CASSANDRA A RIVERS, Employee

CITY OF WAUKESHA, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and Mailed August 31, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The employer petitioned the appeal tribunal decision disputing the decision to allow benefits. The petition for commission review in this matter does not specifically challenge any of the procedural and evidentiary rulings made by the administrative law judge, nor does it challenge any specific findings of fact as being unsupported by the record, nor does it specifically assert whether and why any conclusions of law are claimed to be in error. Thus, the commission has no specific indication of why the petitioner believes it should prevail on this record or what it claims was erroneously decided by the administrative law judge.

The critical question in this case is one of credibility. The employer's version of the facts and the employee's version of the facts are inconsistent. The commission realizes that it is seldom easy to resolve a case with two such conflicting versions of the facts. However, the administrative law judge, who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility, did not credit the petitioner's version. The commission has found no compelling reason in the testimony or elsewhere in the record to question the administrative law judge's credibility determination. Therefore it will defer to the judgment of the administrative law judge as to credibility.

While the record does reflect that the employee was under oath when she was initially dishonest about her prior sexual relationship with a past coworker, the commission still affirms the no misconduct finding. In particular, when dishonesty is the alleged misconduct, the commission finds that the connection of the question and answer to the employment is important in terms of the employee's intent. In this case, the relationship, about which the employer generally asked, occurred outside of work five years earlier with an individual who no longer worked for the employer and who no longer lived in Wisconsin. The evidence reflects that once the employee discerned the "connection" of the question to her employment, namely whether the relationship occurred at work, she was honest. Under these circumstances, although the employer may have made a valid business decision in discharging the employee, it has not established misconduct connected with the employment.

The appeal tribunal decision is affirmed as written.

riverca : 150 : 5

cc: Mario Marin

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uploaded 2011/09/13