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

CONSTANCE L STONE, Employee

WILD GOOSE STATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002272BD


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 18 of 2006, 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 September 29, 2006
stoneco . usd : 115 : 1  VL 1007.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked less than 10 months as a night cashier for the employer, a convenience store/gas station/restaurant.

The employer's owner had provided the employee the opportunity to perform certain higher level duties to determine whether she was interested in, and qualified to perform, as a night supervisor. On Tuesday, May 2, 2006, the employer's manager, who functioned as the employee's immediate supervisor, advised the employee that her performance in these higher level duties had not been sufficiently satisfactory to justify her promotion to the night supervisor level, but that the employer was offering her a second chance to earn this promotion.

On Friday, May 5, 2006, the employee was working her usual night shift (2 p.m. to 10 p.m.) with a coworker. The employer's manager phoned the employee and criticized certain aspects of her work performance. The employee became upset and hung up on the manager. The manager notified the owner, who phoned the employee. The employee indicated to the owner she did not know whether she wanted to remain as a cashier or continue to strive for promotion to the night supervisor level. The owner told the employee to think about her employment options over the weekend and to call the owner on Monday with her decision, and the employee agreed.

The employee then called the manager and said she was sick and needed to leave work. The manager indicated to the employee that she would check with the owner and get back to the employee.

The manager testified that she called the owner who asked her whether she could cover the employee's absence that night; the manager told the owner she could; the manager called the employee back and told her that the owner wanted her to provide a medical excuse for the absence and to call the owner on Monday as they had discussed; and the manager directed the employee to punch out and leave her keys because the coworker, who would be closing that night, did not have a key for the towels which needed to be left out for the daily cleaning job.

The owner testified that the manager had called to tell her that the employee was asking to go home because she was sick; and the owner asked the manager whether she had someone to cover the employee's absence and the manager indicated she did.

The employee testified that the manager told her after she had talked to the owner that she and the owner decided that the employee needed to leave her keys, punch out, and not come back on Monday.

The employee did not turn in her keys on May 5 as instructed. The employee did not contact the employer or report to work after May 5, 2006.

The employee went to pick up her paycheck on May 16, 2006, and, when she offered to return her keys at that time, was told that the employer had already changed the locks.

The ALJ did not credit the employee's testimony that the manager told the employee not to come back to work, but instead credited the manager's testimony that the employee had been told to punch out and leave her keys. There is no persuasive reason to overturn this credibility determination.

The first question is whether the separation was a quit or a discharge.

Although a request for an employee's keys has, under certain circumstances, been held to communicate a discharge, the commission has not interpreted it in this manner if the employer intended something different and communicated this to the employee. Livingston v. L & D Trading Post, Inc., UI Hearing No. 02200117EC (LIRC June 13, 2002); Kоеnіngѕ v. Соmmеrсіаl Wеаthеr Ρrооfіng Services Inc., UI Hearing No. 03004661WK (LIRC March 5, 2004); McClain v. Robert Peeple & Associates, UI Hearing No. 06600969MW (LIRC April 28, 2006). Here, the employee did not successfully rebut the employer's testimony that she was told to turn in her keys because her coworker would need them to unlock the towel box as a part of the closing process that night.

It should also be noted in this regard that the record does not show that the employer immediately changed the locks after May 5. Instead, the record shows that, by May 16, the employer had changed the locks, after the employee had, for more than a week, failed to contact the employer, report to work, or turn in her keys.

Ordinarily, a discharge is an unequivocal action taken by an employer, leaving no shred of doubt as to the employer's intentions. Rice Lake Creamery v. Ind. Comm., 15 Wis. 2d 177 (1961); Wilson v. Reinke Service, UI Hearing No. 02600504MW (LIRC July 31, 2002). Furthermore, the courts have held that if an employment relationship is to be terminated by the employer, there must be something more in the record than the mere assumption or impression of the employee to the effect that she is fired. An employee owes a duty to definitely ascertain what her employment status is before concluding that the employment relationship is fully terminated. Eisenberg v. Ind. Comm. & Planasch, Case No. 116-225 (Dane Co. Cir. Ct., Jan. 5, 1966); Leo N. John v. DILHR & Julian Galst, et al., Case No. 134-448 (Dane Co. Cir. Ct., Feb. 23, 1973); Rupcic v. Wis. Liquor Co., Case No. 150-045 (Dane Co. Cit. Ct., Feb. 21, 1977); Wilson, supra.; Mindham v. ESA Services, Inc., UI Hearing No. 02403197AP (LIRC May 16, 2003).

Here, just a few minutes before the manager granted the employee's request to leave work because she was ill, and directed her to punch out and leave her keys for her coworker to use to unlock the towel box, the employee had spoken to the owner who told her to think about her employment options and to call the owner on Monday. If she had any doubt about her continuing employment, it was the employee's responsibility to contact the owner to discuss it, or to simply report for her shift the following Monday. The employee's failure to contact the employer or report for work after May 5 renders the separation a quit.

Wisconsin Statutes § 108.04(7) provides that an employee who quits her employment is ineligible for benefits until she requalifies, unless her quitting falls within a statutory exception. The only exception which could arguably apply here 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." This has been defined as a real and substantial act or omission by the employer that reasonably justifies the employee's decision to become unemployed rather than to continue working. See, Stetz v. DILHR, et al., Case No. 136-215 (Wis. Cir. Ct. Dane Co., February 13, 1973). A necessary corollary to these considerations is that, before good cause can be shown, the employee must establish that she explored alternatives short of quitting. The employee must give the employer an opportunity to address and resolve matters that the employee finds so serious that she is considering terminating her employment because of them. See, e.g., Roth v. LIRC & Wisconsin Youth Co. Inc., Case No. 02-CV-00409 (Wis. Cir. Ct. Milw. Co., Aug. 5, 2002); Collier v. Rubbermaid & Co., UI Hearing No. 99604071RC (LIRC Oct. 14, 1999).

Here, although the employee claims that she was concerned about certain conduct of the manager's brother, and the manager's treatment of her during their discussion of the employee's work performance, the record does not show that she discussed these concerns with the employer's owner to give her an opportunity to address and resolve them. The employee failed to sustain her burden to show good cause attributable to the employer for her quit.

cc: Thomas A. Stone



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