CHAD M LEGLER, Applicant

JCOMP TECHNOLOGIES INC, Employer

An administrative law judge (ALJ) for the Worker's Compensation Division 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 order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed April 22, 2008
leglech . wsd : 175 : 9 ND §7.29, 7.32

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining that the applicant's termination on April 11, 2003 constituted an unreasonable refusal to rehire pursuant to Wis. Stat. § 102.35(3). The employer contends it had a valid business reason for discharging the applicant due to poor performance. The employer contends that prior to the applicant's injury in February 2003 there were issues with his job performance, and the applicant's injury did not play any part in his ultimate termination, but rather he was discharged due to poor work performance. The employer states the applicant did not meet his billable hours requirement, obtain additional certification, or become a productive employee, leading to his termination.

However, the applicant testified that prior to March 4, 2003 he had not received any written or verbal warnings concerning poor job performance. The applicant explained that during a four-month period of time between August 2002 and November 2002 he was performing work at the employer's new building, and not performing his normal duties at least 80 percent of the time. The applicant denied that he had been given verbal or written warnings concerning poor job performance.

The applicant suffered a back injury while lifting at work on February 24, 2003. The applicant continued to work and was assigned work restrictions by his treating physician on March 3, 2003. The applicant received his first written warning for poor job performance on March 4, 2003 and worked on light duty. The applicant was released to return to work without restrictions on April 7, 2003. The applicant testified that during March 2003 he passed one of the required certification exams.

The evidence did not indicate the employer followed its progressive disciplinary policy prior to discharging the applicant. The applicant denied that he had been given an unsatisfactory performance evaluation prior to his termination. The administrative law judge appropriately noted that the applicant's warning letter dated March 4, 2003 offered no guidance or directives as to how the applicant was supposed to cure or correct his performance issues. The applicant testified that he did not receive any further oral or written warnings between March 4, 2003 and the date of his termination.

The administrative law judge, who could observe the demeanor or witnesses and therefore was in a good position to make a determination as to credibility, credited the applicant's testimony. Based upon an independent review of the evidence in the record, the commission has not found anything to warrant overturning the administrative law judge's credibility assessment. The employer has failed to establish that it had a valid business reason for discharging the applicant. The applicant established a prima facie case for unreasonable refusal to rehire pursuant to Wis. Stat. § 102.35(3). Given the evidence of the employer's failure to follow its own policies and procedures, and given the lack of any warning to the applicant for poor performance prior to his work injury in February 2003, and given the applicant's termination shortly after being released to return to full-time work from his work injury, the evidence was sufficient to establish that the employer terminated the applicant due in part to his work injury and not for a valid business reason. Therefore the commission agrees with the administrative law judge that the applicant's termination constituted an unreasonable refusal to rehire pursuant to Wis. Stat. § 102.35(3).

cc: Attorney Steven J. Lownik
Attorney Angela Nichols-Philipp

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