PATRICE N BEAUCHENE, Employee

ATOS MEDICAL INC, Employer

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:

The employee worked for the employer, a medical supply business, for about a year and four months as an insurance reimbursement specialist. Her last day of work was October 13, 2009 (week 42).

During the course of her employment, the employee had difficulty getting along with one of her co-workers. On September 12, 2008, the employee was involved in a dispute with the co-worker, after which she left the workplace without permission. The employer was counseled about the incident and was told that it was unacceptable to leave the premises without managerial approval except in emergency circumstances.

On February 19, 2009, the employee was counseled about her working relationship with the co-worker. The employee was reminded that she was not a supervisor and that she should direct her criticisms of the co-worker to the employer and not to the worker directly.

On July 24, 2009, the employee was counseled regarding an incident that stemmed from her negative relationship with the co-worker. The employee was told that a professional attitude was expected and was given several directives on how to improve her working relationship with the co-worker.

On September 15, 2009, the employee was again counseled regarding her relationship with the co-worker. During this meeting the employee stated that she could no longer work with the co-worker and that either she or the other worker had to go. She told the employer it had to make a decision to fire one of them. The employer told the employee it was not going to do that and that she and her co-worker would have to continue to work together.

In late September or early October of 2009 the employee's mother passed away and the employee took some time off work. She returned to work on October 13, 2009. That morning the employee heard the co-worker with whom the employee had the conflict slam her office door on two occasions. The employee sent the co-worker an e-mail asking her to stop slamming the door. The co-worker responded that she had not slammed the door. Half an hour later the employee forwarded the e-mail exchange to her managers, along with a note stating:

"I came to work to work today very pleased to be back and get back into the swing of Atos Medical-a welcomed distraction from my personal life. And this happened. (Now I am hearing things?)

"Again, Ruben, I have told you and told you how hostile she is towards me and nothing is done about it. I have reached out to her as a person and as a Christian. There is something seriously wrong with this young lady!

"I am asking you both to please decide what is going to be done here. The hostile atmosphere is unbearable and I will not be subjected to it today or any other day in the future.

"You may contact me at home. . ."

Although one of the two managers was not yet in at the time this e-mail was sent, the other manager was in his office. The employee left work without attempting to speak with him.

At 12:30 p.m. a representative from the employer's human resource service provider called the employee to ask what had happened. The employee was asked if she needed more time off due to her mother's passing away, and responded that she did not. Later that day the employer notified the employee that it had decided to terminate her employment.

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 did not get along with a co-worker. However, there is nothing in the record to indicate that the co-worker harassed or mistreated the employee in any way, and the evidence suggests that the employee was an equal player in the dispute. The employee had been counseled on numerous occasions about the need to improve her relationship with her co-worker, but was unwilling or unable to do so. The employee had left work on a prior occasion because she was upset with the co-worker, and had been told she could not leave without permission except in an emergency. The employee's co-worker's actions in slamming the door to her own office did not constitute an emergency. Moreover, one of the employee's managers was in his office at the time the employee left, and the employee could offer no reasonable explanation for her failure to request his assistance or to ask his approval to go home for the day. The employee's conduct in leaving the workplace without permission over a trivial matter, after having been specifically warned that leaving work without permission was unacceptable, together with her actions in sending the employer an e-mail containing what was essentially an ultimatum regarding her job, evinced such a wilful and substantial disregard for the employer's interests and the standards of conduct the employer had a right to expect as to amount to misconduct.

The commission, therefore, finds that in week 42 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 42 of 2009 through week 21 of 2010 in the total amount of $11,616, 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 42 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 $11,616 to the Unemployment Reserve Fund. This decision also results in an overpayment of Federal Additional Compensation (FAC) benefits. The employee will receive a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that must be repaid. The initial benefit computation (UCB-700) issued on October 14, 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.

Dated and mailed May 21, 2010
beaucpa . urr : 164 : 5 MC 640.01, MC 666.01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of credibility. Rather, the commission has reached a different conclusion when applying the law to essentially the same set of facts as that found by the appeal tribunal. While the commission did make a factual finding contrary to the appeal tribunal's finding that there were no supervisory personnel available to ask for assistance on the employee's last day of work, the commission's finding did not depend upon an assessment of credibility. The employee acknowledged that the supervisor was in his office at the time she left work, albeit with the door closed, and could not explain why she did not attempt to speak with him.

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 Jennifer J. Allen
Continental Inc.

Appealed to Circuit Court.

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uploaded 2010/06/11