CATHERINE D PETERS, Employee

UNITED RENTALS, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter finding the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a) but her reason for quitting did not meet any statutory exception permitting the payment of unemployment benefits. That decision also found that the employer failed to provide correct and complete information requested by the department during its fact-finding investigation and that such failure was not with good cause, within the meaning of Wis. Stat. § 108.04(13); consequently, benefits were improperly paid to the employee. That decision also found that the employee was at fault for failing to provide correct and complete information to the department and that she must repay the benefits she erroneously received because the $2217 overpayment could not be waived within the meaning of Wis. Stat. § 108.22(8)(a) and (c). The employee filed a timely petition for commission review. Thereafter, the commission affirmed the ALJ's decision in its totality.

The employee began an action for judicial review of the commission's decision. On April 26, 2013, the Outagamie County Circuit Court, Branch 6, issued a decision remanding the issue to the commission to determine whether the employee, Catherine Peters was at fault within the meaning of Wis. Stat. § 108.04(13)(f). In compliance with the order of the court, the commission sets aside its August 31, 2012 decision and adopts the following Findings of Fact and Conclusions of Law consistent with the Court's order:

The employee worked approximately seven years and one and a half months as a branch manager for the employer, a large equipment rental business. The employee's last day of work was January 31, 2012 (week 5). Prior to January 31, 2012, the employee made several complaints to the employer regarding work issues, including budgeting, staffing matters and her wage. The employee's complaints were investigated by the employer and determined generally to be unsubstantiated.

On September 13, 2011, the employer issued the employee a final written warning for hiring a temporary help worker without permission from the employer. The warning advised the employee that any future violation of employer policy may and could result in termination of her employment. In early October of 2011, the employee filed an EEOC claim against the employer asserting the employer engaged in retaliation against the employee for complaints she made to management about her male counterparts.

On January 31, 2012, the employer and employee mutually agreed that the employee's employment was terminated as part of the resolution of an EEOC mediation. The agreement was confidential but a relevant portion of it was read into the record and it provided "... termination of employment; Peters' employment at United Rentals shall terminate as of the date she signs this agreement below." The employee performed no further work for the employer after January 31, 2012.

The above cited agreement did not specify whether the employee or the employer was the moving party in the employment separation. The employee argued that her employer discharged her, believing the "writing was on the wall" after her final warning in September of 2011. The employer, however, never advised the employee that her employment was terminated prior to signing the agreement and stated her employment would have continued had she not signed the agreement.

The employee was the moving party in this employment separation and voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a). The employee failed to establish that her quitting met any exception to the quit suspension found at Wis. Stat. § 108.04(7)(a); specifically that her quitting was with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

The employee's complaints regarding budgeting, staffing and her wages were investigated by the employer and were generally found to be unsubstantiated by the employer. The current HR manager spoke with every branch manager in response to a complaint the employee made about another male counterpart finding those complaints were also unsubstantiated. The employee could have remained working for the employer while maintaining her EEOC claim in an attempt to see if their differences could be resolved. While the employee's reasons for quitting may have been personally valid, these reasons do not fall within any statutory quit exception permitting the payment of unemployment insurance benefits for quitting.

It is also found that the employer, United Rentals, failed to provide information to the department during its fact-finding investigation and did not have good cause within the meaning of Wis. Stat. § 108.04(13). Consequently, benefits were erroneously paid to the employee prior to the end of the week in which the administrative law judge's decision was issued and remain charged to the employer's reserve account under Wis. Stat. § 108.04(13).

Given the terms of the EEOC mediation agreement, the employee did not know whether to characterize the employment separation as a quit or a discharge when she initiated her claim for unemployment insurance benefits. After contacting the department the employee contends she was advised to report the employment separation as a discharge. Additionally, the department's initial determination found that the employer discharged the employee. Even if the employee had not been advised to list the employment separation as a discharge, her characterization of the employment separation was made in good faith and does not constitute fault within the meaning of Wis. Stat. § 108.04(13)(f).

Therefore, it is found that in week 5 of 2012, the employee terminated work with the employing unit within the meaning of Wis. Stat. § 108.04(7)(a) and that this quitting was not for any reason constituting an exception to that section.

It is further found that the employer failed to provide correct and complete information requested by the department during its fact-finding investigation and that such failure was not with good cause within the meaning of Wis. Stat. § 108.04(13) and benefits remain charged to the employer's account.

It is further found that the employee was paid benefits in the amount of $2,217, for which she is not eligible and to which she is not entitled within the meaning of Wis. Stat. § 108.03(1). However, these benefits were not erroneously paid because the employee was at fault, within the meaning of Wis. Stat. § 108.04(13)(c) and (f), in that she did not commit an act of concealment or fail to provide correct and complete information to the department when she initiated her claim for benefits. Therefore, there is no overpayment, within the meaning of Wis. Stat. § § 108.04(13)(c) and 108.22(8)(a) and the benefits stand as paid.

Dated and mailed May 31, 2013

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ Robert Glaser, Commissioner

/s/ C. William Jordahl, Commissioner

peterca : 135 : 7

cc Honorable Dee R. Dyer, Circuit Court Judge, Branch VI

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