REBECCA L RAMIREZ, Employee

HO CHUNK NATION, Employer

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:

The employee worked for about four years as the mental health director for the mental health program within the department of social services of the employer, a Native American government. Her last day of work was September 12, 2001 (week 37).

The employee, who holds a doctoral degree in psychology, was hired with the understanding that she would work toward state certification of the employer's mental health program. The state requires that there be a licensed psychologist within the program. In addition, the mental health clinicians in the program had to be certified mental health counselors and the employer had to meet certain other requirements.

On September 5, 2001, the employer demoted the employee to a clinician position, based upon the licensure application denial and unspecified performance concerns relating to violations of state laws and regulations. This demotion involved a pay cut of more than one third of her prior wage. The employee sent the employer a resignation letter on October 12, requesting that her resignation be effective October 31, 2001 (week 44). The employer responded that as she stated in a voice mail message that she had no intent to remain employed with the employer since her demotion of September 5, 2001, her resignation date of October 12, 2001 (week 41) remained firm.

In this case, the employer transferred the employee to a new position. The employer never informed the employee that she had been discharged. Instead, the employee turned in a resignation notice on October 12, 2001. Therefore the employee quit.

The first issue to be decided is the effective date of the employee's quitting. The employee notified the employer on October 12, that she wanted to quit but that she wanted to work through the end of the month. Therefore, her quit was not effective until October 31 (week 44). The employee's unemployment from October 12 until October 31 is not related to the fact that she quit her job, but to the fact that the employer would not allow her to continue working until the end of the notice period. The circumstances of this separation fall under the "accelerated quit" principle. Essentially, if an employee gives a future date as a date of quitting, and the employer requires the employee to separate from employment at an earlier date (and the earlier separation itself is not for disqualifying reasons), then the employee is eligible for benefits from the date of separation to the date the employee originally gave as the anticipated quit date. See, Hoyt v. Wisconsin Bell Inc., UI Hearing No. 95-602614 (LIRC Feb. 16, 1996); Boehm v. Downtown TV, UI Hearing No. 88-402052 (LIRC Jun. 29, 1989).

The next issue to be decided is whether the employee is eligible for benefits despite quitting her employment with the employer.

Wis. Stat. § 108.04(7)(f) provides that "benefits shall not be denied if the department determines that the employee terminated his or her work because the employee was transferred by his or her employing unit to work paying less than two-thirds of his or her immediately preceding wage rate with the employing unit, except that the employee is ineligible to receive benefits for the week of termination and the 4 next following weeks."

In this case, the employee was transferred to work paying less than two-thirds of her immediately preceding wage rate. The employee thereupon quit. As such, this exception applies to her.

The commission therefore finds that in week 44 of 2001, the employee terminated work with the employer because the employee was transferred by the employer to work paying less than two-thirds of the employee's immediately preceding wage rate with the employer, within the meaning of Wis. Stat. § 108.04(7)(f).

The commission further finds that the employer, by its actions in failing to offer continued work until the effective date of the quitting, incurred liability for unemployment benefits for weeks 41 through 43 of 2001.

The commission further finds that the employee was paid benefits for each of weeks 44 through 48 of 2002, amounting to a total of $1384; for which she was not eligible and to which she was not entitled, with in the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), she 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 over payment did not result from the fault of the employee 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.

The decision of the administrative law judge is reversed. Accordingly, benefits are allowed prior to week 44 of 2001. Benefits are suspended for the week of quitting and the four following weeks. Thereafter benefits are allowed if the employee is otherwise qualified. The employee is required to repay the sum of $1384 to the Unemployment Reserve Fund.

Dated and mailed June 14, 2002
ramirre . urr : 145 : 8  MC 627  VL 1080.269

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ did not find the testimony of the employer's witnesses, in particular that of the social services administrator, to be credible. The ALJ noted that the employer appeared by telephone and that there were long pauses in the administrator's testimony. The ALJ was very concerned about a delay in this witness's responses. The commission defers to the ALJ's credibility impressions.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

cc: Scott Marecek - Dept. of Personnel

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uploaded 2002/06/18