BONNIE R CONROY, Employee

CURATIVE CARE NETWORK INC, 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 four years as a manager in the transportation department for the employer, a human services company. Her last day of work was March 7, 2006.

The employee was required to get approval to take leave from work since she was a supervisor. The employer was preparing for a national accreditation survey during 2005 and 2006.

At the beginning of February, the employee gave her supervisor two vacation slips, one requesting that the employee be off work March 8, 9 and 10, and the other for March 13-17. The supervisor told the employee that she would not be able to sign the vacation slip for March 8, 9 and 10, because there was an administrative directive that all leadership must be in attendance at the employer during the accreditation survey. All leadership had been informed of this administrative directive at leadership meetings in November of 2005 and January of 2006. The employee told her supervisor that she understood, but her vacation had been planned and she was going to go on vacation. The supervisor informed the employee that this would be unauthorized time off and the employee would be in direct violation of a presidential decision. The supervisor told the employee that the consequences of the employee's choice to ignore a presidential directive would be discipline up to and including discharge. The employee asked the supervisor if the supervisor really thought the employee would be discharged. The supervisor replied she was not sure what would happen. The parties had many subsequent discussions about this. The employee asked her supervisor why she had to be there for the survey. The supervisor informed her that if something drastic happened in the department, the employee needed to be available because the co-manager would be with the surveyors.

The issue for review is how to characterize the employment separation. The ALJ treated the employment separation as a discharge. However, an employee may be found to have voluntarily terminated his or her employment despite the fact that the employee has never expressly stated, "I quit." For unemployment insurance purposes, a quit can include a situation in which an employer actually discharges a worker. Nottelson v. ILHR Dept., 94 Wis.2d 106,119 (1980). An employee can voluntarily terminate employment by knowingly refusing to take action that would have allowed his or her employment to continue. Shudarek v. LIRC, 114 Wis.2d 181,188 (Ct. App. 1983). An employee may demonstrate intent to leave his or her employment by word or manner of action, or by conduct, inconsistent with the continuation of the employment relationship. Nottelson, Wis.2d at 119; Dentici v. Industrial Comm., 264 Wis. 181, 186 (1953).

The employee had been informed, on at least two occasions, that it was imperative that she be present during the survey. The employee, in January, scheduled a vacation without discussing the matter with anyone at work, apart from asking a supervisor for time off to obtain a passport because she was attempting to book a vacation. The employee knew that she scheduled the vacation for the time the survey would potentially be conducted, although she did not know exactly which days the survey would be conducted. On January 12, 2006, when she requested vacation days, the supervisor informed the employee that she had learned the dates of the survey, and the survey would be conducted on March 8, 9 and 10. The employee was never granted permission to take vacation. The employee and her supervisor discussed this matter on numerous occasions and each time the employee was informed that if she failed to participate in the survey she could potentially be discharged. The employee was a manager in the transportation department and had been specifically informed why she needed to be at work during the survey. The employee's decision to go on her cruise under these circumstances was inconsistent with the continuation of the employment relationship and for unemployment insurance purposes constituted a quitting.

The commission therefore finds that in week 10 of 2006, the employee terminated her work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a) and, that her quitting was not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits for weeks 12 through 18 of 2006, amounting to a total of $2,387.00 for which the employee is not eligible and to which the employee is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment 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 commission reached a differing legal conclusion based on essentially the same set of facts as found by the ALJ. However, a reversal of an ALJ's ATD under these circumstances is not considered "department error" within the meaning of the Wis. Stat. § 108.02(10e).

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 10 of 2006, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $2,387.00 to the Unemployment Reserve Fund.

Dated and mailed September 29, 2006
conrobo . urr : 145 : 4   VL 1007.01

/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 noted that there were not many facts that were in dispute. The ALJ determined, based on the evidence, that it was reasonable for the employee to conclude that she would not be discharged if she went on the trip. The ALJ pointed out that her testimony, that her original supervisor assured her that she would not be discharged, was not disputed. The ALJ pointed out that the supervisor advocated on the employee's behalf.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another 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 overpayment.

cc: Curative Care Network Inc.

Appealed to Circuit Court.  Affirmed April 17, 2007.

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uploaded 2006/10/02