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

JOSEPH D ZICCARELLI, Employee

MAPLECREST COUNTRY CLUB INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09602901RC


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, except that it makes the following modifications:

In the final paragraph on page 1 of the decision, the language after the comma in the first sentence is deleted; the second sentence is deleted; and, in the third sentence, the words "A couple of days later" are replaced with "Three or four days later."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 39 of 2008, 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 employer shall remain charged for the erroneously paid benefits of $3,267. No overpayment is created.

Dated and mailed July 24, 2009
ziccajo . umd : 115 : 5  VL 1005.01  BR 319.4  PC 714.07

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee worked four years as a head chef for the employer, a country club.

Prior to September 23, 2008, the employee had asked the employer for health insurance benefits and for additional staff. The employer had not granted these requests and the employee was displeased by this.

The employee is Italian. The ALJ found that, around noon on September 23, 2008, the employee overheard the general manager, who was serving sausages to customers, state "Good, we have too many Italians here anyway," after a customer selected an Italian sausage. The employee testified that the general manager stated to the customer instead that, "You don't need another fucking Italian in this town. We got too many of them."

The ALJ specifically held that, "The tribunal finds the employer's testimony to be the credible version of events," and the commission found no persuasive reason to overturn this credibility determination. In particular, the employer's version simply makes more sense given the circumstances in which the statement is made, i.e., the conversation between the customer and the general manager occurred when the customer was selecting an Italian sausage, and, prior to the customer's selection, the remaining Italian sausages significantly outnumbered the remaining brats and hot dogs.

The employee phoned the owner who then contacted the general manager. The general manager explained to the employee that he had been referring to sausages, but, if he offended the employee, he was sorry.

Even though the employee was expected to remain at work that day until a meal was served at around 5:00 p.m., the employee instead told the general manager he was not going to take it any more and he was leaving. The employee then left the work site several hours before 5:00 p.m.

The employee was next scheduled to work on September 24, 2008. The employee did not report to work that day, and did not provide notice to the employer that he would be absent. The employee testified that he spoke to Leroy, one of his assistants, and Leroy told him that he was not allowed to return to work. On this basis, the ALJ found that the employee did not report to work that day "because one of his assistants had told him that he was not allowed to return to work." However, Leroy did not testify, and the employee's testimony in this regard was uncorroborated hearsay. The general manager testified that he had never told Leroy that the employee was prohibited from returning to work. It should also be noted that Leroy was one of the employee's subordinates, not one of his superiors, and, even if Leroy had said this to the employee, it would have been unreasonable for the employee to have relied upon this statement to absent himself from work.

Three or four days later, the employee phoned the employer's owner and left a message asking to return to work. The owner did not contact the employee.

The employee left his duties before they were completed on September 23, stating that he could not take it any more and he was leaving, and then, without notice, did not report for his next scheduled day of work. This was conduct inconsistent with the continuation of the employment relationship, and is more accurately characterized as a quit than a discharge.

The employee did not prove that he quit with good cause attributable to the employer, the only exception to the quit disqualification arguably applicable here.

The employee, as discussed above, did not prove that the general manager made a disparaging statement relating to his ethnic background/national origin. Moreover, the record does not show that the employer had ever made a commitment to provide health insurance, or additional staff, for the employee.

The ALJ also found that the employer had been asked for information during the department investigation but had failed to provide it, and, for this reason, benefits should remain charged to the employer's account.

Exhibit #1 is a memo created by a department adjudicator to the effect that a call was placed to the employer's number and a message left requesting information, but that the employer did not return the call or otherwise provide this information. Although exhibit #1 is hearsay, Wis. Stat. § 108.09(4o) states as follows:

(4o) Departmental records relating to benefit claims. In any hearing before an appeal tribunal under this section, a departmental record relating to a claim for benefits, other than a report specified in sub. (4m), constitutes prima facie evidence, and shall be admissible to prove, that an employer provided or failed to provide to the department complete and correct information in a fact-finding investigation of the claim, notwithstanding that the record or a statement contained in the record may be uncorroborated hearsay and may constitute the sole basis upon which issue of the employer's failure is decided, if the parties appearing at the hearing have been given an opportunity to review the record at or before the hearing and to rebut the information contained in the record. A record of the department that is admissible under this subsection shall be regarded as self authenticating and shall require no foundational or other testimony for its admissibility, unless the circumstances affirmatively indicate a lack of trustworthiness in the record. If such a record is admitted and made the basis of a decision, the record may constitute substantial evidence under s. 102.23 (6). For purposes of this subsection, "departmental record" means a memorandum, report, record, document, or data compilation that has been made or maintained by employees of the department in the regular course of the department's fact-finding investigation of a benefit claim, is contained in the department's paper or electronic files of the benefit claim, and relates to the department's investigative inquiries to an employer or statements or other matters submitted by the employer or its agent in connection with the fact-finding investigation of a benefit claim. A departmental record may not be admitted into evidence under this subsection or otherwise used under this subsection for any purpose other than to prove whether an employer provided or failed to provide to the department complete and correct information in a fact-finding investigation of a claim.

The employer's owner testified that the phone number referenced in exhibit #1 is the employer's main number. The employer's owner also testified that he did not receive the message, but that he was not the only person to retrieve messages from the answering machine. Exhibit #1, by operation of Wis. Stat. § 108.09(4o) constitutes prima facie evidence that information was requested of the employer during the adjudication of the employee's claim but that the employer did not provide the requested information. The employer failed to successfully rebut this evidence.


Editor's Note: Action for judicial review was dismissed on procedural grounds. Ziccarelli v. DWD, Case No. 10CV776 (Kenosha Cnty. Cir. Ct. Oct. 20, 2010).


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