ELLEN M GOODSON, Employee

LODI VETERINARY HOSPITAL SC, 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 approximately five years as a certified veterinary technician for the employer, a veterinary hospital. Her last day of work was August 30, 2007 (week 35).

The initial issue to be decided is whether the employee quit or was discharged by the employer. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged by the employer, a secondary issue is whether that discharge was for misconduct connected with that employment.

The employee's regular work schedule was Monday from 1:00 p.m. to 7:00 p.m., Wednesday from 1:00 p.m. to 6:00 p.m., Thursday from 7:00 a.m. to 5:00 p.m. and Friday from 12:00 p.m. to 6:00 p.m. or 8:00 a.m. to 6:00 p.m. She would begin working on Tuesday at 7:00 a.m. or 1:30 p.m. Between May 14 and June 7, 2007, the employer accommodated the employee's scheduling request which allowed her to attend an animal biology class Monday through Thursday from 8:30 a.m. to 4:30 p.m. The employee worked a "long day" on Friday and picked up extra shifts on the weekends.

On August 1, 2007, the employee informed the practice manager that she had registered to take biology-related classes at a technical college beginning August 27, 2007, and ending December 17, 2007. The employee indicated that she may be interested in pursuing a degree. She requested that her work schedule be changed to accommodate her schooling. The employee indicated that she would be available for work until 2:30 p.m. on Monday and Wednesday and until 4:30 p.m. on Tuesday and Thursday. She had no classes on Friday. The employee was willing to work extra shifts on the weekends. The practice manager told the employee to provide her written request to the scheduler. The practice manager informed one of the veterinarians of the employee's scheduling request. On or about August 8, the employee left a note for the scheduler that said, "I am going back to school again this fall so my schedule is going to be changing."

On August 8, 2007, the employee and the veterinarian discussed the employee's scheduling request. The employee advised the veterinarian that she would work any hours outside of her school schedule including extra weekend shifts and all day on Friday. The employee stated she loved her job and did not want to "lose it" and, therefore, was willing to no longer be considered a full-time employee if necessary to remain employed. The veterinarian responded that "special schedule accommodations were reserved for valued employees with children" and that she tended "To be sick more often when [she went] to school and work." The veterinarian was aware that the employee suffered from an autoimmune disorder. The veterinarian advised the employee that her "emotional bank account with [her] fellow employees [was] low because of [her] unreliability due to [her] illness." The veterinarian told the employee that she was not a "team player" if she returned to school because it posed scheduling difficulties.

On August 9, 2007, the veterinarian advised the scheduler to draft a revised schedule to see if the employee's scheduling request could be accommodated. Later that day, the practice manager and the veterinarian met with the employee to discuss her scheduling request. The employee was told that it would be difficult to accommodate her request without burdening the other technicians. The veterinarian asked the employee if her decision to return to school was final to which the employee responded "yes."

On August 15, 2007, the employee changed her class schedule to minimize the conflicts with her regular work schedule. The employee's new class schedule was Monday and Wednesday from 4:15 p.m. to 6:15 p.m. and Thursday from 5:30 p.m. to 8:45 p.m. On or about August 17, the employee informed the veterinarian that she could work until the early afternoon on Monday and Wednesday, all day Tuesday and Friday, and until 4:45 p.m. or 5:00 p.m. on Thursday. Shortly thereafter, the veterinarian instructed the practice manager to have a schedule drafted that did not include the employee. Upon discovering that she was no longer on the schedule, the employee contacted the veterinarian who advised that the scheduler would be contacting her to discuss shifts that she could pick up.

On August 20, 2007, the scheduler presented the employee with a list of shifts that the employee could work during the month of September. The employee offered to work six of the eight shifts. The employee also spoke with her co-workers to see if she could take their shifts for them. On or about August 28, the employee presented the scheduler with a proposed schedule for the month of September reflecting the shifts the employee would be available to work. The scheduler did not amend the September schedule because she did not receive permission from the veterinarian.

On August 29, 2007, the practice manager called the employee to advise that she would be the only technician who would not be attending the off-site technician meeting the next day. The employee was instructed to remain at the veterinary hospital in the event that an emergency rose. The veterinarian made the decision that it would be the employee who remained at the hospital.

On August 30, 2007, the veterinarian and the practice manager initiated a meeting with the employee. The veterinarian told the employee that the way she had approached the schedule change was "inappropriate." The veterinarian asked the employee, "do you plan on working your full-time schedule as determined by the person in charge of scheduling CVTs?" The employee responded, "no," because the schedule conflicted with her schooling and she felt that she was being treated unfairly. The veterinarian then stated, "If it is your decision to decline full-time employment, we ask that you turn in your key and empty your personal belongings from the building." The employee left the room and never returned to work thereafter. The employer had accommodated workers' scheduling requests in the past which were often made at least one month in advance. The employer does not have a formal procedure for requesting schedule changes.

The employee contended that she was discharged by the employer. That contention cannot be sustained.

The key element to determining whether an employee voluntarily quit is the employee's intent. The courts have consistently held that an employee can show intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d 1, 6 (1963). In this case, the employee was the moving party in the separation of employment. Had the employee chosen to continue working a full-time schedule, she would have remained employed. The employee chose to end her employment rather than forgo her schooling. The employee's actions were not consistent with a worker who desires to continue the employment relationship. Accordingly the employee voluntarily quit and was not discharged by the employer.

The next issue that must be resolved is whether the employee quit for a reason that would permit the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. Good cause attributable to the employer means that the employee's resignation is caused by some act or omission by the employer which justifies the employee's decision to quit. It involves some fault on the employer's part and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 298, 134 N.W.2d 412 (1965); Hammer v. DILHR, 92 Wis. 2d 90, 284 N.W.2d 587 (1979).

The employee quit her job with the employer because the employer would not change her schedule in a way that would allow her to go to school. It was the employee's decision to attend school. The employee requested a significant schedule change less than a month before she wanted the change to begin. The employer made several attempts to accommodate the employee's scheduling request but was unable to do so. The employer had accommodated her request for a schedule change in the past, and was not required to do so every semester. The employer made comments to the employee that were inappropriate and that lacked empathy. However, the employee did not quit because of those statements. She ultimately quit because the she would rather go to school than remain employed with the employer. Even assuming that the employer allowed other workers to change their schedules, it was not demonstrated that she was treated unfairly. For example, the employee did not present evidence that other workers in the same situations were allowed to rearrange their schedules. At any rate, an employer is not required to accommodate every schedule change that a worker requests. The fact that the employer would not make a significant schedule change that would last an entire semester, when the employee gave the employer little notice of the change, was not an action that was so egregious that it gave rise to good cause attributable to the employer for quitting.

The commission therefore finds that in week 35 of 2007, the employee was not discharged by the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that in week 35 of 2007, the employee terminated work with the employer, within the meaning of Wis. Stat. § 108.04(7)(a) but that her quitting was not for any reason which would allow for immediate benefit payment. The commission further finds that the employee was paid benefits in weeks 35 through 41 of 2007, totaling $1,636.00 for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c).

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 35 of 2007, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $1,636.00 to the Unemployment Reserve Fund.

Dated and mailed March 21, 2008
goodsel . urr : 145 : 6  VL 1005.01

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing her decision. The commission reversed the ALJ's decision because it reached a different legal conclusion when it applied the law to the facts found by the ALJ.

cc: Attorney Timothy Scheffler

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