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


CHARLES W YORK, Employe

DEPARTMENT OF CORRECTIONS, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 98002542FL


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 worked as a correctional officer for the employer, a state correctional facility. His last day of work was April 23, 1998 (week 17). He was discharged on May 12, 1998.

The employer's work rules, of which the employe was aware, list prohibited conduct. Those rules state that violation can lead to disciplinary action including discharge. The rules provide that they "apply to off-duty employe conduct which adversely affects the ability of the Department to carry out its mission." Conduct prohibited by the rules include "falsifying records, knowingly giving false information, or knowingly permitting, encouraging or directing others to do so," "failing to provide truthful, accurate and complete information when required," "violating a criminal statute or ordinance, or other regulation having the force and effect of law," and "threatening, attempting, or inflicting bodily harm to another person.".

The employe was discharged for off-duty conduct consisting of having non-consensual sexual intercourse with his wife, and for providing false information during the employer's investigation of the matter.

The employer first learned of the incident by the employe's filing of an incident report. In that report the employe notified the employer that he had been arrested based on his wife's accusation of sexual assault. The employe indicated that it was a vindictive act, fabricated lie, and he was currently going through a divorce with his wife.

The employe was arrested by a Waupun police officer, Sergeant Zimmerman. Sergeant Zimmerman reported to the employer's investigator, Captain Dittmann, that when interviewed the employe admitted that his wife told the employe that she did not want to have sexual intercourse and admitted that he pulled his wife's arm behind her back. The employe was charged with third degree sexual assault under Wis. Stat. 940.225(3), which is a class D felony. The complaint stated that when interviewed regarding the matter the employe informed Sergeant Zimmerman that his wife told him that she did not want to have intercourse with him, he ignored her initial plea and had intercourse with her. The complaint also indicated that the employe told the officer that he did pull his wife's arm behind her back, but that there was not a lot of force to it.

On April 30, 1998, Captain Dittmann interviewed Ms. York. Ms. York stated that her husband forced intercourse on her after she told him to stop several times and that he used physical force on her in that he grabbed her arm, put it behind her back. Ms. York also testified at the hearing. Her testimony established that on April 20, 1998 the employe forced the act of sexual intercourse upon her. The employe continued the act after Ms. York told him she did not want to have intercourse. During the incident he grabbed her arm and twisted it arm behind her back, causing her pain.

Captain Dittmann also interviewed the employe regarding the matter. During the interview the employe denied telling Sergeant Zimmerman that he forced sexual intercourse on his wife and denied telling Sergeant Zimmerman that he pulled his wife's arm behind her back. He refused to answer the question whether he had sexual intercourse with his wife on April 20, 1998.

Based on the written statement of Sergeant Zimmerman and the employe's wife's statements regarding the employe's activities, the employer concluded that he violated the employer's rules by "threatening, attempting, or afflicting bodily harm" on his wife and "failing to provide truthful, accurate and complete information when required." The employer discharged the employe for the aforementioned rule violations.

The initial issue to be decided is whether the employe was discharged for misconduct connected with his 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 only first hand testimony offered in this case regarding the employe's activities on the night in question was offered by the employe's wife. Her testimony established that the employe threatened, attempted and did inflict bodily harm upon his wife. Notwithstanding his refusal to sign the rules, the employe was aware that he could be discharged for such off-duty conduct. In his work for the employer the employe is entrusted with providing safe, secure, and humane treatment to those over whom he exercises control. The employer has to ensure that its employes will not respond to difficult situations in a violent manner. The employe has displayed an inability to control his emotions and a lack of regard for the rights and well-being of another. The employe's actions constituted an intentional and substantial disregard for the employer's interests.

The commission therefore finds that in week 20 of 1998, the employe was discharged for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in the amount of $691.00 for weeks 20 through 22 of 1998, for which he was not eligible and to which he 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 20 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. He is required to repay the sum of $691.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on May 13, 1998, is set aside. If benefits become payable based on other employment, a new computation will be issued as to those benefit rights.

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: February 3, 1999
yorkch.urr : 132 : 3   MC 617  MC 618      MC 692.02

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the ALJ. The ALJ found the employe's wife's testimony to be credible. The commission agrees. The commission, however, reaches a different legal conclusion than that reached by the ALJ.

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: WAUPUN CORRECTIONAL INSTITUTE


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