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

DANNY R ANDERSON, Employee

LANDSCAPE NURSERY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09608147RC


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a landscape, nursery, and garden center business, for two years and two months as a mechanic. His last day of work was July 21, 2009 (week 30).

The employee's shift began at 5:30 a.m. On July 21, the employer's manager, Michael Schiero, reported to work at 4:30 a.m. and saw a car parked in the employer's lot near its fuel pump. There were two people in the car. Schiero motioned for the passenger to roll down the window. The passenger ignored him and kept looking forward. However, the driver door opened, and the employee got out and approached Schiero's car. When Schiero rolled down his window to talk to the employee he noticed that the employee smelled of gasoline. Schiero asked the employee what he was doing. The employee said he was going by and thought he saw some kids running around in the yard, so he stopped to check it out. After the employee left, Schiero noticed a 5-gallon yellow gas can sitting near the fuel island. The gas can was empty.

Later in the day the employer dipped a little gas from the employee's gas tank into a clear glass jar and saw that it had a blue tint. The employer mixes its own fuel with oil, for use in its equipment, and tints it turquoise blue. When questioned the employee denied stealing the fuel. He was discharged for theft.

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

Misconduct for unemployment compensation purposes is the intentional and substantial disregard by an employee of the standards an employer reasonably may expect of its employees. Since theft from the employer is generally regarded as misconduct, the question to decide is whether the evidence is sufficient to establish that the alleged theft occurred. Under Wisconsin law, the employer must prove theft by clear and convincing evidence. This burden can be satisfied through the presentation of circumstantial evidence. See, for example, Ziska v. Ferrellgas, Inc (LIRC, Oct. 10, 1997); Bryant v. United Lutheran Program for the Aging, Inc. (LIRC, May 31, 2007).

Although the employee denied stealing the gasoline, overwhelming circumstantial evidence in the record indicates otherwise. The employee was at the employer's yard an hour before the start of his shift. The employee's car was parked right next to the fuel pump, and there was an empty gas can sitting near the fuel pump. The employee smelled of gasoline. Gas siphoned from the employee's car later that day was tinted the same shade of blue as the gas mixed by the employer.

The employee offered an explanation for his actions. He stated that he was at the employer's lot an hour early because he dropped a friend off at work and was picking up a tool that his friend had asked to borrow. He testified that he saw a couple of guys at the fuel island and gave chase. The employee stated that the reason he smelled of gasoline is that he had his work jacket on. Finally, he speculated that grime and soot from the road might have gotten into his gas tank and tinted it blue.

The commission finds the employee's explanation to be self-serving and not credible. The commission is unpersuaded that the employee was driving a friend to work at 4:30 a.m. or that he stopped at the employer's lot at that hour to pick up a tool, an explanation which he did not provide to the employer when asked, but mentioned for the first time at the hearing. The commission also considers it unlikely that the employee would seen people running through the lot in the darkness, and his story about chasing "a couple of guys" away from the fuel island was inconsistent with his subsequent testimony that there was only one guy, as well as with his earlier statement to the employer that he saw kids running in the yard. Finally, assuming that dirt from the road could have found its way into the employee's gas tank, the commission does not consider it plausible that it would have tinted the contents the same blue as the employer uses in its mixed fuel.

The clear and convincing evidence in the records supports a conclusion that the employee entered the employer's yard at 4:30 a.m., an hour before his shift was to begin, in order to steal gasoline for his personal vehicle. His actions evinced misconduct.

The commission, therefore, finds that in week 30 of 2009, the employee was discharged 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 weeks 30 and 31 of 2009 and weeks 34 of 2009 through week 8 of 2010 in the total amount of $10,527, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he 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 30 of 2009, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $10,527 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on December 21, 2009, 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.

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 February 26, 2010
anderda . urr : 164 : 1 MC 630.14 PC 714.11

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission conferred with the appeal tribunal about witness credibility and demeanor. The administrative law judge had no demeanor impressions to impart.

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.



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uploaded 2010/03/08