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

RHONDA  D  MOSS, Employee

WALGREEN CO ILLINOIS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02604225MW


On April 25, 2002, the Department of Workforce Development issued an initial determination which held that the employee's discharge was not for misconduct connected with her employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on July 12, 2002 in Milwaukee, Wisconsin before a department administrative law judge. On July 18, 2002, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for commission review of the adverse decision, and the matter 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 nine months as a photo specialist for the employer, a Walgreens. The employer met with the employee on the employee's last day of work, for the purpose of discharging the employee for giving an unauthorized discount to her cousin. Pursuant to the employer's discount policies, employee discounts were available only to immediate family members living with the employee. The employee left the meeting before the employer could actually discharge her; under the narrow circumstances of this case, the commission concludes that the employee's leaving was conduct inconsistent with the continuation of the employment relationship. For this reason, the commission reverses the appeal tribunal decision and holds instead that the separation from employment was a voluntary quit by the employee within the meaning of Wis. Stat. § 108.04(7)(a).

On April 3, 2002, the employee gave the employee discount to her cousin, on merchandise with a value of approximately $97.00. The 15 percent discount thus amounted to almost $15.00. The next day, the store manager asked to meet with the employee, at which meeting was also present the employer's regional loss prevention supervisor. The employee believed, when the manager asked her to meet with him, that the purpose of the meeting was to discuss the employee's several recent requests for a pay raise. The loss prevention supervisor asked the employee about the discount she had given her cousin the previous day. The employee said that she had given her cousin a discount, that she knew she was not supposed to do so but that she had done it at another store and did not think it was a problem. [The employee had previously worked for a few years at another Walgreens under an assistant store manager Mr. Jones, who also was now an assistant manager at the employee's current store.] The employer's representatives then mentioned a few other matters, including the employee's lax dress and her being disgruntled about her pay. The employee began crying and, throughout the interview, asked several times whether she was discharged; the manager's response each time was that he had more questions for the employee. The employee left the meeting and went to see Mr. Jones, who told her that the meeting was "procedure" and that the employee should call the store manager the next day. The employee did not do so, but called him either the following Monday or Tuesday, at which point the manager said the employer would be letting the employee go because of "what happened at the interview" with the loss prevention supervisor.

The issue is whether the separation from employment was a quit or a discharge. For unemployment insurance purposes, a voluntary quit under Wis. Stat. § 108.04(7)(a) includes conduct inconsistent with the continuation of an employment relationship. The commission believes the employee engaged in such conduct, by walking out of the meeting. There is no question but that the employer intended to discharge the employee; it had not yet done so, however, when the employee left the interview knowing it had not been completed. The employee's defense to the charge was that she had given similar discounts to non- immediate family members at a previously Walgreens Store, at which the assistant manager, Mr. Jones also worked (and which he approved at that time). Had the employee stayed at the meeting and made this point, it is possible the employer would have reconsidered its intention to discharge the employee. The employee did not give the employer that chance, however, and that failure was conduct inconsistent with the continuation of the employment relationship.

The commission therefore finds that, in week 14 of 2002, the employee voluntarily terminated her employment with the employer, within the meaning of Wis. Stat. § 108.04(7)(a), and that such termination was not for a reason constituting an exception to the general disqualification of Wis. Stat. § 108.04(7)(a). The commission also finds that the employee was paid benefits in weeks 15 through 39 of 2002, totaling $3,254.00, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also was not the result of departmental 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 14 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. The employee must repay $3,254.00 to the Unemployment Reserve Fund.

Dated and mailed December 3, 2002
mossrho . urr : 105 : 1 VL 1007.15

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Indeed, the commission's factual findings are based almost entirely upon the employee's own testimony. The commission has concluded that, as a matter of law, the employee's failure to remain in the meeting was conduct inconsistent with the continuation of the employment relationship and, as such, a voluntary quit under Wis. Stat. § 108.04(7)(a). 

cc: 
Walgreen Co. (Deerfield, Illinois)
Retail Specialists


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