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

NICHOLAS J PETERS, Employee

COUNTY OF TAYLOR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09202227EC


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, Nicholas Peters, began working for Taylor County, the employer, as a correctional officer in the Sheriff's Department in 2003. His last day of work was July 19, 2009. He was discharged on July 20, 2009 (week 30). The issue to be decided in this case is whether the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

Whether a discharge is "for misconduct" is to be decided with reference to what the employer's actual reasons for discharging the employee were. Where a discharge is a culmination of many incidents and factors, this must be taken into account. If a discharge following a final incident is in part a result of an extensive history of prior misconduct and previous warnings, it is not appropriate to treat the final incident as the only factor in the decision to discharge. See, Daniels v. LIRC and DeDienes (Milw. Co. Cir. Ct., No 00-CV-659, October 11, 2000).

The employee was informed of his discharge by a July 20, 2009 letter from the Sheriff of Taylor County which noted that the employee had that day been given a written warning regarding his conduct and performance, and which then informed him that "pursuant to the Last Chance agreement, dated November 24, 2008," his employment was being terminated. The letter then also stated four reasons for the termination. These reasons were the same as the reasons stated in the written warning which was also issued to the employee in a separate letter at the same time.

The July 20, 2009 discharge letter, as well as testimony of the Sheriff, establishes that the employer's actual reasons for discharging the employee included not only the four matters cited specifically as reasons in the discharge letter, but also the previous matters addressed in the November 24, 2008 "Last Chance" agreement. Therefore, those matters should also be considered in deciding whether or not the discharge was "for misconduct."

November, 2008, "Last Chance agreement" -- In November, 2008, the employee and the employer entered into a written "Last Chance Agreement". It specifically described a series of failures in performance by the employee:

Employee failed to verify the validity of the warrant, contrary to existing policy and practice of the Taylor County Sheriff's Department and standards of the TIME system. Further, Employee, by his own admission, was evasive and not forthright with the Sheriff when asked about what had happened. This conduct constitutes violations of the Taylor County Sheriff's Department related to verifications of warrants and is in direct conflict with the training Employee has received, both from the Taylor County Sheriff's Department and the State of Wisconsin. Departmental policy also requires that an employee be truthful when responding to questions of a ranking officer. This constitutes serious misconduct and it is not an isolated incident. Employee has been disciplined on two previous occasions for his failure to properly handle warrants and has been repeatedly advised about the necessity to be forthright in the performance of your duties as an employee of the Taylor County Sheriff's Department.(1)

The agreement then recited that the parties agreed that as a consequence of the matters described the employee would receive a 12-day suspension, and that thereafter any misconduct, performance deficiencies or violations of Sheriff's Department policies of rules which would warrant a written warning, would result in the employee's immediate termination. The employee signed the agreement. The agreement provided that, by so signing, the employee acknowledged that he had read the entire agreement and understood its contents.

Significance of the "Last Chance agreement" - The fact that parties have entered into a "Last Chance" agreement providing that an employee may be discharged if they engage in certain acts, does not control the legal question of whether a discharge for such acts is a discharge "for misconduct". Private agreements between parties cannot control the meaning and application of the Unemployment Insurance law. Roberts v. Industrial Commission, 2 Wis. 2d 399, 86 N.W.2d 406 (1957). However, while a private agreement between parties may not control the resolution of questions of law, there is no reason why it may not control the resolution of questions of fact. If parties enter into an agreement that an employee did in fact engage in certain conduct in the course of their employment, and if that agreement is put into evidence at a hearing and not disputed by either party, there is no reason why it may not be treated as a basis for making findings.

This is what occurred in this case. The November, 2008 "Last Chance Agreement" between the parties evidences the employee's agreement that, among other things, he was "evasive and not forthright" with the Sheriff when he was asked about an incident in which he failed to verify the validity of a warrant contrary to applicable policies, practices and standards, that this was contrary to department policy requiring employees to be truthful when responding to questions of a ranking officer, and that the employee had been repeatedly advised about the necessity to be forthright in the performance of his duties. As noted above, it is clear that this was among the reasons for the employer's decision to discharge the employee. Therefore, in deciding whether that discharge was for misconduct this should be taken into account, in addition to whatever findings are appropriate relative to the other reasons for discharge alleged specifically in the July 20, 2009 discharge letter. The commission now turns to those matters.

