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

ANTOINE H. CHRISTIAN, Employee

A M EXPRESS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09404416AP


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, Antoine H. Christian, is a truck driver. The employer, A M Express, Inc., is an over-the-road trucking business.

The employee first worked for the employer in July, 2007. In January, 2008, he was subjected to a random drug test, and he tested positive for use of illegal drugs. The employer then terminated him because it was required to do so by federal Department of Transportation (DOT) regulations.

Under DOT regulations, if an individual has tested positive for illegal drugs, they are required to go through a substance abuse treatment program before resuming work as an over-the-road truck driver.

Around August, 2008, the employee again applied for employment with the employer. At that time, he told the employer that he had completed a substance abuse program and wanted to return to work. However, as part of the application process, the employee was also subjected to a pre-employment drug test. He again tested positive for use of illegal drugs. As a result of this positive test, he was not re-hired.

Around May 2009, the employee again applied for employment with the employer. At that time he told the employer's Loss Prevention and Human Resources Manager, Dan Weddig, that he had been working as a truck driver for another employer, Dedicated Systems, for about six months.

When the employee again applied for re-employment with the employer in May, 2009, he told Weddig that he had completed all of his substance abuse programs and was eligible under DOT regulations to return to work. The employee also completed an "Employee's Previous Pre-Employment Drug And Alcohol Test Statement" form on which he acknowledged that he had previously tested positive on a drug test, and on which he answered "Yes" to a question asking if he could obtain and provide proof that he had successfully completed DOT requirements of the return-to-duty process, certifying by his signature that the information was true and correct.

Weddig did not ask the employee for verification of his claim that he had completed all of his substance abuse programs and was eligible under DOT regulations to return to work. Weddig made an assumption that because the employee had been working for six months as a truck driver for another employer, he must indeed have satisfied the requirements for returning to work as a truck driver. Weddig trusted that the employee had been truthful when he certified on the "Employee's Previous Pre-Employment Drug And Alcohol Test Statement" form that he had completed all of his substance abuse programs and was eligible under DOT regulations to return to work.

In fact, the employee had not been truthful when he stated that he had completed all of his substance abuse programs and was eligible under DOT regulations to return to work. He had not completed any substance abuse program. The employee acknowledged in his testimony at the hearing, that he lied on this form, and knew that he lied.

On October 12, 2009, in a meeting with Weddig and Pat Barron, the employer's President and CEO, the employee presented a letter (dated October 9, 2009). The letter began by stating that the employee had been concerned about the manner in which his pay was being figured, that after being unsatisfied by the explanations which were given to him by representatives of the employer he "referred himself" to the Commercial Federal Safety Regulations pocketbook, and that "while browsing through [those] statutes [he] realized" that the employer had "blatantly disregarded and violated grossly" several major Federal Motor Carrier regulations. The letter went on to complain about certain misfortunes which occurred in the employee's personal life, which he blamed on the employer's decision to fire him when he first tested positive for drugs instead of referring him to a substance abuse program. The letter went on to complain that the employer "sent [him] away with no regard" the second time he tested positive for drugs. The letter went on to assert that when the employee came back to the employer he was told by the employer's staff to engage in a "blatant lie" by stating that he had completed his drug treatment "so the insurance company would insure me". The letter continued by stating:

I am asking that AM Express, Pat Barron and Dan Weddig, for your gross disregard of the law and the endangerment of myself, my license, the public and respectfully the loss of my dogs, Kally and Sunshine.

1. Refer me and pay for my A.O.D.A. treatment while on paid leave at $600.00 a week, non-taxable.

2. Award me $25,000.00 for damages and loss of lives and endangerment of myself and the public safety.

3. Once my treatment is successfully completed, return me to duty at 40 cents a mile.

This is not a threat or in anyway a blackmail situation. I was told to try to resolve these situations at an Administrative level, before enacting a Whistle Blower Law and reverting to Federal Motor Carrier Safety Administration, Washington, DC, Department of Transportation as well as the Department of Workforce Development.

