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


GEMA SALVADORI, Employe

FRANKLIN PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98605344MW


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 23 of 1998, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed September 10, 1999
salvage.usd : 132 : 7 MC 664

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employe has petitioned for commission review of the adverse appeal tribunal decision which found that she was discharged from her employment and for misconduct connected with her work. The employe maintains in her petition that she was not discharged for misconduct but for incompetence. The commission cannot agree. The evidence introduced at the hearing established that the employe was not unable to perform to the employer's expectations. The employe was unwilling to do so. The employer found deficiencies in certain aspects of the employe's performance, and in particular her classroom management. The employer attempted to address these concerns through the Plan of Assistance which included working collaboratively with the administration. The employe's attitude, and her repeated responses to the employer's offers to assist her in improving her classroom management, was that it was a form of discipline, that she was being singled out, and that the Plan of Assistance was unjustified and unnecessary.

The employer showed ample grounds for instituting the Plan of Assistance. The employer did not simply make up parent complaints. The employer actually received complaints from parents about the employe's performance. That was the basis, along with the administration's own observation of the employe's classroom performance, for implementation of the Plan of Assistance. The employe simply cannot contend that she was being singled out unjustly or was being harassed by the employer. Whether the employe considered the complaints to be justified, the fact is that the employer was motivated by parent complaints. The employer was also motivated by deficiencies noted by a number of others, including management and other teachers, who observed the employe's classes. The employe was not discharged merely for perceived classroom deficiencies, but also for failing to help the employer to address those deficiencies. The employe's repeated contention that no deficiencies existed and refusal to cooperate with the employer disregarded the employer's interest in insuring that classroom instruction, classroom management, and each student in each class was handled in an efficient, appropriate, and professional manner. Again, whether the employe agreed with each parent complaint as set forth in the hearing, and pointed out in her brief, is not at issue. What is at issue is that the employer received the complaints, that the employer was attempting to address the complaints, and that the employe was unwilling to assist the employer in addressing those complaints. Further, to conclude no deficiencies exist would require the commission to find, as the employe contends, that the administration and other teachers were out to get her, parents were all lying, exaggerating, or ill-informed, and the students all had either behavioral or academic problems. The commission cannot so conclude.

The commission notes that its review is not concerned with whether something was appropriate pursuant to the union contract. The commission's concern is whether the employer established that there were complaints regarding the employe's performance, whether the employer established that the employe's failure to work with the employer to address such complaints led to her discharge, and whether such failures constituted an intentional and substantial disregard of the employer's interests. Whether union rules were followed or whether grievances were in place and upheld are not the commission's concern. The commission determines whether misconduct has been established under the unemployment insurance law not under labor law.

The commission also notes that many of the administrative law judge's findings and conclusions are based on the administrative law judge's determinations as to credibility. Specifically, for example, the employer testified that the employe referred to substitute teachers, who complained about the employe's inadequate lesson plans, as "stupid or incompetent." The employe denied making such comment. The administrative law judge found the employer's testimony more credible than the employe's testimony. The commission has found no compelling reason in the record to disturb this or any other credibility determination made by the administrative law judge.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: CLARENCE NICHOLAS

ATTORNEY VEL PHILLIPS
LAW OFFICE OF VEL PHILLIPS

ATTORNEY MARK L OLSON
DAVIS & KUELTHAU SC


Appealed to Circuit Court.

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