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


MARGARET A COLLIER, Employe

RUBBERMAID & CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604071RC


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for approximately six and one-half months as an assistant manager for the employer, a retail outlet store. The employe's last day of work was May 11, 1999 (week 20), when she resigned.

The employe's supervisor would leave detailed, unflattering notes critical of her performance in open areas where others could read them, such as taped to a cash register, her desk or the timeclock. The supervisor would admonish her in front of other workers, saying things such as "pay attention" or "use your head."

On May 11, 1999, the employe's supervisor was upset with the employe because the supervisor felt the employe's stockroom was disorganized. The supervisor felt that the disorganization led to workers selling a floor model stroller the day before when in reality there was at least one boxed stroller in the stockroom that could not be found. While the supervisor was reviewing this matter with the employe, another worker came to ask for help in moving certain heavy items. The co-worker went to get a dolly to move the items. The employe indicated that she didn't know where the co-worker wanted the items. The supervisor decided to put the items in a corner and began throwing them in that direction. One of the boxes hit the employe. When the employe told the supervisor about being hit, she said, "Well, move!" The boxes weighed between 10 and 20 pounds. The supervisor threw the boxes with enough force to break the merchandise inside. She also broke an item that had been perched on a wall nearby. The item broke and shattered when a box struck it. The supervisor merely shrugged when the item broke.

The following day, the employe quit, citing the incident of May 11, 1999, as "the last straw." She handed her keys to another worker. The employe did not complain to her supervisor directly because she was afraid of making her more angry. The employe did not complain to management about her supervisor prior to quitting. After the employe quit she called corporate and spoke with a Dave Segerson. She told Mr. Segerson she had quit and why. Mr. Segerson asked why the employe had not gone though the anonymous complaint procedure. The employe replied that she had never been informed there was that procedure.

The employe's supervisor testified that there are phone numbers for the corporate office in the checkout drawer, by the supervisor's desk, and by the computer. The employe received a handbook which indicated that the employer has an open door policy. The section titled "DISCIPLINARY ACTION & INVOLUNTARY SEPARATION OF EMPLOYMENT provides:

Open Door Policy - Solving Problems

Rubbermaid Sales Corp. is committed to an open door policy to answer any work related question or to resolve any work-related problem or complaint of associates.

Use the following procedure:

Always start the process with the immediate supervisor who in most cases is able to resolve the issues within the guidelines of policy and procedures.

The initial issue to be decided is whether the employe voluntarily terminated her employment with good cause attributable to the employer.

An employe who voluntarily terminates employment is required to requalify for benefits unless the quitting falls within some statutory exception to the quit disqualification of Wis. Stat. § 108.04(7)(a). The employe has not demonstrated that her quitting falls within any such exception. There is a provision which allows an employe to quit with good cause attributable to the employing unit and receive benefit payment. Wis. Stat. § 108.04(7)(b). However, that statutory section requires that the quitting be with good cause attributable to the employing unit. That phrase does not mean that an employe may quit with "good cause" and be eligible for benefits. The good cause must be attributable to the employer. "Good cause attributable to the employing unit" means some act or omission by the employer justifying the employe's quitting; it involves "some fault" on the part of the employer and must be "real and substantial." Nottelson, 94 Wis. 2d at 120 (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401 (1965), and Hanmer v. DILHR, 92 Wis. 2d 90, 98 (1979)). For the exception to apply, the quitting must be "occasioned by" the act or omission of the employer which constitutes good cause. Hanmer, 92 Wis. 2d at 98 (citing Kessler, 27 Wis. 2d at 401.)

The commission finds that the employe did not quit with good cause attributable to the employer. The employe failed to raise her complaints about the supervisor to any one else in management prior to quitting. While the employe maintained that she did not know who to contact or how to complain, her actions belie such contention. The employe was able to contact the corporate office immediately after quitting to explain that she quit because of the supervisor. The employer's open door policy and the availability of corporate's phone numbers were enough information for the employe to take her problems with her supervisor to upper management. The employe's experience at other places of employment or a general fear of retaliation did not justify her failing to contact upper management. The employe had to at least give the employer an opportunity to address her concerns instead of simply concluding that it would not do any good to complain, or would make the situation worse, and therefore she should just quit.

The employe testified that her supervisor's behavior caused panic attacks, stress, a loss of sleep and a loss of 25 pounds. She also suffered chest and stomach pains, and her psoriasis flared up, all of which improved after she left her employment. However, the employe's testimony did not establish that she was unable to continue in her employment. The employe did not establish that she had been advised by a doctor to quit her employment.

The commission therefore finds that in week 20 of 1999 the employe voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a), but not for any reason constituting an exception to that section.

The commission further finds that the employe was paid benefits in the amount of $3949.00 for weeks 21 through 40 of 1999, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employe. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that 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 20 of 1999, and until four weeks elapse since the end of the week of quitting and the employe has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay the sum of $3949.00 to the Unemployment Reserve Fund.

Dated and mailed October 14, 1999
collima.urr : 132 : 6 VL 1080.20

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding his impressions of witness credibility and demeanor. The commission does not disagree with the administrative law judge's credibility assessment but reaches a different legal conclusion when applying the law to the facts of the case.

cc: ATTORNEY MICHAEL J MASNICA
RIZZO & VIGNALI SC

RUBBERMAID & CO

WRAY VASSAR
CONTINENTAL INVESTIGATIONS & SEC

ANDREW OURTH
C/O THE FRICK CO


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