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

BETTY J BAKER, Employee

EMMPAK FOODS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06600842MW


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a meat processing company, for approximately four years as a quality assurance technician. Her last day of work was November 3, 2005 (week 47), and she quit on November 17, 2005 (week 47).

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

On November 2, the employee complained to the human resource manager that she was being sexually harassed by her supervisor. On November 3, the human resource manager again talked with the employee. She had received a written warning and did not agree with it. She also informed the manager that she felt uncomfortable working with the supervisor. The manager asked the employee to provide him with a written statement. The employee returned on November 4, with this statement.

After reading the employee's statement, the manager talked with others in the employee's department, and found one person who would corroborate the employee's sexual harassment complaint. However, other members of the department informed him that they saw no signs of sexual harassment. Therefore the manager told the employee that he was unable to substantiate her complaints. The human resources manager did meet with the employee's supervisor, discussed the employer's policy on sexual harassment and how that applied to his department. The manager discussed the importance of setting the correct tone at the workplace.

The employer's human resources manager, on the morning of November 8, 2005, met with the employee to discuss the situation. The human resources manager told the employee that she had the choice of returning to her department but that he understood she might not feel comfortable doing that. He reviewed the open positions in the plant and found some at a higher wage than the employee was making. There was also a position that paid the same as the employee was making. The manager also informed the employee that, if she was interested, the employer might be able to transfer her to a position in separate location in Butler. The manager informed the employee that she should think these options over and instructed her to meet with him at 7:00 a.m. the next morning to inform him as to what she wanted to do.

The employee did not report to work on November 9. The manager called her at 7:15 a.m. and she stated that she believed the meeting was at 9:00 a.m. The manager told her that she could simply meet with him at 9:00 a.m. The employee called the manager back at 8:30 a.m. to inform him that she was sick and she was going to see a doctor. The manager informed her that this was fine. The employee called in sick on November 10 and November 11, but never specified what her illness was. The manager then contacted the health services manager to see whether the employee would qualify for FMLA and to instruct the health services manager to see whether the employee needed FMLA paperwork. The employee called in sick the rest of the week.

On November 17, the manager asked the employee if she had any plans to return to work, and requested that she report to the workplace to meet with him. The employee failed to respond. The employee's actions were inconsistent with the continuation of the employment relationship and for unemployment purposes constituted a quitting.

The second issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

Wis. Stat. § 108.04(7)(a), provides that if an employee terminates employment, benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting, and the employee has earned wages in covered employment equaling at least four times the employee's weekly benefit rate, unless the termination was with good cause attributable to the employer or was within some other statutory exception. Wis. Stat. § 108.04(7)(c) provides as follows:

Paragraph (a) shall not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because the employee was unable to do his or her work or because of the health of a member of his or her immediate family; but if the department determines that the employee is unable to work or unavailable for work, the employee is ineligible to receive benefits while such inability or unavailability continues.

The employee was unable to work because of her medical condition. The employee furnished certified medical evidence that established that the employee, because of this medical condition, was unable to perform any work for this employer. The employee's physician indicated that the employee was able to work, with only one restriction, specifically, that she perform no work for the employer. While the employee did not explore any reasonable alternatives prior to quiting, she has fulfilled the statutory requirement because no alternative existed.

The third issue to be decided is whether the employee was able to work and available for work in the employee's labor market beginning in week 47 of 2005.

The statutes provide that a claimant is not eligible for benefits unless able to work and available for work. The Wisconsin Administrative Code implements the statutes and provides that a claimant will not be considered able and available if he or she, without good cause, restricts him or herself to less than 50 percent of the full-time opportunities for suitable work in the labor market, if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market, or if he or she, without good cause, fails to participate in an eligibility review interview.

The employee's UCB-474 medical report indicates that the employee was able to work, without restrictions, for any employer but the named employer. Therefore the employee was able to work and available for work in her labor market.

The commission further finds that in week 47 of 2005, the employee terminated work with the employer because the employee was unable to do that work and did not have a reasonable alternative to quitting, within the meaning of Wis. Stat. § 108.04(7)(c), and that the employee was able to work and available for work on the general labor market as of that week, within the meaning of that section.

DECISION

The decision of the administrative law judge is amended as to the week of issued and as amended is affirmed. Accordingly, the employee is eligible for benefits beginning in week 47 of 2005, if otherwise qualified.

Dated and mailed May 18, 2006
bakerbe . urr : 145 : 9  VL 1023.10

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission modified the ALJ's decision to reflect its determination that the employee quit, not with good cause attributable to the employer but because she was unable to work. While the employer had not resolved the employee's harassment allegations, the employee was in some measure responsible for this failure because she, as a result of her medical condition, simply abandoned her job after the employer had asked her to meet to seek a solution to the problem that was acceptable to her.

If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

cc:
Emmpak Foods, Inc. - Wichita, KS
Attorney Ann Martin


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uploaded 2006/05/24