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


LOUISE G ZYLKA, Employe

US POSTAL SERVICE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98606466MW


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer for about ten years, most recently as a distribution clerk. Her last day of work was August 15, 1998 (week 33).

The employe was on a temporary assignment at the employer's "airport facility" from July 14, 1998 until August 15, 1998. On or about August 13 the employe spoke with the plant manager at the airport facility about extending her temporary assignment. The plant manager responded that the budget would not allow her to remain at the airport facility. The employe did not want to return to her permanent assignment at the "Oak Creek Annex" because she felt people there were mean to her and that it was too stressful for her to work there.

On Monday, August 18 the employe did not report to work at her permanent assignment, as she had been directed to do. The employe telephoned the employer and left a message that she would not be in. She initiated a claim for benefits at the end of that week (week 34).

On August 21 the employer sent the employe a certified letter indicating that it considered her to be AWOL and directing her to submit a "Request for or Notification of Absence" form and supporting medical documentation within seven days. The employe did not respond, and on August 31 the employer sent another certified letter notifying her that she was considered AWOL and directing her to return to work on her next scheduled workday. The employe failed to respond or to report to work. On September 10 the employer sent a third letter, this time directing her to report on September 17 for her "day in court."

On September 11 the employe submitted a "Request for or Notification of Absence" form, on which she indicated that she was attempting to secure a transfer and that she had sent her medical documentation to the medical unit. The employe submitted this document without having received any confirmation from her doctor that medical information had been sent to the employer and, in fact, no medical documentation was ever received. On the same day the employe also sent a letter to the employer explaining that she did not respond more quickly to its certified correspondence because she was having a hard time getting an appointment with her therapist. She did not appear for the "day in court" on September 17 and, as of the date of the hearing, had not returned to work for the employer.

The question to decide is whether the employe's separation from employment is better characterized as a quit or a discharge and whether she is eligible for benefits based upon that separation.

The key element to determining whether an employe voluntarily quit is the employe's intent. The courts have consistently held that an employe can show an intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119 (1980); Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963).

The employe failed to report for work on August 18, in spite of the fact that the employer had denied her request to remain in her temporary assignment and notified her that she was expected to return to her regular assignment on that date. The employe did not discuss the matter with her supervisor, but merely left a telephone message indicating that she would not be coming in. She did not report for work thereafter and initiated a benefit claim at the end of the week. The commission considers the employe's actions in this regard to be so inconsistent with a continuing employment relationship as to evince an intent to quit.

Moreover, the employe's actions subsequent to week 34 reinforce the notion that she did not genuinely intend to return to work for the employer. The employe failed to respond to the employer's certified mail or to appear for a scheduled "day in court," at which she might have had an opportunity to explain her situation and to preserve her employment. When the employe finally did submit a leave of absence form, two weeks after the date on which she had been directed to do so, she incorrectly indicated that medical records had been submitted, without ascertaining that this was the case. These facts, combined with her failure to return to her assignment as scheduled, lead the commission to conclude that the employe voluntarily quit.

The next question to decide is whether the employe's quitting was for any reason permitting the immediate payment of benefits.

The commission has considered whether the employe's quitting falls within Wis. Stat. § 108.04(7)(c), which allows the immediate payment of benefits to an employe who voluntarily terminates employment when she has no reasonable alternative because she is unable to do her work, and is otherwise able to perform and available for suitable work. However, the commission concludes that the "quit unable" exception does not apply in this case. The employe was afforded a specific opportunity to present certified medical evidence establishing that she was physically or mentally unable to perform her job, but failed to do so, stating that she forgot to bring the medical report to her doctor to fill out. In the absence of certified medical evidence, the employe's testimony that she did not want to return to her regular assignment because she felt people were mean to her and found it stressful was insufficient to establish that she was unable to perform her work. Further, even if the employe had demonstrated that she was unable to work, there is no reason to believe that she had no reasonable alternative but to quit where she failed to present any medical evidence to the employer or to fill out a timely leave of absence request form.

The commission, therefore, finds that the employe voluntarily terminated her employment in week 34 of 1998, within the meaning of Wis. Stat. § 108.04(7)(a), and not for any reason permitting the immediate payment of benefits.

The commission further finds that the employe was paid benefits in the amount of $7,591 for weeks 35 of 1998 through 9 of 1999 for which she was not eligible within the meaning of Wis. Stat. § 108.03(1), and to which she was not entitled. Pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund. Waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 34 of 1998, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay the sum of $7,591 to the Unemployment Reserve Fund.

Dated and mailed April 16, 1999
zylkalo.urr : 164 :  VL 1007 PC 729

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not conduct a credibility conference with the administrative law judge, but reverses the appeal tribunal decision as a matter of law. The appeal tribunal decision was based, in large part, on the fact that the employer still considered the employe to be an active employe, even after she failed to return to work or to respond to its certified correspondence. However, while the analysis in this case is somewhat complicated by the fact that the employer considered the employment relationship to be ongoing, it is also true that the employer did not discharge the employe and that it was her own decision not to perform any work for it after August 15. The employe was not on an authorized leave of absence, and failed to provide the employer with any medical documentation demonstrating a need for such a leave of absence. She also chose to disregard certified correspondence from the employer aimed at returning her to work or placing her on a leave status. Under all of the circumstances, the commission believes that the situation which led the employe to initiate a benefit claim in week 34 of 1998 was of her own making, and that the separation is best characterized as a voluntary quit.

In its petition for review the employer argued that the administrative law judge's conduct during the hearing was "unprofessional at best and bordered on reprehensible," and contended that the record would demonstrate that the administrative law judge was "rude and obnoxious numerous times in his routine matters of hearing protocol." However, after a careful review of the record, the commission sees nothing to indicate that the employer received anything other than a full and fair hearing on the merits. The commission addresses the employer's assertions only because it wishes to clarify that its reversal in this matter is based solely upon an assessment that the facts in this case better lend themselves to a finding that the employe quit than that she was discharged, and that it should in no way be construed as a judgment that the administrative law judge acted improperly at the hearing.

cc: US POSTAL SERVICE

US POSTAL SERVICE
MINNESOTA POSTAL DATA SERVICE


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