PRECIOUS S LEFLORE HARRELL, Employee

YELLOW CAB COOP, 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 about a year for the employer, as a dispatcher. She had a prior period of employment with the employer and her last day of work was May 21, 2005.

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 her work.

On May 23, 2005 (week 22), a friend called a representative of the employer on the employee's behalf to report that she would be absent. The employee would often call a particular co-worker to report her absences, but she had been instructed by her supervisor that he wanted her to contact him if she was going to be absent. The employee failed to comply with this directive. The employee did not personally call either the supervisor or the co-worker because she did not want to "deal with it."

The employee spoke with a friend at work, on about May 25. She did not call her supervisor to inform him of her situation or expected return date however.

The employer no longer put the employee on the schedule after May 27 because it needed someone who would be at work and her supervisor no longer wanted to personally cover all her shifts.

The employee reported to work on June 2. Her supervisor asked what the problem was and she said her father had recently passed away and that she was in the process of moving to Racine because of her boyfriend. The employee's father had passed away on May 2 and she had contacted he supervisor to ask for a week off at that time. The supervisor informed her that she had been no call, no show and that the employer had left messages for her. The supervisor also told her that if she could call a friend at work, she could also have called the employer. The employee stated that she had been busy with things. She left to talk with another individual, saying she would return in five minutes, but failed to return thereafter. On June 2, the employer put a letter in the employee's mail slot. The letter indicated that she had not reported to work from May 23 until May 27, 2005, and the employer tried calling her but she did not answer her phone. The letter further stated that the employer assumed that the employee had no further interest in her job and instructed her to let the employer know when she was "serious" about working at the employer. The employee did not speak to the employer about returning to work or attempt to inform the employer that she had not quit because she believed her supervisor always said things out of context and this made her angry. Further she thought that portion of the letter was ridiculous and had no idea what those words meant to her. She did not realize that he was attempting to clarify her employment situation and allow her to return to work.

It was the employer's position that the employee quit her job. The commission agrees. The employee was off work from May 23, 2005, for an indefinite amount of time. She did not ask her supervisor for permission to have this time off. The employee did not respond to messages left by the employer during her absence. The employee called the employer to talk to a friend but did not speak to her supervisor. Further, the employee failed to follow her supervisor's directive to report her absence to him. Instead, she had her boyfriend call a co-worker to report her absence. While the employer did not put her on the schedule after May 27, this was not unreasonable because the employee was a dispatcher and the employer needed to schedule someone to perform this work. Finally, when the employee did come to work on June 2, she explained that her attendance problems were caused by her father's death and the fact that she was moving to Racine. When she received the employer's letter she failed to either explain to her supervisor that she had not intended to quit or to ask her supervisor whether she could return to work. Her actions as a whole were inconsistent with the continuation of the employment relationship and for unemployment insurance purposes constituted a quit.

The commission therefore finds that in week 22 of 2005, the employee quit her job with the employer within the meaning of Wis. Stat. § 108.04(7)(a) and not for a reason that would allow immediate benefit payment.

The commission further finds that the employee was paid benefits in week 33 through week 46 of 2005, $2,450.00, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22 (8), she 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 employee 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)

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 22 of 2005, 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 equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $2,450.00 to the Unemployment Reserve Fund.

Dated and mailed January 20, 2006
leflopr . urr : 145 : 1 VL 1007.05

/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 stated that he believed that she did not intend to quit because the parties had agreed that when she saw the letter, she was upset. He believed that her failure to respond to the letter was a reflection of how upset she was. Further, he noted that the employer considered this a termination letter, and that it no longer had her on the schedule after the 27th, suggesting that she had already been discharged by the time she received the letter. The commission disagrees with the ALJ's credibility determination for the reasons stated in its decision.

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 offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

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

cc: Yellow Cab Coop (Milwaukee, Wisconsin)

Appealed to Circuit Court. Affirmed June 5, 2006.

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uploaded 2006/01/24