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UC Decision Digest - 1991-1994 case summaries; plaintiff names M - R  

This file contains  the summaries of court decisions collected in the 1991-1994 edition of the Unemployment Compensation Decision Digest  for cases with plaintiff names beginning with M through R.

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Plaintiff names ending with M:                       (Go to: [Top of this page] - [Main UC Digest Index] )

 

Carol J. Maglio v. City of Milwaukee, et al. and LIRC, No. 94-CV-905 (E. D. Wis. November 8, 1994)

Employe brought action in Milw. Co. Cir. Ct. for judicial review of LIRC decision denying UC benefits, but the action also included causes of action against co- defendant employer (City of Milwaukee) for discrimination under the Americans with Disabilities Act (ADA). The commission answered, and also filed a motion for severance of the judicial review action from the ADA action, but before this motion was ruled on the City of Milwaukee removed the entire action to federal court by filing a petition for removal. The commission then filed a motion in federal court to have the judicial review action severed from the ADA action and remanded to state court.

Held: Motion granted. The judicial review action was improperly joined with the ADA action under the federal rules concerning permissive and mandatory joinder. Therefore severance is appropriate. Because the judicial review action, standing alone, does not have any basis for federal jurisdiction, it must be remanded to the Milwaukee County Circuit Court.


Majestic of Lake Geneva Inc. v. LIRC and Brian K. Shackett, No. 92-CV-183 (Wis. Cir. Ct. Walworth County September 22, 1992)

The employe worked as a boat mechanic for over two years for the employer, marine service. One week after being told by co-workers that the employe had performed work in the shop for individuals who were not customers of the employer, the owner and his son confronted the employe about this. The employe admitted performing one side job on a boat in the employer's garage, and stated he would not do it again. This conference took place on August 22, 1991, and on October 4, 1991, the employer discharged him. Although the reasons for the discharge were not clearly articulated to the employe, the employer asserted that it was due to the side job. The employer also asserted that it waited so long to discharge the employe because it needed to first hire a replacement.

The ALJ found no misconduct, and wrote that it has been consistently held that "a critical factor" in determining whether conduct amounts to misconduct is the expediency and dispatch with which the employer administers its disciplinary action. The commission affirmed and the employer appealed to circuit court.

Held: Remanded. It constituted an error of law to find that the delay in discharge was a "critical factor" in determining misconduct. The court remands the matter to the commission to conduct another review of the record, with the delay in discharge to be considered as merely one relevant factor in determining whether misconduct had occurred. (The commission conducted a second review of the record in accordance with the court's remand, and again found no misconduct. See Majestic of Lake Geneva Inc. v. LIRC and Brian Shackett, No. 93-CV-141, (Wis. Cir. Ct. Walworth County June 21, 1993).)

(Affirmed in unpublished per curiam decision No. 93-2263, 185 Wis. 2d 708 (Ct. App. 1994).)


Majestic of Lake Geneva, Inc. v. LIRC and Brian K. Shackett, No. 93-CV- 141 (Wis. Cir. Ct. Walworth County June 21, 1993)

See facts in prior September 23, 1992, court decision involving same parties.

The commission conducted a second review of the record in accordance with the court's remand, and again found no misconduct, but this time based on several factual circumstances which included the delay in discharge. The other circumstances the commission noted were the one-week delay in confronting the employe after the employer was informed of the side job, that the employer told the employe side jobs were okay as long as they were not done on the premises, bad relations between the employe and one of the owner's sons, and the employer's failure to specifically mention the side job at the time of discharge.

Held: Affirmed. The employer contends that the findings of fact are incorrect. They are, however, appropriate inferences of fact or actual fact findings within the commission's powers. Some facts are not supported by specific direct testimony but they logically flow as an inference from the evidence.