You do have the right to decline these negotiation attempts without prejudice in that response, I will use all necessary avenues and agencies to properly help me prosecute you to the fullest extent of the law, which is my due right.

After Weddig and Barron read the letter, Weddig asked the employee if he seriously expected the employer to pay him $25,000, and the employee said that he did.

At some point, the employee said something about working in the shop or in the office. However, the employer does not have a shop; all of its work of that nature is outsourced. There was no work available in the office. Weddig told the employee that the employer could not provide him any such work. The employee mentioned something about a driver with a broken foot being in the office, and Weddig stated that that was a different situation and was a worker's compensation matter.

At some point, Barron angrily told the employee to leave the office. The employee left the office, left the building, and went home. Later that day, Weddig went to the employee's home and took the employer's truck which the employee had there. There were no further contacts between the employee and the employer. The employee never returned to work with the employer. The employment relationship between the employee and the employer thus ended as of October 12, 2009 (week 42 of 2009).

The first issue for decision is how the ending of the employment relationship between the employee and the employer should be characterized for unemployment insurance purposes.

The evidence in the hearing record provides no basis to find (as did the department's initial determination) that the employee was on a "leave of absence," or that his employment was "suspended." The employer did not do or say anything to indicate that it was placing the employee on a leave of absence or considered him to be on such a leave, or that it considered his employment suspended. The evidence in the record, particularly the evidence as to the manner in which the employer's CEO ordered the employee to leave and the evidence that the employer promptly went and recovered its truck which had been being used by the employee, is persuasive that as of October 12, 2009, the employment relationship between the employee and the employer was severed. The question then becomes, whether this severance of the employment relationship was a termination of the employee by the employer, within the meaning of Wis. Stat. § 108.04(5), or a voluntary termination of employment by the employee, within the meaning of Wis. Stat. § 108.04(7).

It is true, that the employee never said to the employer, "I quit." However,

the statutory concept of "voluntary termination" is not limited to the employee who says, "I quit." "Voluntary termination" under the statute can encompass a situation in which the employer discharges the employee.

Nottelson v. DILHR, 94 Wis. 2d 106, 119, 287 N.W.2d 763 (1980). The established test for whether a separation from employment is a voluntary termination of employment by the employee, within the meaning of Wis. Stat. § 108.04(7), is whether the employee "shows that he intends to leave his employment and indicates such intention by word or manner of action, or by conduct, inconsistent with the continuation of the employee-employer relationship." Nottelson, 94 Wis. 2d at 119. 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 which initiated the ultimate separation. See, Kline v. Laub & Horton (LIRC, May 16, 2000).

The employee had no colorable claim of right to the money he was demanding from the employer in his letter. While the federal Surface Transportation Assistance Act, 49 U.S.C. § 31105, provides legal protection against retaliation to "whistleblowers" who file complaints of alleged violations of trucking safety regulations, and while the remedies available to whistleblowers who have been retaliated against could include damages of various kinds, this would not even arguably justify the demands for money which the employee made to the employer on October 12. The reason for this is simple: at the time he made these demands for money from his employer, the employee had not yet filed any complaints of alleged violations of trucking safety regulations, there had not yet been any adverse actions taken against him by the employer because of his having filed any such complaints, and the employee had thus not yet suffered any injury of the type for which the STAA provides a remedy. It is clear from the first paragraphs of the employee's letter that the "damages" he was claiming in an attempt to justify his significant financial demands from the employer were simply the consequences of his previous discharge by the employer in January, 2008, due to his testing positive for illegal drug use, and the employer's previous failure to rehire him in August, 2008, again due to his testing positive for illegal drug use. Those, however, were legal actions by the employer which would provide the employee with no entitlement to damages.

In sum, no law, and no claim that the employee could properly assert under any law, even arguably required the employer to pay for A.O.D.A. treatment for the employee, or to provide him a paid leave of absence to take such treatment, or to pay him $25,000, or to give him a pay raise.

