STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

MICHELLE L MOORE, Employee

MADISON ENGLISH AS A
SECOND LANGUAGE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 13002357MD


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 worked for 13 years as the assistant director for the employer, an English as a second language school. That employment ended on May 20, 2013 (week 21).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

On May 13, 2013, the employee appeared for work at about 9:00 a.m., and was asked by the director to substitute for a co-worker. The employee told the director she did not wish to substitute for the teacher. She had subbed for this particular teacher several times over the semester and had subbed for eight of this teacher's classes the previous week. The employee discussed with the director that the teacher was quite uncooperative and it was the employee's opinion she should just make up the time rather than have someone sub for her again. Making up classes was a regular option at the school. The employee believed that having this particular teacher make up the classes was the best option for the students. The previous time that the employee had subbed for the teacher she would not work with the employee. The employee attempted to talk to her about the homework the employee had given and the things the employee had done during the week. The teacher refused to participate in the discussion. The teacher rather told the employee it was her class and her plans and she would plan what she wanted to do.

The director asked the employee to let her "get it straight, you're not going to sub?" The employee said "no" and that was the end of the conversation.

The employee did not think there would be a consequence of telling the director she did not wish to sub for the teacher.

The employer allowed the employee to continue working until Monday, May 20, when the director gave the employee a termination letter. The employer testified at the hearing that while there was no other reason for the employee's termination, "(i)f the employee would have agreed to sub for Molly, I probably would not have terminated her when I did."

The employee did not realize that her refusal to substitute teach on May 13 would lead to her termination. The director did not tell the employee on May 13 that if she did not perform the substitute teaching assignment she would be terminated. The employee was aware that in the past teachers could make up classes they missed instead of a substitute teacher taking the absent teacher's class.

The employee in this case was discharged and did not quit her job. The employee did not refuse to substitute teach with the knowledge that this would result in the ending of her employment. In fact, the employee continued working for the employer for a week after the incident. The employer was the moving party and severed the employment relationship by discharging the employee on May 20, 2013.

The next issue to be decided is whether the employee was discharged for misconduct connected with her work.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The employee in this case was the assistant director for the employer. She agreed that, when the director asked her to substitute teach she informed the director she did not wish to do so and thought it better if the teacher make up the classes she was going to miss. The employee believed that this was an exercise of discretion that she had the authority to make. The employee made this decision based upon what she believed was in the best interests of the students. The employee was not aware that the director considered her refusal to be a serious matter. The employee believed that she made a reasonable decision since she was supposed to be the manager of the teachers. The employee was surprised when she was discharged.

Generally the refusal to obey a directive is insubordination. However, given the particular circumstances of the employee's employment, the employee's actions in not taking the substitute assignment did not evince such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 21 of 2013, the employee did not quit her job within the meaning of Wis. Stat. § 108.04(7).

The commission further finds that in week 21 of 2013, the employee was discharged by the employer but not for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

DECISION

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

Dated and mailed September 25, 2013

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission obtained demeanor impressions from the ALJ prior to reversing the decision. The ALJ could not recall any demeanor impressions that would affect credibility. The commission found the employee credible when she testified that she thought she had the discretion to indicate to the director that she did not wish to substitute for the teacher and that it was common for teachers to make up classes. The commission found the employee credible in part because the employee had specific reasons for believing it would be better for the students if the teacher made up the class and attempted to explain those reasons to the employer. The employee had worked for the employer for about 13 years and had routinely substituted for other teachers. This also supports her assertion that she believed she was making a decision which was within her authority to make.



mooremi_urr . doc : 145 :

cc: DAVID L MANDELL
ATTORNEY AT LAW
MANDELL & GINSBERG

 


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