In determining whether the employer has a right to expect certain conduct, one looks to the way the employer treats the conduct. Here, the employer waited a full week after being informed of the side work to confront the employe about it. This suggests the employer did not view it as a disregard of the employer's interests. Also, the employer told the employe some fifteen days after he did the side work that it did not mind his doing side work as long as it was not on the employer's premises. There is evidence the employer made such a statement although the employer denied it. If the employer considered such action to be disregard of the standards of behavior it had the right to expect, it is hard to see how the employer could make such a statement. Also, the commission did not have to accept the reason the employer gave for waiting six weeks to discharge the employe. The delay confirmed the commission's opinion that this was not misconduct and that the real reason for the discharge was the bad relationship between the employe and the owner's son. The commission also considered the fact that the employer did not specifically mention the side job at the time of discharge as a deliberate violation.

(Affirmed in unpublished per curiam decision in ct. of app. case No. 93-2263, 185 Wis. 2d 708 (Ct. App. 1994).)


Guadalupe J. Marchan v. LIRC and Cooper Power Systems, Inc., No. 92- CV-010885 (Wis. Cir. Ct. Milwaukee County October 27, 1993)

The employe worked as an assembler for the employer beginning in January, 1972. His final pay rate was $10.52 per hour but he averaged $17 to $18 per hour. About 15 minutes prior to the end of his shift on October 9, 1991, the employe called the employe relations manager. He stated that he didn't know if that would be his last day and complained about various working conditions. He was told to consider his decision carefully and call if he did not report the next day. The employe called the employer before the start of his shift the next day, said he would not be at work, complained about working conditions and asked for a review of his complaints. He refused to report back to work until he met with the plant manager and indicated he was terminating his employment. He did not report to work on October 10 or 11, 1991. The employe had subsequent telephone conversations with the employer but did not return to work.

Held: Affirmed. The evidence in the record supports the commission's decision that the employe voluntarily terminated his employment. The court cannot substitute its judgment for that of the commission on factual determinations. The court cannot determine that other findings could or should have been made.

The employe was advised that he had the right to obtain representation by counsel. No provision exists to appoint counsel in these civil cases even for indigent persons.


Maria Martinez and Porfirio Sandoval v. LIRC, No. 91-CV-4925 (Wis. Cir. Ct. Dane County December 3, 1992) 

Plaintiffs-claimants are husband and wife who are migrant workers and who permanently reside in San Juan, Texas. They do not speak or read English but are assisted with English by their 17-year-old daughter. They initiated U.C. claims in week 6 of 1991 and were paid U.C. benefits through week 23, the calendar week ending June 8, 1991.

Claimants arrived in Wisconsin on May 29, 1991, and a change of address to Wautoma was made on DILHR computer records of May 30, 1991.

Claimants commenced working at 8 a.m. on Thursday, June 6, 1991 and worked through July 22 for a concern engaged in growing Christmas trees. They also worked on Friday, June 7, and were paid for June 6 and 7 on Friday, June 14, 1991.

On June 6, 1991, claimants signed claim cards sent to them by DILHR on June 5, 1991, for week 23. Both failed to report that they worked full or part-time, the starting date, the name of their employer, or the wages earned. Benefit checks were mailed to each claimant on Tuesday, June 11, 1991. Also on June 6, 1991, each claimant wrote to the Oshkosh local office stating they had started working today, they will work only two days in the week, and would like a check for the next week as they would not be paid until June 14. These letters contain a June 11, 1991 receipt stamp by the Oshkosh U.C. office.

The Oshkosh office apparently sought information from the claimants. Because they failed to respond, concealment and overpayment initial determinations were issued which claimants appealed. The ALJ reduced the amount of forfeiture and affirmed both the concealment and overpayment issues. LIRC affirmed the concealment issue which was the only issue claimants appealed.

