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

TOOTSIE M SOMMERS, Employee

BURGER BOAT COMPANY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02400640MN


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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for four and a half years as a marketing assistant for a yacht manufacturer. Her last day of work was January 2, 2002. She quit on January 7, 2002 (week 2).

The incident which prompted the employee's resignation occurred on January 2, 2002, when she was called into a meeting with the vice president and the human resources manager. The employer was disturbed by what it considered the hostile tone of an earlier e-mail from the employee, most particularly its formatting. It sought the meeting for the purpose of discussing what it believed to be the employee's underlying issues. During the meeting, the employee was asked about missing a safety meeting, failing to follow the chain of the command in notifying the employer that she intended to give up her first aid responsibilities, using a hostile communication style in sending an e-mail in large bold type and having "hidden issues." The employee became emotional and walked out of the meeting before it was finished.

Later that day, the employee met again with the vice president who gave her a two day suspension for insubordination based on her conduct at the meeting and walking out. She began to cry and he patted her knee and assured her that they all cared about her. On her next scheduled work day, she submitted her resignation letter. The letter details her perceptions that she was unfairly disciplined and explains her side of each of the issues raised by the employer at length.

The issue is whether the employee quit with good cause attributable to the employer or for any other reason permitting the immediate payment of benefits.

"Good cause attributable to the employing unit" means some act or omission by the employer justifying the employee'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 employee's quitting was based on her perception that she was unfairly disciplined by the employer and that she was undervalued for the work she did. However, the employer had legitimate concerns about her attitude after she sent the e-mail resigning her safety duties. The employee's unwillingness to participate in a meeting designed to air those issues and her walking out of the meeting was a sufficient basis for the employer to suspend her. The employer's discipline did not constitute fault and the employee's quitting in response to it does not constitute good cause.

The commission therefore finds that in week 2 of 2002, the employee voluntarily quit her employment within the meaning of Wis. Stat. § 108.04(7)(a), and that her quitting was not within any exception permitting the immediate payment of benefits.

The commission further finds that the employee was paid benefits in the amount of $8820 during weeks 2 through 29 of 2002, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1).

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 employee. 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 commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 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.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 2 of 2002, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay $8820 to the Unemployment Reserve Fund

Dated and mailed July 30, 2002
sommeto . urr : 178 : 3  VL 1080.20

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility with the ALJ prior to reversing. The ALJ found the employee's testimony that she quit as the result of employer hostility, harassment and unfair discipline very credible. The commission carefully considered the ALJ's impressions of the witnesses. However in determining the reasons the employee quit it places greater emphasis on the contemporaneously composed seven page resignation letter which emphasizes the discipline she received and her perception that the employer did not value her contributions. Unlike the ALJ, the commission does not find the employer's explanations for why it was concerned about the employee's conduct and e-mail incredible. Finally, the commission regards differs in its assessment of the seriousness of being called "girlfriend" by the human resources manager and having her knee patted when she was upset. It finds these incidents in the context given by the employee as inoffensive and not evidence of sexual harassment. For these reasons, as well as the those stated above, the commission concludes that the employee's quitting was a personal decision and does not amount to good cause attributable to the employer.

cc: Attorney Russ R. Mueller


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