Reasons for discharge stated in July 20, 2009 discharge letter - The Sheriff stated in his letter informing the employee of his discharge that the reasons for the discharge included failure to adhere to Department cell phone policy, failure to be forthright and honest with a superior officer, failure to properly document citizen contacts in dispatch, and violation of County ordinance regarding smoking on County premises. The evidence regarding these reasons is discussed below.

Violation of smoking policy - The employer had a policy prohibiting smoking outside of the employer's facility within 25 feet of an entrance. The employee was aware of this policy. By his own admission, the employee sometimes violated this policy. He would sometimes smoke within 5 to 15 feet of the jail kitchen door. The employee offered a variety of explanations and excuses for knowingly violating the employer's smoking policy. First he indicated that he did so because he didn't want to be outside of radio range. Then he indicated that the policy was not being enforced. Then he indicated that other employees were violating the policy, by using chewing tobacco. Then he indicated that he was trying to be obedient to "the spirit of" the rule. The commission does not credit these explanations. It is clear that the employee intentionally violated the employer's smoking policy because he simply did not take it seriously.

Failure to properly document citizen contacts in dispatch - In March, 2005, the employee was counseled for failing to collect information and then making up answers so that he wouldn't look bad to co-workers by saying "I don't know" or "I didn't get that." For example, one such incident for which he was counseled at that time involved him failing to get the information about what direction a reported reckless driver was heading in.

In 2009, this same problem arose again. Many of the reports the employee filed regarding citizen contacts indicated that the report was "anonymous." When the Sheriff asked the employee why this was so, the employee acknowledged that sometimes he did not get all of the caller information. He stated that this occurred because if he didn't feel a deputy would need the information anyway, or if he felt that a quick response was needed, he didn't want to take the time to gather the information. When asked about this, the employee acknowledged to the Sheriff that he understood that he simply did not have a choice in regard to whether or not he would gather information from complainants.

Violation of cell phone policy - The employer had a policy concerning use of personal cell phones in the jail facility.

The employee frequently brought his cell phone with him to work and had it with him, powered on, while he was at work. He would use the phone for various purposes, including looking at its display to determine the time, checking it periodically to see if had missed any calls, and using it as a PDA ("personal digital assistant") by entering his schedule into it and setting alarms with it.

The employee's position at hearing was that he did not "use" his cell phone in a way which violated the policy because he did not "overtly" talk or text on the phone. He asserted at hearing that the policy did not say that you could not check a cell phone or enter a schedule or overtime into it, and that he used his cell phone for a wide variety of reasons, most of which he did not consider to be a violation of the policy.

The employer's cell phone policy was communicated to employees by e-mails and orally. No copies of e-mails describing the cell phone policy were offered into evidence. However, there was testimonial evidence about what was communicated to the employee regarding the scope of the cell phone policy, as well as about what the employee himself understood the policy to cover.

The employee received e-mails from department administration advising that cell phones should not be used within the facility. On April 9, 2009, the employee had a meeting with two sergeants who discussed the cell phone policy with him, and in this meeting he was told he was not to use a cell phone in the jail. Nothing that was discussed during that meeting was unclear to him. When he was at work the employee generally took items such as his keys, wallet, and checkbook out of his pockets and lay them on a counter or cabinet near to him, because it was uncomfortable to have such items in his pockets while he was sitting in a chair. However, he would keep his cell phone in his pants pocket rather than taking it out and placing it on a counter; the reason he did this was that he knew he was not supposed to have it in the facility. In a meeting with the Sheriff on July 16, 2009, the employee acknowledged that he knew he was not supposed to have his cell phone in the jail, and that he had been violating that policy. In an e-mail to the Sheriff on July 20, 2009, the employee acknowledged that he was in "direct violation" of the cell phone policy. The employee acknowledged to the UI adjudicator investigating his claim that he was aware of the employer's cell phone policy, that the policy indicates that you are not supposed to use your cell phone in the jail, and that he did use his cell phone in the jail.

In view of the foregoing, the employee's assertion that he believed he was not violating the cell phone policy by the type of "use" of his cell phone he engaged in, is not credible. It is also not credible, that the employee did not understand the cell phone policy well enough to know whether or not he was violating it by his use of his phone.