Given the fact that he had not completed the substance abuse treatment program required for him to be allowed to resume driving after his most recent positive drug test, it would have been reasonable for the employee to disclose this to his employer and to explore how he could go about meeting this requirement. However, the employee's conduct in presenting his employer with an ultimatum, demanding payment of sums of money to which he had no colorable claim of right, under threat of making allegations of lawbreaking against the employer, was entirely unreasonable. The very fact that the employee included in his letter the attempted disclaimer that "[t]his is not a threat or in anyway a blackmail situation," shows that the employee knew that it was likely, that the employer would perceive it as being precisely that. Given the circumstances described above, that was a reasonable perception. The employee's unreasonable conduct in presenting such an ultimatum was so likely to lead to his termination, as to be completely inconsistent with the continuation of the employment relationship.

The employee initiated the events which led to the severance of the employment relationship. He chose to confront his employer with a set of demands, based on a set of threats, that were obviously going to be considered completely unacceptable to even consider, much less negotiate. It would have been clear to any reasonable person that taking such a course of action would lead directly to the ending of the employment relationship. This was "word or manner of action, or...conduct, inconsistent with the continuation of the employee-employer relationship," within the meaning of Nottelson, supporting the conclusion that this was a voluntary termination of employment within the meaning of Wis. Stat. § 108.04(7)(a).

The next issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

If an employee voluntarily terminates employment, Wis. Stat. § 108.04(7)(a) provides that the employee's eligibility for benefits will be suspended until four weeks have passed since the week of quitting and the employee has earned wages in covered employment equaling at least four times his or her weekly benefit rate, unless the quitting falls within a specific statutory exception.

Contending as he does that he did not quit, the employee has not asserted that any of the exceptions found in the statutes are applicable to his voluntary termination of his employment here. The facts do not support a conclusion that the employee quit his employment within an exception that would allow the immediate payment of unemployment benefits.

It can particularly be noted that the facts would not support a conclusion that the employee's voluntary termination of his employment was for good cause attributable to the employing unit, within the meaning of Wis. Stat. § 108.04(7)(b). While that exception states that "good cause" includes a request, suggestion or directive by the employing unit that the employee violate the law, that did not occur here. The employee's assertion that the employer knew before October 12 that he had not completed the substance abuse program was not credible; the more credible evidence of the employer, accepted herein, is that the employer did not know this. Furthermore, it cannot be found that the employer engaged in such a request, suggestion or directive, after the employee disclosed on October 12 that he had not met the requirement, since that never came up: the employee's addition of extreme financial demands coupled with threats immediately precipitated the end of the employment relationship. The employer never "request[ed], suggest[ed] or direct[ed]" the employee to keep driving after it found out that he had not met the substance abuse program requirement.

The next issue to be decided concerns the overpayment of benefits.

Department records reflect that the employee received unemployment benefits for weeks 42 through 52 of 2009 and weeks 1 through 8 of 2010 in the amount of $6,798.00. These benefits were paid as a result of the outcome reached in the department's initial determination. However, since it is now found and concluded that the employee voluntarily terminated his employment, not within any statutory exception to the disqualifying effect of such a quitting, it follows that he was ineligible for benefits unless and until he has requalified. Accordingly, the benefits which were paid to the employee were paid erroneously and are a benefit overpayment which is required to be repaid. See, Wis. Stat. § 108.22(8).

Another issue to be decided is whether the overpayment of benefits to the employee was a result of department error or was partially or wholly because of the employee's actions, and whether the department is required to waive recovery of any portion of that overpayment.

Generally, a claimant who receives unemployment insurance benefits in error is required to repay those benefits to the department. The law provides that recovery of the overpaid benefits may be waived, but waiver is only required if the overpayment was the result of a departmental error, and was not the fault of any employer, and did not result from the fault of an employee or because of a claimant's false statement or misrepresentation. See, Wis. Stat. § 108.22(8)(c). Thus, for waiver of an overpayment to be required, all three conditions must be met. The law also provides that the fact that a determination is reversed does not establish that the determination was a "departmental error." See, Wis. Stat. § 108.22(8)(c)2.

