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

TANISHA L JONES, Employee

ALEXIAN VILLAGE OF MILWAUKEE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02605426MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 19 of 2002, if otherwise qualified.

Dated and mailed March 14, 2003
jonesta . usd : 132 : 1  PC 717  PC 734 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the employee was discharged but not for misconduct connected with her work. The employer states in its petition that it does not make sense that the employer would have altered the document to have the employee report to work five days later. However, the commission notes that in the process of reviewing this case it did speak with the ALJ regarding his impressions of witness credibility and demeanor. The ALJ had a most unfavorable impression of the employer's witness based on the witness's tone and demeanor and as a result did not credit the employer's testimony. Instead, the ALJ found the employee to be the more credible witness. Given the strong credibility and demeanor impressions expressed by the ALJ in the credibility conference, the commission declines to overturn the ALJ's decision.

The employer in the alternative requests opportunity for further hearing contending it had "absolutely no way of knowing that Jones would allege that she provided the work excuse to anyone other than Graham." However, the employer could have exercised its right to inspect or procure copies of the hearing file prior to the hearing to review the employee's statements to the adjudicator. See Wis. Admin. Code § DWD 140.09(1). Further, the synopsis does not reflect that the employer made a request at the hearing for the matter to be continued to allow the employer to present testimony from the employee's supervisor. Accordingly, the commission declines to order further hearing in this matter.

cc: 
Alexian Village (Milwaukee, Wisconsin)
Attorney Heather M. Tiltmann


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uploaded 2003/03/31