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


CAROL ANGUS, Employe

LABOR FINDERS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98603573MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe was employed by the employer from August 29, 1997, until her discharge on April 20, 1998 (week 17). Her last actual day of work was April 14, 1998 (week 16), when she was suspended. The employer is a temporary employment service. The employe was employed as the office manager, responsible for general operations of the office and staff. One of the duties of the office manager was supervising temporary workers. The employe's supervisors were the owners of the company, Pamela and Robert Bade.

On the morning of April 14, 1998, the employe had a foot-long two-headed rubber penis on a table near her desk. The sexual object had been thrown at her by a subordinate temporary worker, Paul Erickson. The employe threw the sexual object through the dispatch window that separated permanent workers from temporary workers at Mr. Erickson, who was sleeping, and hit him between the legs. Mr. Erickson acted like he was going to throw the sexual object back at the employe but instead handed it back to her. The employe set it on the table.

Ana Veloz, who was in her second day of employment and was being trained by the employe to work as the morning office manager, saw the sexual object. The employe told Ms. Veloz that the sexual object was a gift from another worker. Ms. Veloz advised the employe to dispose of it before the owner, Ms. Bade, arrived for a scheduled meeting, because Ms. Bade would be offended by it. Ms. Veloz believed based on previous comments made by Ms. Bade that this sexual object would not be permissible on work premises. The employe responded that Ms. Bade would be "cool" about it. Ms. Veloz was personally offended by the object.

Later that morning, Ms. Bade held a meeting with employes of the employer to discuss the employer's sexual harassment policy. During the April 14 meeting, the employer introduced a new application that now included the sexual harassment policy. The employer always had a policy, however, it was not a written policy.

Shortly after the April 14 meeting, another worker brought to Ms. Bade's attention that there was a sexual object laying on the employe's desk in the main office. Ms. Bade observed the two- headed rubber penis on the desk, and questioned the workers about it. The employe indicated that it was brought in by Mr. Erickson and given to her. Ms. Bade questioned Mr. Erickson and he said the sexual object belonged to the employe. Ms. Bade told Mr. Erickson and the employe to remove the object. Neither did so, each maintaining it belonged to the other. Later, Ms. Bade asked the employe to remove the object. The employe ignored the request and walked away. Ms. Bade again asked the employe to remove it and the employe placed it in the garbage. The employe's refusal to remove the object was a factor in the decision to terminate her employment.

Both Mr. Erickson and the employe were suspended pending further investigation. The next day, on April 15, Ms. Bade interviewed and took statements from several employes. Mr. Erickson admitted that he had brought the sexual object into the office, but he said he had done so because the employe had at some earlier time pulled out a miniature version of a penis from her desk and said "suck my dick" to him. Ms. Veloz had also seen the miniature item. When she showed it to the employe the employe stated that it was her good luck charm and it should be left in the desk.

Prior to the April 14 meeting, the employe had been warned several times about using inappropriate language towards her male subordinates. Specifically, she was told that it was not appropriate to use the word "babe" when referring to male temporary workers. The employe said in response to the warnings that she would conform to the policy and address the employes appropriately.

The issue to be decided is whether the employe was discharged for actions constituting misconduct connected with her work.

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 employe's actions were inappropriate. The employe not only threw a foot-long two-headed rubber penis aimed between the legs of a sleeping subordinate, but left the object in the open after it was pointed out that the owner would not approve of it. Further, the employe engaged in such activity the same morning that a meeting with other office managers and workers was to take place and at which workers would sign a sexual harassment policy that was being made a part of the employer's employment application. It is not credible that the employe believed the employer would find such conduct, or the presence of such an object, acceptable. Indeed, although Ms. Veloz had only been employed two days Ms. Veloz knew the owner would not find the object acceptable. Mr. Jones, an office manager at another location, knew the owner would be offended by the object.

Finally, the employe was insubordinate when she repeatedly failed to dispose of the object when directed to do so. The employe's vulgar, inappropriate and insubordinate conduct amounted to an intentional and substantial disregard for the employer's interests and of standards of behavior the employer had a right to expect of the employe rising to the level of misconduct connected with her work.

The commission therefore finds that in week 17 of 1998, the employe 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 employe was paid benefits in the amount of $3729.00 for weeks 17 through 35 of 1998, for which she was not eligible and to which she 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.

Wisconsin Statute § 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 employe. Under Wis. Stat. § 108.02(10e)(a) and (b), department 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, 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 department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 employe 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 employe is ineligible for benefits beginning in week 17 of 1998, and until seven weeks elapse since the end of the week of discharge and the employe 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. She is required to repay the sum of $3729.00 to the Unemployment Reserve Fund.

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 employe 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: January 12, 1999
angusca.urr : 132 : 1  MC 656  MC 640.03

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding witness credibility and demeanor. The ALJ found the employe's testimony, at least in parts, to be reasonably credible, but also did not disbelieve Ms. Veloz. The commission has basically accepted the testimony of Ms. Veloz. There is no indication that Ms. Veloz had reason to offer testimony adverse to the employe.

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: ATTORNEY JENNIFER S WALTHER
BUCHANAN & BARRY SC


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