As noted above, the erroneous payment of benefits to the claimant was a result of the outcome reached in the department's initial determination. Initial determinations are issued by the department based on ex parte investigation carried out primarily by telephone and mail; they do not have the benefit of an evidentiary record developed at a hearing. They are required to be carried out in a relatively short period of time, and they are necessarily heavily dependent on the information provided by the parties, which is sometimes less than entirely clear, or entirely consistent. The hearing record in this case shows that the employer and the employee had very different versions of the material facts. It appears that the benefits were paid because the initial determination was made without full and correct information as to the underlying issue, or reflected a differing interpretation of the information available at that point. There is no basis in the hearing record to conclude that the overpayment was caused by any "departmental error," and repayment of the benefits therefore cannot be waived.

It is therefore found that in week 42 of 2009, the employee was not on a leave of absence and the employee's employment was not suspended because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer, within the meaning of section 108.04(1)(b)1 of the statutes.

It is further found that in week 42 of 2009, the employee was not discharged by the employer, within the meaning of Wis. Stat. § 108.04(5) of the statutes.

It is further found that in week 42 of 2009, the employee voluntarily terminated his employment with the employer, within the meaning of Wis. Stat. § 108.04(7)(a) of the statutes, and that this quitting was not for any reason constituting an exception to benefit suspension under the statutes.

It is further found that the employee was paid benefits in the amount of $6,798.00, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1) of the statutes, and that the entire amount must be repaid to the department because the overpayment was not because of any error by the department, within the meaning of Wis. Stat. § 108.22(8)(a) and (c) of the statutes.

DECISION

The decision of the administrative law judge is modified to conform with the foregoing and, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 42 of 2009, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $6,798.00 to the Unemployment Reserve Fund.

Dated and mailed April 9, 2010
chrisan . urr : 110 : VL 1007.01 BR 335.04 PC 734

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

Materials outside of the hearing record filed by the employee -- The employee filed a large number of documents (as well as a DVD) with the Fox Valley Hearing Office of the DWD Unemployment Insurance Division on March 8, 2009, with his letter appealing the March 1, 2010 Appeal Tribunal decision. He also sent the same appeal letter to the commission, where it was received on March 10, 2010, also with a number of attachments, some the same as had accompanied his March 8 filing, and some different. He also sent another letter, and additional documents, to LIRC in a packet which was received on March 18. Most recently, on March 29, the employee faxed two more documents to LIRC.

By law, the commission is required to make its decisions based solely on the evidence which is properly admitted into the record in the hearing conducted before the administrative law judge. See, Wis. Stat. § 108.09(6)(d). Most of the materials which the employee filed with his petition for commission review and subsequently, were never offered or received as exhibits at the hearing which was held before the ALJ in this matter on February 25, 2010.

On March 8, the day that he first filed his petition for commission review, the employee was informed that the commission would only consider evidence properly received at hearing. He was informed that if he wanted other documents or evidence considered, he would need to make a request for, and provide justification for, further hearing, at which (if the request was granted) he could offer any such other documents into evidence and seek to have them admitted. The employee indicated in response that he would do so. However, the employee has not requested further hearing. Furthermore, he has not submitted any justification for holding any such further hearing. The non-record documents which the employee has submitted all appear to have been in existence prior to the hearing. The employee has not submitted anything which in any way claims that any of the documents he has filed were unavailable to him at the hearing, or which in any way explains why he did not attempt to offer them into evidence at the hearing.

For the foregoing reasons, the commission cannot consider, and has not considered, the materials filed by the employee with the commission which are not part of the record made at the hearing in this matter. 
 

Credibility -- The testimony of the employee, and the testimony of the employer's Loss Prevention and Human Relations Manager, Dan Weddig, was in direct conflict on a significant point at the heart of this case.

