ELROY O. LEJA, Employee

LAKELAND TRANSPORT 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, Elroy Leja, worked for about eleven years as a school bus driver for the employer, Lakeland Transport Inc., a school bus transportation business. His last day of work was September 23, 2002 (week 39).

The first issue to be decided is whether the employee voluntarily terminated his employment or was discharged by the employer. A secondary issue involves his eligibility for benefits in view of the nature of his separation from work.

Julie Gilbertson is the owner and vice-president of Lakeland. On the afternoon of September 23, 2002, she was on a school bus parked in the parking lot of the Lake Holcombe school parking lot, talking with Ronda Niederhauser, a school bus driver for the employer. Leja stepped into the bus and confronted Gilbertson with an accusation that she had been talking about him with two other bus drivers at a restaurant. Leja also confronted Gilbertson with a complaint that she had taken away his lunch allowance and that she had said that his bus was dirty. Leja told Gilbertson that he did not appreciate her talking to other people about his business. Leja was agitated, and he used obscene language in talking to Gilbertson, saying, "What the f--- do you know about anything, You're f---ing sleeping while we're making money for you". Gilbertson became angry with Leja, and said to him, "You goddamn people can think of the smallest things to bitch about." Gilbertson then said to Leja something to the effect of "If you feel that way" or "If you don't like it [here]", "why don't you make a call [for a ride home] and take a hike". Leja decided at this point that he had "had it". He said something to the effect of, "Fine, I will".

Gilbertson and Leja got off the bus shortly after this. They continued arguing, at that point about whether Leja had been rude to a teacher named Carla. Leja said something about having Carla come out to talk about the accusation and Gilbertson said that she would not ask Carla to come out at that point because it would soon be time for the busses to leave since the children would be leaving school. Leja then left the premises and went home. Gilbertson arranged to have her husband take over the route that Leja had been scheduled to drive that afternoon.

Following this incident on September 23, Leja did not contact Gilbertson and did not return to work. Leja subsequently filed a claim for unemployment insurance benefits, reporting that he had been discharged. Gilbertson challenged this report, asserting that Leja had quit.

As noted above, the first issue to be decided is whether the employee voluntarily terminated his employment or was discharged by the employer.

Ordinarily, a discharge is an unequivocal unilateral 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, 187 (1961). However, there can sometimes be ambiguous situations, in which statements are made that might be taken as indicating an intent to discharge an employee, but that also could be taken as something else -- such as, for example, sending the employee home for the rest of the day, or challenging or "daring" the employee to quit their job if they feel like it, etc. Not surprisingly, these situations frequently arise out of arguments, when anger leads people to say things with less forethought than they might otherwise use.

This case presents one of these ambiguous situations. Unlike the situation contemplated in Rice Lake Creamery, the situation here was equivocal, and involved significant doubt as to the employer's intentions.

The long-standing interpretation of the quit provision, consistently adhered to by LIRC and the courts, is that in such a situation it is the responsibility of the employee to seek clarification of the ambiguity about the status of the employment relationship. If an employment relationship is to be considered to have been 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 assuming that the employment relationship has been terminated. Eisenberg v. Ind. Comm. & Planasch, Dane County Circuit Court, Case No. 116-225, January 5, 1966; Leo N. John vs. DIHLR & Julian Galst, et. al., Dane County Circuit Court, Case No. 134-448, February 23, 1973; Rupcic v. Wis. Liquor Co., Inc., Dane County Circuit Court, Case No. 150-045, February 21, 1977). LIRC has consistently followed this interpretation. See, e.g., Wilson v. Reinke Service (LIRC, July 31, 2002) (owner angrily told employee to "just go home" and to "get out of the shop" - employee left and did not come back, assuming he'd been discharged - held a quit); Rushman v. Northwoods Family Eyecare (LIRC, March 26, 2003) (owner heatedly told employee to leave the office - employee left and did not come back, assuming she'd been discharged - held a quit); Arnold v. RD Roman, Inc. (LIRC Nov. 19, 1998) (employer ignored employee's request for assignment to different duties to address medical condition - when employee appeared the next day, foreman expressed surprise to see him there - employee left and did not come back, assuming he'd been discharged - held a quit); Badalamenti v. Dodge-In Tavern (LIRC, May 5, 1989) (employee taken off the schedule - employee failed to take adequate steps to clarify her status before giving up and considering her employment terminated - held a quit); Schmidt v. C & D Erecting (LIRC, April 20, 1989) (employee believed he'd been laid off when employer failed to contact him, the day after he'd refused to cross a picket line to go to work, to let him know that a second gate had been set up - held a quit).

In the situation here, Leja easily could have - and the decisions cited above stand for the proposition that he should have - asked Gilbertson whether or not he was fired. Instead, he just made the assumption that he had been fired, left the worksite, and did not come back.

The parties disagreed about whether, immediately before making her statement about Leja making a call for a ride home and taking a hike, Gilbertson said something to the effect of, "If you feel that way, [why don't you, etc. . .]" or "If you don't like it here, [why don't you, etc. . . .]". As noted above, the commission has found as a matter of fact, as did the administrative law judge who heard the testimony, that Gilbertson did indeed say something to this effect. However, the commission would note that it does not consider this particular factual dispute to be highly material. Even if Gilbertson did not preface her statement with a conditional phrase, but only said what Leja claims (1), the situation would still have been much too ambiguous to justify an employee in assuming they had been discharged without even asking if that were so.

