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

MARY F MICOLEY, Employee

EVENT USA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06400319GB


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 53 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 her weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed April 21, 2006
micolma . usd : 115 : 1 VL 1005.01 VL 1080.268

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The employee worked almost four months as an e-commerce specialist in the employer's ticket broker unit. In this position, the employee updated athletic ticket prices on the employer's web site, maintained the computerized ticket inventory system, and served as a backup receptionist and sales associate. She earned $10 per hour and worked Monday through Friday from 8 a.m. to 5 p.m. and occasional weekends. The employee had originally interviewed with the employer for a receptionist/sales position. The employer instead offered her the e-commerce position because her resume indicated that she had extensive information technology experience.

The employer testified that, despite frequent retraining, the employee did not master the duties of the e-commerce specialist position and continued to make numerous costly errors. The employee did not successfully rebut this testimony.

The employer's operations manager met with the employee on December 28, 2005. He told the employee that her performance in the e-commerce specialist position was unsatisfactory and offered to transfer her to a sales associate position with the same hours and at the same hourly rate of pay plus an annual commission. This sale associate position essentially involved taking ticket orders over the phone, which the employee had apparently been successfully doing on a backup basis during her employment in the e-commerce specialist position. The employee indicated she was not interested in this sales associate position, and her employment ended as a result.

The first issue is whether the separation was a quit or a discharge. The key element to determining whether a separation is a quit or a discharge is whether the employee shows that she intends to leave her employment, and indicates such intention by word or manner of action, or by conduct inconsistent with the continuation of the employment relationship. Nottelson v. DILHR Department, 94 Wis.2d 106, 287 N.W.2d 763 (1980); Janzen v. Roehl Transport, Inc., UI Hearing No. 02000217MD (LIRC Jan. 31, 2003); Cotton v. Crown Services, UI Hearing No. 03607152MW (LIRC April 15, 2004).

The employee had an opportunity to maintain the employment relationship by accepting a transfer to a sales associate position, and the separation which resulted from her refusal to do so would be more accurately characterized as a quit than a discharge. See, McCormick v. Beck's Service LLC, UI Hearing No. 03002625WK (LIRC Nov. 25, 2003)(employee had opportunity to maintain employment relationship and failure to do so is a quit); Bressette v. St. Croix Casino, UI Hearing No. 04200320EC (LIRC Aug. 5, 2004)(separation a quit when employee knew that her refusal to accept the subject change in the conditions of her employment would end her employment); Werginz v. Krenn's Machine, Inc., UI Hearing No. 04608760WK (LIRC Feb. 15, 2005).

The only exception to the quit disqualification which could arguably apply here, since the employee would not have sustained a reduction in pay or a change in hours or location, is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." The courts have defined "good cause attributable to an employer" to mean some act or omission that reasonably justifies the employee's decision to become unemployed rather than to continue working. It must involve some fault on the part of the employer and must be "real and substantial." Nottleson v. ILHR Department, 94 Wis. 2d 106, 120 (1980); Stetz v. DILHR, et al., Dane Co. Circuit Court, Case No. 136-215 (February 13, 1973).

Even if the duties of a sales associate were less desirable than the duties of an e-commerce specialist or the employee was not qualified to perform such duties, which the record does not establish, and even if reassignment to these less desirable duties could arguably provide good cause attributable to the employer for a quit, the record would have to show that the reassignment was not reasonably justified in order for that result to be reached. See, Werginz, supra, Bressette, supra. The record here shows, however, that the employee, despite frequent retraining, continued to make an unacceptable number of costly errors in the e-commerce specialist position, and this reasonably justified her reassignment by the employer to other duties.

The employee argues that she did not accept the sales associate position, which involved frequent phone work, because she has a hearing impairment. It should first be noted that the employee never informed the employer that she had any difficulty performing the occasional phone work required of her e-commerce position, never informed the employer she had a hearing impairment, never wore a hearing aid or other assistive device to work, and did not offer this impairment to the employer as a reason for not accepting reassignment to the sales associate position. The employee's actions deprived the employer of the opportunity to consider this factor in crafting an alternative position for her. Since there was no fault on the part of the employer in this regard, the good cause attributable standard was not met.



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