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


KENNETH V HADLEY, Employe

VISION HOUSE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98604656RC


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, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about three years as a resident monitor for the employer, a transitional living center. The employe's last day of work was April 1, 1998 (week 14).

The issue which must be decided is whether the suspension of the employe's employment during weeks 14 and 15 of 1998 was a disciplinary action for good cause connected with the employment.

On March 31, 1998, the employe's direct supervisor left a written memo for the employe to review and sign. The memo indicated that, as of April 12, 1998, the employe would be transferred to "Harith House." At the time, the employe was stationed at "Vision House." Both facilities are transitional living centers for individuals coming out of prison. Harith House has approximately twice as many residents as Vision House. Prisoners are initially placed at Harith House and, if they successfully complete the program at Harith House, and there is room at Vision House, the workers are transferred to Vision House. Thus, the residents at Vision House were considered, at least by the employe, as being "easier" to handle.

The employe's supervisor asked him if he had signed the memo (agreeing to the transfer). The employe responded by saying "I'm not signing shit-I'll see you in court."

The employer wanted to transfer the employe to Harith House because two workers there had recently been terminated. Thus, there was a shortage of workers at the facility.

On April 1, 1998, the supervisor reported the incident to her supervisor, the interim executive director. The interim executive director called the employe at home to discuss the incident. According to the director of operations, the employe was "loud and threatening" in his tone and used a lot of profanity, including such things as "I'm not taking this shit" and "You motherf---ers are trying to screw me over." He felt that it was a mistake to have females in positions of authority within the organization. He also felt that his supervisor was "out to get him."

As a result of the incident with his supervisor, as well as the phone conversation with the interim executive director, the employe was put on suspension pending an investigation of the incident. The interim executive director wished to interview residents to see if they overheard the employe use profanity. The executive director indicated that the use of profanity to the supervisor and himself were not grounds for dismissal. The record does not support a conclusion that the suspension was disciplinary in nature, only for purposes of investigation. The commission has not considered a suspension for investigation to be a disciplinary suspension. Henry L. Brown v. Jewel Food Store, UI Dec. Hearing No. 98605057MW (LIRC Oct. 20, 1998).

The commission therefore, finds that in weeks 14 and 15 of 1998, the employe's employment was suspended, but not as a disciplinary action for good cause connected with his work, within the meaning of Wis. Stat. § 108.04(6).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits in weeks 14 and 15 of 1998, if he is otherwise qualified.

Dated and mailed: November 19, 1998
hadleke.urr : 145 : 5   MC 676

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not consult with the administrative law judge regarding witness credibility. The commission's decision to reverse is not based upon any differing assessment of credibility, but as a matter of law based on essentially the same set of facts as that found by the administrative law judge.


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