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

LINDA M RUSHMAN, Employee

NORTHWOODS FAMILY EYECARE LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02201845EC


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 ineligible for benefits beginning in week 27 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 the employee's weekly benefit rate which wold have been paid had the quitting not occurred.

Dated and mailed March 26, 2003
rushmli . usd : 115 : 1  VL 1007.01

 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION


The employee worked for 15 years as a dispensing optician for the employer, a partnership of optometrists operating an eye care clinic.

The first question presented by this case was whether the employee quit or was discharged. Ordinarily, a discharge is an unequivocal action taken by an employer, leaving no shred of doubt as to the employer's intentions. Rice Lake Creamery v. Ind. Comm., 15 Wis. 2d 177 (1961); Wilson v. Reinke Service, UI Hearing No. 02600504MW (LIRC July 31, 2002). Furthermore, the courts have held that if an employment relationship is to be terminated by the employer, there must be something more in the record than the mere assumption or impression of the employee to the effect that he is fired. An employee owes a duty to definitely ascertain what his employment status is before concluding that the employment relationship is fully terminated. Eisenberg v. Ind. Comm. & Planasch, Case No. 116-225 (Dane Co. Cir. Ct., Jan. 5, 1966); Leo N. John v. DILHR & Julian Galst, et al., Case No. 134-448 (Dane Co. Cir. Ct., Feb. 23, 1973); Rupcic v. Wis. Liquor Co., Case No. 150-045 (Dane Co. Cit. Ct., Feb. 21, 1977); Arnold v. RD Roman, Inc., UI Hearing No. 980000732MD (LIRC Nov. 19, 1998); Wilson, supra.

Here, the employee assumed that she had been fired when Arneson, one of the business's partners told her to leave the office, and it was reinforced when she later learned that her position had been advertised in the newspaper, when others had told her that Arneson had said she was fired, when she learned from a co- worker that the locks had been changed, and when no one called her from the office on Monday, July 8 to ask where she was.

Here, the employer assumed that the employee had quit when she took her personal belongings with her when she left the office on July 2, and when she failed to contact the office or appear for work on her next scheduled work day (July 8).

The employer's case is stronger. Arneson's statement to the employee to leave the office was made in the heat of the moment and could easily have meant that he only wanted her to leave for the rest of the workday. The commission has held that such a situation does not support a conclusion of discharge. Wilson, supra. Any doubt the employee may have had concerning her employment status could easily have been resolved with a phone call to the employer or by showing up ready to work on her next scheduled work day, and it was her duty to do so. See, Wilson, supra.; Arnold, supra. Although the employee later learned that the employer had told others that she was fired, that the office locks had been changed, and that her position had been advertised, these factors are not sufficient to establish that the employee was justified in concluding that she had been terminated. First of all, the only person the employee identified who told her between July 2 and July 8 that Arneson had said that she was fired was a co-worker named Jessie. However, the employee admitted in her testimony that, although Jessie reported to her that Arneson had said that he didn't expect to see the employee in the office again, Arneson had not used the word "fired." This statement attributed to Arneson could indicate that Arneson believed the employee had quit or could indicate that Arneson terminated the employee. Second, there is conflicting testimony regarding under what circumstances the locks were changed, and the administrative law judge, who had the opportunity to observe the demeanor of the witnesses at hearing, found the employer's version more credible and the commission sees no reason to disturb this finding. Finally, one of two interchangeable positions was vacant, so it should not have definitively signified to the employee that she had been terminated when she saw these two positions advertised, i.e., as Arneson testified, the employer advertised both positions not only because they believed that the employee had quit but also because one of two interchangeable positions was vacant and the employer wanted to see what types of job applicants they might get who had skills for either position. It should also be noted that the commission has held that removal of personal belongings, as the employee did here, is not dispositive of the issue whether the employee has quit her employment but it is a factor which is generally interpreted as being inconsistent with an intent to continue the employment relationship (Ingram v. Neurological Clinic SC, UI Hearing No. 99603350RC (LIRC Nov. 3, 1999); as, obviously, would be the failure of an employee to appear for her next scheduled shift as the employee did here (Arnold, supra; Wilson, supra).

The employee has not argued that, if her separation was a quit, it fit any statutory exception. The only exception that could arguably apply is that relating to good cause attributable to the employer, and one angry statement that, if the employee didn't leave, Arneson might start throwing things, would not, under the circumstances present here, satisfy this exception. The employee had worked with Arneson for 15 years, and they were close personal friends who had shared many emotional experiences over these years. One careless statement expressed in justifiable anger, embarrassment, and disappointment, to a close friend, would not satisfy the criteria for a finding of good cause.

In her petition, the employee argues that it was the employer's burden to tell the employee that her employment would continue. This is contrary to the body of case law discussed above. The employee also offers an argument in the petition that is based on evidence not in the hearing record, i.e., that Arneson told his ex-wife several weeks after July 8 that he was claiming the employee quit in order to avoid paying her UI benefits.

Finally, even if the conclusion had been that the separation was a discharge, the record here supports a finding of misconduct. The employment relationship, particularly in a business such as the one here which relies for its success and survival on patients' trust and confidence, necessarily requires a high degree of loyalty and discretion from its employees. The employees' actions in communicating the substance of a confidential conversation outside the office was an intentional and substantial disregard of this requirement.

cc: 
Attorney Terry Moore
Attorney Victoria L. Seltun


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