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


MARIANNE THOMPSON, Employe

WISCONSIN SCHOOL FOR THE VISUALLY HANDICAPPED, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 94004164JV


On September 10, 1994, the Department of Industry, Labor and Human Relations (hereinafter "department") issued an initial determination in the above-captioned matter which held that in week 23 of 1994 the employe was discharged because a license which she was required by law to have in order to perform her customary work for the employer was not renewed due to her fault. As a result, benefits were suspended. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On October 28, 1994, the appeal tribunal issued a decision which affirmed the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision.

Based upon its initial review of the record the commission decided to remand this matter for further hearing on the merits. Thus, on July 25, 1995, an administrative law judge from the department conducted further hearing on behalf of the commission. The matter is now back before the commission and ready for a decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a state run school for the visually impaired, for approximately two years as a teacher. Her last day of work was on or about June 6, 1994 and she was discharged on August 12, 1994 (week 33).

The employe was hired by the employer on November 16, 1992 to teach visually impaired students with learning disabilities. The job offer was contingent upon the employe securing an emergency license in learning disabilities (hereinafter "LD"). The employe applied for and obtained the emergency LD license as directed. At the time this license was issued the employe was notified that it would expire in June of 1993 and that renewal of the license would be contingent upon her taking six credits of instruction in an approved educational program leading to permanent LD licensure. Consequently, in the spring of 1993 the employe took six credits of course work in learning disabilities at the UW-Whitewater.

In July of 1993 new state licensing requirements went into effect, in which continued licensing was made contingent upon the applicant presenting university certification showing that he or she was enrolled in an approved program which would lead to completion of all credits necessary for a regular LD license within three years time. The Department of Public Instruction (hereinafter "DPI") established a program called Project Select, which offered course "modules" at a variety of participating colleges and universities throughout the state in order to assist teachers in achieving LD certification.

In order to become fully licensed through Project Select the employe needed to take twenty LD course modules and a practicum. She was informed by Laurie Derse, a licensing consultant with DPI, that UW-Whitewater would have a program suitable for her to meet these requirements. However, when the employe contacted UW- Whitewater she learned that no such program was then available. The employe discussed this situation with the employer's superintendent, William Koehler, and on July 23, 1993, Mr. Koehler sent a letter to DPI stating, in part:

"[The employe] feels that she will be out of a job in three years as she cannot meet licensing requirements through the UW-Whitewater program in that length of time. She reported to me that the Special Education department at [UW-Whitewater] does not now have plans to change its course offerings or delivery . . . [The employe] has been very patient and cooperative with all requests we have made of her . . . ."

No evidence was presented to establish what, if any, response Mr. Koehler received from DPI.

In September of 1993 the employe filed an application for renewal of her emergency LD license. However, because the employe had not managed to locate an approved program which would permit her to obtain the necessary licensing requirements in three years time, her application did not contain the required certification establishing that she was enrolled in such a program. In January of 1994, the employe received a letter from Laurie Derse of DPI indicating that her license could not be issued until she filed a copy of her program certification plan. Ms. Derse's letter contained a handwritten note stating that the employe should have her application signed by UW-Whitewater and directing her to contact Todd Stephens, the Project Select Coordinator at UW-Whitewater.

On January 25 and February 1, 1994, the employe sent letters to Mr. Stephens inquiring as to whether coursework was available through UW-Whitewater which would allow her to become certified in the LD area within three years. On February 23, 1994, the employe resubmitted her license application to DPI, along with a note explaining that she was unable to submit evidence that she was enrolled in an approved program because there was no program available that would enable her to complete LD certification in three years. The employe indicated that she had specifically contacted Mr. Stephens and that she had been advised there was no self-contained certification program through Project Select available through the UW-Whitewater.

Ms. Derse sent another letter to the employe on March 2, 1994, again advising her that she needed to complete the entire application form in order to be issued an LD license. In this letter Ms. Derse stated, "A variety of program options is available at UW-Whitewater. If you do not wish to enroll in one of UW-Whitewater's program options, I suggest you contact UW- Madison, UW-Platteville (Project SELECT only) or Edgewood College." The employe testified that she contacted advisors at UW-Madison, UW-Stevens Point, Edgewood College, and Cardinal Stritch College, but was unable to locate a program which would enable her to meet the licensing requirements in the time period allotted. On May 9, 1994, the employe received another letter from Ms. Derse indicating that she must submit a form signed by the certifying office at a college or university offering an approved LD program and on July 27, 1994, the director of DPI notified the employe that, unless she submitted a completed application for license renewal by August 10, 1994, her employment would be terminated.

On August 12, 1994 (week 33), the employe was discharged because of her failure to obtain an emergency LD license.

The issue to be resolved is whether the employe's employment was terminated by the employer because a license issued by a government agency that was required by law in order to perform the employe's customary work for the employer was suspended, revoked or not renewed due to the employe's own fault, pursuant to section 108.04(1)(f), Stats.

The first question presented is whether the LD license was required by law in order to perform the employe's customary work for the employer. The appeal tribunal found that the LD license was required by law and the commission agrees with this finding. Although the employe points out that the job announcement for her position originally stated that either an LD or VI license was required, the fact remains that the job offer which the employer extended to the employe was contingent upon her obtaining an emergency LD license. Further, Paul Halverson, the divisional director for budget and data management and learning support at DPI, testified that it was within the school administrator's discretion to determine into what program area a given class falls, based upon the instructional needs of the program, and that once a class has been labeled learning disabled, the teacher must hold a license in that program area. Mr. Halverson indicated that a teacher with a VI license cannot, by law, teach an LD program. Because the employer made a decision to designate its program learning disabled, the commission is satisfied that the employe was required by law to obtain an LD license.