The employee testified that up until October of 2009, he had never known that DOT regulations required that he complete a substance abuse program before returning to work after a positive drug test. He testified that when he was in contact with Weddig in May, 2009 about becoming re-employed by the employer, Weddig told him that he should answer "Yes" to the question on the "Employee's Previous Pre-Employment Drug And Alcohol Test Statement" asking if he could obtain and provide proof that he had successfully completed DOT requirements of the return-to-duty process. The employee testified that Weddig told him he should answer "Yes" to that question because if he did not, the employer's insurance company would not let them hire him.

Weddig testified that when the employee called him to attempt to be re-hired the first time, the employee told him he had completed the substance abuse program requirement. Weddig also testified that when the employee called him to attempt to be re-hired the second time, after he had been working for Dedicated Systems, he told Weddig that he had completed all of his substance abuse programs and was eligible under DOT regulations to return to work. Weddig testified repeatedly, that he "absolutely" did not tell the employee that he should answer "Yes" to the question on the statement about proof of completion of DOT return-to-duty requirements, or that he should do so because otherwise the employer's insurance company would not let them hire him. He testified that he believed the employee had satisfied the requirements because he trusted the employee when he said he had and because he assumed from the fact that the employee had been able to work for Dedicated Systems that he had completed the requirements.

This direct conflict on a material question of fact presents an issue of credibility which the trier of fact must necessarily resolve one way or the other. The ALJ made her assessment of credibility clear by her finding that the employee's "Yes" answer to the question on the statement about proof of completion of DOT return-to-duty requirements, was "false." Such a finding clearly rejects the employee's claim, that he did not know that the return-to-duty requirements included completion of a substance abuse treatment program. The ALJ also conspicuously made no findings consistent with the employee's claims about supposedly having been instructed by Weddig to make the answer he did.

The commission also arrives at the finding that the testimony of Weddig was more credible than the testimony of the employee.

The employee's testimony was internally inconsistent in some significant respects. For one thing, even though the employee acknowledged that he twice tested positive for illegal drug use, and even though he testified specifically that in August, 2008, he again tested positive for marijuana, he also testified at one point that he "never even had the idea to even use marijuana". Also, the employee testified inconsistently and unpersuasively on the question of when and how he came to know that DOT regulations required that he complete a substance abuse program before returning to work after a positive drug test. While the employee testified at one point that he had not known that up until October of 2009, he testified at another point that he knew by May 4, 2009, when he returned to employment with the employer, that he had to go through a substance abuse program. The employee's testimony also shifted back and forth several times as to whether he learned this in May, 2009, or even earlier, in August, 2008.

The employee's testimony on when and how he learned that DOT required completion of a substance abuse program after a positive drug test was also inconsistent and unpersuasive in several respects. While he claimed that the way he eventually learned of that requirement, was that he was looking through Commercial Federal Safety Regulations pocketbook, he also testified at one point that it was a substance abuse program person who told him that he had to go through some substance abuse program. Also, his explanation that he happened to be looking through the Commercial Federal Safety Regulations pocketbook because he was trying to find out about what he felt were discrepancies in how his pay was being figured, is suspicious. It is implausible that the employee would resort to a handbook about federal trucking safety regulations, when he had a question about how his per-mile pay was being computed.

Resolving this credibility dispute as it does, leads the commission to its findings about what the employee told Weddig at various points and about the circumstances under which the employee answered "Yes" to the question on the "Employee's Previous Pre-Employment Drug And Alcohol Test Statement" asking if he could obtain and provide proof that he had successfully completed DOT requirements of the return-to-duty process. Given those findings, the commission arrived at its conclusion that the employee's unreasonable conduct in presenting his employer with unjustified monetary demands, backed up by threats, was so likely to lead to his termination as to be completely inconsistent with the continuation of the employment relationship.

 

NOTE: Repayment instructions for the amount that must be repaid will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayments of unemployment and other special benefit programs that are due to the state, another state or to the federal government.

Contact the unemployment Compensation Division, Collections Unit, P.O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

This decision also results in an overpayment of Federal Additional Compensation (FAC) benefits. The employee will receive, or may already have received, a separate 'UCB-25 Notice of Federal Additional Compensation Overpayment' regarding any amount of FAC benefits that must be repaid.


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