SANDRA K VITALE-PIEREN, Employee

SCHOOL DISTRICT OF SOUTH MILWAUKEE, 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 for the employer, a school district, for ten years as a teacher. In February of 2003, the employee was sent a lay-off notice for the 2003-2004 school year. Her last day of work was June 13, 2003. She initiated a claim for benefits the next week.

The employee has 25 years teaching experience. During her employment for the employer she taught health education, with a focus on wellness issues. Prior to working for the employer the employee taught classes in family and consumer education. Her undergraduate degree is in health education.

On August 19, 2003, the employer offered the employee a temporary position teaching special education from August 28 (week 35) through October 29. The employee was told she would have to obtain an emergency license for special education at a cost of $100. The employee did not immediately respond to the offer, and on August 29 the employer met with her in person to discuss the matter. At the August 29 meeting the employer reiterated its offer of a temporary assignment, but the employee responded that she did not want the position, noting, "I am not certified or qualified for the position and do not believe paying $100 to DPI makes me a qualified person in a classroom of special needs children." The employee notified the employer that she wished to be placed on the day-to-day substitute call list.

At the August 29 meeting the employer also offered the employee a full-year position teaching special education. That position would have started in week 36. As with the temporary position, the employee would need to obtain an emergency license. In addition, the employee would have had to take coursework to extend the emergency license, at a cost of several thousand dollars. The employee refused the offer.

The question to decide is whether the employee received a bona fide offer of suitable work and, if so, whether her failure to accept such offer was with good cause.

In order to constitute a bona fide offer of work, the offer should be of such a definite character that it requires nothing more than a simple acceptance to form a contract of hire. While the employer's written job offers make no specific reference to the hours or rate of pay for the positions offered, given the employee's history as a teacher for the same employer it can be assumed that the rate of pay and hours were understood. The employee could have signed a letter indicating her acceptance of either job offer without receiving additional information.

Presuming it can be found that the employee received a bona fide offer of work, the commission is unable to conclude that the work offered was suitable for the employee. A job offer is considered suitable if the employee can be expected to perform the tasks as a result of her training, experience and physical abilities. UI Benefits Manual, Vol. 3, Part VII, Chapter 5, Dec. 1999, p. 15; Chabot v. TAD Technical Services Corp. (LIRC, June 17, 1994), aff'd. Chabot v. LIRC, Case No. 94-CV-1471, Waukesha County Cir. Ct. (Jan. 20, 1995). The employee was not trained to teach special education, had no experience teaching special education, and did not have the proper certification to do so. Special education is a highly specialized field, and not every teacher can successfully teach students with learning disabilities. Just as an assignment teaching a foreign language would be unsuitable for a teacher with no background in that language, an assignment in special education is unsuitable for a teacher with no special education experience or training and who lacks such certification.

Finally, while the conclusion that the work was not suitable for the employee is sufficient to warrant a finding in her favor, the commission notes that the same factors that rendered the work unsuitable for the employee also provided her with good cause to refuse it. The employee testified that the main reason she refused the positions was that she lacked the required knowledge and skills to work with special education students. The employee further stated that cost was a factor in her decision. The commission believes that both of these factors provided the employee with good cause to refuse the proffered work. The employee would have had to spend $100 to obtain an emergency license in order to accept the temporary assignment and, had she accepted the full-year position, would have had to make an additional expenditure of $2,000 or more to enroll in coursework necessary to extend that license. The requirement that the employee make such investments in order to accept the job offers provided her with good cause to refuse them. Moreover, as set forth above, the employee lacked experience and qualifications to teach special education. Although the employer indicated that it considered the employee to be qualified, and explained that it has hired teachers without the proper certification in the past, this does not alter the fact that the employee lacked the specialized training, experience and certification necessary to teach special education. This lack of qualifications provided the employee with good cause to refuse the work offered.

The commission therefore finds that in weeks 35 and 36 of 2003 the employee did not receive bona fide offers of suitable work, within the meaning of Wis. Stat. § 108.04(8)(a) or, in the alternative, that she had good cause to refuse the offers.

The decision of the administrative law judge is modified as to the week of issue and, as modified, is reversed. Accordingly, the employee is eligible for benefits beginning in week 35 of 2003, provided she is otherwise qualified. She is not required to repay the sum of $4,606 to the Unemployment Reserve Fund.

Dated and mailed June 18, 2004
vitalsa . urr : 164 : 1 SW 825.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal is not based upon credibility impressions, but is as a matter of law.

cc: 
Law Office of Brenda Lewison
Attorney Daniel J. Chanen

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uploaded 2004/06/21