Wis.LIRC UC Decision: Hopland - May 27, 1999 - VL 1007.15 - In anticipation of discharge/before effective date; VL 1014 Discipline Or Penalty - VL 1007.15 - Discharge, Layoff or Quit? - Leaving in anticipation of discharge, or before effective date - teacher recommended for non-renewal quit without taking advantage of opportunity for nonrenewal hearing before school board, which could have decided no to non-renew - when an opportunity for a hearing is given, resigning one's employment in lieu of what the employe considers impending discharge does not constitute discharge but a voluntary termination of one's employment without good cause attributable to the employer

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

MARVIN L HOPLAND, Employe

SCHOOL DISTRICT OF OOSTBURG, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98400892SH

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 employe is ineligible for benefits beginning in week 27 of 1997, 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.

Dated and mailed May 27, 1999
hoplama.usd : 178 : 6 VL 1007.15 VL 1014

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review, the employe argues that the resignation that he submitted effective June 30, 1997 was not a voluntary quitting of his employment. He asserts that the school board had decided prior to his non-renewal hearing not to renew his contract and there was no possibility of his retaining his employment no matter what steps he took. In support of his contentions, he offers factual assertions and documents which were not offered at the hearing and form no part of the hearing record. Moreover, he alludes to the prior hearing in this matter which formed the basis for an appeal tribunal decision set aside by the commission. Since the commission remanded for a new hearing and decision in this matter, no part of any prior proceeding not made a part of the current record will be considered by the commission in its decision.

Wisconsin Administrative Code Chapter LIRC 1.04, provides that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. For this reason, the commission cannot consider factual assertions made in the petition for review, or documents submitted with the petition for review, which were not also made or submitted at the hearing. Since the commission's review must therefore be based on the evidence submitted at the hearing which has already been held, the commission will not address or consider the factual assertions made by the employe which are not supported by the record.

In addition, the commission finds no support for the employe's assertion that his opportunity to present his case was impaired by either the ALJ's demeanor or the conduct of the employer's attorney. The employe had an adequate opportunity over the course of the two day hearing to offer whatever evidence he considered might assist the ALJ in making his decision. Since the commission does not find this opportunity was unfairly limited by the ALJ, no further hearing for the purpose of augmenting the record is appropriate.

The employe argues that the opportunity for hearing on the non-renewal issue was not a meaningful one because the board had already made up its mind that his employment would end in June 1997. In support of this contention, the employe offered negative evaluations showing the poor opinion the board had of his performance and he testified to remarks made to him by two members of the school board that he would not be renewed. The school board members denied any such statements. The board had provided for an independent fact finder to preside over the hearing, make findings and provide a recommendation to the board. While it remained the board's ultimate decision, and given the board's poor evaluations of the employe in the past, it was a distinct possibility that the employe would be non-renewed, the employe did not demonstrate that the hearing process itself would not be a fair one or that he stood no possibility of prevailing. The employe simply sensed it would be fruitless. The employe however had argued previously that he had never been given an opportunity to contest the employer's complaints against him and this would have been such an opportunity. Generally the commission and the courts have concluded that when an opportunity for a hearing is given, resigning one's employment in lieu of what the employe considers impending discharge does not constitute discharge but a voluntary termination of one's employment without good cause attributable to the employer.

The Wisconsin Supreme Court enunciated the standard for determining whether a hearing before a school board could be bypassed, in Faust v. Ladysmith-Hawkins School Systems, 88 Wis. 2d 525, 534, 535, 277 N.W.2d 303 (1979). For a successful bypass of the hearing, it must be shown that the hearing would have been simply pro forma and that the employer was acting in bad faith. The employe of course has argued that the employer was acting in bad faith, but the record does not establish that allegation with respect to the board as a whole. It is conceded that individual board members had several complaints about the employe's work, but those complaints do not translate into bad faith by the school board as a separate, legal entity. Kopecky v. School District of Waupun, U I Dec. Hearing No. 97605570WB ( LIRC Nov. 25, 1997)

Neither has the employe demonstrated that the board's past treatment of him was so harassing and unfair that it amounted to a real and substantial fault justifying his quitting. The employe's brief recounts his poor treatment by the employer but neither his testimony nor that of his witness, Mr. Donnelly, supports his contentions that he was subject to undo harassment which left him with no reasonable alternative but to quit.

While the employe was working under difficult circumstances and may not have had a strong likelihood of prevailing in the non-renewal hearing, it was still a meaningful opportunity and he elected to forgo that opportunity in exchange for certain concessions from the employer which he judged to be meaningful. This reasonable personal decision does not amount to an exception to the quit disqualification. For the above stated reasons, and those given by the administrative law judge, the commission affirms the appeal tribunal decision.

cc: ATTORNEY JAMES K RUHLY
MELLI WALKER PEASE & RUHLY SC

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]