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


JACQULINE D GIBSON, Employe

VON BRIESEN PURTELL & ROPER SC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97605274MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about 12 years as a legal secretary for the employer, a law firm. Her last day of work was July 7, 1997 (week 28), when she was discharged from her employment.

The issue which must be decided is whether the employe's actions, for which she was discharged, constituted misconduct connected with her employment.

The employe has fibromyalgia. On June 16, 1997, the employe telephoned the employer to inform it that her fibromyalgia was resulting in her experiencing significant pain. She further informed the employer that she would return to work on July 7, 1997. The employer asked the employe if she intended to go up north during this times as earlier the employe had requested time off but the employer was unable to grant her request. The employe would also go up north on a weekend and then call in Sunday or Monday saying her back was troubling her, and then she would be gone for some time. The employer granted the employe the medical leave and asked that her doctor complete the necessary certification to authorize the leave under the provisions of the Family Medical Leave Act. On or about June 21, 1997, the employe received a certification from her health care provider in the mail. She presented it to her physician, and the certification was completed and returned to the employer. On June 23, 1997, the employe spoke with the employer on the phone and explained that she was still not feeling well but that she planned to be back on July 7, 1997. On June 24, 1997 the employe drove herself to a home she owned in Laona, Wisconsin, which is about 35 miles south of Rhinelander, Wisconsin.

On June 30, 1997, the employer attempted to contact the employe at her residence in Milwaukee, Wisconsin, to discuss an arrangement for her to see another physician about her condition. The employer's human resources manager spoke with the employe's mother who told her that the employe would call back. The employe's mother then called the employe in Laona and told her of the phone call. The employe then telephoned the human resource manager and discussed the second medical opinion. During the phone call the human resource manager asked the employe if she was in northern Wisconsin. The employe twice denied that she was in Laona. The parties ended the phone call. Shortly thereafter, the human resource manager telephoned the employe's residence in northern Wisconsin and spoke with her. The employe admitted lying to the human resource manager during the previous conversation, because she was afraid the employer would question the legitimacy of her need for a medical leave. The employe apologized for lying. The human resource manager told her that this was a very serious matter. On July 7, 1997, the employe returned to work. At approximately 4:40 p.m. the employe was informed that she was discharged from her employment, effective immediately, for lying to the employer.

The employer contended that the employe's actions, in lying about her whereabouts during the conversations of June 30, 1997, constituted misconduct. The commission agrees. The employe was discharged as a result of lying to the employer about her whereabouts, and not as a result of taking Family Medical Leave. The employer had allowed her to take medical leave, and the employe was never disciplined for taking such leave. The employe asserted that under state and federal law, workers have a protected right to privacy, and inquiries are to be directed through independent medical professionals. However, the employe was asked about her location, and not about her medical condition. The employer requested the information in part because it had attempted to contact the employe during her leave to arrange for her to see another medical practitioner. The employe's actions in repeatedly lying to the employer amounted to such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with her employment.

The commission therefore finds that in week 28 of 1997 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 28 through 52 of 1997 and weeks 1 and 2 of 1998, amounting to a total of $7,332.00 for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 28 of 1997, and until seven weeks elapse since the end of the week of discharge and the employe has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The initial benefit computation (UCB-700) issued on July 8, 1997, is set aside. If benefits become payable based on other employment, a new computation will be issued as to those benefit rights. She is required to repay the sum of $7,332.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: May 28, 1998
gibsoja.urr : 145 : 1 MC 630.07 

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ, who found everybody to be credible. The ALJ believed that the employe felt intimidated by the employer, although he was not certain that the employe's feelings were justified by any action on the part of the employer. The ALJ did believe that the employer was not certain that the employe was as sick as she indicated that she was. The commission reverses the ALJ's decision not because of a differing impression of the credibility of any of the witnesses, but because it reached a different legal conclusion when applying the law to the facts found by the ALJ.

cc: ATTORNEY ALAN C OLSON
ALAN C OLSON & ASSOCIATES SC

ATTORNEY DANIEL T DENNEHY
VON BRIESEN PURTELL & ROPER SC


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]