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


TOYA C BURTON, Employee

SIGNICAST CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00603251MW


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 employee worked about seven months as an inspector and in other capacities for the employer, a manufacturer of precision parts. Her last day of work was March 10, 2000 (week 11).

The employer's disciplinary policy provides for verbal warning, written warning, and a "decision making leave" (DML). Under the employer's policy at the level of DML the employee "must decide to correct the problem immediately and make a total commitment to good performance in the future, or decide to terminate your employment with the company. You will receive a DML package, which must be filled out and discussed with your supervisor the following day when you return to work. After the Decision Making Leave is complete, the recurrence of a second DML within two (2) years of the first and for the same reason is showing no commitment towards Signicast nor your co-workers and will result in you termination." Exhibit 1, p. 24.

The employer's handbook further provides "Signicast is committed to providing an environment free from all forms of harassment or discrimination based on race, sex, age, religion, disability, marital status, national origin, sexual orientation, or any other characteristic protected by law. We ask that all employees at all levels in the company act in a way that supports this commitment. Any employee who violates this policy will be subject to corrective action, which may include discipline up to and including discharge." Exhibit 1, p. 25.

The employee's 60-day evaluation on October 29, 1999 was generally positive except for the notation that her "first visual" efficiency was below standards. Her attendance was perfect. Exhibit 6. She received a 47-cent per hour raise. She stated that it was a slap in the face. On January 3, 2000 the employee was given a 120-day evaluation. She was rated below standards on productivity at first inspection. Her supervisor commented that her attitude had gotten worse. She was absent on one occasion. Exhibit 7.

Following the January 3, 2000 evaluation the employee called in absent two days in a row. She was again absent on Monday, January 17 and then on Monday January 31, 2000. Mr. Lawniczak, her supervisor, gave the employee a verbal reminder regarding her attendance when she reached 5 points. The employee was absent on Friday, February 11, 2000.

On February 18, 2000 the employee received a written warning for attendance. The warning noted that in the past eight months the employee had been absent six days bringing her total points to 6. At 8 points or above the employee would be put on DML status. Exhibit 8. Mr. Lawniczak went over the warning with the employee. She did not have any comments as to why she had been absent.

On March 1, 2000 the employee received a written warning for performance. The warning indicated that in her first 60 days her "first inspect" efficiency was at 64 percent, it dropped to 55 percent in the following sixty days, and then dropped to 39 percent in the last 60 days. The warning stated that the employee needed to improve her performance or further disciplinary action would be taken. The employee refused to sign the warning. Exhibit 9. Generally a worker's first inspect efficiency improved over time. After her 60-day evaluation the employee stated to Mr. Lawniczak that her performance was the best she was going to do, that she didn't care about her job, and that if it wasn't good enough to just fire her.

On Friday March 10, 2000 the employee was taken to Mr. Lawniczak's office after she and another worker had words. The employee commented that she was sick of the other worker looking at her and didn't know if the co-worker was "gay or what." The employee then stated to Mr. Lawniczak that she tired of all the "he said, she said" stuff and "I heard that you were a faggot, but you don't see me going around spreading rumors about that."

After the March 10, 2000 conversation Mr. Lawniczak decided to prepare a DML. The employee's attendance and performance had slipped since her 60-day evaluation. On March 13, 2000 the employee was presented with a Decision Making Leave. The DML noted that she was being given time off with pay to determine what she was going to do to correct her attitude. The DML also indicated "please do not get defensive, but instead use this as a guide for determining what your corrective action plan will be." The DML listed the employee's infractions:

Exhibit 2.

The employee checked the box indicating that she wished to continue her employment with Signicast. Therefore, she was given further instructions on what she had to do to continue her employment. The DML provided:

1.) On the attached page list what you are going to do to correct your problem to an acceptable level. For each action you intend to take, please put down the date that it will be accomplished by. This list should be quite specific and should indicate the things you are going to stop doing and the things that you are going to start doing.

2.) On the page titled "where I need help" please list things that myself or others at Signicast can do to help you in your effort to correct your problem. Again, we will help you in any way we can.

Receiving a decision making leave is very, very serious. This is your last chance to correct your problem. If you fail to correct your problem in a reasonable time, your employment will be terminated. Please do not take this as a threat, but merely a simple statement of fact. You are being given this DML because we want you to correct your problem and continue your employment at Signicast.

You are being given this time off so you can spend the time giving careful thought to your problem and whether you really want to continue your employment at Signicast. Your corrective action plan must be specific, thorough and complete. If it is not, it tells me you do not care about your job or continuing your employment at Signicast. In order to help you fill out your corrective action plan, we have attached an example as a guide.