Failure to be forthright and honest with a superior officer - In 2008, the employee was evasive and not forthright in responding to questions from the Sheriff about the employee's failure to verify the validity of a warrant. He acknowledged as much, and was warned against it. However, this conduct recurred in 2009. On July 13, 2009, Peters asserted to the Sheriff that he had been carrying his cell phone because his watch broke. The Sheriff then determined, from watching video of the dispatch area, that it showed occasions on which Peters was using his cell phone and also was wearing his wristwatch. In another meeting between them on July 16, 2009, Peters told the Sheriff that when he (Peters) had told him on July 13 that he had been carrying his cell phone because his watch was broken, he was being honest. He also then indicated, though, that it was not just because his watch broke that he had been carrying his phone.

The Sheriff concluded that Peters was not honest and forthcoming with him in statements to him explaining why he was using his cell phone. The commission believes this was a reasonable conclusion. The employee's statements regarding why he was using his cell phone at work were inconsistent and not credible.

Peters initially testified that he was not wearing a watch on July 13. He testified that he "did not recall" and was "hesitant to guess" how long it had been at that point since his watch had broken, but then estimated that it had been broken for 2 to 3 weeks at that point. Later, he testified that the watch mechanism had broken but not the watch band, and that he wore it for about a week during the time that it was broken. He explained that it worked sometimes and sometimes didn't. When asked why he would do that, he then stated that he had been wearing a watch on his wrist for so long it felt unnatural for him not to have it on. Peters' story progressively shifted as he encountered things that called it into question. The same pattern appears in his statements and testimony about his understanding of the cell phone usage policy. In Peters' conversation with the Sheriff on July 16, 2009, Peters told the Sheriff that he had been using his cell phone because a whole lot of things had been going on (his moving, his vehicle breaking down, family matters), and that those were the reasons he had been using the cell phone while on duty. He then stated that he had also been carrying it in his pocket because his watch had broken. Asked by the Sheriff when he most recently began using his cell phone at work, Peters answered that it was around the time when he was moving to his new home, around June 15.

The commission agrees with the view of the Sheriff, that the employee's explanations regarding his use of his cell phone were changing and inconsistent. The more probable reason that the employee used his cell phone contrary to the employer's policy, was that (as he acknowledged to the Sheriff) he "emphatically disagree[d] with the cell phone policy." However, this did not give him the right to make up reasons for why he was using his phone in violation of that policy.

Conclusion -- A common thread runs through the employee's conduct in regard to failing to properly document citizen contacts in dispatch, failing to comply with the cell phone policy, and failing to comply with the smoking policy: he was aware of what was expected of him, and he nonetheless intentionally chose not to do what was expected of him, because he felt that he somehow had the privilege to do so. Thus, he failed to collect information in citizen contacts when he felt it was not needed; he failed to comply with the cell phone policy because he did not agree with it; and he failed to comply with the smoking policy because he apparently just did not take it seriously. In addition to the foregoing, the employee was not honest and forthright in his explanations to the Sheriff regarding his use of his cell phone.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the Wisconsin Supreme Court said, in part, as follows:

[T]he 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 commission concludes that the employee's actions in intentionally violating employer policies, and in being disingenuous with his superiors in explaining his conduct, fell within the scope of the "misconduct" test as explained in Boynton.

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 the amount of $363.00 per week for each of weeks 32 of 2009 through week 18 of 2010, in the total amount of $14,157.00, 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. In this case, the ALJ and the commission arrived at different outcomes as a result of different views on credibility and weight of evidence and on what legal conclusions ought to follow from those views. However, the simple fact that the commission reversed the ALJ does not establish a department error. Wis. Stat. § 108.22(8)(c)2., provides in relevant part that if a determination or decision is reversed by the commission, that action shall not be treated as establishing a department error.

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 $14,157 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700) issued on July 26, 2009, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights. The decision also results in an overpayment of Federal Additional Unemployment compensation (FAC) benefits. The employee will receive or has already received a separate "Notice of Federal Additional Compensation Overpayment, Form UCB-25" regarding the amount of FAC benefits that must be repaid.

Dated and mailed May 12, 2010
peterni . urr : 110 : MC 665.01 ; MC 686 ; PC 732

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

Employer's Objections to ALJ's Conduct Of Hearing - In its petition for review the County raises arguments concerning the manner in which the ALJ conducted the hearing. Although the commission has ruled in the County's favor on the merits, it considers it important to address these arguments by the County.

