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


KATHLEEN M JONES, Employe

QUAD/GRAPHICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001413FL


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 employe worked about eight months as a receptionist for the employer, a printing business, in a medical clinic. Her last day of work was January 20, 1999 (week 4), when the employer discharged her.

The employe worked in the main reception area of the medical clinic. Her desk was in front of the clinic where people came into the clinic to check in. There were sitting areas with a desk separating the receptionist from the other people. The waiting area seats approximately 30 people. The employer's employe handbook, which the employe received, indicates that "abnormal or disruptive behavior on the job" can lead to disciplinary action or dismissal.

Sandra Jackson, the clinic supervisor, counseled the employe about talking loudly at the desk or venting about certain patient situations loudly at the desk. Because the employe claimed she was being singled out, Ms. Jackson would send out general messages to all receptionists to get the message across that workers had to conduct themselves at the reception desk in a professional manner.

On October 23, 1998, Ms. Jackson sent a general message to staff regarding professional conduct. The e-mail stated:

"As we are a Professional Medical clinic, it is expected that we conduct ourselves in a professional manner. This includes referring to the physicians as Dr. McKesson, Dr. Martin, Dr. Kessler. In addition verbal discussions that become loud either with raised angry tones or loud laughter are NOT professional and will not be conducted in patient care areas or at the reception desk. I expect all patients to be treated in a courteous, timely, friendly fashion and that we continue the tradition of excellence QuadGraphics is known for. I know I can count on your corporations, Sandy." (Exhibit 2.)

On November 23, 1998 Ms. Jackson memorialized a conversation she had with the employe. That document states:

"11/23 Spoke with Kathy Wood, she began discussion with feeling of being `picked on'. Kathy relates that Lynda does everything she is being reprimanded for. Kathy advised to monitor her own actions, do not concern herself with other's actions or justify behaviors with noting others doing incorrect actions. Kathy advised to keep counsel privately and not discuss others. After hours discussed same issues with Dr. McKesson for 60 minutes. Kathy again said negative things about Judy, and Lynda." (Exhibit 1.)

On October 5, 1998, Judy Schultz, an administrative assistant and supervisor for the reception area, saw the employe get up from her reception desk and walk to the edge of the reception area and yell, "I can't take this job. I don't get paid enough to take this abuse." Her comments were not directed at anyone in particular. Ms. Schultz informed the employe that they had to go away from the desk to discuss the matter if there was a problem. They went to an examining room and Ms. Schultz told the employe the employer would not tolerate any outburst in the reception area. She told the employe that she had to conduct herself in a professional manner. The employe agreed to work on it. The reason she gave for being excited was due to a phone call about a patient who needed to come in to get tested for a whole family.

The incident leading to the employe's discharge occurred on January 20, 1999. The employe was in the reception area. The employe learned that a new doctor had been hired and she had not been told of the hiring. In speaking over the telephone with Ms. Jackson, the employe was very upset and yelling about not knowing that there was a new physician and that she needed to know important business of the clinic. The employe was yelling in a very loud voice saying how unhappy she was about not being informed of the new physician. The employe indicated she would call the medical director and tell the medical director how unhappy she was that she was not told important information. Ms. Jackson went up to the front desk to see if there were patients in the lobby. The lobby was full of patients. When Ms. Jackson went out to the reception area the employe was still venting her frustration to another receptionist, still yelling. Ms. Jackson informed the employe that she needed to speak with her in a back office. Ms. Jackson wanted to get the employe away from the front desk.

Ms. Jackson and the employe went to a small office in the back area. When there, the employe started yelling at Ms. Jackson making statements such as "I'm sick of this bullshit. How am I supposed to work here? You are always on my ass." Ms. Jackson informed the employe that she would have to write the incident up. The employe abruptly left.

When Ms. Jackson saw the employe later at the reception desk the employe indicated that she was sorry and that she should not have yelled. The employe was discharged on January 20, 1999, for disruptive behavior in front of patients and staff members.

The issue to be decided is whether the employe's actions, which led to her discharge, rose to the level of misconduct connected with her 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 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 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 commission finds that the employe's actions did demonstrate an intentional and substantial disregard for the employer's interests and standards of behavior the employer had a right to expect of the employe. The employe had been warned in October of 1998 that the employer would not tolerate outbursts in the reception area. That the employe was upset did not justify her actions in loudly complaining to Ms. Jackson on January 20. The employe compounded her unprofessional conduct by continuing to vent to a co-worker while still in the reception area. Finally, the employe's verbal attack on Ms. Jackson, who was merely trying to get the employe out of the earshot of patients, was unprofessional and uncalled for. Whatever frustrations the employe was feeling she was not justified in taking those frustrations out on others.

The commission therefore finds that in week 4 of 1999 the employe was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in the amount of $1,510.00 for weeks 5 through 9 and 19 through 23 of 1999, for which she was not eligible and to which she 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 4 of 1999, 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. Department records indicate that the employe requalified for benefits in week 17 of 1999. She is required to repay the sum of $1510.00 to the Unemployment Reserve Fund.

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. (1)

Dated and mailed August 24, 1999
joneska.urr : 132 : 1 MC 610.06  MC 666.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding witness credibility and demeanor. The ALJ did believe that the employe was verbally warned in October of 1998 that the employer would not tolerate unprofessional conduct. The commission believes the employe received adequate notice that her conduct was unacceptable.

cc: QUAD GRAPHICS MEDICAL CENTER


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Footnotes:

(1)( Back ) Because wages from the employer in the amount of $8,845.76 were removed from the employe's monetary computation, her maximum benefit amount was reduced to $263. This reduction resulted in overpaid benefits in week 19 through 23 of 1999.