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


ALAN M ESTERMAN, Employe

BELOIT MEMORIAL HOSPITAL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96005815JV


Following investigation, a deputy (adjudicator) of the Unemployment Insurance Division of the Department of Workforce Development issued an initial determination in this matter dated November 26, 1996. The initial determination held that the employe quit his employment in week 47 of 1996, the week ending November 23, 1996, and not for a reason that would allow the immediate payment of benefits. As a result, benefits were suspended until at least four weeks had elapsed and the employe had requalified by earning wages in subsequent covered employment equal to at least four times his weekly benefit rate, or $1096.00.

The reasoning in the initial determination was that the employe quit for personal reasons rather than go through the corrective behavior procedure, and that he did not have reason to expect to be discharged. Because the employe had given two weeks' notice, indicating that he would work through November 16, but the employer did not permit him to work beyond November 1, the date he gave his resignation, the determination held that the employer was responsible for unemployment benefits for the two week notice period (from November 3, week 45, through November 16, week 46.

The employe requested a hearing, which was held before Administrative Law Judge (ALJ) Arthur Schneider on February 3, 1997. The ALJ issued his decision on February 17, 1997, in which he reversed the initial determination, finding that "The employer had in effect unilaterally told the employe that he could not continue his employment and for unemployment benefit purposes that action amounted to a discharge." Concluding that the discharge was not for misconduct, benefits were allowed and paid based on the ALJ's appeal tribunal decision.

The employer filed a petition for commission review. The parties filed briefs with the commission. Based on the applicable records and evidence, and after consultation with the administrative law judge regarding his credibility and demeanor observations affecting his decision (Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972)), the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked as a respiratory therapist for the employer for about two years. His last day of work was November 1, 1996 (week 44). He submitted a two week notice resignation to the nursing supervisor on that evening, following a meeting with Gary Jugan, his immediate supervisor. He also called Jugan at home and stated he was resigning. The issue to be decided is whether the employe's separation from employment is more properly characterized as a "quit" or a "discharge" for unemployment benefit purposes.

The majority of the commission believes that the employe's action constitutes a quit and therefore reverses the appeal tribunal decision.

The employer's policy on corrective actions, of which the employe was aware, provides, among other things, that the process for the Department Director is to investigate circumstances surrounding the performance or behavior problem and to include discussion with the employee, as well as to consult with a representative of Human Resources. All corrective actions require the signature of the Vice President of Human Resources. Corrective actions become inactive if there are no further corrective actions for any reason for a period of twelve months or more. The policy provides for progressive discipline, and although management has the right to make exceptions to the progressive discipline process based on the severity of the offense, all exceptions must be reviewed by the Vice President with responsibilities for Human Resources.

Several months prior to his last day of work, the employe had been involved in a dispute with a co-worker for which he had been written up after a meeting with the Director of Human Resources.

Around mid-October of 1996, Jugan, the employe's supervisor, had become aware of a conflict between the employe and a member of the nursing staff. That incident, other more general concerns about the employe's interpersonal relations with others at the hospital, specific work performance issues, and other concerns led Jugan to plan to meet with the employe at 10:00 p.m. on November 1, 1996, during the employe's shift. His intention was to discuss the concerns with the employe preliminary to presenting them to Human Resources for consideration of corrective action.

The employe met with a lawyer during the day on November 1, to discuss relations with his supervisor. Because Jugan had worked on his son's car, was dirty from doing so, and would have found it more convenient to adjust the 10:00 p.m. meeting time, he attempted to contact the employe at the hospital to do so. The employe did not return the call, however, but replied through a co-worker that he had the next three days off and did not want to have the meeting on a day off. Jugan therefore cleaned up and proceeded with the original meeting schedule.

At the meeting, the employe was confrontational. He accused Jugan of trying to "railroad" him and have him fired. He questioned Jugan's motives and repeatedly asked Jugan if Jugan wanted him to resign. Jugan replied that having him resign was not his intention but that he could resign if he wanted to. Jugan completed going through the written list of concerns he had prepared for the meeting and concluded the meeting, intending to present his concerns to the Human Resources department thereafter.

Within about an hour after the meeting concluded, the employe handed a signed resignation to the nursing supervisor, stating: "I hereby give two weeks notice effective 11-1-96." He also notified Jugan by telephone that he had resigned.

November 1, 1996, was a Friday. On the following Monday, November 4, the employe called Human Resources and attempted to rescind his resignation. The Director of Human Resources did not permit him to rescind the resignation because she believed he had been belligerent and confrontational in the November 1 meeting with Jugan and because of prior confrontational behavior she believed had occurred. She also did not permit him to work for the two week notice period.

The employe contended that Jugan told him at the meeting that he could resign or Jugan would have him fired by personnel, and that he did not believe he had a choice but to resign in order to leave in the best light. In spite of his awareness of the employer's personnel policies, the employe contended that he believed Jugan could have him fired because in connection with the conflict with the co-worker a year or so earlier, he had been told that if the matter could not be resolved, both he and the co-worker could be looking for another job.