The commission also finds it significant, that according to his own statement to the Unemployment Insurance investigator, Leja decided to go home because he had "had it". He said,

[Gilbertson's] response to me was "You God damn people bitch about the smallest things. Why don't you go make a call and get a ride home? Take a hike". With this I've had it, and so that's what I did.

(Ex. 3) (emphasis added). The commission understands Leja's "I've had it" not to be an indication that he thought he had been discharged, but rather to be the common idiomatic expression people use to indicate that they have reached their limit of annoyance, frustration or dissatisfaction with some situation and are going to have no more to do with it. Thus, the commission sees reason to conclude that Leja did not simply quit by virtue of abandoning his job without clarifying whether the employer had in fact intended to discharge him, but in fact intentionally quit out of his anger and dissatisfaction with the employer's statements during their argument.

The next issue to be resolved is whether the circumstances of Leja's voluntary termination of his employment fell within any of the exceptions to the disqualifying effect of Wis. Stat. § 108.04(7)(a).

The only exception to the disqualifying effect of Wis. Stat. § 108.04(7)(a) which would seem to be even arguable here, would be the exception contained in Wis. Stat, § 108.04(7)(b) for voluntary termination with good cause attributable to the employing unit. "Good cause attributable to the employing unit" means some act or omission by the employer justifying the employee's quitting; it involves "some fault" on the part of the employer and must be "real and substantial." Nottelson v. DILHR, 94 Wis. 2d 106, 120, 287 N.W.2d 763 (1980) (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965), and Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979)). The commission does not believe that such good cause existed here.

The act to be focussed on in deciding if the exception applies is the act which the quitting is "occasioned by", Hanmer, 92 Wis. 2d at 98, and the act which caused Leja to quit here was the angry statement by Gilbertson in their argument. There are cases in which an employer's verbal abuse of an employee can be considered "good cause attributable to the employer" to quit a job, see, e.g., Gauthier v. Menominee Gas Inc. (LIRC, February 3, 2000), Gaworski v. William H. Myers (LIRC, February 17, 1999), but this is not one of them. In this case, the quitting followed a single occasion on which angry words were spoken by the employer to the employee. It is also significant that this occurred after the employee had approached the employer in a confrontational manner and roundly criticized the employer; the "heat of the moment" in which the employer's words were spoken was heat caused by the employee's sudden angry confrontation of the employer. In addition, the language used by the employer (a profanity, "you God damn people", and a slang use of "bitch" in its verb sense of "to complain") was simply not so egregious as to justify an immediate quitting.

The commission therefore finds that in week 39 of 2002, the employee was not discharged by the employer, within the meaning of Wis. Stat. § 108.04(5). The commission further finds that in week 39 of 2002 the employee voluntarily terminated his employment with the employer within the meaning of Wis. Stat. § 108.04(7)(a), and that his quitting was not for good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b) or for any other reason constituting an exception to the disqualifying effect of Wis. Stat. § 108.04(7)(a).

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 39 of 2002, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed May 2, 2003
lejaelr . urr : 110 : 1 VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

The employee has objected that he wished to present testimony from a witness, Jan Johnson, to the effect that Ronda Niederhauser had told her (Johnson) that the employee had been fired, but that the administrative law judge would not allow it. The commission believes that the administrative law judge acted properly in declining to take this testimony.

Niederhauser was simply a co-worker of Leja who overheard the ambiguous interchange between Gilbertson and Leja. Niederhauser herself testified to what she overheard, which was Gilbertson saying something to the effect of "make a call and take a hike". Niederhauser did not testify that she had heard Gilbertson say, "you're fired", or anything like that. It is clear that, if Niederhauser indeed told Jan Johnson that Gilbertson had fired Leja, she was telling her about something she assumed from Gilbertson's ambiguous statements, not about something she had actually heard Gilbertson say.

The administrative law judge is under a legal obligation to secure the facts in as direct and simple a manner as possible, and to exclude irrelevant, immaterial and repetitious evidence. Wis. Admin. Code § DWD 140.16(1). Evidence that Niederhauser told Jan Johnson about what she (Niederhauser) assumed Gilbertson meant, would thus have added nothing to the record. The commission therefore believes that the ALJ acted appropriately in deciding not to take the testimony.

Both the employee and the employer sent the commission materials and assertions that clearly go beyond the record, including written statements from persons who did not testify at the hearing, documents which were not offered (much less received) as exhibits during the hearing, and assertions about facts that are not supported by any evidence offered during the hearing. However, the law requires that the commission's review be based solely on the testimony and documents presented at the hearing before the administrative law judge. Thus, review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. Wis. Admin. Code § LIRC 1.04. For this reason, the commission has not considered the non-record materials and assertions made by the parties.

NOTE: The commission has issued its own decision in this matter in order to set forth more fully the reasons it agrees with the result reached by the ALJ.

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(1)( Back ) In his testimony, Leja asserted that Gilbertson said, "Why don't you make a call and take a hike". In his statement to the Unemployment Insurance investigator (Ex. 3), Leja asserted that Gilbertson said, "Why don't you go make a call and get a ride home? Take a hike". 

uploaded 2003/05/09