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

MARY B ARNETT, Employe 

UNIVERSITY OF TULSA, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97000239MD

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about one year as a project director for a Wisconsin state agency. Her last day of work was June 6, 1996 (week 23), when she quit that position to accept work with the employer at issue. The employe worked about five weeks as a post-doctorate research fellow for the employer, the College of Law at the University of Tulsa in Tulsa, Oklahoma. Her salary was $30,000 per year. Her last day of work with the employer was August 12, 1996 (week 33).

The employe's position was to assist a Professor Guruswamy in research, and to coordinate an interdisciplinary research group. During her employment Professor Guruswamy was on sabbatical. On July 8, 1996, the employe discussed with Professor Guruswamy her desire to have a flexible schedule to perform work at home. The employe believed that she had received permission for such flexible schedule.

On July 17, 1996, Professor Guruswamy sent the employe a memo outlining a number of work issues including a paragraph on office hours which stated, "As discussed office hours need to be kept, although we are appreciative that your work may keep you away from office. In such circumstances please inform Sue of your movements. Also please coordinate your lunch hour with Sue."

The employe was dissatisfied with the employer's desire that she work in the office and coordinate her lunch break with Sue, the secretary. The employe believed she was being asked to perform duties more suited to clerical or work study staff. On July 18, 1996, the employe sent Professor Guruswamy memo in which she touched on many subjects including:

"On the subject of office hours, I keep Sue informed of my movements and have talked with her about the lunch hour. I tend to work during the noon hour and take a late lunch when I reach a good place to stop in my work. Sue and I discussed the telephone message system and agreed that callers typically are not surprised if they do not reach someone over the noon hour and would prefer to get voice mail than to get a back-up person and then be forwarded to voice mail. Given that the Research Fellow is a professional classification and historically has not entailed reception duties (Brent was not required to cover the phones), this would be more suited either to clerical or work/study staff."

Thereafter, on numerous occasions Professor Guruswamy reminded the employe that he wanted her to keep office hours. On August 8, 1996, the employe sent Professor Guruswamy an e-mail message in which she raised concerns with the amount of time she was spending in the administrative component of the Administrative/Professional classification of the Research Fellow position. In that e-mail the employe stated:

"I could not have been hired unless you thought I would do Professional academic research. Adequate planning and preparation are required for both Professional research and Administrative tasks. I didn't expect that so much of my time would be spent on maintaining the constant desk presence that is needed for the daily infinite Administrative clerical duties. With the time I have to spend responding to the daily shifting of Administrative priorities, how to successfully meet my Professional obligations without a separate Administrative support structure is a mind-boggling conundrum."

The employe followed up her August 8 e-mail message to Professor Guruswamy with an August 9 e-mail message. In that message the employe petitioned for a flexible work schedule with 12 hours per week of scheduled administrative desk work and the remaining 28 hours devoted to research activities (without in- office requirements). The employe indicated that she had spent a lot of time at home working and would come in later during the morning and believed it was more productive to continue working at home when she was "on a roll" than to interrupt her work to report to the office. The employe also noted that she had family obligations which arose during the day and that working in the library was not conducive because of distractions.

Professor Guruswamy responded to the August 9 e-mail in the morning of August 12 stating:

"I have received your e-mails and shall forward your petition to the relevant authorities. I shall also be replying to you in more detail shortly. As you appreciate I am on a sabbatical leave and am trying hard to finish my book.

In the meantime, could you please keep office hours as required by your present contract. You appear to be keeping detailed records of the time spent on your work, and I have requested Sue to keep a note of your office hours between 8 and 5:30.

Please let me know how far you have progressed with the IEL reading. Since you unilaterally took last Thursday off to do this reading, I would like you to tell me where you stand."

The employe contacted Professor Guruswamy by telephone in order to discuss the matter of her petition for flexible hours. Professor Guruswamy stated that he did not think it was something that would be approved by the Dean and indeed it was something he could not agree to. He explained to the employe the need for keeping office hours, partly, because the previous research fellow had not been keeping regular hours. The employe stated that she would have to consider what she would do.

After speaking with Professor Guruswamy the employe presented a resignation letter to Sue, the administrative secretary. Sue told the employe to rethink resigning. Sue had no authority to request that the employe submit a resignation and did not suggest that the employe should submit a written resignation. A research assistant spoke with the employe and suggested that the employe not turn in the letter. Later the employe returned to Sue and indicated that resigning was what she wanted to do. Sue suggested that it was not proper to give the resignation letter to her and that the employe should give it to Professor Guruswamy. Sue indicated that she could not take the resignation letter. The employe did not mention at any point that Professor Guruswamy had asked her to resign.