The second question presented is whether the employe's failure to renew the LD license was due to her fault. The appeal tribunal found that it was, reasoning that the employe failed to present any firsthand evidence establishing that she was unable to find a program which would enable her to comply with the licensing requirements. However, a benefit claimant is presumed eligible for benefits and it is the party resisting payment of benefits who has the burden of proving that the case comes within a disqualifying provision of the statute. Kansas City Star Co. v. ILHR Department, 60 Wis. 2d 591, 602 (1973). Therefore, it was the employer's burden to prove that the employe's failure to renew the LD license was due to her fault.

The commission does not believe that the employer has met its burden in this case. The employe testified that she contacted a variety of educational institutions, including those specifically recommended by DPI, but concluded that none of these schools had a program available which would enable her to achieve full licensure in the three years required by law. Although the employer argues that suitable programs were, in fact, available to the employe, it failed to establish that this was so. At the remand hearing the employer submitted documentation showing the various course modules available through Project Select from the spring of 1993 through the spring of 1995. These documents show a smattering of course offerings at each of a variety of participating schools, but do not establish that any of the programs to which the employe was referred by DPI offered all twenty modules needed by the employe.

Although the evidence suggests that the employe may have been able to meet the licensing requirements by taking Project Select modules at any participating institution and transferring those credits to her program at UW-Whitewater or at whatever school she was enrolled, the evidence also suggests that the employe was unaware of this possibility and believed it necessary to enroll in a "self-contained" program. The employe specifically notified both William Koehler and Laurie Derse that she could not find a self-contained program which would permit her to complete the requirements in three years, but neither individual explained to the employe that she need not earn all of her credits at a single institution. In fact, Ms. Derse repeatedly ignored the employe's concerns about her inability to find a program, directing her to contact the UW-Whitewater even after she was notified that the employe had done so without success.

Even presuming the employe could have, by exercising greater diligence, enrolled in a course of study that would have enabled her to renew her LD license, the evidence nonetheless established that she made efforts to find such a program and that she genuinely believed no such program existed. Indeed, given Mr. Koehler's July 23, 1993 letter to DPI, in which he lauded the employe's patience and cooperation, it appears that the employer itself believed the employe was making satisfactory efforts to renew her license. Mere failure to retain a license does not disqualify an employe from receiving benefits, unless it is established that the failure was due to the employe's fault. The word "fault," as it is used in the statute, refers to conduct which is blameworthy, worthy of censure or negligent. Milwaukee County v. ILHR Dept., 80 Wis. 2d 445, 456, 259 N.W.2d 119 (1977). Under the circumstances presented in this case, the commission cannot conclude that the employe's failure to renew her emergency LD license was due to her fault, within the meaning of the law.

The commission, therefore, finds that in week 33 of 1994 the employe's employment was terminated by the employer because a license issued by a government agency that was required by law in order to perform the employe's customary work for the employer was not renewed, but that the nonrenewal of the license was not due to the employe's fault, within the meaning of section 108.04(1)(f), Stats.

DECISION

The appeal tribunal decision is amended as to the week of issue and is reversed. Accordingly, the employe is eligible for benefits beginning in week 33 of 1994, provided she is otherwise qualified.

Dated and mailed: April 4, 1996
thompma . urr : 164 : 0  AA 130   PC 714.03

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

In its brief to the commission the employer argues that the employe never made a serious effort to obtain the LD license because she preferred to obtain a VI license instead. There is evidence in the record to establish that the employe took VI- related course work and that she requested permission to pursue VI licensure rather than LD licensure. However, the fact that the employe may have preferred to obtain a different license than that required does not necessarily mean that her failure to obtain the LD license was due to her fault. The employe testified that she made efforts to find a program that would permit her to obtain LD licensure and that she was unable to locate such a program, and the employer failed to rebut the employe's assertions in this regard. Consequently, it was not established that the employe's failure to obtain the necessary license was due to her fault.

NOTE: Although the appeal tribunal decision held that the employe's employment was terminated in week 23 of 1994, the undisputed evidence establishes that the employe was discharged in week 33 of 1994. Accordingly, the decision has been amended as to the week of issue.

The commission's reversal of the appeal tribunal decision did not involve an assessment of the credibility of the witnesses in this case, but is as a matter of law. Consequently, no credibility conference with the administrative law judge was required.

 

Pamela I. Anderson, Chairman, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the employe preferred to obtain a VI license so she did not take classes which would have allowed her to obtain a LD license. If the employe had continued to take classes leading to a LD license and was making progress toward that goal I would have been more sympathetic if she had not been able to take all the required modules in the time period. DPI suggested that she could go to UW-Whitewater's program options, UW-Madison, UW-Platteville (Project Select only) or Edgewood College. The employe testified that she had found out that these places did not offer the program although she did not check Platteville and Edgewood was too expensive. The employe testified that "I could not complete the credits with the restrictions I had. My restrictions were travel, hours I worked, geographical location and expense." The majority believes that the employer did not establish that it was possible to complete the program in 3 years but the employe admits that Edgewood had the program but it was too expensive.

For these reasons, I agree with the administrative law judge and would affirm the appeal tribunal decision.

Pamela I. Anderson, Chairman

 

cc: KATHRYN KNUDSON
DEPT OF PUBLIC INSTRUCTION

ATTORNEY BRUCE MEREDITH
WEAC


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