BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the
unemployment benefit claim of

ARNOLD MITCHELL, Employe

Involving the account of

MILWAUKEE PUBLIC SCHOOLS, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 90-604770MW


A Department Deputy's Initial Determination held that in week 23 of 1990 the employe's employment was suspended but not for misconduct or other good cause connected with his employment. As a result, benefits were allowed.

The employer timely appealed the Initial Determination, and a hearing was held on July 23, 1990 before Administrative Law Judge Kevin Carr, acting as an Appeal Tribunal of the Wisconsin Department of Industry, Labor and Human Relations. The Appeal Tribunal Decision, issued on July 25, 1990, amended the Initial Determination as to week of issue and reversed it as amended, finding the employe ineligible for benefits for weeks 23 through 25 of 1990.

The employe timely petitioned for review by the Wisconsin Labor and Industry Review Commission. Based on the evidence and applicable law, having consulted with the Administrative Law Judge concerning his impressions as to credibility of witnesses, and having considered the arguments presented by the employe in his petition, the Commission now makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for many years for the employer, a school district. Since 1980 he worked on a regular basis for the district as a substitute teacher. His last day of work was June 4, 1990 (week 23).

The issue for decision is whether his employment was suspended thereafter, and if so, whether the suspension was for misconduct or other good cause connected with his employment.

On the employe's last day of work, the principal at the school where the employe was teaching received complaints from several students that the employe had used inappropriate language with racial connotations towards students, had used inappropriate physical force towards students, and had inappropriately touched two female students. The principal reported this matter to a staffing specialist for the district, who then advised the employe that his name was being temporarily removed from service effective June 5, 1990 (week 23) pending resolution of the allegations. He was subsequently discharged on June 25, 1990 (week 26).

The employe had performed substitute teaching for the district on 139 days in the 1988-89 school year and on 164 days in the 1989-90 school year. Given the regularity of his services, the decision by the district to remove him from service effective June 25, 1990 was not merely a decision not to offer him further employment, but was a decision to suspend him from further employment.

The principal to whom the complaints were made credited them, and she told the staffing specialist who subsequently suspended the employe that she had a situation she considered a misconduct offense. The decision to discharge the employe was made on this basis. Therefore, the employe was suspended because the employer believed he had engaged in the alleged conduct.

The Commission finds and concludes that the testimony of the principal as to the statements made to her by the students is within the exception to the hearsay rule for "excited utterances". According to the principal's testimony, several students came to her and told her that the employe had touched them indecently on the breasts, referred to them using racial slurs, and otherwise insulted them. These students were "rather upset", were causing a noise in the hallway, and were with an aide who was trying to "calm them down". This occurred only minutes after, or perhaps even during, the class in which the events are alleged to have taken place. Also, the students involved with respect to the allegation of inappropriate physical force spoke to the principal about it immediately after the incident occurred, and one of the students involved was "in tears" and "quite angry" about it. All of these circumstances satisfy the requirement of the "excited utterances" exception to the hearsay rule.

The Commission credits the allegations that the employe engaged in the conduct on the basis of which he was suspended. Furthermore, the Commission does not credit the employe's denials as credible. Therefore, it is found that the employe engaged in inappropriate conduct towards students on June 4, 1990. It is unnecessary to consider whether this amounted to misconduct, since the employe's actions certainly met the standard of "other good cause connected with his employment".

The Commission therefore finds that in weeks 23 through 25 of 1990 the employe's employment was suspended for other good cause connected with his employment within the meaning of section 108.04 (6) of the Statutes.

The Commission further finds that the employe was paid benefits in the amount of $626.00 for weeks 23 through 25 of 1990, for which he was not eligible and to which he was not entitled, within the meaning of section 108.03 (1) of the Statutes and that, pursuant to section 108.22 (8)(a) of the Statutes, he is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The Appeal Tribunal Decision is affirmed. Accordingly, benefits are denied for weeks 23 through 25 of 1990. Benefit eligibility with respect to weeks 26 and following has been addressed in a separate Initial Determination. The employe is required to repay the sum of $626.00 to the Unemployment Reserve Fund.

Dated and mailed November 23, 1990
110 - CD1011  MC 676  PC 714.07  PC 715  PC 729

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

In his petition for Commission review, the employe argues that he had no representation or counsel at the hearing, that he had no knowledge that his file would be used as evidence against him, that he was "dismissed" from the hearing room while a representative of the Milwaukee Public Schools remained present with the Administrative Law Judge, and that all charges against him were dropped by the District Attorney's Office. The Commission finds these points unconvincing. The employe had the opportunity to obtain counsel to represent him, and whether he elected not to or was unable to do so, his right to a fair hearing was nevertheless not impaired. The fact that the employe had no knowledge that his file would be used against him does not provide grounds for reversal, since parties are not generally entitled to advance notice of what evidence an opposing party may use. Merely based on the allegation of the employe that a representative of the Milwaukee Public Schools remained present in the hearing room with the Administrative Law Judge after he left, the Commission will not conclude that anything improper occurred at that time. Finally, the fact that the District Attorney may have elected not to proceed with criminal charges against the employe is not dispositive here, if only because the burden of proof on the employer for establishing misconduct or other good cause connected with employment is not as strenuous as the burden of proof that would be imposed on the District Attorney to prove criminal misconduct.

NOTE: The Commission disagreed with the conclusion of the Administrative Law Judge, that "other good cause connected with his employment" could be present in a case in which it is not proven that an employe engaged in any improper conduct but where the employer suspended the employe as a precautionary measure pending the resolution of the charges. "Other good cause" is a lesser standard than "misconduct". It can be found in cases in which there has been a single instance of negligence or poor judgment, even though in such circumstances the "misconduct" standard might not be satisfied. However, the Commission considers that it must be interpreted as involving at least some degree of fault or blameworthy conduct on the part of the employe. If an employer has failed to prove that an employe did anything wrong, the fact that the employer may have another good reason for suspending the employe will not provide "other good cause connected with his employment" within the meaning of the statutes.

The Commission affirmed the result arrived at by the Administrative Law Judge here, however, because it concluded that there was adequate evidence in the record to support a finding that the employe had engaged in blameworthy conduct which led to his suspension. As noted above, evidence about what students told the principal the employe had done was legitimately considered here as having been within the "excited utterances" exception to the hearsay rule. This evidence was consistent and credible. By way of contrast, the employe's denials were not credible. The Administrative Law Judge informed the Commission that he found the employe's denials not to have been credible, and the Commission found no basis in the record on which to disagree with this assessment. Therefore it concluded that the employer had satisfactorily proven wrongful conduct on the part of the employe, at least adequate to satisfy the "other good cause" standard.


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