JAMES M FIEGEL, Employee

SANMINA CORP, Employer

On August 9, 2001, the Labor and Industry Review Commission (commission) issued a Decision and Memorandum Opinion affirming an appeal tribunal decision issued by an administrative law judge of the Department of Workforce Development on June 28, 2001. The commission's decision, as well as the appeal tribunal decision, found that in the week ending January 27, 2001 (week 4), the employee had terminated his employment with the employer, within the meaning of Wis. Stat. § 108.04(7)(a), and that this quitting was not for any reason constituting an exception to that statute. Accordingly, the employee's eligibility for unemployment benefits was suspended in accordance with the provisions of Wis. Stat. § 108.04(7)(a).

The employee appealed to Kenosha County Circuit Court and on January 10, 2002, the circuit court issued a Decision and Order affirming the commission's decision. The employee appealed to the Court of Appeals, District II, and on September 18, 2002, that court reversed the order of the circuit court and remanded the case to the commission for proceedings consistent with the decision of the court of appeals. The court of appeals held that the commission and the administrative law judge had erred by failing to indicate in their decision that any consideration had been given to the work incidents which occurred prior to the employee's last day of work.

The commission has again reviewed the record of this proceeding made at the hearing held before Administrative Law Judge Howard S. Lustig on June 25, 2001, including all the evidence concerning the incidents preceding the employee's last day of work with the employer. Based on its review, the commission makes the following:

On September 12, 2000, the employee was seated in the cafeteria at work with his left leg elevated on a chair due to knee pain. He exchanged words with a janitor who came up and told him to take his foot off the chair, and when the janitor attempted to pull away the chair the employee yelled at him not to do that. The janitor took the employee's name and about an hour later he was talking to the employee's lead worker about the incident when the employee got involved and there was another argument. The argument ended with the janitor threatening "to kick [the employee's] punk ass." A supervisor was contacted about the incident, but the only follow-up was that the next day a sign was placed in the cafeteria stating that no feet should be placed on chairs.

This was a significant incident for which there could have been better follow-up by the employer, but it happened over four months prior to the employee's quitting. In addition, there is no evidence that the employee complained about the incident after the day it occurred, or that he had any trouble with this janitor after that day.

On September 14, 2000, the employee was at his locker when he saw a co-worker put a switchblade into his tool bag. The employee reported what he had seen to the employer's Human Resource Representative, Jennifer Bausch. Bausch followed up by making sure that the knife, which the co-worker was using for his work duties, was not at his work station anymore. The co-worker was given a warning and the employee was told how the situation had been handled. The situation was handled appropriately, and there was no reason for the employee to feel any direct or ongoing threat from it.

On November 10, 2000, the employee was walking through the employer's parking lot on his way to the building entrance when a car sped close to him, accelerating at close to 40 miles per hour. He yelled, "Slow down you asshole!" The car turned and sped back to within a couple of feet from him, and two young men got out of the car. One said, "We're going to kick your honkey punk ass." Apparently, they then got back in the car and drove away, but the employee took down their license plate and told a security guard in the building what had happened. The employee did not hear anything further about the incident. Bausch was not made aware of this incident until the employee told her about it in a phone conversation which took placed on January 18, 2001.

There is no evidence in the record concerning whether or not the security guard followed up on the employee's complaint, or whether the two men were employees of the employer. The security guard should have followed up on the complaint, but so should the employee have followed up with a supervisor if he remained concerned. This incident occurred two months prior to the employee's quitting, and was not the type of thing which was likely to recur, nor did it recur.

During the employee's work shift which began on January 17, 2001, a custodian came up to the employee and told him to pick up some paper that had fallen from a printer onto the floor. The employee replied that the machine wasn't working at the moment and he would pick up the paper when he was done with what he was doing.

The custodian cursed at the employee and told him to pick it up right away and then "lurched toward" him with a broom in his hand. The employee grabbed the custodian by the shirt and pushed him, and when he released him the custodian stepped forward again and said to the employee, "I'm going to kill you." Then the custodian stepped to his right about 12 feet before stepping back within 4 feet of the employee and threatening again to kill him. The employee replied, "You're not going to kill anybody," and "Get the hell out of here." Then the custodian walked away.