The County complains that what it considered the primary piece of evidence evincing the employee's misconduct - a video CD - was not taken into evidence because the hearing was conducted by telephone. It also complains that "throughout the hearing" the ALJ refused to allow the employer's primary witness, Sheriff Daniels, a reasonable opportunity to fully answer questions or develop his rationale for terminating the employee, and that her conduct was "impatient and rude" and prevented the County from fully developing its case. The commission concludes that these arguments have no merit.

The County's argument, that the video "was not taken into evidence", suggests that the County sought to have the video evidence admitted and that the ALJ refused. However, the County never even attempted to ask to have any video evidence admitted. Prior to the hearing, it did not raise any objection to the hearing being conducted by telephone, nor did it make any inquiries of the department as to how video evidence could be dealt with at a telephone hearing. At the hearing itself, the County never offered any video as evidence. As a result, the ALJ was never required to make, and never made, any sort of ruling that the video evidence would not be received.

With regard to the ALJ's alleged refusal to allow the County a reasonable opportunity to present testimony through Sheriff Daniels and develop its case, the record also fails to support the County's argument. As the County requested in its petition for review, the audio recording of the hearing was reviewed in order to evaluate the County's argument. That recording shows that the ALJ was not "impatient and rude" as the County asserts. Furthermore, she did not refuse to allow Sheriff Daniels a reasonable opportunity to fully answer questions or develop his rationale for terminating the employee.

The County's argument in this regard presumably has to do with the fact that, during a relatively brief portion of the ALJ's initial examination of Sheriff Daniels, the ALJ broke in and cut off Sheriff Daniels' answers to her questions on a number of occasions. From context, or from express explanations by the ALJ, it is clear that she did this because she believed that Sheriff Daniels' answers were insufficiently responsive or too general, or that he was going beyond what was necessary to answer the questions she had asked. The commission is satisfied that in these cases in which she interrupted Sheriff Daniels, there was reason for the ALJ to feel that the answers being provided were not directly responsive.

Another reason that the County's argument lacks merit, is that after this relatively brief period at the start of the hearing, the County's counsel was given the opportunity to conduct his own examination of Sheriff Daniels. If counsel for the County believed that Sheriff Daniels had been prevented from fully answering questions or developing his rationale for terminating the employee when being questioned by the ALJ, he had the opportunity to allow him to do so when he conducted his own examination of the Sheriff. His examination of the Sheriff was not circumscribed or limited by any rulings of the ALJ. At the end of the relatively brief examination of Sheriff Daniels which the County's counsel chose to conduct, he indicated that he had no further questions for him. He later had, and took, further opportunities to examine Sheriff Daniels when he was recalled, twice. At the conclusion of the hearing both parties were asked if they had anything further they wished to present and both declined.

For the foregoing reasons, there is clearly no merit to the claim that "throughout [the] hearing" the ALJ refused to allow Sheriff Daniels a reasonable opportunity to fully answer questions or develop his rationale for terminating the employee.

Credibility -- The commission talked to the ALJ about her impressions regarding the credibility of the witnesses. The ALJ stated that it was her impression that the employee was credible in regard to his testimony about his understanding of the employer's policies regarding cell phone use and smoking on the premises, and in regard to his explanations for his actions regarding use of cell phones and smoking.

However, having carefully considered the views of the ALJ, and the evidence in the record, the commission respectfully disagrees with the ALJ, and finds and concludes that the employee's testimony was not credible on those points.

Both in his statements to the Sheriff at the time, and in his testimony at hearing, Peters' testimony was inconsistent. His explanations for his actions tended to shift progressively as he encountered things that called particular explanations into question. The commission was particularly affected by the way in which Peters' "broken watch" explanation for using his phone (i.e., that he was carrying his cell phone to use as a watch because his wristwatch was broken) shifted in regard to when his watch was broken, why he continued to wear it if it was broken, and how broken it was (i.e., his explanation that sometimes it worked and sometimes it didn't). The commission was also doubtful of Peters' explanation that he would sometimes smoke within 5 to 15 feet of the jail kitchen door, violating the rule against smoking within 25 feet of building entrances, so that he would "not be out of radio range." The employee acknowledged that he never discussed with anyone the fact that he was choosing to violate the policy because of this supposed radio problem. There was also no evidence or explanation in the record of how a difference of a mere 10 to 20 feet would somehow have an effect on radio signal transmissions from the County's communication system. The commission also believes that Peters other explanation, that he violated the smoking policy because he thought it was not being enforced, also calls into question his "radio range" explanation.

