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

AMY C COLLINS, Employee

GREEN BAY PUBLIC SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06401193GB


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, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 3 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.

Dated and mailed December 29, 2006
colliam . usd : 132 : 1    MC 629

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision that found she voluntarily terminated her work for the employer and not for any reason permitting immediate benefit payment.

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 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."

The employee argues that the commission's reliance on Faust has been misplaced. The employee notes that Faust involved the non-renewal of a teacher's contract and the procedural protections afforded by Wis. Stat. § 118.22. The employee argues that in this case the employer is seeking termination in the current calendar year and Faust gives no indication that the procedural protections of Wis. Stat. § 118.22 apply in such a case.

The Court in Faust found no property right had been implicated in that case and further:

Neither is a liberty interest protected by the fourteenth amendment involved. Roth pointed out that when a public employer declines to rehire or discharges an employee and at the same time makes an accusation that may damage his reputation, and therefore his associational interests and his ability to find new employment, the employee has a liberty interest at stake, and procedural due process must be provided.

In the present case there was no suggestion of any dissatisfaction with Faust's performance. The only reason given for not rehiring her was a decline in the school enrollment. No liberty interest was implicated. Hence, the constitutional requirements of due process do not apply. Richards v. Board of Education, 58 Wis.2d 444, 452, 206 N.W.2d 597 (1973).

Faust at 531-532.

In this case, the principal was recommending discharging the employee because dissatisfaction with her performance. The record does not indicate that the school board would have made a decision without allowing the employee an opportunity to present her position or was simply going to "rubber stamp" the principal's recommendation.

The employee argues that in a discharge case a school board may be limited by a collective bargaining agreement citing West Salem Educ. Assn. v. School Dist. of West Salem, 108 Wis. 2d 167, 180 (1982). However, the court noted in West Salem that the board's procedures had protected the teacher's constitutional right to due process, and the employee was seeking additional rights under the collective bargaining agreement. In this case, the record does not establish that she would not have been afforded the opportunity to appear before the board before it decided whether to follow the principal's recommendation.

The finding of a quit in a situation where an employee resigns because he or she believes, and is even led to believe by members of the board, that the board will discharge the employee, predates the decision in Faust. See Beiswanger v. DILHR and Elcho Public School, No. 157-433 (Wis. Cir. Ct. Dane County May 15, 1978). Further, the determination that the employee quit in this case is not based on the fact that the employee is a teacher with or without certain statutorily afforded procedural rights. The outcome would be the same if the employee were a factory worker. If an individual who does not have the authority to discharge a worker indicates that he or she is going to recommend to the one who has such authority that the employee be discharged, and the employee resigns before a decision is made on whether he or she will be discharged, the employee has quit for unemployment insurance purposes.

Further, if the employee in this case, or any employee, presented evidence that the ultimate decision maker always followed the recommendation to discharge an employee, the commission could conclude that discharge was inevitable based on the recommendation. The employee did not make that showing. Indeed, the employee testified that she was aware of only one other teacher who had been discharged by the employer.

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 employee did not establish that if she had not resigned the school board would have followed the principal's recommendation and discharged her. The employee did not establish that she quit with good cause attributable to the employer or for any other reason that permits immediate benefit payment.

cc: Attorney Michele A. Peters



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