Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Mary Beth Arnett (Hearing No. 97000239MD) v. LIRC and University of Tulsa, No. 97-CV-2939 (Wis. Cir. Ct., Dane County, July 30, 1998) Stuart A. Schwartz Circuit Judge

Digest Codes: PC 715 Hearing, Procedure, Miscellaneous, VL 1080 Working Conditions - hours

The employe, an attorney, worked as a limited term employe for the State of Wisconsin beginning in April 1995. The University of Tulsa College of Law offered her a job as a research fellow in a letter dated June 4, 1996. Her last day of work for Wisconsin was June 6, 1996. She began work for the university on July 1, 1996. Her salary was $30,000 annually.

The employe asked her supervisor for a flexible hours schedule on July 8, 1996. The supervisor, who was on a leave, indicated that he knew she could not always be in the office but she should advise his secretary of her movements. On July 17, 1996 the supervisor advised the employe that office hours needed to be kept, that the secretary should be informed of the employe's movements and that lunch hours should be coordinated with the secretary. In subsequent messages the employe expressed her concerns about the amount of time spent on administrative duties and requested more flexibility. The supervisor indicated an unwillingness to grant the employe's request.

The employe submitted a letter of resignation to her supervisor. She then stated that she was considering withdrawing the resignation. The supervisor agreed to allow the resignation to be withdrawn if office hours were maintained. The employe did not withdraw the resignation and her employment ended on August 12, 1996.

At the hearing held to review the employe's benefit eligibility the administrative law judge took the employe's testimony first. The administrative law judge made several comments concerning the burden of proof. In an ex parte discussion after the hearing, the administrative law judge commented on credibility determinations. Benefits were denied and the commission affirmed that decision.

Held: The administrative law judge has the statutory authority to determine the order of witnesses. Any error in the comments by the administrative law judge about the burden of proof was not prejudicial. The commission reviewed the evidence and reached the same result.

The employe contends that the testimony by the employer was false. However, credibility of witnesses is to be determined by the commission. The commission's conclusion that the wages, hours or other conditions of employment are not substantially less favorable than those prevailing for similar work in the locality is supported by its findings of fact. The findings are supported by the evidence. Post hearing comments by the administrative law judge concerning determinations of credibility, though technically improper, had no prejudicial effect on the parties.

The employe's objection to the decision is, essentially, that the commission believed the wrong version of the evidence. However, the commission's findings are supported by ample evidence from the employer to prove that the employe voluntarily tendered her resignation. The findings support the conclusion that she voluntarily terminated her employment without meeting any of the statutory exceptions to benefit disqualification. Complaint dismissed.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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