CHRISTEL L ZILLMER, Employee

VEDIOR NORTH AMERICA LLC, 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 five months as a general laborer for a client of the employer, a staffing agency. Her last day of work was on December 19, 2005 (week 52), when she quit.

The employee was working for the client in a "temp-to-hire" position. Prior to and through the time in question, her husband was a permanent employee of the client. The employee began her assignment with the client on July 25, 2005, and worked for that client until she quit. A few weeks prior to her last day of work, the employee had a three month review and the supervisor informed her he was trying to get her and two co-workers a permanent position prior to the holidays so she would receive holiday pay. The employee was then informed that she had not passed her 90-day probation, so she would not be hired for a full-time position at that time. The client would have had to pay a penalty to the employer if it hired her prior to the end of her probation. The employee was frustrated because this was the third time she had been passed up for full-time employment. She was to be hired full-time in August, but the client then put a hiring freeze into place until September 29. When the hiring freeze ended she was informed she could not be hired until she had 90 days in. The employee questioned the client about its failure to hire her and was informed that she was not being hired because of her attendance, as she had ten hours unexcused.

In November, the employee told a management worker at the employer that she believed she was a good worker and wanted a full-time job. The employee asked if she could be placed in another position and was told the employer would look. However, the employer did not find her another position. The employee, on December 19, 2005, simply quit, without any further explanation to the employer.

The Wisconsin unemployment law 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 weekly benefit rate, unless the termination was with good cause attributable to the employer or was within some other statutory exception. In this case, it was not disputed that the employee quit.

The remaining issue is whether the employee's reason for quitting meets any applicable exception permitting immediate benefit payment.

The employee argued that she quit with good cause attributable to the employer because she believed that the client was discriminating against her. The employee alleged that the client failed to hire her in a permanent position because she was a woman.

The employee did not inform the employer that she believed she was a victim of discrimination. While she did ask for another assignment in November, she at that time merely told the employer she wanted to be hired full-time. She did not tell the employer that she believed that the client was discriminating against her. Further, when the employee quit a few weeks later, she failed to explain the circumstances to the employer so that it could investigate the situation and take appropriate action. The employer failed to appear at the hearing and the employee's testimony was not disputed. However, the employee testified at the hearing that she did not discuss the situation with the employer and give it the chance to resolve the matter. The employee did not make the gravity of the situation clear to the employer in November, and did not mention it at all when she ultimately quit so the employer's failure to offer her another position did not amount to good cause attributable to the employer for quitting.

The commission therefore finds that the employee terminated work in week 52 of 2005, within the meaning of Wis. Stat. § 108.04(7) and not for any reason that would allow immediate benefit payment.

The commission further finds that the employee was paid benefits for each of weeks 52 and 53 of 2005, and weeks 1 through 3 of 2006, amounting to a total of $617; for which she was not eligible and to which she was not entitled, with in the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund. The employee requalified in week 4 of 2006.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), be cause although the over payment 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)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 52 of 2005. She is eligible for benefits beginning in week 4 of 2006, when she requalified. The employee is required to repay the sum of $617 to the Unemployment Reserve Fund.

Dated and mailed May 25, 2006
zillmch . urr : 145 : 8 VL 1005.01

/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 indicated that there was no real credibility issue as the employee's testimony was not disputed. The ALJ noted though that he believed that the employee was being honest. The commission agrees with the ALJ's credibility determination. The commission also believes that the employee was being honest, in that she testified to things that were not in her interest. Specifically, she testified that she failed to inform the employer of the situation with the client, and failed to give the employer the opportunity to rectify the situation prior to quitting.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other 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: Vedior North America (Black River Falls, Wisconsin)

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uploaded 2006/06/05