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

LOIS I JANISZEWSKI, Employee

ASSOCIATED PERIODONTICS SC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06001411FL


The Commission's decision dated January 5, 2007, was inadvertently signed and mailed without appending Commissioner Glaser's dissent. Accordingly, pursuant to Wis. Stat. sec. 108.09(6)(b), that decision is hereby set aside, and is reissued herein with the dissent included. The applicable 30 day appeal period will run from the date on this reissued decision.

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 Commission's decision dated January 5, 2007 is hereby set aside, and is reissued herein with the dissent included. The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 8 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 January 19, 2007
janislo . upr : 180 : 9   VL 1005.01  VL 1080.20

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner


MEMORANDUM OPINION


The evidence establishes that, on the employee's last day of work, after she had failed to carry out his instructions, the employer, in a raised voice, asked her if there was something in her personal life which was affecting her work and stated that, if not, she must be "fucking incompetent." Even though the employee testified that the employer had regularly engaged in such conduct in the past, which he denies, she also testified that she had never complained to the employer about this, or indicated to him that it was of such concern to her that she was considering quitting her employment because of it.

The commission, concerned with the employee's testimony that the employer screamed other profanities at her on her last day of work, and had regularly engaged in this type of conduct with her and other employees, conducted a conference with the administrative law judge (ALJ) to determine whether he found this testimony credible. During this conference, the ALJ indicated that he had not found this part of the employee's testimony credible; based on her hearing demeanor, and believed that she was exaggerating the employer's conduct; and, although noting that the employer had originally indicated he "may have" made the "fucking incompetent" statement and then admitted that he had done so, generally found the employer to be a credible witness.

The commission, based on the ALJ's denial of a prehearing request by the employee that witness Sandra Maas be subpoenaed, then remanded this matter to the hearing office for the purpose of taking Maas's testimony. This remand hearing was conducted on December 8, 2006.

In her testimony, Maas did not corroborate the employee's testimony as to the employer's conduct toward the employee and Maas specifically, or toward his staff in general. Maas testified instead that, contrary to the employee's testimony, Maas did not recall that the employer had said to her, "If you were 20 years old, I'd swear you were on drugs;" or that Maas had told the employee she became ill every morning in anticipation of coming to work. Maas also denied, contrary to the employee's testimony, that Maas had stated that all of the employer's workers could accuse him of verbal abuse and, in fact, denied that he had engaged in such abuse; that she had ever stated she was afraid of the employer, or that she had neglected to tell her husband what went on in the office because she was afraid her husband would confront the employer; that the employer's conduct, rather than her disappointment in herself, had ever made her cry in the office; that the employer screams at his workers when they make mistakes, or even regularly raises his voice when they do so; that the employer ever used profanity with her or any other worker; that the employer regularly upsets his workers when he brings mistakes to their attention and, in fact, she had not witnessed a worker being upset because of criticism by the employer for more than a year; that the employer was difficult to work for and, if he had been, she would not have remained employed in his office; that the employer did not discuss concerns with workers but instead lectured them; or that the employer had created a hostile environment for his workers.

Maas's testimony is not indefinite or subject to multiple interpretations. The employee requested her appearance, but Maas did not corroborate the employee's portrayal of the employer, his treatment of his workers, or the office environment he created and fostered.

All that the employee succeeded in proving is that, on her last day of work, in reaction to the error she had made despite his specific instructions, the employer stated in a raised voice that, if she was not experiencing problems in her personal life which were affecting the quality of her work, then she must be "fucking incompetent." The employee responded sarcastically that she had made the mistake on purpose. The employee indicated she needed to leave, but the employer suggested instead that she take a short break to compose herself and then get back to work. The employee, however, left the work site, filed a claim for unemployment benefits that day, and did not report to work for the employer thereafter.

It is undisputed, and supported by the evidence of record, that the employee quit her employment by abandoning her job.

Wis. Stat. § 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." The courts have defined "good cause attributable to an employer" to mean some act or omission that reasonably justifies the employee's decision to become unemployed rather than to continue working. It must involve some fault on the part of the employer and must be "real and substantial." Nottelson v. ILHR Department, 94 Wis. 2d 106, 120 (1980); Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (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 (Milw. Co. Cir. Ct. Aug. 5, 2002); Collier v. Rubbermaid & Co., UI Hearing No. 99604071RC (LIRC Oct. 14, 1999). Good cause attributable to the employer has been found where an employee has notified the employer of such concerns, and the employer has failed to take reasonable and necessary steps to address them, See, e.g., Opportunities Industrialization Center of Greater Milwaukee Inc. v. Barbara Dates & LIRC, Case No. 00-CV-7743 (Milw. Co. Cir. Ct. Mar. 20, 2001); Pinkos v. Burgess Car and Truck Service Center, UI Hearing No. 03604628MW (LIRC Nov. 26, 2003).

Here, the employee did not complain to the employer about his conduct or indicate it was of such concern to her that she was considering quitting her employment because of it. Moreover, unlike those situations where the commission has held that such notice to the employer was not required because the employee reasonably believed that it would be futile, (1)  i.e., that it would not lead to a change in the offending conduct, the record does not support such a conclusion here. The record does not show that the owner had failed to respond to an earlier expression of concern or had indicated at any time that such an expression of concern would be unwelcome or ineffectual. Finally, this incident, standing alone, is not sufficiently egregious to justify carving out an exception to the reasonable notice requirement here.

