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

DEBBIE C EVANS, Employee

YUNKER INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08000745JV


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for 15 years as a screen print operator for the employer, a manufacturer of retail imaging products. Her last day of work was January 16, 2008 (week 3).

The employer has several Hispanic employees, some of whom speak Spanish to one another in the workplace. On January 14, 2008, while leaving the break room, the employee stated in an offensive tone and loudly enough for several coworkers to hear "We're in America. Speak English, not Mexican."

A receptionist, who was not Hispanic, heard the comment, found it offensive, and reported it to the employer. The employer investigated the incident and learned from other workers that the employee had made similar comments in the past that went unreported. Three workers who had heard the employee's comment found it offensive. The employee admitted that she made the comment. She did not like her coworker's speaking Spanish at work because she could not understand what they were saying. She did not think her comment was offensive, because "it was true."

The employer has a harassment policy that is designed to provide a workplace free of physical, psychological, verbal and nonverbal harassment based on any legally protected characteristic, including national origin. Under the terms of the policy, harassment may exist when conduct creates an intimidating, hostile, threatening, or offensive work environment. Violations of the policy are grounds for discipline, up to and including termination.

Because the employee was a good and valued worker, and because she had responded positively to discipline imposed in the past for a different policy violation, the employer decided that it would not discharge the employee. In lieu of termination, the employer offered the employee a last change agreement, whereby she would agree to a referral to the Employee Assistance Program (EAP) and a three-day suspension.

On January 16, 2008, when the employer informed the employee of its decision to refer her to EAP, the employee refused to go telling the employer it might as well just fire her. The employee believed that the referral to EAP for the comment she made was unjustified because, in her opinion, she had done nothing wrong. She did not have the time, money, or desire to go through EAP.

When the employee told the human resources supervisor that she might as well fire her, the supervisor said, "Okay, then I don't have anything further to say at this point" and told her that the employer would get her belongings to her or that the employee could take them with her. The employee left the employer's business and never returned believing that she had been fired. The employee subsequently initiated a claim for unemployment insurance benefits.

At the hearing, the employer contended that the employee voluntarily terminated her employment.

The issue to be decided is whether the employee quit or was discharged and, depending upon the nature of the separation, whether the employee is eligible for unemployment insurance benefits.

The statutory concept of voluntary termination is not limited to the situation where an employee says, "I quit," and may, in fact, include situations where the employer has discharged the employee. Nottelson v. ILHR Department, 94 Wis. 2d 106, 119, 287 N.W.2d 763 (1980). Yet, in order for a voluntary termination to be found, the employee's actions must evince an intent to leave the employment, with such intention indicated by word or manner of action, or by conduct inconsistent with the continuation of the employee-employer relationship. Dentici v. Industrial Comm., 264 Wis. 181, 186, 58 N.W.2d 717 (1953). Where there is ambiguity regarding a separation from employment, when determining whether the separation was a quit or a discharge one looks for the party that initiated the ultimate separation. Kline v. Laub & Horton, Inc., UI Dec. Hearing No. 00601736MW (LIRC May 16, 2000). Additionally, a mere request to be laid off, does not constitute a severing of the employment relationship because it depends on the employer's acquiescence. Alan M. Greuel v. Jimm Greeley Signs & Awnings Inc., UI Dec. Hearing No. 98001074DV (LIRC June 12, 1998).

In this case, the administrative law judge characterized the employee's refusal to attend the EAP program as the voluntary termination of employment. The commission disagrees. While the employee did refuse to attend the EAP program, such a refusal, by itself, could not be considered a voluntary termination of the employment relationship. When the employee also indicated that the employer might as well fire her, this statement made the situation more ambiguous. The employee was not explicitly refusing to work or quitting even though she clearly disagreed with the discipline to be imposed. When the human resources supervisor responded, "Okay" and then discussed the collection of the employee's belongings at work, the employer ended the employment relationship. Thus, the commission finds that the employee was discharged.

Although some sort of discipline clearly needed to be imposed for the employee's behavior, the commission does not find that the employee's discharge was for misconduct connected with the employment. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute. Boynton at 260.

In addition, the commission has consistently held that except for the most serious offenses, the employer has an obligation to warn a worker that her performance is not satisfactory and give her an opportunity to improve before a finding of misconduct can be made. Marcolini v. Alma Public School, UI Dec. Hearing No. 7820774EX (LIRC May 29, 1979). In Smallcombe v. The Noodle Shop Co., UI Dec. Hearing No. 02608958MW (LIRC June 10, 2003), the commission provided that to sustain a burden that harassment is misconduct connected with the employment,

an employer would typically need to show that the harassing conduct was severe and pervasive, or, if a single act, unusually egregious. See, Braxton v. Research Products Corp., UI Hearing No. 9903077MD (LIRC Dec. 27, 1999) (a single offensive statement would typically not support a finding of misconduct). Such unusually egregious acts typically involve conduct such as physical touching in the sexual harassment context, or an actual or implicit threat (see, e.g., Bollman v. LIRC and Wisconsin Bell, Inc., (Waukesha Co. Cir. Ct., Dec. 13, 2002) (hanging a noose over an African-American employee's desk was threatening and, even though a single incident, rose to the level of misconduct).

At the hearing, the employee conceded that she may have overreacted and spoke too fast at the meeting when it was suggested that she attend EAP. The commission finds that the employee's behavior at this meeting was more a kin to poor judgment than intentional misconduct, especially since this was the first disciplinary action imposed upon her for violation of the harassment policy. Furthermore, without prior warning that such behavior jeopardized her employment, the commission finds that the employee's statement about speaking English did not rise to the level of misconduct as that phrase has been defined above.

The commission therefore finds that in week 3 of 2008, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7) but was discharged and her discharge was not for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is modified to conform with the above findings and, as modified, is reversed. Accordingly, the employee is eligible for benefits beginning in week 3 of 2008, if otherwise qualified.

Dated and mailed May 23, 2008
evansde.urr : 150 : 8  MC 626 ; MC 699.05

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not confer with the administrative law judge prior to reversing the appeal tribunal decision. The commission's reversal is due to the commission's reaching a different legal conclusion regarding the nature of the separation of employment upon essentially the same facts as found by the administrative law judge and which were undisputed.


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