The majority of the commission does not believe that the employe was given an ultimatum to resign or be fired. Jugan's approach to the November 1 meeting was completely consistent with the employer's established personnel policies. Jugan plausibly denied demanding resignation, in that he neither had the authority nor the apparent grounds to follow through with any threat to have the employe discharged if he did not resign. The employe's indication that he reasonably believed Jugan could have him fired if he did not resign based on the statements made by the supervisor in the incident a year earlier is not persuasive. He had discussed his situation with a lawyer just prior to the November 1 meeting; he was familiar with the employer's policies and handbook, and he mentioned nothing in his written resignation, in his telephone call to Jugan, nor in his subsequent attempt to rescind the resignation, about having been forced to resign.

Rather, Jugan's version of the meeting is more believable. The employe had somewhat of a record of tense interpersonal relations with others with the employer. It seems more likely that he was in fact belligerent and confrontational at the meeting, demanding to know if Jugan wanted his resignation, criticizing Jugan's skills as a manager, even threatening that Jugan would never get a respiratory therapist's license in Wisconsin. In the aftermath of such a context, he may very well have considered that he overstepped appropriate bounds, that serious discipline was a possibility, and that resignation was the best course. His change of heart by the following Monday, when he called to try to rescind the resignation, could be explained by his realization that college tuition money that the employer provided would have to be returned unless he worked longer. The record does not indicate that he mentioned anything in those discussions about having been forced to resign. If he feared inevitable discharge if he did not resign on November 1, why did he believe the situation had changed by November 4?

Even if the employe's version of the nature of the meeting were to be credited, the commission would have a difficult time finding a constructive discharge, given the employe's awareness of the employer's personnel policies and the necessary intervention of Human Resources. He might reasonably have been expected to secure any further opportunities to explain his position and to see what discipline, if any, would ensue.

Administrative Law Judge Schneider told the commission in its consultation with him that the employer had portrayed the employe as an angry, aggressive and abrasive person, but that he did not appear that way at the hearing, and Jugan, who portrayed himself as having been calm and in control at the meeting with the employe, was not entirely that way at the hearing. He also commented that Jugan appeared to "glare" at Schneider at times during the hearing. Schneider said that he felt that he challenged the employe about his story but he did not falter.

While the commission respects the fact that the ALJ had the benefit of the demeanor observations of the witnesses which the commissioners did not have, and that the ALJ chose to accept the employe's version of the November 1 meeting rather than the employer's based at least in part on those observations, we believe that the plausibility of the employer's overall testimony and evidence, compared to the relative implausibility of the employe's, as set forth above, requires that the employer's version be weighted more heavily. Although the commissioners did not observe the witnesses, they did listen to the cassette recordings of the hearing. It seemed to the commission that the ALJ challenged the employer's witnesses as well, and they did not falter, either. Moreover, some degree of agitation, including glaring at the ALJ, by Jugan, would not be unexpected, would even be a moderate reaction, if, as we believe, Jugan was subjected at the hearing to enduring an utter fabrication of what had occurred at his meeting with the employe. Finally, the ALJ appeared to have been influenced by the fact that the employer did not allow the employe to rescind his resignation and would have done so if it had not desired his resignation. However, the refusal to allow rescission is at least as consistent with the employer's version of the November 1 meeting as with the employe's.

The commission therefore finds that the employe voluntarily terminated his employment effective with week 47 of 1996 (beginning November 17), within the meaning of Wis. Stat. § 108.04(7)(a), and that such termination was not within any exception to that section which would permit the immediate payment of unemployment benefits.

The commission further finds that, since the employer did not permit the employe to work between the date he gave his two week notice on November 1, 1996 (at the end of week 44), and the effective date of his resignation (week 47), the employer is responsible for and the employe is eligible for benefits for weeks 45 and 46, if he is otherwise eligible.

The commission further finds that the employe was paid benefits totalling $3,610.00 for weeks 47 of 1996 through 1 of 1997, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The commission finally 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, but results instead from reversal of the appeal tribunal decision by the commission. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, benefits are payable for weeks 45 and 46 of 1996 if the employe is otherwise eligible. No benefits are payable from 11/17/96 through 12/21/96 and until the employe earns wages in covered employment of at least 4 times his weekly benefit rate, or $1,096.00. He is required to repay the sum of $3,610.00 to the Unemployment Reserve Fund.

Dated and mailed: May 5, 1998
esteral.urr : 180 : 8 VL1007.15

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

 

DAVID B. FALSTAD, CHAIRMAN (dissenting):

In virtually any case, if one party is completely disbelieved and the other party is completely believed, the outcome of the case is predictable. In this case, the employe's and supervisor's testimonies were in direct conflict with each other, necessitating the acceptance of one over the other. The administrative law judge accepted the employe's testimony as more credible than the supervisor's, primarily upon the demeanor of the witnesses at the hearing. Specifically, the employer throughout the case presented itself as sophisticated and calm in the face of the employe's alleged hotheadedness and shortness with both co-workers and with his supervisor. At the hearing, however, the employe was relatively calm and was not the angry employe the employer has claimed he was throughout. The employe's supervisor, by contrast, was so hostile at the hearing as to have been argumentative and to have spent time glaring at the administrative law judge during the proceedings. In other words, the employe did not appear as the employer had characterized him, and the employer did not appear as it had characterized itself. This was a valid basis for the administrative law judge's credibility determination, and the majority does not adequately counter it.

