Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Brian G. Kilgore (Hearing No. 96201019EC) v. Wisconsin Indianhead Technical College and Labor and Industry Review Commission, Case 96-CV-318 (Wis. Cir. Ct., Douglas Co., March 26, 1997)

Digest Codes:  VL 1007.15   VL 1014   VL 1023.01

The employe worked for about four years as a custodian. He was videotaped removing food from the employer’s food service area and going through the desks and file drawers of other employes. As a result, he was scheduled to meet with representatives of the employer and the union in a disciplinary meeting, but he did not attend the meeting. The employer and the union representatives did meet, and after the employer indicated its intention to implement discharge proceedings, the union representative asked whether the employer would be willing to accept the employe’s resignation. The employer indicated it would, and the union representative subsequently advised the employe to resign rather than face disciplinary proceedings. The employe resigned.

After resigning, the employe visited a drug and alcohol abuse counselor, who told him he was suffering from "dry drunk syndrome." The employe is a recovering alcoholic who has been sober for eight years. The employe asserted that his behavior was the result of this syndrome.

The commission found misconduct. The employe appealed and argued that his actions were not intentional, and that the videotaped behavior was typical behavior for someone with dry drunk syndrome. He also asserted that the employer unfairly discharged him instead of imposing lesser discipline.

Held: Affirmed. The evidence presented by the employe did not provide any medical basis in support of his arguments. The only evidence in this regard was a letter from the counselor in which the counselor indicated the employe had dry drunk syndrome, but which did not specifically attribute the employe’s videotaped behavior to this syndrome. The employe chose to resign rather than face disciplinary proceedings, and thus his quitting was not within any of the statutory exceptions to Wis. Stat.  108.04 (7)(a).

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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