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

CONSUELA R KIRKENDOLL, Employee

SAINT JOHNS ON THE LAKE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12602156MW


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a continuing care community and nursing home, for a little over a year as a resident assistant. Her last day of work was January 25, 2012 (week 4).

The employer has an attendance policy that provides for a 3-day suspension upon the accrual of a certain number of attendance points, with discharge after additional points. On December 23, 2011, the employee was issued a 3-day suspension for attendance violations. The employee had no further attendance violations thereafter and did not accrue additional points.

The employer also has a work rule that prohibits using abusive, threatening or profane language with residents, visitors, or other employees, and a rule that prohibits using profane, abusive or disrespectful language when speaking with a supervisor. The employer's handbook indicates that violations of those work rules may result in discipline.

On October 25, 2011, two workers reported to the employer that the employee had referred to a co-worker as an "Uncle Tom." The employee denied the conduct. The employee was verbally reminded to refrain from name calling. However, she was not issued any formal discipline as a result of the incident and was not warned of the consequences of repeated behavior.

On January 12, 2012, another worker reported to the human resources director that she overheard the employee in the locker room saying, "I'm tired of these two-faced motherfucking bitches." The employee denied having made the statement. She also explained that she was on a personal telephone call during her unpaid lunch break. The employer took no disciplinary action against the employee and did not tell her she could be discharged for the use of such language in the workplace.

On January 25, 2012, a worker complained that, during a personal conversation with him, the employee had referred to two supervisors as "motherfuckers" and "bitches." The following day the employee was discharged.

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 employer contended that the employee was discharged for poor attendance and for using vulgar language in reference to a supervisor, and that her actions evinced misconduct. The commission disagrees. The employee was disciplined for poor attendance in December of 2011, but did not accrue additional attendance points thereafter and did not have sufficient points to warrant discharge under the employer's policy. While the employee did refer to supervisors in a disrespectful and vulgar manner, her comments were made in the course of a conversation with another worker and did not violate the rule prohibiting the use of such language when speaking with a supervisor. Neither the policy nor the employee's prior warning to avoid name-calling were sufficient to put the employee on notice that her actions in having a conversation with a co-worker in which vulgarity was used in reference to a supervisor could result in discharge. Swearing was not uncommon in the workplace, and the employee's actions were not so egregious that she should have understood they would cost her her job.

The commission, therefore, finds that in week 4 of 2012, the employee 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 employee is eligible for benefits beginning in week 4 of 2012, provided she is otherwise qualified.

Dated and mailed August 21, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


kirkeco . urr : 164 : 9

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 arrived at a different conclusion after applying the law to essential the same set of facts as that found by the appeal tribunal.

 


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