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

TODD L PETERSON, Employee

DEPARTMENT OF NATURAL RESOURCES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08002334MD


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 17 of 2008, if otherwise qualified.

Dated and mailed January 23, 2009
peterto : 150   MC 628  MC 605.09  MC 653.2  PC 714.10

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee worked 24 years, most recently as a public lands specialist, for the employer, the Wisconsin Department of Natural Resources (WDNR). On Tuesday, April 22, 2008, the employer informed the employee, via letter, that he would be discharged effective April 25, 2008 (week 17). The employee and his attorney attempted to have the employer reconsider the termination. The employer agreed to allow the employee to submit a resignation letter in order to allow him to retain his seniority, sick leave, retirement and reinstatement eligibility. At no point did the employer agree to allow the employee to return to work. The employee submitted his resignation letter on April 25, 2008. Thereafter, he initiated a claim for unemployment insurance benefits. The initial determination allowed benefits. The employer appealed and, following a hearing, the appeal tribunal decision affirmed the determination.

The WDNR petitioned the appeal tribunal decision. The petitioner's primary arguments for reversal are that:

Quit or Discharge

The commission rejects the petitioner's argument that the employee's termination was a voluntary separation. In particular, while a quitting may be found in a situation where an employee does not actually say, "I quit" and the employer has notified the employee of his/her discharge, a discharge can also occur in a situation where the employee has submitted a resignation. See Clifton v. OK Credit Reporting Service Inc., UI Dec. Hearing No. 07400553AP (LIRC July 30, 2007). Specifically,

[I]f the evidence shows that the employee quit in lieu of impending discharge, the employer and not the employee is the moving party in the separation. Clifton.

More precisely in a case such as this one before the commission, the determination of whether the employee quit or was discharged depends on whether the evidence establishes that the employer would not have allowed the employee to continue working if the employee had not resigned. See Clifton v. OK Credit Reporting Service Inc., UI Dec. Hearing No. 07400553AP (LIRC July 30, 2007); Stahlman v. Whitnall School District, UI Dec. Hearing No. 06002990MD (LIRC January 11, 2007); Fisher v. Black & Decker US Inc., UI Dec. Hearing No. 01000407JV (LIRC Dec. 11, 2001); Buchberger v. City of Sheboygan, UI Dec. Hearing No. 04404052SH (LIRC May 4, 2005); Mandl v. MBTI Inc., UI Dec. Hearing No. 02600108MW (LIRC April 5, 2002). The facts in this case are clear, the employer was not going to reconsider the termination and, in fact, denied the employee's request for accommodation. As such, the employee was discharged.
 

Misconduct Issue

The petitioner argued that the ALJ failed to take an objective approach to the misconduct standard as it relates to the employee's actions. Specifically, after citing to Universal Foundry Company v. ILHR Dept., 86 Wis. 2d 582, 237 N.W. 2d 324 (1979) and Wehr Steel Co, v. ILHR Dept., 106 Wis. 2d 111, 116 (1982) the petitioner argued,

It's clear that Wisconsin courts ultimately find, when determining whether an employee's actions constituted misconduct, that a lack of the employee's willfulness or intent is not alone dispositive. Reviewing courts use an objective, reasonable person test to determine whether the employee willfully disregarded the employer's interests. Therefore, even if the evidence shows that the employee did not intentionally act with disregard for the employer's interests, the employee's actions may still constitute misconduct.

Prior to addressing the petitioner's legal argument, the commission believes a review of the facts presented at hearing is appropriate. The situation leading to discharge began on April 6, 2006, when the employee's supervisor took him to a hospital for seizures. On April 11, 2006, a doctor treating the employee notified the employer that the seizure was related to alcohol withdrawal and that the employee should not return to work until completing intensive inpatient therapy for alcoholism. Although the employee was originally scheduled to return to work in May 2006, the employee contacted the employer to notify it of his treatment status and the fact that he was not ready to return to work. After in patient treatment with Dr. Miller, the employee was released to return to work in late August. The employee had been a Section Chief with the employer but, upon return to work, the employee was temporarily reassigned to a job with fewer responsibilities. On February 26, 2007, the employee received a five-day disciplinary suspension for neglect of duties as Section Chief and inappropriate use of the employer's email system.

