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


ALEXANDER J JONES, Employe

WOODMANS FOOD MARKET INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001427MD



On April 1, 1999, the Department of Workforce Development issued an initial determination which held that the employe had been discharged, not for misconduct connected with his employment. The employer filed a timely request for hearing, and hearing was held on April 21, 1999 in Madison, Wisconsin before a department administrative law judge. On April 26, 1999, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe filed a timely petition for review, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately two years and three months, most recently as a parcel/carts supervisor, for the employer, a supermarket. The employe's last day of work was March 18, 1999 (week 12), when the separation from employment occurred. The issue is whether the separation was a quit or a discharge. The commission concludes that it was a discharge, not for misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

On the employe's last day of work, he got into a dispute with the employer's front-end supervisor, the person responsible for overseeing checkers and baggers. The front-end supervisor asked the employe why he was not "on carts" (presumably, retrieving carts from the parking lot and returning them to the store's entrances for customer use). The employe responded that he was assisting with parcels, and that he would go back to carts shortly. At this point, the supervisor directed a racial epithet and string of profanities at the employe and told him he was fired. (1)    She directed him to go to the office, and then retrieved the store manager. When the store manager came into the office he told the employe that he was out of there, that he was gone. Shortly thereafter, the manager told the employe to terminate himself and that, if he did not do so, the manager would. The employe then left the premises.

This separation was a discharge. The only thing the employe did, was to indicate to the front end supervisor that he was assisting on parcels and that he would return to carts shortly. This of course is not misconduct for unemployment insurance purposes. The commission therefore finds that, in week 12 of 1999, the employe was discharged but not for misconduct for unemployment insurance purposes.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for unemployment insurance beginning in week 12 of 1999, if he is otherwise qualified. There is no overpayment of benefits to repay.

Dated and mailed November 12, 1999
jonesal.urr : 105 : 2   VL 1007

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The administrative law judge had credited the manager's testimony regarding the separation. That testimony essentially was that the employe had said that the front-end supervisor had fired him. The store manager had told the employe he was not fired but that, if he were not happy there, he should quit the employment. The administrative law judge reasoned that, since the manager thought the employe was a good worker, and had given the employe a positive probation evaluation and had promoted the employe to his position as parcel and shopping cart supervisor, the manager would not have discharged the employe in the manner alleged by the employe. For the reasons stated below, though, the commission must reject the administrative law judge's credibility assessment in favor of the manager. First, the employe worked for the employer for more than two years. There is no indication in the record at what point the employe received the probationary evaluation; the commission therefore cannot conclude that it was close enough in time to the separation to render unlikely the manager's discharge of the employe. More importantly, there is a fatal inconsistency within the manager's testimony itself. The manager went out of his way to give reasons why he would not have discharged the employe, testifying for example that the employe was a great worker. If the employe were that great a worker, though, the store manager would not have told the employe that the employe should quit his employment if he was not happy there (which the manager testified he told the employe). Finally, both the synopsis and the administrative law judge's handwritten notes indicate that, when the employe was testifying as to the conversation in which the separation from employment occurred, he started crying. This is not the response of someone who knows they quit an employment, and subsequently is lying about the matter in a hearing on the matter. For these reasons, the commission credits the employe's testimony over that of the manager.

The dissent argues that it was not inconsistent for the manager to both consider the employe to be a good worker and tell the employe he should quit if he were not happy at his employment with the employer. In fact, the two notions are inconsistent since an employer who considers an employe to be as good a worker as the manager claimed, would not go out of his or her way to suggest that the employe quit the employment. The dissent also asserts that there was no reason why the employer would want to be rid of the employe. The record indicates significant hostility toward the employe, which easily could be a reason why the employer, in the person of the front-end supervisor, would seek to be rid of the employe.

Finally, the dissent begins by responding to an allegation by the employe that the administrative law judge and the employer's witness had a conversation after the hearing and that the employe saw the administrative law judge and employer's witness shaking hands and smiling. It is unclear to the majority what point the dissent is trying to make; these allegations by the employe played no part whatsoever in the majority's resolution of the case.


PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. After the employe petitioned for commission review, he sent a letter to the commission which was received July 1, 1999. The letter alleged that the administrative law judge and the employer's witness were having a conversation after the hearing. The employe alleged that he was standing for (sic) feet away and saw them shaking hands and smiling. I listened to the entire hearing including the time the tape was on after the hearing ended. The administrative law judge said "everyone's free to take off" and "Bye-bye". Right way another voice that could have been either the employer or employe said have a nice day. Then the administrative law judge was softly humming on the tape. There were no discussions about the case or anything else.

One problem in this hearing was the fact that the front-end supervisor for the employer was not at the hearing. That person was on vacation in Florida at the time of the hearing. The notice of hearing was mailed April 14, 1999 for a hearing on April 21. There is a note in the file that the employer called to try to get the hearing delayed because the witness was missing. The department did not postpone the hearing but suggested that they get the witness' phone number in Florida.

Unlike the majority, I would not find that the front-end supervisor used a racial epithet. The employe's witness said he did not hear her use the "N" word. The employer had a witness to rebut the employe and his witness' testimony that the supervisor swore at him so I accept that finding. The supervisor sent the employe to the office after the discussion about the work the employe was doing--whether he should be doing parcel or carts. The employe put his apron and time card on the manager's desk.

The manager asked him what was going on. The employe said Tammy fired him. The employe said "my last offense was a 3-day deal and the next offense is termination." The manager told him he was not fired. He told him the warnings had to do with attendance not work habits. The employe was obviously upset that Tammy had asked him why he wasn't getting carts and the fact that he didn't have as much help because it was busy and they were short people. The manager told him that "if you are not happy here, why don't you just quit." During this time the employe had gone to the locker room and cleaned out his locker. The employe then threw his key on the personnel desk and left the store without punching out.

The majority believed that the manager would not have testified as to what a good worker the employe was and at the same time tell him if he wasn't happy he could quit. I don't believe that it is inconsistent. The manager had hired and promoted the employe. He had personally given him a good evaluation. The manager only became involved because the front-end supervisor had told the employe to go to his office. The employe had no warnings related to work performance. There was no reason why the employer would want to get rid of him.

I believe that the employe quit because he was frustrated by the lack of help on a busy day. He testified that the manager had told him that there should always be two people on parcel. There were many times there were not two people on parcel. He was doing double jobs. The front-end supervisor did not need to check on him because "I almost did it my myself many times when there was no help. If I went back in to argue for help they would yell or scream at you." I believe the employe reached the breaking point when the front-end supervisor complained about the way he is doing his job.

I also believe that the front-end supervisor did not have the authority to fire him and that is why she sent him to the manager's office. The manager testified that the front-end supervisor could not fire a worker but only assign them.

For these reasons, I would affirm the result of the administrative law judge and find that the employe quit his employment not within any of the exceptions that would lead to the immediate payment of unemployment benefits.

_______________________________________________
Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) The dissent indicates that it would not find that the front-end supervisor used a racial epithet, because the employe's witness said he did not hear her address a racial epithet to the employe. The witness did not testify that the front-end supervisor did not use the epithet; he testified only that he did not hear the front-end supervisor use it. The employe testified that the front-end supervisor directed a racial epithet and string of profanities at him. The employe's witness corroborated the employe's testimony regarding the swearing, and could not testify one way or the other as to the racial epithet because the witness did not hear it. That the witness did not hear the epithet does not mean it was not stated. It seems inconsistent for the dissent to accept the employe's testimony regarding the profanities but not that regarding the racial epithet. The same charge can be made with regard to the employe's testimony that the front-end supervisor told the employe he was fired. The dissent apparently disbelieves the employe on this matter; the employe's witness, however, who the dissent found credible, also heard the front-end supervisor tell the employe he was terminated. The dissent also states that she believes the front-end supervisor did not have the authority to fire the employe, that that is why she sent him to the manager's office. The dissent found credible the employe's witness with regard to the profanities the front-end supervisor directed at the employe. That same witness testified specifically that the front-end supervisor told the employe he was terminated and that he was to go to the office. Even if the front-end supervisor herself technically did not have the authority to discharge the employe, she still had the authority to order him to go to the office and to seek out the store manager in order that the store manager discharge the employe.