Apart from demeanor observations, the supervisor's actions on the evening of November 1, 1996 are highly suspect. The supervisor wished to meet with the employe regarding previous conflicts the employe had been involved in. The car of the supervisor's son had broken down, and the supervisor spent the evening of November 1 assisting his son in trying to repair it. For this reason, the supervisor wished to reschedule the scheduled 10:00 p.m. meeting with the employe for some time over the weekend. The employe had the weekend off, and did not want to address work-related matters while off. Instead of waiting until the employe's next scheduled shift a few days later, the supervisor incurred the significant inconvenience of stopping work on his son's car, cleaning himself up, and coming to the hospital for the meeting. At the hearing, it took several minutes for the employe's attorney, during cross- examination of the supervisor, to get the supervisor to answer the simple question whether the supervisor could have rescheduled the meeting for the day the employe was next scheduled to work.

The employer argued that the meeting between the employe and employer was no more than that, just a routine meeting between the employe and his supervisor. If that is all it were, then the supervisor would not have gone to the significant inconvenience he went to, just to come to the hospital that night. Instead, he would have postponed the meeting until the following week, when it was convenient to both him and the employe. Nor would it have taken the supervisor so long, during cross-examination, to answer the simple question whether he could not have postponed the meeting until the employe's return to work from his few days off. Further, the supervisor prepared copies of documents to give to the employe, as if the meeting were a disciplinary one (pursuant to which the employe is entitled by the employer's rules to copies of such documents). The employer's vice-president of Human Resources was adamant, though, that the meeting was not a formal disciplinary one. This inconsistency makes suspect the employer's downplaying of the significance of that meeting.

The vice-president of Human Resources' testimony also was inconsistent regarding the employer's refusal to allow the employe to rescind his resignation. She first testified that the employer never allows an employe to rescind a resignation, that such are employes' decisions and are never second guessed. She subse- quently testified as to specific reasons why the employer did not allow the employe in this case to rescind his resignation. There is no point to such testimony, if it had been true that the employer never allowed employes to rescind their resignations. The majority questions why the employe feared inevitable discharge on November 1, but subsequently believed the situation had changed by November 4, when he sought to rescind the resignation. There is no evidence in the record indicating with certainty why he sought to rescind his resignation. Because the answer to this question must be speculative, I do not believe the employe's subsequent attempt to rescind the resignation weighs either in favor of or against the employe. For these reasons, I believe the administrative law judge was correct in finding the employe's version of events to have been more credible than that of the supervisor.

The majority also downplays the evidence in the record which indicates that the employe had previously been subject to disciplinary action, and thus had reason to be fearful of the supervisor's threat of discharge. The record includes a two-page synopsis of concerns regarding the employe's performance which deals with, inter alia, an issue which occurred on October 15, 1996 (two weeks before the separation). The synopsis accuses the employe of inconsistent practice of team work, loss of focus, questionable attitude, performance problems, and appearance. (This also indicates that the November 1 meeting between the employe and his supervisor was more significant than the employer subsequently claimed.) The synopsis includes a request by the employe's supervisor that these concerns be reviewed since they may relate to the employe's previous corrective action. After the employe submitted his resignation, the employer sent the employe a second step corrective action which indicated, inter alia, that further violation or violation of any other hospital work rule within the next 12 months would result in further corrective action, up to and including discharge. This of course was a formality, given the employe's resignation, but it establishes that the employe had been subject to a previous corrective action. In addition, the employer's vice president testified that the employe's history of corrective action led her not to allow the employe to rescind his resignation. This simultaneous downplaying and consideration of the employe's previous discipline constitutes yet another reason why I believe the majority's decision is erroneous.

The majority also relies upon the employe's knowledge of the employer's personnel policies, policies which indicate that the employe's supervisor, alone, could not have discharged the employe. This is not what the employe testified, however. The employe testified that the supervisor said the employe could either resign or he (the supervisor) would have Human Resources fire him. In addition, the employer's rules do not require that all discharges be made by the employer's Human Resources department. Rather, it requires only that that department review such proposed actions. Further, there is no requirement in the employer's rules that an employe receive advance notice that the employer intends to accelerate its progressive discipline process. By that process the employer is allowed to skip steps and proceed straight to discharge in circumstances it deems appropriate. The point is that, when a supervisor gives an employe an ultimatum such as the one the credible evidence indicates the supervisor gave the employe in this case, the employe has the right to assume that the supervisor either has or will get the necessary backing from high management.

For these reasons, it is not in my opinion the employe's version of events which is implausible, but rather the supervisor's. The scenario here simply does not correspond to how the employer attempted to paint it after the employe submitted his letter of resignation.

/s/ David B. Falstad, Chairman

 

cc: ATTORNEY RICHARD F RICE
FOX & FOX

ATTORNEY SARAH J ELLIOTT
VON BRIESEN PURTELL & ROPER SC


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