CHARLES A STAHLMAN, Employee
WHITNALL SCHOOL DISTRICT, 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 16 years as a middle school music teacher for the employer, a public school district. His last day of work was March 17, 2006 (week 11), when he submitted a letter of resignation effective at the end of the school year. He was on paid leave through June 15, 2006 (week 24), when the school year ended. He began a claim for unemployment benefits in the following week.
The employer's superintendent informed the employee that she was going to recommend non-renewal of the employee's contract to the school board, which had the ultimate authority to discharge the employee. The employee had received a preliminary notice of non-renewal. The employer's superintendent notified the employee that he could quit or be fired.
The employee submitted his resignation as part of a settlement agreement. In the settlement, the employee agreed to resign, to withdraw his pending grievances and waive any other actual or potential claims against the employer. In return, the employer agreed to drop the non-renewal proceedings, permit him to use accumulated paid sick leave through the end of the school year, reduce his disciplinary suspension from five days to one, provide a favorable letter of resignation and not contest his claim for unemployment benefits.
The Whitnall Federation of Teachers is the exclusive bargaining agent for teachers employed by the employer. Mr. Weyenberg, a staff representative with the American Federation of Teachers, has since 1986 represented the Federation in opposition to the position taken by the superintendent before the school board. In the superintendent's five years of employment with the employer, the school board has followed the superintendent's non-renewal recommendation on each occasion.
The initial issue to be decided is whether the employee quit or the employer discharged him.
The commission and courts have previously held that resignation of one's employment in lieu of what the employee considers impending discharge does not constitute a discharge but rather a voluntary termination of the employment relationship and not with good cause attributable to the employer. See David J. Teske v. LIRC and Village of Lake Delton, Sauk County Court Case 90-CV-330, July 3, 1991; Michael J. Bailey v. LIRC and Weyauwega Public School, Dane County Court Case 86-CV-505, March 11, 1987; Dean B. Abbott v. Pepin Public School and LIRC, Pepin County Court Case 83-CV-16, June 20, 1984.
The determination of whether the employee quit or was discharged depends on whether the evidence establishes that the employer would not have allowed the employee to continue working if the employee had not resigned. The focus is on whether the evidence established that the employee's discharge was a certainty. See e.g., Fisher v. Black & Decker US Inc., (LIRC Dec. 11, 2001); Buchberger v. City of Sheboygan, (LIRC May 4, 2005); Mandl v. MBTI Inc., (LIRC April 5, 2002).
The commission has also cited Faust v. Ladysmith-Hawkins School Systems, 88 Wis. 2d 525, 534, 535, 277 N.W.2d 303 (1979), as enunciating the standard for determining whether a hearing before a school board could be bypassed. For a successful bypass of the hearing, it must be shown that the hearing would have been simply pro forma and that the employer was acting in bad faith. In Faust, the teacher argued that the decision not to renew her contract had been made prior to the school board following the procedures required under Wis. Stat. § 118.22. The court stated that the employee failed to establish that the procedures were "window dressing" or a mere "sham." In Faust, the reference to the conference with the school board being merely pro forma was referring to demonstrating that the school board failed to provide the statutory protections set forth in Wis. Stat. § 118.22. (1)
The employee argues that the superintendent's statement to him, the fact that he failed to successfully complete a performance review, and the fact the board has always followed the superintendent's recommendation, demonstrate that the employer was going to discharge him and that a conference with the board would have been pro forma. The commission agrees. The evidence in the record established that if the employee had not resigned the board would have followed the superintendent's recommendation and discharged him.
The next issue to be decided is whether the employer discharged the employee for misconduct connected with his work for the employer.
In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:
" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."
The employer did not appear at the hearing in this matter. The only evidence regarding the reason(s) for the planned non-renewal of the employee's contract was his failure to complete successfully a performance review, vague references about the way the employee related with students, and an unproven allegation of perjury. In short, misconduct has not been established.
The commission therefore finds that in week 25 of 2006, the employer discharged the employee but not for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).
The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 25 of 2006, if he is otherwise qualified.
Dated and mailed January 11, 2007
stahlch . urr : 132 : 6 : MC 629 VL 1007.15
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
NOTE: The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The commission has reached a different legal conclusion than did the ALJ based on the undisputed testimony presented at the hearing.
cc: Attorney Timothy E. Hawks
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