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


MARY JANE FAAS, Employe

PDC MOTEL INVESTORS LTD PTR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98601765MWG


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 the applicable law, records and evidence in this case, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employes worked about ten years as co-managers of a motel at Prairie du Chien, Wisconsin, for the employer, a limited partnership. Their last days of work were on December 18, 1997 (week 51).

The employes were husband and wife. They were responsible for the operation of the employer's motel 24 hours a day. On November 19, 1997 (week 47), they informed the employer of their plan to develop a motel at New Richmond, Wisconsin. The employer's general partner told them he would get back to them. On November 20, 1997 (week 47), the general partner told the employe (husband) that the amount of time needed to develop a new motel was greater than the time needed to manage eight existing motels. Thereafter the employes perceived a deterioration in the relationship. The employer sent several faxes and letters that the employes perceived as petty and harassing. The employes testified that the employer would not return phone calls and on the one occasion when they were at a meeting together the employer turned his back on the employe and walked away without speaking. The employes felt anxious and stressed as a result of this behavior.

On December 13, 1997, Michael Faas sent a letter to the employer indicating that something was going on and that they should talk about it. On December 15, 1997, the employer sent a letter giving notice of a meeting in Mequon to discuss ADA issues. It did not mention the employe's earlier letter. Michael Faas saw a doctor on December 15, 1997 who prescribed tranquilizers and two weeks away from work for anxiety and insomnia. Mary Jane Faas saw a doctor on December 17, 1997 who prescribed time away from work for anxiety. The attorney sent copies of the physicians' statements which documented the employes' inability to work for two weeks, along with a letter indicating the employes would not appear at the meeting on December 18, 1997. However on that date, the employes appeared at a planning commission meeting in New Richmond on their motel.

The employes were off work from December 19, 1997 (week 51), through January 2, 1998 (week 1). When they returned to work January 2, 1998 (week 2), the employer's general partner discharged them from their employment for being off work for a false reason, failing to attend a December 18th meeting and acting against the employer's business interests by using work time to develop a motel business of their own at New Richmond, Wisconsin.

The issue to be decided is whether the employes discharge was for misconduct connected with their employment.

The employes' presented medical evidence in support of their claims of anxiety and related their symptoms to the employer's conduct following the announcement of their intention to build a motel. The commission does not find it implausible that the employer's behavior caused both parties to develop stress-related symptoms and that their doctors advised a two week break from work and tranquilizers as a remedy. The fact that they attended the planning meeting does not invalidate the medical excuses. One may be taken off work for a medical condition without being incapacitated with regard to all activities. Therefore, the commission concludes that they were absent from work for a valid reason and with notice to the employer. The employer has failed to demonstrate a deliberate and substantial disregard to its interests arising from their absences from work or from their conduct in developing a motel.

The commission therefore finds that in week 1 of 1998, the employes were discharged but not for misconduct connected with their employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employes are eligible for benefits beginning in week 1 of 1998, if they are otherwise qualified. They are not required to repay any sums to the Unemployment Reserve Fund.

Dated and mailed: November 12, 1998
faasmar.urr : 178 : 1 MC 605.09 MC 610.04

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge prior to reversing his decision. Although the ALJ did not credit the validity of the employes' medical excuses, the commission does not find them inherently incredible for the reasons stated above and reverses accordingly.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the fact that the employes were able to attend the New Richmond planning board meeting on the same day they were scheduled for a meeting in Mequon to discuss ADA matter with the employer's attorney shows that their medical claims are not credible. A doctor's diagnosis is only as good as the information provided by the patient is. If the patient gives the doctor incorrect information the diagnosis is also likely to be faulty. Neither employe saw the doctor until after the December 15, 1997 Fax from the employer about the December 18 meeting.

I believe that the employes intentionally disregarded the employer's interest so they could pursue their own plans for a motel. I would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner


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