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

JULIE SPANTON, Employee

BARK RIVER ANIMAL HOSPITAL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11611259MW


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, if otherwise qualified.

Dated and mailed March 29, 2012
spantoj . usd : 102 : 1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employer petitioned the adverse appeal tribunal decision which held that the employee's discharge was not for misconduct connected with the employment. In the employer's petition for commission review, the owner raises several issues with regard to the hearing and the ALJ's evidentiary rulings. The commission has carefully reviewed the record, including listening to the digital recording, and finds the owner's arguments to be without merit. The owner objects in the petition to the presence of the employee's husband as an observer in the hearing room. The employee's husband was admonished at the beginning of the hearing for speaking during the owner's testimony. The employee's husband did not speak again. While the ALJ does have discretion to exclude a disruptive person, unemployment insurance hearings are open to the public. The employee's husband conformed his behavior after the initial outburst.

The owner further states in the petition:

Ms. Gilmore also demanded that I turn over my notes and did not allow me to reference them during the majority of the hearing and stated that she did not have the time to review Ms. Spanton's employee file when I asked to submit it for her review. I do not believe that Ms. Gilmore realized this case was initially awarded in my favor. If the burden of proof falls on me, then I should have the right to refer to my notes and submit the file for review...both of these rights were denied to me. Seeing as the decision had already been awarded to me in my favor, it is the case workers (sic) responsibility to review all the records per my submission and discuss anything that she does not understand.

The hearing is a de novo review of the separation of employment. The favorable outcome for the employer at the initial determination level is irrelevant. The employer has the burden of proving that the employee's discharge was for misconduct at the hearing level by presenting competent and persuasive evidence. The ALJ did not deprive the owner of the opportunity to fully present his case. While she initially requested that he refrain from referring to his notes, this is common practice to evaluate a witness's personal recollection and credibility. Less than 20 minutes after the start of the owner's initial testimony, the ALJ asked him if he wanted to review his notes and add further detail to his testimony. The owner referred to his notes thereafter. The owner's testimony was approximately 43 minutes in length and the entire hearing lasted 62 minutes. The ALJ marked documents offered as exhibits as they became relevant.

At the end of the owner's testimony, the ALJ asked if he would like to add anything else. The owner responded, "I would kind of like to submit the entire employee file . . . if you'd like." The ALJ advised the owner that most of the employee's personnel file was likely irrelevant and she did not have time to go through the file and pick out what was germane to the case. She properly instructed the owner that it was his burden to offer the individual documents that he felt were relevant to the case. The owner said, "Certainly," multiple times during the ALJ's explanation. When the ALJ is finished, the owner said, "Ok;" however, he did not request that any additional documents be marked as exhibits. At the end of the hearing, the ALJ again asked the owner if he had anything else to add to which the owner responded, "That would be all." Accordingly, the complaints contained in the employer's petition with regard to the ALJ's conduct and evidentiary rulings are not supported by the record.

The employee worked for approximately two years and eight months as a part-time veterinary assistant for the employer, a veterinary clinic. The employer discharged her from the employment on November 4, 2011 (week 45), for failing to perform her job duties and making repeated errors. During the discharge conversation, the owner informed the employee that he "appreciated her hard work at the clinic, and potentially a job with fewer details would be a better fit[.]"

The final incident which precipitated the employee's discharge occurred when she allegedly initialed on a sheet that she had performed certain tasks involving pill vials and puppy kits when she had not yet done them. The employee testified with regard to the final incident as follows:

Exhibit 2 is the task work sheet from October. It is an accurate copy. It indicates that I didn't complete organizing drawers with vials of pills, and assembling puppy kits. I checked them earlier in the week. At an employee meeting, we were told that once our signatures were on the sheet that the task wasn't necessarily complete, that items had to be rechecked through the week. I would think that stocking items would be checked, because I had at least two days off during the week. Usually on Fridays, I would check everything. I would check the sheet before the end of the work week so I wouldn't forget to sign off on it. If I didn't sign off on the sheet, [the owner] would talk to us.

The employee further testified that she checked the drawers before her scheduled days off. The ALJ credited the employee's testimony and the commission has found no compelling reason in the record to question that credibility determination. Therefore, it will defer to the judgment of the administrative law judge as to credibility. The record does not indicate that the employee was the only worker with access to these drawers. The owner discharged the employee at the beginning of her scheduled shift on Friday, November 4, 2011.

With the exception of the final incident, the owner's complaints stemmed from the employee's failure to pay attention to details resulting in multiple mistakes. The record indicates that the employee was not a "good fit" with the employer as she was not detail oriented. This is supported by the owner's own testimony. Under the circumstances, the commission concludes that the employee's actions were not intentional or grossly negligent. The record supports a finding that she did not possess the skills necessary to consistently meet the owner's expectations. As such, the commission agrees with the findings of the ALJ and affirms the appeal tribunal decision.



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