The employee failed to sustain her burden to prove that her quitting was with good cause attributable to the employer.

The commission notes that the employee has expressed concern that, even though the December 8 remand hearing was noticed as a telephone hearing, she appeared by phone but Maas and the employer were present in person with the ALJ at the Fond du Lac hearing office. The employee told the ALJ at the remand hearing that "she would have chosen to be at the hearing office but when she contacted the hearing office on the 5th [of December] they told her, no, that the hearing was strictly by telephone." However, the case file indicates that, on November 17, 2006, the employee contacted the hearing office, was told that the remand hearing notice had been mailed and she had the option of appearing by phone or in person, and she indicated she was more likely to appear in person. The case file also indicates that the employee called the hearing office on December 5 "to make sure her hearing was by phone." It is unlikely, given the extent and substance of the contact on November 17, that the employee could reasonably have understood that the parties and witness were required to appear solely by phone. Moreover, the employee has failed to specify how this hearing scenario prejudiced her in any way. Her basic concern, as she expressed after the original hearing, is that the employer is permitted to be present while she and her witnesses give testimony. However, a hearing by its nature is an adversarial proceeding, and, in the absence of inappropriate conduct, necessarily contemplates the presence and participation of all parties.

 

ROBERT GLASER, Commissioner, (dissenting):

I respectfully dissent from the majority's finding that the employee's quit was not for good cause attributable to the employer. While it is true that the employee stated that she was not offended by swearing when it was used in a conversation, the employee testified that it is quite different when you are sworn at and belittled and when it is demeaning. The employer in his initial UC claim investigation statement, denied calling the employee "fucking incompetent," adding "I'm not that kind of a person." At the hearing the employer was forced to admit that he had in fact made the statements the employee attributed to him. The rest of his testimony as to the tone of his conversation was not credible.

The employee admitted to the employer that she had made an error in folding a letter and placing it in an envelope prior to showing it to him. She then credibly testified that he proceeded to scream and yell saying "F this and F that." She left the room but was called back and again was berated with more "fucking this and fucking that." She replied that she made a mistake and that mistakes happen. The employer replied that she was "fucking incompetent." The majority finds fault that the employee did not complain to the employer but ignores the fact that the person who did the ranting was the owner and up until the hearing had denied even making the statement. Obviously any complaint would have been futile since the employer was not only the owner but also clearly lied. The Commission has previously held that complaining prior to quitting is not a prerequisite for eligibility for unemployment benefits where the person responsible for offensive behavior which constitutes the justification for quitting is the owner of the employer. Gulli v. Clinton Foods, UI Hearing No. 04003206JV, (LIRC Nov. 10, 2004); Behrent v. YMCA of Stevens Point, UI Hearing No. 04003192MD (LIRC Mar. 8, 2005).

The commission had previously remanded the case to take the testimony of another employee, Sandra Maas, regarding the employer's overall conduct. I strongly disagree with the Commission's finding that her testimony is not indefinite or subject to multiple interpretations. The majority ignores the fact that the witness testified that she had pled with the applicant not to subpoena her because she still was working there and did not want to get involved. They also ignore that her testimony is replete with "I don't recall" when asked about the employer's conduct but then states "I don't always come out crying after talking to the Doctor." She is also evasive and later states "I just get over it." On cross-examination she is asked by her employer: "Do you like working for me?" I find her answer quite telling in that she answers "I enjoy my job. I like working there. I like the people I'm working with. At my age, I'd be gone otherwise," but she never directly answers the question about him. Obviously we have a witness who realizes that she will have to work with the employer after this is over and couches her testimony accordingly.

I fully understand that employees can't quit lightly and have to put up with some discourteous treatment. I cannot, however, ignore the fact that this was not a foundry or a construction site where one might expect to hear "shop talk" from both employees and employers. This was a professional office, and the curser, the owner, was an educated, professional person. I also cannot ignore the fact that this was not cursing used in a casual conversation but a direct comment by a superior directly to a subordinate. Were the situation reversed and had the employee made such a comment there is little question that misconduct would have been found. Again, while an employee cannot always expect to be treated with courtesy in the workplace, this should not be used to allow an employer carte blanche in speaking to employees. Employees have a right to some level of civil treatment, and certainly the employer crossed the line in this case. I would find that the employee quit with good cause attributable to the employer.

__________________________________________
/s/ Robert Glaser, Commissioner



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Footnotes:

(1)( Back ) Denning v. Northwoods Family Eyecare LLC, UI Hearing No. 02201829EC (LIRC April 30, 2003)(good cause attributable to employer found despite lack of notice by employee that conditions of such concern to her that considering quitting because of them, where management's failure to respond to earlier complaints, and ultimatum that she could leave if there was something she did not like, reasonably lead employee to believe that further complaining would be futile); Smith v. Servicemaster, UI Hearing No. 04005054WR (LIRC July 8, 2005)(where working conditions had not improved after past complaints, good cause attributable to employer found despite lack of notice by employee that conditions of such concern to her that considering quitting because of them).

 


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