Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Sandra J. Malliet v. LIRC and Archer Daniels Midland Co., Case 10-CV-8971 (Wis. Cir. Ct., Milwaukee Co., March 31, 2011)

Digest Codes: MC 630.09- Dishonesty - Falsification of record; MC 697 - Violation of company rule - Time clock

Digest Summary: The employee was hourly and was required to fill out time cards on a computer program and have them approved by her supervisor. It was noticed that she was leaving the building without punching out, a violation, and she was warned against this. After she continued to fill out time cards reflecting work during times she was not there, she was discharged. The Department's determination found misconduct, and on appeal an ALJ agreed, and LIRC"s decision affirmed.

Held: AFFIRMED. Questions about intent are questions of fact; here, the record supports the finding that the employee intentionally misreported hours. While the employee testified that she did not intend to steal time from the employer, LIRC rejected this testimony as self-serving and not credible; the Court cannot substitute its judgment on that question. LIRC was reasonable in concluding that, in light of the magnitude of the time theft and the supervisor's previous warnings to the employee to keep accurate records, the employee's actions were misconduct.

In her arguments to the court, the employee raised two arguments for the first time: that the reason she left early on one occasion was that it was not safe for her to work with flammable materials when no other employees were around, and that the employer discharged her in retaliation for her complaints about being harassed by another employee and in fear that she would file a harassment lawsuit. However, it is settled law that to preserve an issue for judicial review a party must raise it before the administrative agency. The employee did not raise these arguments to the Department, the ALJ, or LIRC. Consequently, she waived the right to raise the issues before the Court

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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