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

JOSE C HODGES, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06600573MW


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 eligible for benefits beginning in week 39 of 2005, if otherwise qualified.

Dated and mailed July 27, 2006
hodgejo . usd : 135 : 8 VL 1007  VL 1080.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer requests that the appeal tribunal decision be reversed. The employer argues that the facts do not support a discharge as found by the ALJ. Rather, the employer argues that the employee was the moving party in this employment separation because he had other options available, notably renting an apartment in Milwaukee to maintain the employment relationship. When the employee failed to comply with the employer's residency requirement within the 90-day grace period the employer argues that the employee "constructively quit." In support of this argument, the employer cites to Klatt v. LIRC & City of Waukesha, 2003 WI App. 197, 266 Wis.2d 1083, 669 N.W.2d 752.

The employer argues that the findings and conclusions reached in Klatt v. LIRC, supra, are applicable here and warrant a reversal of the appeal tribunal decision. The commission agrees that the facts presented here are similar since both employees were required to establish residency in order to maintain their employment. However, in Klatt v. LIRC, supra, the court of appeals found that because the employee's "efforts were all directed towards obtaining an exemption from the residency requirement," Klatt evinced conduct inconsistent with the continuation of the employment relationship thereby quitting. See Klatt v. LIRC, 266 Wis.2d 1083, 19. Here, the employee's efforts during the 90-day grace period were not directed towards obtaining an exemption but rather with complying with the residency requirement, much like the schoolteacher's efforts in Holy Name School v. DILHR, 109 Wis. 2d 381, 326 N.W.2d 121 (Ct. App. 1982). While the commission recognizes that Holy Name School v. DILHR, supra, is not a residency case, the employee in Holy Name School as the employee here diligently attempted to comply with the terms and conditions set forth by their respective employers. Neither employee evinced conduct inconsistent with maintaining the employment relationship. Therefore, the commission is unwilling to conclude the employee constructively quit his employment as the employer argues.

Concluding that the employer discharged the employee, the remaining inquiry is whether the employee's discharge is for misconduct. After being in recall status for almost two years, the employee diligently tried to comply with the residency requirement, upon being recalled. Under these circumstances the commission is unwilling to conclude that the employee's discharge was for misconduct connected with his employment within the meaning of the law.

The employer argues that the facts establish that the employee was unwilling, not unable, to move to Milwaukee. The commission disagrees with this characterization of the employee's conduct. During the employee's 23 month lay-off, the employee married and moved to his wife's home in Bayside. At the time of recall, the employee believed he had six months to re-establish residency. The employer granted him 90 days to re-establish residency. In that time, the employee inquired into obtaining a bank loan that would permit the employee and his wife to own a home in Bayside and buy a home in Milwaukee; they also began fixing up their Bayside home to be placed on the market. The employee indicated renting an apartment and owning a home would have imposed a burden. Although the employer's attorney objected to the ALJ's limitation of his examination of the employee's personal finances, the commission is satisfied that the employee's testimony of this burden was sufficient for both the ALJ and the commission to assess and weigh credibility. Therefore, the record supports the conclusion that the employee's efforts to comply were not actions inconsistent with the continuation of the employment relationship within the meaning of Wis. Stat. § 108.04(7)(a) or misconduct connected with the employment within the meaning of Wis. Stat § 108.04(5).



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