guard, collected the prize money, and paid it out to the co-worker's husband.

The wife of the co-worker who had originally suggested the scheme was to be chosen as the winner of the 8:30 p.m. drawing. After the completion of the 6:30 p.m. drawing, the employee told the co-worker that she did not want to do it again. The co-worker responded that the employee should calm down and that he was the supervisor and would take responsibility. The co-worker later noticed the employee was crying and asked her what was wrong. When she again expressed reservations about going through with the drawing, the co-worker responded that she should just keep her mouth shut and do it, adding that if the employee was in the mob she would be dead by now.

As the employee was about to do the 8:30 p.m. prize drawing, she noticed that the co-worker's wife was not playing her card, which meant that her name did not come up on the computer screen to be drawn. The employee informed the co-worker, who directed his wife to use her player's card so that she could be selected for the drawing. The employee then selected the co-worker's wife as the winner of the next drawing and paid her the prize money.

When the employee reported for work the following day the employer's guest services coordinator asked her if she had noticed anything suspicious during the previous night's drawings. The employee replied in the negative. The guest services coordinator asked the employee if she was the only host who had drawn names. The employee said that she was. The employee was asked if there was any wrongdoing associated with the drawings, to which she replied there was not.

Later that evening the employee called another co-worker who was not involved in the rigged drawings and started to tell her what had happened. The co-worker told that employee not to tell her any more and directed her to contact the employer immediately and report the matter. When the employee stated she was scared to do so, the co-worker offered to contact the employer on the employee's behalf. The employee agreed that the co-worker would contact the employer.

The following day, May 5, 2009, the employee met with the guest services coordinator and told her what had occurred. After that conversation the employee was suspended pending investigation into the incident. On May 18, 2009 (week 21), the employee was notified that the employer had decided to discharge her.

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

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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 was discharged for her participation in two rigged lotteries. The employee admitted to the conduct, but contended that she felt pressured and intimidated into participating by the co-worker who concocted the scheme, who was the acting supervisor on the evening in question. The employee stated that she thought if she did not participate in the lottery the co-worker might tell someone that the rigged drawing was her idea. The commission does not find this argument persuasive. The co-worker did not threaten the employee physically,(1) nor did he threaten to blackmail the employee if she refused to participate in rigging the drawing by telling the employer it was her idea. While the co-worker may have pressured the employee to "just go ahead and do it," the commission believes the employee could have refused and, indeed, that she was obligated to do so.

The commission notes, moreover, that the employee had ample opportunities to report the matter to the employer prior to holding the lottery, but failed to do so. The evidence establishes that there were several supervisors on duty, as well as a floor manager, but the employee did not attempt to speak with any of these individuals. Although the employee contended that it seemed futile to go to management because the co-worker was a close friend of one of the managers in question and always got away with everything, the employee's belief that the employer would be unresponsive in this situation does not seem reasonable. Indeed, if the employee genuinely felt threatened and intimidated by the co-worker, then her failure to report the matter to the employer seems particularly unjustified.

The employee initially expressed interest in the rigged lottery. Although she later had cold feet when she realized that she would be called upon to handle the drawing, she continued to go along with it and was responsible for fraudulently choosing two lottery winners. While the employee contended that she would not have done so if her co-worker had not bullied her into it, the employee is responsible for her own actions. The employee should have refused to participate in the fraud and informed the employer of the matter.

The commission, therefore, finds that in week 21 of 2009, the employee was discharged for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in weeks 22 of 2009 through week 52 of 2009 and weeks 1 and 2 of 2010 in the total amount of $7,351, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 21 of 2009 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $7,351 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 January 19, 2010
neelyma . urr : 164 : 1 MC 630 MC 630.02

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that she could not describe the employee's demeanor, but believed that the employee genuinely felt intimidated. For the reasons set forth in the body of the decision, the commission does not believe that the employee was actually threatened by her co-worker, nor does it believe that her actions can be justified by any pressure exerted by this individual. The employee could have reported the matter to management but chose not to do so.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set 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: Attorney Bridget Swanke


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uploaded 2010/01/26


Footnotes:

(1)( Back ) While the employee testified that he made the statement, "If you were in the mob, you'd be dead by now," the commission does not construe this statement as conveying any genuine physical threat.