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

LAURIE B MARINO, Employee

FOND DU LAC ASSOCIATION OF COMMERCE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03000733FL


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 1 of 2003 and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed September 25, 2003
marinla . usd : 115 : 3   VL 1007.20

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked more than seven years as a secretary/office manager for the employer, a nonprofit business association. The parties do not dispute that, during her annual performance evaluation meeting with her supervisor on September 10, 2002, the employee indicated that the job no longer fit her needs and she would be leaving.

What is at issue is whether the employee and her supervisor agreed at this meeting that her employment would end no later than December 31, or whether December 31 was mentioned only as a "goal" date by which the employee hoped to find other employment. If the employee only indicated an intent to quit when and if she found other employment, and the employer unilaterally determined an effective date for the separation, this would be a discharge, not a quit. Volden v. Linen Center, UI Hearing No. 02007461LX (LIRC May 28, 2003); Munroe v. Goodwill Industries of North Central Wisconsin, UI Hearing No. 02403107AP (LIRC Jan. 31, 2003). If, however, after stating her intention to leave, the employee agreed on September 10 that the employment relationship would end no later than December 31, the separation would be a quit. If the separation was a quit, there is no exception which would arguably apply; if a discharge, no misconduct has been proved.

There are certain factors supporting the employer's version of events. It seems unlikely that an employer who had offered to provide paid time off for an employee to search for other work would agree that this arrangement could continue indefinitely. In addition, the supervisor's development in October of a staff support restructuring plan, premised in part on the employee's departure, for implementation January 1, lends support to the existence of an agreement in September that the employee would be leaving no later than December 31.

On the other hand, the employee's assertion that she would not have risked becoming unemployed by agreeing to a date certain for her separation because her husband was self-employed and they rely on her employment for their health insurance benefits lends support to her version of events.

In the absence of other corroborating evidence, the resolution of this case depends upon which party was the more credible at hearing. The administrative law judge, who was in the best position to observe the demeanor of the witnesses and to assess their credibility, specifically found that, "based on its perception of credibility, this tribunal believes the employer's account of the situation is the more credible." The commission finds no persuasive reason in the record to overturn this credibility determination.


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uploaded 2003/09/30