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


JEFF A HOAGLUND, Employee

THE PICTURE PEOPLE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00605493MW


On June 22, 2000, the Department of Workforce Development issued an initial determination which held that the employee quit his employment, but not for a reason constituting an exception to the general benefit disqualification of Wis. Stat. § 108.04(7)(a). The employee filed a timely request for hearing on the adverse determination, and hearing was held on July 27, 2000 in Milwaukee, Wisconsin before a department administrative law judge. On July 28, 2000, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal decision and, by September 27, 2000 order, the commission remanded the matter for additional hearing. That hearing was held on November 28, 2000; the matter is again before the commission and now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately two and a half years as a studio manager for the employer, a photography business. He ostensibly quit his employment on May 11, 2000, and the issue is whether the circumstances of that separation are such as to render the employee eligible for unemployment insurance. The record indicates that the employee quit his employment in anticipation of being discharged; this makes the separation a constructive discharge by the employer and not a quit by the employee. The commission therefore reverses the appeal tribunal decision.

The employer's district manager would hire individuals and train them in the employer's Skokie store, for subsequent transfer to store manager positions primarily in Wisconsin. The district manager interviewed one such individual, a Gail Prange, and told her that he intended to fill a manager's position at the employer's Southridge store. The employee was the current manager at that store. The district manager subsequently told Ms. Prange that she would be taking over the manager's position at the Southridge store, that the current manager was going to be terminated for lack of performance, but that he did not know that he was going to be terminated. It appears that Ms. Prange told a friend of hers that she would be taking over that store. Shortly thereafter, the friend came into the Southridge store and asked for Ms. Prange. The clerk at the store said that no such person worked there, to which Ms. Prange's friend responded that the clerk must be wrong because Ms. Prange was her friend and was the manager of that studio (1).   When the employee learned of the friend's having visited the Southridge store, he submitted his letter of resignation and the employment relationship ended.

The issue thus is whether the separation was a quit or a discharge. In this kind of case, it usually turns out that the evidence does not establish that the employer had intended to discharge the employee. When that is the case, the disqualification falls upon the employee, for not having definitively ascertained his or her status with the employer before submitting the letter of resignation. This is because the unemployment insurance law places that burden upon employes, when their employment statuses are in question. It should be apparent, though, that such reasoning is inapplicable in those cases where the evidence establishes that the employer was going to discharge the employee. This is such a case, and it thus constitutes a constructive discharge by the employer and not a quit by the employee. Finally, the record does not establish that the discharge was for misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 20 of 2000, the employee was discharged by the employer, but not for misconduct within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 20 of 2000, if he is otherwise qualified.

Dated and mailed January 30, 2001
hoaglje.urr : 105 : 1   MC 629  VL 1007.15

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge; rather, the commission's reversal is based upon the evidence from the remand hearing, evidence obviously not available to the administrative law judge when he issued his decision in the case.

cc: EXPRESSLY PORTRAITS

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. First, this case should not have been remanded for a second hearing to get the testimony of Gail Prange. The employee's petition to the commission alleged that "Gail could not show up for the hearing because she found another job and could not get time off." The testimony at the second hearing clearly shows that Prange testified "I'd just gotten a new job. I had a conversation with [the employee ] on the phone in which I told him I'd just gotten a new job and he was going to need to subpoena me to be here because I did not want to tell my new employer I needed a day off already when I just started there. The employee got very upset when I told him that. He basically yelled at me on the phone so I hung up on him. Then he called back asking for my home address so he could subpoena me. I was a little reluctant to give it to him. I didn't want him to know where I lived. My husband talked to him at that point and the employee never got an address so he never subpoenaed me." The employee knew that Gail would not be at the hearing and it was not because her new employer denied her the time off.

The employee was upset with the employer from the time the district manager took over on April 1. The employee testified "on 4/1, "he" took over as district manager. From that time on, there was contact lying and backstabbing going on". The employee's resignation letter was written and dated on March 1, 2000. The employee testified at the first hearing "I had Sharon type it on her computer. I gave her the instruction to type it on 3/1 because I wanted to have it ready.. Mr. Thomas became the district manger on 4/1, after Exhibit 2 was prepared. I had the resignation letter prepared on 3/1 because the previous district manager left the company in January and in February I started looking for another job. I started to look for another job at a better rate of pay. I had a review on 3/5 and was given a 4% increase. I told Tina Paige that I was looking for another job. I also told Cara and Sharon."

The employee was unhappy and did not want to increase his hours beyond 40 per week. The employer was looking for new employee's to be available to replace those who might not be performing up to standards. The employer testified "I hired Gail because when I was hired and went to all the stores to meet managers, the employee introduced himself to me and said he did not like working for the employer and had been seeking other work. I asked him why and he said he did not like how the company was being run. He said he would not be successful with the number of hours he had. He said he did not want to put in more than 40 hours per week any longer." The employer allowed the employee to schedule others for an additional 4 more hours per day to either train or get more business. The employee told the district manager he needed help on recruiting and the manager helped the employee's assistant recruit.

The district manager testified "Discharge takes place upon the third warning.The employee never received a warning, and we never discussed his discharge."

At the time the district manager hired Gail he may have anticipated that the employee would quit but he did not indicate that Gail would be definitely assigned to the Southridge store until the employee resigned. Even based on the employee's version, the employer would have wanted the employee to work until after the Father's Day special which was for all of June.

The majority found that the employee quit as a constructive discharge after Prange's friend asked for her as the manager at Southridge. This seems rather strange since Prange knew she was at Mayfair at the time and it seems unlikely she would have told a friend that she was already the manager when she wasn't even there.

Based on this record, I believe that the district manager worked with the employee and that he was not in line to be fired for performance because he had no warnings and the employer required three for discharge. I believe the employee quit because he was unhappy working for the employer and he did not like the district manager.

For these reasons, I would affirm the administrative law judge decision.


_____________________________________
Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) The dissent finds it strange that Ms. Prange's friend would ask for her at the Southridge store, reasoning that Ms. Prange was still at the Mayfair store and it is unlikely she would have told a friend she was already the manager at the Southridge store when she was not assigned to that store yet. It must be obvious that the strangeness of the scenario depends upon the truthfulness of the district manager's testimony at the first hearing. The dissent, in accepting the district manager's testimony as credible, neglects the testimony of Ms. Prange to the effect that the district manager told her the current manager at the Southridge store was going to be terminated for lack of performance, but that the employee did not yet know of his impending termination. By the dissent's own recitation of the difficulty the employee had in arranging for the testimony of Ms. Prange, it should also be obvious that she was at best a disinterested witness (and, at worst, hostile to the employee for inconveniencing her). In any event, her testimony is easily more credible than that of the district manager, and the dissent offers no explanation for her assessment to the contrary.


uploaded 2001/01/31