Later, in September 2007, the employee was absent from a significant portion of a conference he was assigned to attend in Cable, Wisconsin. He did not work all the hours he listed on his timecard for this event. On September 18, 2007 the employee was again hospitalized for alcoholism. On September 28, 2007, the employee's supervisor directed the employee to check in with her at the start of each day to discuss his schedule and directed him to keep his electronic calendar current. An October 2, 2007 memo reinforced this expectation. On November 14, 2007 a pre-disciplinary hearing was held based upon the conference situation. The employee notified employer that he had relapsed. The employee indicated he was again in active treatment. On December 5, 2007, the employee received a 10-day disciplinary suspension based upon the employee's absence from a conference and his inappropriate use of the employer's computer/email system for personal business.

Following the 10 day disciplinary suspension, the employee was absent without notice on December 27 and 28, 2007. On January 7, 2008, in a meeting with the supervisor, the employee indicated that he was ill on December 27 and 28 but had no explanation for his failure to call in. The employee was reminded to check in and to notify employer when absent. On February 12, 13 and 15, 2008 the employee was again absent without notice to his supervisor or coworkers who were to attend meetings with the employee; the employee also had meeting responsibilities which had to be handled by his coworkers. On February 18, 2008 the employee told his supervisor he had had another relapse of alcoholism and was entering a 28-day inpatient program. The employee submitted a request for FMLA for the period beginning on February 19 and ending on March 21, 2008; the leave was approved. On March 14, 2008, a pre-disciplinary hearing was held. The employee indicated that his February failures were due to a relapse.

On April 2, 2008, the employee requested accommodation due to the disability of alcoholism. The employee also submitted a letter from Dr. Miller indicating that the employee was in recovery, was taking medication to assist him with avoiding another relapse, was actively attending treatment and was functioning at a high level. As mentioned previously, the employment relationship ended on April 25, 2008 (week 17).

At the hearing a customized medical report was received as Exhibit 15. It was completed by Dr. Miller, who has been treating the employee for over two years. The doctor certified that the employee is an alcoholic and has been clinically depressed for the past several years. Dr. Miller also indicated that the employee has been hospitalized six times due to alcoholism since December 2005 and has been prescribed medication for his alcoholism and depression. More importantly, the doctor certified that:

The petitioner argues that, despite this record, a "reasonable person" would conclude that the employee's actions willfully interfered with the employer's interests and, as such, his discharge was for misconduct connected with his employment. The commission disagrees. Specifically, the reasonable person approach is premised on the fact that that an individual intends the ordinary and natural consequences of his or her actions or failure to act; yet, this presumption may be negated by competent medical evidence. See Dougar v. Securitas Security Services USA Inc., UI Dec. Hearing No. 04611569MW (LIRC February 16, 2008).

In Seering v. Brown County Department of Community Programs, UI Dec. Hearing No. 93402311GB (LIRC May 6, 1994), the commission explained that

where an employe has no control over his or her use of alcohol, and this lack of control leads to tardiness and absenteeism, the employe's actions do not amount to misconduct, because they do not demonstrate an intent to harm the employer's interests. Varney v. Saint Joseph's Hospital, (March 19, 1992)).

Toward this end, the commission has required an expert medical opinion that a worker is not able to control his or her consumption of alcohol. See Hill v. Chicago Lock Co., UI Dec. Hearing No. 98601718RC (LIRC September 10, 1998); Trew v. Patrick Cudahy Inc., UI Dec. Hearing No. 93606393MW (LIRC Jun. 15, 1994); Seering v. Brown County Department of Community Programs, UI Hearing No. 93402311GB (LIRC May 6, 1994).

In this case, the employee has submitted an expert report certifying that for the material dates of absence, the employee was unable to control his alcohol consumption and it totally disabled him. The commission will not "second guess" this expert opinion. Under these circumstances, while the employer may have made a valid business decision, the employee's actions do not constitute misconduct connected with the employment.


cc: Attorney Dan Graff


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