FRANCIS V GADZIK, Employee
DTG OPERATIONS INC, Employer
On October 27, 2006, the Department of Workforce Development issued an initial determination which held that the employee's discharge was not for misconduct connected with his employment. The employer timely requested a hearing on the adverse determination, and hearing was held on December 5, 2006 in Madison, Wisconsin before a department administrative law judge. On December 8, 2006, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employee timely filed a petition for commission review of the adverse December 8, 2006 decision. By May 9, 2007 order, the commission remanded the matter to the department for further hearing; that hearing was held on June 19, 2007, and the matter is again before the commission and ready for disposition.
Based upon the applicable law and the records and the other evidence in the case, the commission issues the following:
The employee worked just under two years as a service agent for the employer and its predecessor, rental car concerns. The employer discharged him on October 4, 2006 (week 40), allegedly for having been involved in four accidents during his last few months of employment with the employer, and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was not, and so reverses the appeal tribunal decision.
As indicated, the employee was in four accidents toward the end of his employment with the employer, and the record contains numerous explanations therefor: 1. a lack of depth perception unbeknownst to the employee, which occurred when he was not wearing prescription contact lenses; 2. various instances of sexual harassment of a co-worker that upset him and adversely affected his driving; and, 3. generally tight and cramped conditions in the area where the employer's rental vehicles were stored and maintained.
While this is a poor driving record, the employee credibly asserted that co-workers with worse driving records were not discharged by the employer. The purpose of the above-mentioned remand hearing was to give the employee opportunity to prove that assertion. To that end, the employee's supervisor was subpoenaed to appear at the remand hearing and to bring with him, inter alia, "records showing all the vehicular accidents and incidents of property damage at the service center during the employee's employment" and "discipline imposed on all workers causing such vehicular accidents and property damage." While the employee's supervisor did appear at the hearing, he failed to bring any of the records or documents demanded by the subpoena. His excuse was that he had been told by an individual in the employer's human resources department that the documents in question had been presented at the first hearing. To state the obvious, had the documents and records asked for by the subpoena in fact been presented at the first hearing, there would have been no point in the department's having issued a subpoena for them for the remand hearing.
The commission placed the burden of production of the documents in question upon the employer because the employer is in possession of them. As to allocations based upon availability or special knowledge of evidence, regardless of "normal" burdens, it is proper to place the burden of proof of certain facts upon the party who has special knowledge of them. See, e.g., Lindahl v. Office of Personnel Management, 776 F. 2d 276 (Fed. Cir. 1985) ("The party with the best knowledge normally sustains the burden."); Bratton Corp. v. Occupational Safety and Health Review Commission, 590 F.2d 273 (8th Cir. 1979) (subcontractor in construction of building may have burden of proving such facts as whether it created or controlled a hazard or reasonably could be expected to have notice of it, because of its access to such facts); and Old Ben Coal Corp. v. Interior Bd. Of Mine Op. App., 523 F.2d 25 (7th Cir. 1975) (in agency action to shut down mine for unsafe operations, burden on mine owner to prove mine was safe, since mine owner in best position to have knowledge of conditions of mine: ". . . the burden of proving a fact is on the party who presumably has peculiar means of knowledge enabling him to prove its falsity, if it is false").
A reasonable conclusion from the employer's failure to produce the subpoenaed evidence is that co-workers of the employee had worse accident records than he did but were not discharged therefor. The inference that follows, and which the commission expressly adopts, is that the employer discharged the employee for a reason other than his accident record. (1) Since the employer has not offered any such reason for its discharge of the employee, the commission concludes that the discharge was not for misconduct for unemployment insurance purposes.
The commission therefore finds that, in week 40 of 2006, the employee was discharged, but not for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).
The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 40 of 2006, if he is otherwise qualified.
Dated and mailed August 24, 2007
gadzifr2 . urr : 105 : 6 MC 662 MC 665.01
PC 714.09
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
Ann L. Crump, Commissioner
NOTE: The employee's supervisor asserted at the remand hearing that co-workers were treated no differently than the employee. This is a conclusion, however, which the commission cannot accept. The supervisor did not know the dates of accidents of co-workers. The supervisor could not remember the names of any co-workers who had received verbal and written warnings after having had multiple accidents. He had no number for the accidents of employees under his supervision at the franchise during the time period in question; he could only testify that there were "quite a few." One of the employee's failures had been to crack some drywall with the front bumper of one of the rental cars; the supervisor did not know how many reports there were of co-workers doing the same and could not recall the level of discipline imposed for those failures. The supervisor's lack of recall of so many aspects of the case renders his testimony not credible.
The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, it is based upon the lack of evidence produced by the employer at the June 19, 2007 remand hearing.
[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]