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


LORI M EVANS, Employe

INTERNAL INVESTIGATIVE SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98606055MW


On August 29, 1998, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 32 of 1998 the employe was discharged and not for misconduct connected with her employment. As a result, benefits were allowed. The employer filed a timely appeal and a hearing was held before an appeal tribunal. On October 19, 1998, the appeal tribunal issued a decision which reversed the initial determination to find misconduct. As a result, benefits were denied. The employe filed a timely petition for commission review of the appeal tribunal decision.

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 for the employer, a detective agency, for three years as the operations manager. Her last day of work was August 6, 1998 (week 32).

On her last day of work, the employe and the employer's owner, Jeff Nestor, became involved in an argument. During the course of this argument Mr. Nestor told the employe that he no longer wished to be her friend, to which the employe responded that this was fine, since he had not acted in a friendly way towards her. The employe explained that she knew Mr. Nestor's wife had been paid in full during her maternity leave, whereas the employe's maternity leave was unpaid. The employe indicated that Mr. Nestor could be sued for this. Both the employe and Mr. Nestor used profanities throughout this altercation, and the employe ended the argument by addressing an obscenity to Mr. Nestor. Mr. Nestor told the employe to leave.

The following day the employer notified the employe that she was discharged. A separation notice prepared by the employer indicates that the employe was discharged for violating the employer's confidentiality policy by acquiring company documents without permission and threatening to use those documents as a basis to sue the company, and also for "insubordinate behavior towards the president of the company, including threatening body language and inappropriate language."

The question to decide is whether the employe was discharged for 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."

At the hearing the employer contended that the employe inappropriately accessed confidential records and threatened to blackmail the employer with them. However, the evidence indicates that the employe became aware of Mrs. Nestor's paid maternity leave through legitimate means, having been asked by the owner to distribute pay checks during Mrs. Nestor's leave of absence. While the employe did tell Mr. Nestor she could sue the company, this statement did not constitute a threat of blackmail, as the employer alleges, but was an understandable response to what the employe perceived as illegal treatment.

Regarding its allegations of "insubordinate behavior," the employer failed to demonstrate that the employe displayed any "threatening body language" during her argument with the employer, and the contention that the employe used inappropriate language does not support a finding of misconduct. The evidence establishes that the employe and Mr. Nestor routinely addressed one another in a vulgar and indecorous manner, and the employe was not on notice that Mr. Nestor objected to her conduct. While the employe's use of profanity was unprofessional and rude, it is up to the employer to set the standard regarding the type of language and conduct that will be tolerated at the work place. Where the employe's conduct was condoned by the employer, it cannot reasonably be found that she acted with deliberate disregard for the employer's interests or for the standards of conduct the employer had a right to expect of her.

The commission, therefore, finds that in week 32 of 1998 the employe was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits as of week 32 of 1998, provided she is otherwise qualified. She is not required to repay the sum of $908 to the Unemployment Reserve Fund.

Dated and mailed: February 5, 1999
evanslo.urr : 164 : 1  MC 640

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission consulted with the administrative law judge regarding his impressions of witness credibility and demeanor. The administrative law judge indicated that he did not credit the employer's assertions that the employe had been put on notice her language was unacceptable and stated that he believed the relationship between the employe and Mr. Nestor was an extremely informal one. The administrative law judge explained that, in spite of these factors, he nonetheless felt the employe's conduct was sufficiently inappropriate to warrant a finding of misconduct. The commission agrees with the administrative law judge's credibility assessments, but finds that where the employe's conduct had been condoned in the past, her actions in continuing to use profanity in conversation with the employer's owner did not evince misconduct.


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