Shortly thereafter, the employee saw the custodian talking to two supervisors, one of whom was the employee's supervisor. The employee approached them and the custodian began yelling and calling the employee a liar, and the employee's supervisor took the employee to a different room to talk to him alone. The employee verbally explained to the supervisor what had occurred and gave a handwritten statement describing the incident. The employee thereafter finished his shift and went home.

At approximately 8 a.m. that same morning, Bausch spoke with the employee over the telephone and asked him to come back to the plant immediately in order to discuss what had occurred between him and the custodian. The employee refused because he wanted to sleep after working a 12-hour shift, but he agreed to come in for a meeting concerning the matter at 3:30 p.m. that afternoon. The phone conversation then ended, but the employee called back about five minutes later and told Bausch that he had had enough of the unprofessional behavior at the employer's plant, and that he knew physically touching someone was grounds for termination, but that he needed to defend himself. He also told Bausch about the previous incident when he had yelled at the individual speeding in the employer's parking lot, and about the incident in which he had reported the co-worker who brought the knife to work. He then agreed once again to come to the meeting at 3:30 p.m. and the conversation ended.

The employee did not attend the 3:30 p.m. meeting. However, he telephoned at 2:30 p.m. and left a message on the employer's automated call-in machine to the effect that his car was in the shop, and he could not come in for the meeting or for his shift which he was scheduled to work that evening. Bausch called the employee's pager at approximately 3:45 p.m. that same day, January 18, 2001, but he did not respond to the page request to call her back. She paged him again at 10:25 a.m. on January 19, 2001, but again he did not reply.

Later in the day on Friday, January 19, 2001, Bausch sent the employee a letter informing him that it was mandatory that he contact the human resource department by Tuesday, January 23, 2001, in order to set up a meeting to discuss the incident of January 18, 2001. Bausch sent this letter by private courier on January 19, 2001, but the employee wasn't home so the carrier left it in his mailbox. Bausch also sent the letter by Federal Express, and the employee acknowledges that he received the Federal Express copy at about 3:30 p.m. on Monday, January 22, 2001. The employee did not respond to the letter. However, on January 25, 2001, he mailed his own letter to the employer, which read:

"The appropriate time has elapsed, which, puts my employment at Sanmina to an end, because of termination, regards to the call-in policies."

Bausch sent the employee another letter the morning of January 26, 2001, indicating that since he had been absent two consecutive days without notifying the employer, she assumed he had voluntarily terminated his employment. That afternoon she received the letter the employee had sent the previous day. There was no further contact between the employer and the employee.

After considering all the evidence, the commission finds that the employee chose to quit his employment with the employer by failing to respond to Bausch's verbal and written requests that he return to work to discuss his concerns. While the employer could have been more aggressive in responding to the cafeteria incident which occurred on September 12, 2000, the employee did not indicate that he ever had any problems with this individual after that incident. The same must be said for the parking lot incident of September 14, 2000. The employee's allegation that the employer's workplace constituted a hostile work environment is simply not supported by the facts. Even were it to be accepted that the employee perceived the work environment as threatening, his behavior after the final incident was unreasonable. Bausch asked him to come in and discuss the situation, which the commission infers would have included discussion of any prior incidents had the employee wanted to discuss them, but the employee ignored these verbal and written requests and abandoned his employment. His letter to the employer written on January 25, 2001, acknowledges his awareness of the fact that he had missed enough days of work to result in termination of his employment. He deliberately chose to quit rather than to talk to the employer, even after Bausch repeatedly communicated the employer's interest in meeting with him to discuss his concerns.

The commission therefore finds that in week 4 of 2001, the employee terminated his employment with the employer, within the meaning of Wis. Stat. § 108.04(7)(a), and that his quitting was not for any reason constituting an exception to that statutory section.

Dated and mailed November 27, 2002
fiegeja . upr : 185 : 9    VL 1005.01  VL 1080.09 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

Appealed to Circuit Court. Affirmed May 21, 2003. Appealed to the Court of Appeals.  Affirmed December 3, 2003 (unpublished summary disposition).

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uploaded 2002/12/09