After speaking with Sue the employe sent Professor Guruswamy her resignation letter which stated:

"Please accept my resignation from the NELPI Research Fellow position effective August 12, 1996. I wish you the best of luck in your professional pursuits and in recruiting my replacement. As you have already indicated to me, there are many highly-qualified candidates for this position.

I believe in the NELPI mission and hope to continue to pursue my research on environmental and energy issues, because I believe so strongly in the importance of regulatory integration and interdisciplinary studies."

After Professor Guruswamy received the resignation letter, the employe called him a second time. In that conversation, the employe said she had second thoughts about resigning. Professor Guruswamy told her that as long as she was sure she could keep office hours as arranged in the past that was all right. He was willing to allow her to withdraw the resignation if she was willing to keep office hours. Professor Guruswamy indicated that he did not want to spend his sabbatical negotiating another contract with the employe because he expected her to get on with the job. Thereafter, the employe did not withdraw her resignation and her employment ended.

The employe's labor market consisted of the geographic area including the City of Tulsa, the University, and a radius of 10- 15 miles from the employe's place of residence. Similar work to that held by the employe are post-doctorate fellow positions. The salary range for a post-doctorate fellow at the University of Wisconsin-Madison is from $20,000 to $32,300, which would be about 8-10 percent higher than in Oklahoma. The employe was paid $30,000 a year, and even using the University of Wisconsin pay range, her rate of pay was not substantially less favorable to her than existed for similar work in her labor market.

The initial issue to be decided is whether the employe voluntarily terminated her employment or was discharged. If the employe quit, a secondary issue is whether the employe's quitting was for any reason permitting immediate benefit payment. If the employe was discharged, a secondary issue is whether her discharge was for misconduct connected with her employment.

The administrative law judge found the testimony offered by Professor Guruswamy and the administrative secretary to be more credible than the testimony offered by the employe regarding the circumstances surrounding the separation from employment. After conducting an independent review of the record, the commission has found no compelling reason to disturb the credibility determination. Professor Guruswamy did not ask or demand that the employe resign. Professor Guruswamy did not inform the employe that she would not be allowed to continue in her employment. Professor Guruswamy's testimony is supported by the testimony of Sue. When Sue suggested that the employe rethink her resignation, the employe did not indicate that there was nothing to rethink because she had been instructed by Professor Guruswamy to submit a resignation letter. Finally, nothing in the resignation letter itself indicates that it was anything other than a voluntary decision on the employe's part.

"Good cause attributable to the employing unit" means some act or omission by the employer justifying the employe's quitting; it involves "some fault" on the part of the employer and must be "real and substantial." Nottelson v. DILHR, 94 Wis. 2d 106, 120, 287 N.W.2d 763 (1980) (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965), and Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979)). For the exception to apply, the quitting must be "occasioned by" the act or omission of the employer which constitutes good cause. Hanmer, 92 Wis. 2d at 98 (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965)).

The employe's quitting was prompted by Professor Guruswamy's requirement that the employe maintain office hours while her petition for flexible hours was pending. The employer was not required to accede to the employe's demand for flexible hours. Further, while Professor Guruswamy expressed doubts that the employe's request would be granted, the fact is that the employe quit her employment prior to resolution of her request.

The employe was also dissatisfied with the amount of time she was spending doing administrative/clerical tasks. First, as the employe must concede, administrative tasks were clearly envisioned as being a part of the employe's job duties. While the employe alleged that the vast majority of her time was spent doing such administrative/clerical duties the commission believes the employe has exaggerated this claim. Further, while Professor Guruswamy did want the employe to maintain office hours, the evidence did not show that he demanded that she spend a minimum amount of time performing administrative duties. While the employe may have felt it necessary to spend additional time working at home, again, there was no showing that she was required to do so.

The employe argues that her quitting falls within the statutory exception to the quit disqualification contained in Wis. Stat. § 108.04 (7)(e), and through that section the labor standards provision of Wis. Stat. § 108.04 (9).

The employe's argument regarding the labor standards provision is that she is an experienced attorney and in her prior work she was paid a lot more than she was in the position she quit. However, the comparison is not between the quit position and the employe's previous jobs, or what she could have been making if she was working as an attorney. The comparison is between the wages, hours and other conditions of the quit job and similar work in her labor market. Similar work is work which has substantially equivalent duties and responsibilities which requires substantially equivalent skills, abilities, and knowledge. Similar work here is other post-doctoral fellow positions. The record simply does not support a finding that the employe's wages were substantially less favorable than existed for similar work in her labor market.

The employe also objected to the hours in the sense that she was not permitted flex time. However, there was no evidence that flex schedules are prevailing, or that the arrangement and number of hours the employe was expected to work were substantially less favorable to her than for similar positions.

The employe argues that the duties of the position were administrative/clerical in nature rather than research. However, "other conditions" referred to in Wis. Stat. § 108.04 (9)(b), refer to such things as association membership, overnight travel, special clothing requirement, tools or vehicles.

