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


JENIFER A GRAY, Employe

WALGREEN CO ILLINOIS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002303MD


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 two and a half years as a pharmacy technician for the employer, a drug store chain. Her last day of work was May 7, 1999 (week 19).

The issue which must be decided is whether the employe's discharge was for misconduct connected with her employment.

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."

On May 7, 1999, the employe was scheduled to start working at 11:30 a.m. The employer's store was very busy that day. There was a customer waiting in the drive-through pharmacy when the employe reported to work. The employe's supervisor asked the employe to get the drive-through, and the employe said "no" and walked to the back of the pharmacy to put her smock on. She reappeared a minute to a minute and a half later and waited on the customer. Her behavior set the tone for the remainder of her time in the pharmacy department that morning.

Shortly thereafter, the employe's supervisor noticed that she was not following company procedure which required her to open the bag containing a customer's prescriptions and putting them on the counter so that a pharmacist could counsel the customer regarding each drug before handing them over to the customer. The supervisor told her to follow the procedure. The employe did not acknowledge that the supervisor had spoken to her. The supervisor repeated the instruction and the employe walked away and did not respond. Several customers later the supervisor noticed that she was continuing to put the bags in the drawer rather than taking the prescription containers out of the bag and putting them on the counter. The supervisor repeated the directive to the employe, who walked away without responding.

The employe returned to the drive through, and waited on a customer. She spoke to the customer in a rude and loud manner. The supervisor then turned off the microphone and told the employe that she was not going to allow her to wait on customers in this manner. The employe then stormed out, saying that she was going home. The employe had received counseling in the past regarding handling customers.

The employe had been warned about her attendance, and was told that her job was in jeopardy as a result. The employe's supervisor had also warned the employe about insubordinate behavior and the manner in which she spoke to customers.

The employe admitted ignoring her supervisor because she did not like the supervisor's tone of voice. The employe asserted that when she was transferred to her final location, she was informed that she could transfer back to the employer's Park Street store if she had problems with her supervisor. However, the employe's actions on her final day of work were clearly insubordinate. While she clearly did not get along with her supervisor, even if she had been told she could transfer she should not have walked off her job, during a time when the employer's store was busy. She should have requested a transfer at the end of her shift. The employe arrived at work late, and immediately displayed an insubordinate attitude. She repeatedly refused to follow her supervisor's instructions or to even acknowledge those instructions. When the supervisor legitimately reprimanded her with regard to her treatment of a customer the employe walked off her job, and demanded a transfer. Her actions were disrespectful and demonstrated such an intentional and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 19 of 1999 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 20 through 33 of 1999, amounting to a total of $1,834.00 for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe 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 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 appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 19 of 1999, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay $1,834.00 to the Unemployment Reserve Fund.

The initial benefit computation (UCB-700) issued on May 13, 1999, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit right.

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 November 12, 1999
grayje.urr : 145 : 1   MC 640.03

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ indicated that the supervisor may have been somewhat demanding and difficult to work for. The ALJ further did not believe either the witness or the supervisor were untruthful, and that the employe gave her perspective on the situation, as did the supervisor. The ALJ noted a tension between the employe and the supervisor, and believed the employe was being defensive. The commission reverses the ALJ, because it reached a different legal conclusion when applying the law to the facts in this case.

cc:
WALGREEN CO
ATTORNEY BETH A WHITAKER


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