You are required to report back to work on your next scheduled work day, at your usual start time. You must bring your completed "Corrective Action Plan" and "Where I need help plan". At that time, we will sit down and go over each item.

Exhibit 2.

On March 14 the employee submitted her corrective action plan. The employee wrote:

First of all I would like to say that I do not have a problem. The harassment that was afflicted upon myself by Cliff Fisher and Ron Lawniczak is still a continuing issue as of March 13th. I would also like to say that the discrimination practices that I spoke about to Ron Lawniczak March 10th and in the meeting I had with Cliff Fisher and the personnel dept. March 13 is an issue that needs to be thoroughly investigated and corrected. I do want to continue my employment at Signicast and I would be very pleased to see the harassment and discrimination come to an end. It is very discouraging to come to work just to be harassed. I honestly do not like to be talked down to like I am a noncomposmentis. If I see that Signicast Corp. is not trying to correct the problems of harassment and discrimination I will have to take further action.

Exhibit 2, p. 3.

The employee returned to work with her DML on March 14, 2000. Ms. Schaeffer, the personnel manager, informed her that she had not responded as required. She was given examples of responses she could make and was sent home again and told to complete the form in the appropriate manner. The employee submitted her second response dated March 15, 2000 on which she wrote the following:

As I stated before on the first corrective action plan that I gave to Cliff Fisher on March 14, 10:30 pm. I do not have a problem. I do want to continue my employment at Signicast. I do want to be a part of the Signicast team. It is doing neither myself nor Signicast any good when every time I come to work, ready and willing to work, Cliff Fisher sends me home because he feels what I wrote on the corrective action plan is not to his satisfaction.

Exhibit 3, p. 3.

Ms. Schaeffer again informed her that her statement was nonresponsive. She was given examples of how to respond such as "I am not going to make derogatory comments about co-workers" and her completion date would be "immediately" or that she would "increase her production to a certain level" and the effective date would be "within the next few months." The employee was worried that what she wrote down would be held against her. The employer told the employee to use estimated completion dates not exact dates. She was to return with the completed form the next night. She returned on March 16 with a blank form. She was informed that she could not return to work until she completed the form.

The employee called Mr. Lawniczak on at least one occasion after March 16 and asked if she could return to work. Mr. Lawniczak informed her that she could not return until her form was completed. She called Mr. Fischer on March 22 and asked if she could return to work. Mr. Fischer informed her that she knew what the expectations were and until she completed the DML she could not return to work.

On March 27, 2000 the employer sent the employee a letter explaining that she was being asked to write down steps she was going to take to change her attitude and become a more productive member of the team. Examples were provided such as "I will work on being part of the Signicast team by improving my attitude. I will watch what I say and not say derogatory things about my supervisor and co- workers. Effective: Immediately." The letter indicated that a completed DML had to be returned by March 30, 2000 and failure to satisfactorily complete the DML would be considered job abandonment. Exhibit 4. The letter was returned to the employer after three unsuccessful delivery attempts. The employee denied any knowledge of delivery attempts.

On March 29, 2000 Ms. Schaeffer telephoned the employee. Ms. Schaeffer went over questions that the employee had with other issues, apparently the harassment allegation against Mr. Fischer. Ms. Schaeffer informed the employee that she did not find the allegations to constitute harassment. Ms. Schaeffer reminded the employee that the employer was waiting for the completed DML package.

On April 13, 2000, (week 16), the employer mailed the employee a letter informing her of the end of her employment. The letter stated:

You are receiving this letter because we have failed to hear from you since the last phone conversation on March 29, 2000, where you were told to come in with your completed DECISION-MAKING LEAVE (DML) form. This phone call took place after the 3 DECISION- MAKING LEAVES meetings you had with Ron Lawniczak, Cliff Fischer and myself. The last DML meeting you were told to return with a corrected and completed DML. For your DML to be correct you needed to address the issues listed on the front page of the DML that was give to you and discussed with you on the occasions listed above.

You have chosen not to return to Signicast Corporation. You have chosen not to call Signicast Corporation to keep us informed. You have made no noticeable attempt to come back to work. You have therefore abandoned your job at Signicast. Effective April 13, 2000 you are no longer an employee of Signicast Corporation.

Exhibit 5.

The initial issue to be decided is whether the employee voluntarily terminated her employment or was discharged.

