TERESA H  DuBOSE, Employee

ST ANNES HOME FOR THE ELDERLY MILWAUKEE INC, 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 three years as a certified nursing assistant for the employer, a long-term care facility. Her last day of work was February 26, 2002 (week 9).

On her last day of work the employee referred to a co-worker as a "big baboon" when speaking to a resident. As a result, the employer's director of nurses notified the employee that her employment was being suspended pending an investigation. The director indicated that the director would contact the employee later. The employee responded, "don't bother." The employee took her personal belongings with her when she left the facility. The employer's director considered that the employee quit her employment. The director later contacted the employee and indicated that the director had taken her statement to mean that the employee was quitting. The employee stated that she had not given two weeks notice. The director asked what the employee meant. The employee then stated, "I can't work at St. Anne's anymore. I can't work with them." The employee never again performed services for the employer.

The employee had previously walked off the job and handed in her gait belt. The employee later contacted the employer and was allowed to rescind her resignation.

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The commission finds that the employee quit her employment when she indicated that the director need not bother contacting her. The employer reasonably interpreted the employee's statement when leaving work to indicate that the employee was quitting her employment, particularly given the employee's history. Even if the commission were to find the employee's comment when leaving work ambiguous, the employee was given the chance to clarify her intent when contacted by the director. Indeed, the director contacted the employee for just that reason. While the employee stated she had not given two weeks notice, she also indicated she could not return to work for the employer. The employee made the ultimate decision to terminate her employment. The employer was justified in suspending the employee's employment based on her comment about a co-worker. The employee did not establish that she quit her employment with good cause attributable to the employer or for any other reason permitting immediate benefit payment.

The commission therefore finds that in week 9 of 2002, the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $983.00 for weeks 10 through 14 of 2002, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

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).

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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 9 of 2002, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $983.00 to the Unemployment Reserve Fund.

Dated and mailed December 4, 2002
duboste . urr : 132 : 1 : VL 1005.01  VL 1007.01 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that his decision was based on a determination that the employee's statement before leaving work was not sufficient to constitute a quitting. The commission concludes based on the above findings that the employee did quit by her statements and conduct on May 7, 2002.

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uploaded 2002/12/13