STEPHANIE J AKER, Employee

AMERITECH SERVICES 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 about three years as a service representative for the employer, a telecommunications business. Her last day of work was January 22, 2003 (week 4).

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 employee was off work from her last day because of a problem pregnancy. She gave birth in early February and then continued to be on maternity leave until March 23, 2003 (week 13). The employee did not return on March 24. She continued to be under the care of a chiropractor because of injuries she sustained while pregnant. She had another auto accident on May 5, 2003, and was still, at the time of the hearing, receiving care from her chiropractor.

The employer sent the employee a letter on March 28 indicating she had been absent since March 24 and the employer was notified on March 26 that her disability payment had been denied. The employee was informed she needed to return to work no later than April 3, 2003, or she would be considered to have abandoned her job. This letter was returned to the employer stamped "Return to sender unclaimed." On April 25, the employer sent the employee a letter indicating that she had not submitted documentation from a physician substantiating a condition that prevented the employee from returning to work. She was informed she needed to supply medical certification supporting her continued absence by May 9 or report to work. She was informed that failure to take one of these options would result in possible discharge, effective May 9. This letter was sent certified mail and was stamped "Return to sender unclaimed."

The employer sent another letter on May 22, (week 21) indicating that she had been discharged. This letter was also sent certified mail and stamped unclaimed. Further, one of the employer's managers called and left messages for her. The employee did not call the employer to discuss the situation and did not furnish medical documentation.

In this case the employee knew that her disability leave had been denied. She failed to meet with her manager or make arrangements to pick up her certified mail. The employee did not attempt to secure family medical leave on her own, and failed to respond to the employer's attempts to arrange such leave on her behalf. She called in to an 800 number on occasion to report that she would be absent, but this was not reasonable, in light of her situation. While she may have had valid reasons for being absent, it was her responsibility to ensure that she requested leave that would allow her to retain her employment. The employee's actions were inconsistent with the continuation of the employment relationship and for unemployment insurance purposes amounted to a quitting.

The commission therefore finds that in week 21 of 2003, the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a), and not for any reason that permits immediate benefit payment.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 21 of 2003, 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 equal to at least
four times the weekly benefit rate that would have been paid had the quitting not occurred. There is no overpayment as a result of this decision.

Dated and mailed May 27, 2004
akerst . urr : 145 : 1  VL 1007.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ did not think the employer's witness was reliable because she did not understand the FMLA process. However, the commission reversed the ALJ because it concluded that the employee's actions in not accepting or failing to collect the employer's certified letters, was inconsistent with the continuation of the employment relationship. Further, the commission concluded that the employee knew or should have known that her leave had been denied but took no action to either apply for another kind of leave, specifically family medical leave, or meet with the manager to seek another solution.

cc: 
Continental Consultants
Ameritech Services, Inc. (Hoffman Estates, IL)

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uploaded 2004/05/28