An employee may be found to have voluntarily terminated his or her employment despite the fact that the employee has never expressly stated "I quit." For unemployment compensation purposes, a quit can include a situation in which an employer actually discharges a worker. Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119 (1980). An employee can voluntarily terminate employment by knowingly refusing to take action which would have allowed his or her employment to continue. Shudarek v. LIRC, 114 Wis. 2d 181, 188 (Ct. App. 1983). An employee may demonstrate an intent to leave his or her employment by word or manner of action, or by conduct, inconsistent with the continuation of the employment relationship. Nottelson, Wis. 2d at 119; Dentici v. Industrial Comm., 264 Wis. 181, 186 (1953).

The commission finds that the employee quit her employment. The employee knew or should have known that her failure to return an acceptably completed DML would end her employment with the employer. The DML alerted the employee that the "corrective action plan must be specific, thorough and complete. If it is not, it tells me you do not care about your job or continuing your employment at Signicast." The employee certainly knew she would not be allowed to return to work without completing the agreement. In the past the commission has viewed an employee's refusal to sign a "last-chance agreement" knowing the refusal will end the employment constitutes a quitting as the employee had the last chance to act to preserve the employment relationship. See Lewis v. Johnson Controls Battery Group Inc., UI Dec. Hearing No. 94606558 (LIRC Mar. 14, 1995). Likewise, the commission generally views refusals to sign non-compete agreements or similar agreements as a quitting. See, e.g. Lynd v. Elite Services Inc., UI Dec. Hearing No. 00400319GB (LIRC Apr. 19, 2000); Athey v. WLIRC, No. 91-CV-676 (Wis. Cir. Ct. LaCrosse County Aug. 10, 1992); Sternemann v. Graphic Resources Inc., UI Dec. Hearing No. 90605151WK (LIRC Oct. 23, 1990); Magne-Script of Madison, Inc. v. DILHR, LIRC, No. 86-CV-1351 (Wis. Cir. Ct. Dane County Feb. 1, 1988).

The next issue is whether the employee quit her employment for any reason permitting immediate benefit payment. Basically, the employee refused to complete the DML because she maintained it would constitute an admission of guilt. The employee is essentially arguing that she had good cause attributable to the employer for quitting her employment.

In Miller v. LIRC, No. 92-CV-2953 (Wis. Cir. Ct. Waukesha County Jan. 24, 1994) Court of Appeals, District II, Case No. 94-0940, January 25, 1995 (unpublished), the employee was verbally warned, warned in writing, and suspended for inappropriate sexual contact and inappropriate language used toward female workers. The employer received another complaint that the employee was harassing a female worker. The employer suspended the employee and presented him with a condition of employment agreement to sign. The employee denied the accusations, disputed the accuracy of the document, presented his version of the incident and refused to sign the document. The commission found that he quit his employment, that the condition of employment agreement was reasonable and that the employee did not have good cause to refuse to sign it. The court affirmed the commission's decision.

The commission finds the DML was a legitimate tool designed to help the employee conform to standards of conduct the employer had a right to expect. The DML set forth areas of legitimate concern related to the employee's employment -- her comments related to the sexual orientation of others, her decreasing efficiency, her unsatisfactory attendance, and her poor attitude. The employee could have attempted to address the areas of concern without admitting guilt. Further, the fact is that the employee did have an increasingly poor attendance record and decreasing efficiency. That the employee could offer excuses for the problems did not negate the existence of those problems. The commission finds the employee could have commented in a responsive manner without "confessing." For example, she could have stated "I did not intend any harm in noting that I heard Mr. Lawnizcak was a faggot, but I will refrain from using that term in the future."

The commission therefore finds that in week 16 of 2000 the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $4,832.00 for weeks 16 through 38 of 2000, for which the employee was not eligible and to which the employee 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 employee. 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 employee 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 employee is ineligible for benefits beginning in week 16 of 2000, and until four weeks elapse since the end of the week of quitting and the employee 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. The employee is required to repay the sum of $4,832.00 to the Unemployment Reserve Fund. This matter is remanded to the department to determine whether the employee's employment was suspended as a disciplinary action for good cause connected with her employment, unless otherwise resolved.

Dated and mailed October 23, 2000
burtoto.urr : 132 : 6 :  VL 1007  VL 1014

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the administrative law judge. The administrative law judge found the employee to be a generally credible witness. The commission's reversal rests on its disagreement with the administrative law judge as to the reasonableness of the requirement that the employee complete the DML in the first place and the reasonableness of the employee's refusal to complete the DML as instructed by the employer.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: ATTORNEY SCOTT BEIGHTHOL
MICHAEL BEST & FRIEDRICH


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