The employe's arguments would be relevant had she quit the job within six weeks of becoming unemployed. Under Wis. Stat. § 108.04 (8)(d), the employe had up to six weeks after becoming unemployed to reject work and quit work that was of a substantially lower rate of pay or a lower skill level than her previous job. Wis. Stat. § 108.04 (7)(e), provides that the quit disqualification of (7)(a) does not apply if the employe accepts work she could have refused with good cause and under sub. (8) and terminated such employment with the same good cause and within the first 10 weeks after starting work. The employe quit her previous position in week 23 of 1996 and this job in week 33 of 1996. Therefore more than six weeks elapsed between her week of unemployment and her quitting. Accordingly, she did not quit with the "same good cause" she would have had for refusing the job initially. That is, when applying sub. (8) through operation of (7)(e), it is not sufficient for the employe to quit within 10 weeks of beginning work, the quitting must also be within 6 weeks of becoming unemployed. This interpretation has been upheld in at least one court case Dale v. Onsgard v. LIRC and Millis Transport, Inc., No. 86-CV-2208 (Wis. Cir. Ct. Dane County Mar. 19, 1987). In addition, the commission has recently reaffirmed this interpretation in a standard affirmance decision, Kelly J. Stodola v. Express Inc., UC Hearing No. 97- 601990 (LIRC Sep. 2, 1997), in which the commission stated:

"The employe further argues that she voluntarily terminated her employment within 10 weeks and with the same good cause she would have had for refusing the work. There are two provisions that may provide for benefits if a quitting is done within 10 weeks of beginning work. Under Wis. Stat. § 108.04(8)(d), an employe has 6 weeks after being laid off to seek work substantially in line with the employe's former rate of pay and level of skill. However, in this case while the employe accepted work with the employer within six weeks of being laid off by her other employing unit, she terminated that work after the six week canvassing period had expired. Therefore, she did not have the same good cause for quitting the work that she would have had for refusing that work in the first instance."

Therefore, once the six week canvassing period has passed, the only exception to the quit disqualification is the labor standards provision of Wis. Stat. § 108.04 (9), that is applied through (7)(e).

The commission therefore finds that in week 33 of 1996, the employe voluntarily terminated her employment but not with good cause attributable to the employer, within the exceptions contained in Wis. Stat. § 108.04 (7)(e), or for any other reason constituting an exception to Wis. Stat. § 108.04 (7)(a).

The commission further finds that the employe was paid benefits in the amount of $3046.00 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 appeal tribunal's reversal of the initial determination. Such reversal was not due to department error as defined in Wis. Stat. § 108.02 (10e)(a) and (b). The department investigated the employe's separation and issued an initial determination as required. The appeal tribunal decision results form a more complete record information regarding the circumstances surrounding the employe's separation.

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 modified to conform with the foregoing findings and, as modified, is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 33 of 1996, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment equaling four times the weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay the sum of $3046.00 to the unemployment reserve fund.

Dated and mailed October 1, 1997
arnetma.urr: 132 : 1 VL 1005  VL 1080.01  VL 1034 SW 844   PC 715

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The employe argues in her petition that the administrative law judge erred in requiring her to testify first at the initial hearing. The commission disagrees. Generally, where the parties do not agree on how the separation occurred, a quit or a discharge, the department takes the employe's testimony first. Further, Wis. Admin. Code § ILHR 140.10 (2) (now § DWD 140.15 (2)), provides that "The administrative law judge has the responsibility to develop the facts and may call and examine any witness that he or she deems necessary and may also determine the order in which witnesses are called and the order of examination of each witness." Finally, the employe was able to offer rebuttal testimony and, in fact, additional testimony at the remand hearing. The commission cannot find that the employe was prejudiced by the order of testimony.

The employe further argues that the administrative law judge contaminated the hearing by initiating a prohibited ex parte communication with the employe immediately following the hearing, during which the administrative law judge established an unprecedented threshold and impossible standard of proof for employes in unemployment compensation hearings involving controverted testimony. However, while technically improper, the commission cannot find that the administrative law judge's dissertation on the factors he considers in reaching credibility determinations has prejudiced the employe. While she may not have known the administrative law judge's standard for determining credibility before the hearing, she had no right to know. Finally, the commission notes that it conducts an independent review of the record and, having done so, has reached the same credibility determination as the administrative law judge.

cc: DEPT OF HEALTH & FAMILY SERVICES
ATTN PHILIP W WERNER

ATTORNEY ROBERT E GREGG
TOMLINSON GILLMAN & RIKKERS SC

ATTORNEY DAVID B MC KINNEY
BOESCHE MC DERMOTT & ESKRIDGE LLP

Appealed to Circuit Court.  Affirmed July 30, 1998. [Court decision summary]

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