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

JOSEPH L SCHAETZ, Employee

COUNTRY EXPRESS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03401209AP


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, and the matter is now ready for decision. (1)

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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee, Joseph L. Schaetz, worked as a cashier for the employer, a gas station and convenience store, for approximately 21/2 years. His last day of work for the employer was on February 19, 2003.

The employee's immediate supervisor was Dawn Steffel, the store manager. Steffel had begun working as Schaetz' supervisor around the first part of January, 2003. Steffel made certain changes in the way the store was operated and Schaetz did not like these changes. Schaetz disagreed with Steffel's decisions on the level of inventory to maintain in the store, and he thought that she was not doing a good job of managing the store.

Gary Krull was the owner and general manager of the business. Shortly prior to February 20, 2003, Schaetz complained to Krull about Steffel.

When Schaetz went in to work on February 20, 2003, he learned from Steffel that his name had been taken off the schedule for that day. Steffel told him that he was instead scheduled to work on Saturday, February 22.

Schaetz telephoned Krull at about 7:30 P.M. on the evening of February 20, and said to him, "If you don't fire Dawn I will quit". Krull replied by asking, "What?", and Schaetz then repeated his statement. Krull then told Schaetz that he was not going to fire Dawn, and Schaetz replied, "Okay, then I quit". The conversation then ended.

At around 8:30 P.M. on that same evening, Schaetz telephoned Steffel and repeatedly cursed at her using obscene and sexually offensive language and also saying, "I quit, so there" before hanging up on her. After Steffel, who was extremely upset by this, called Schaetz back and left a message on his answering machine asking him what was going on, Schaetz telephoned Steffel again and again repeatedly cursed at her using obscene and sexually offensive language, and also said, "I told Gary to either fire you or I quit".

Schaetz did not work for the employer again. The initial issue for decision is whether his separation was a voluntary termination of employment or a discharge by the employer.

At the hearings held in this matter, Schaetz offered testimony that differed starkly from that offered by Krull and Steffel. Schaetz asserted that he never told Krull that he would quit unless Krull got rid of Steffel, that he never told Krull he quit but that it was Krull who had told him , "you're done", and that when he spoke to Steffel on the telephone on the evening of February 20, he did not tell her that he had threatened to quit or that he had quit.

The critical issue in this case is one of credibility. The commission does not find Schaetz to be credible as a witness. Among other things, the commission notes that at the further hearing held in this matter, Schaetz initially insisted that he had telephoned Steffel only once on the evening of February 20, and he denied that he called Steffel back after this first call. However, his testimony was called into question by introduction (as Ex. 2) of his statement to a department investigator. In that statement, he clearly said that he did call Steffel back a second time. Challenged to explain this in his testimony at the further hearing, Schaetz responded that he "didn't remember" whether he called Steffel once or twice, and that he "might have" called her a second time.

By contrast, the commission considered that the testimony of Krull and Steffel was consistent and believable. Steffel's testimony was supported by her contemporaneously-made notes (subsequently typed up and received as an exhibit at the remand hearing). Krull's testimony was supported by the testimony of his wife, who overheard his conversation with Schaetz. Schaetz' testimony confirmed the fact that Krull allowed his wife to listen in on the conversation.

For the foregoing reasons, the commission credits the evidence that Schaetz directly told Krull that he was quitting in their telephone conversation on February 20, and that Schaetz also acknowledged having quit when he later spoke to Steffel on the telephone.

The employee neither asserted nor established any reason for his quitting which would constitute an exception to the provisions of the Act requiring benefit suspension in case of voluntary termination of employment.

The commission therefore finds that in week 8 of 2003, the employee was not discharged by the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that in week 8 of 2003, the employee voluntarily terminated employment with the employer within the meaning of Wis. Stat. § 108.04(7)(a) of the statutes, and that his quitting was not for any reason constituting an exception to the provisions of the Act requiring benefit suspension in case of voluntary termination of employment.

The commission further finds that the employee was paid benefits in the amount of $186/week for weeks 9 through 22 of 2003 and in the amount of $8 for week 23 of 2003, in the total amount of $2,612, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

Wisconsin Statute § 108.22 (8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied. The different result now arrived at by the commission in this case was caused by the commission making a different assessment as to the credibility of witnesses, based upon consideration of additional evidence received at the remand hearing which was not available to the commission when this matter was previously pending before it. In these circumstances, the overpayment was not the result of department error as defined in Wis. Stat. § 108.02(10e). Therefore, the commission finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 8 of 2003, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $2,612 to the Unemployment Reserve Fund. Department records indicate that the employee requalified for unemployment insurance eligibility as of week 38 of 2003.

Dated and mailed February 8, 2005
schaejo . urr : 110 : 2 VL 1007.01  PC 733

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who conducted the original hearing concerning the matter of witness credibility. The commission arrived at a different assessment of the credibility of the witnesses based in significant part on the evidence presented at the remand hearing, which the ALJ had not had the benefit of when she issued her original decision. In any event, the obligation to consult with the ALJ in order to have the benefit of his or her personal impressions as to the credibility of witness, arises only in cases in which the commission has reversed the result arrived at by the ALJ. See, Worsch v. DILHR, 46 Wis.2d 504, 511, 175 N.W.2d 201 (1970). Although the commission takes a different view than the ALJ as to how credible the employee's version of the facts was, it nonetheless now arrives at the same result as did the ALJ, that being the conclusion that the employee quit and was therefore subject to suspension of benefit eligibility.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.


cc: Attorney Michael L. Hermes



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Footnotes:

(1)( Back ) The commission originally issued a decision in this matter on December 5, 2003. The employer commenced an action for judicial review of that decision. Subsequently, that judicial review action was dismissed. Thereafter, the commission issued an order setting aside its December 5, 2003 decision in the case and remanding the matter to the department for further hearing. Such further hearing has now been held, and the matter thus comes before the commission again, by virtue of the original petition for review, for review on the basis of the record at the original hearing and the remand hearing.

 


uploaded 2005/07/06