NOTE: The synopsis ("Commission Review Notes") on the basis of which the commission conducted its review indicated that at the end of the hearing, the ALJ received exhibits 2, 8, 11-14, 25-26, 28-29, 32-36, 39-44 and E1. However, based on the audio recording of the hearing and reviewing the documents in the file, the commission believes this to have been an error.

At the point at the end of the hearing at which the synopsis shows the receipt of certain exhibits as indicated above, the ALJ actually said:

Um, and, I was putting these documents in order, I think I have them in order, I'm gonna list them and I'll be double-checking, uh, their order. Uh, Exhibit 2, one page, 2, 3, 4 and 5, 6, 7, uh, up to 2 to 7 is one page, Exhibit 8 is, uh, two page, Exhibit 11, 12, uh, each one page, and 13, Exhibit, uh, 14 is from pages fourteen to twenty-four, Exhibit 26, two page, Exhibit 28, 29, each one page, I'm sorry, I mis-spoke there, Exhibit, I had something out of order that's why, um, 28 and then I have 25, I had, um, out of order, and then Exhibits 29 is three pages to 31, uh, Exhibit 32, 33, 34 and 35, each one page, uh 36, pages up to page 38, Exhibit 39 and 40, 31, 32, 33, (sic) and 44, each one page, and Exhibit E1, also one page.

After dealing with one objection (raised by Peters to receipt of document U14, an objection the ALJ overruled), she indicated that "I'll receive them into the record". Thus, at least judging from the numbers she identified, it appears that all the exhibits the ALJ had referred to were received.

However, identifying what documents those exhibits consist of, is complicated by the practices of the department in regard to the marking of documents in the hearing file, and by the way the ALJ handled marking and referring to documents during the hearing.

Typically in cases set to be heard by telephone, the department marks and inserts in the file (as well as sending to the parties) copies of documents which it is anticipated might be used as exhibits. These documents are marked on the bottom using the convention "U1", "U2", etc. Documents thus marked and included in the file are sometimes then marked and received as exhibits. In some cases they are marked with an exhibit number which corresponds to their document number; however, in some cases the exhibit number they are marked with is different from their document number. In addition, ALJs sometimes refer to papers solely by using a number, which can create confusion as to whether what is being referred to is the document number or the exhibit number.

Thus, although at the end of the hearing the ALJ seemed to be saying that there were exhibits numbered 5 and 6, and that they were being received, the ALJ had never actually marked anything as Exhibits 5 and 6. It appears that what the ALJ was referring to at the end of the hearing was documents U5 (a UCB-157a "Employer Statement" form) and U6 (a UCB-16 "Separation Notice" form). Neither of these documents were identified or testified about or even referred to at the hearing. It appears that the ALJ's reference to these numbers at the end of the hearing was unintentional and that she did not intend to receive them as exhibits.

Also, while the ALJ marked document U14 as Exhibit 14, and document U15 as Exhibit 15, she later decided that documents U14 through U24 should all be attached and collectively considered Exhibit 14. Thus, although document U15 is in the file with a marking on it indicating that it is Exhibit 15, it is (according to the renumbering) a part of Exhibit 14, and there is no separate Exhibit 15.

Based on the foregoing, the commission concludes that in addition to what is stated in the synopsis, the ALJ actually also intended to receive Exhibits 3, 4 and 7. Thus, what the ALJ actually intended to receive was exhibits 2-4, 7-8, 11-14, 25-26, 28-29, 32-36, 39-44 and E1. The contents of Exhibit 14 should also be understood to include all of documents U14 through U24, including the document (U15) which bears a marking of "Exhibit 15".

cc: Attorney John Prentice


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Footnotes:

(1)( Back ) This reference in the November, 2008 "Last Chance Agreement" to the employee having twice before been disciplined for his failure to properly handle warrants, was to two matters described in a separate, earlier "Last Chance agreement" which the employee and the employer had entered into in February, 2007.