Held: Reversed. The ALJ's finding of fact, adopted by LIRC, held in part that the department notified both claimants that additional information was needed but neither one responded. The initial determination did refer to their failure to respond but there is nothing in the record in the form of NOTES or letters supporting such statement. In addition, in LIRC's MEMORANDUM OPINION it is stated that claimants' wrongful action was not remedied by "later" notifying the department that they had worked and earned wages in week 23 of 1991. The evidence is that claimants completed their claim cards and letters on the same day so LIRC's statement that they "later" notified the department is not supported. The concealment conclusion drawn by LIRC, based on facts not supported in the record, is in error and reversed.


Peter D. McGrath v. LIRC, Hotel Pfister, Pfister Corp., James K. Weant and Laurel Schelain, No. 94-CV-006044 (Wis. Cir. Ct. Milwaukee County July 25, 1994)

Plaintiff-employe attempted to commence an action for judicial review. Because he failed to serve an authenticated summons on the commission within the 30-day appeal period, the commission moved to dismiss.

Held: Motion to dismiss granted.


Sylvia McKillips v. LIRC and DILHR, No. 90-CV-1800 (Wis. Cir. Ct. Dane County November 31, 1991)

Mrs. McKillips had an auto parts business in which she had conceded employes. However, she had also obtained a building some years ago and refurbished it to be a pet supply store and a pet grooming business. She invested considerable amounts of money to renovate the building so as to be suitable for the pet supply and grooming business. She advertised the business in the manner she saw fit and had also purchased a customer list for the pet grooming business. She paid for all telephone and other utility bills and carried the sales tax permit for the business.

McKillips had no knowledge of pet grooming and no desire to engage in that activity herself. Accordingly, she entered into arragements with various individuals to perform the grooming services. Before engaging them, she interviewed them to determine if they were suitable for the work. She then had them sign a contract which provided they were renting space in the building and the use of the customer list. The contract provided 50 percent of the fees paid for the grooming services would be paid to the groomers with the remainder going to plaintiff. The contract further provided that the customer list was plaintiff's property and that groomers were not to contact customers from the list except in connection with their services for plaintiff's pet center known as A-Z Pet Center.

After an audit DILHR concluded the groomers were employes and issued initial determinations to that effect. McKillips claimed they were independent contractors and renters. The ALJ, affirmed by the commission, affirmed the initial determination.

Held: Affirmed. The determination of whether the groomers were employees thereby creating an unemployment tax liability for McKillip is governed by Wis. Stat. 108.02(12).  DILHR had the burden to establish that the groomers had performed services for McKillip under 108.02(12)(a). If it is able to satisfy this burden, then the burden shifts to McKillips to demonstrate that the conditions in 108.02(12)(b) are met.

McKillips first contends that the groomers were merely renters. However, the contract with the groomers contained a covenant not to compete and to keep clear records for the plaintiff. It did not specifically describe the property to be rented indicating something other than a rental relationship. Furthermore, the importance to plaintiff's business of the customer list indicated the contract was for services.  Plaintiff had made a substantial investment in remodeling the building, acquiring equipment and tools and purchasing customer lists, as well as doing other advertising. Because the agreement provided no compensation to plaintiff unless the workers performed their services, there was no way for plaintiff to realize any return on her investment absent the groomers performing services. Accordingly, the contract was in effect a service contract.

The court did not rule on the direction and control test of the statutory definition of employe, but did rule in response to plaintiff's contention that the groomers' services were performed in independently established trades, businesses or professions in which they were customarily engaged. The court relied heavily on Keeler v. LIRC, 154 Wis. 2d 626, 631, 453 N.W2d 902 (Ct. App. 1990) and Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 69, 330 N.W.2d 169 (1983).

The groomers' services were highly integrated into plaintiff's business, and the pet grooming was directly connected with running a pet center business. None of the individuals advertised their services as pet groomers whereas plaintiff extensively advertised the fact that she had a business providing pet grooming services. Furthermore, none of the groomers provided any extensive services other than to A-Z and in fact none of them operated at any other location.

Plaintiff assumed the much greater share of the entrepreneurial risk. She provided the customer list, facilities and major equipment, whereas the groomer provided only hand tools and equipment. The groomers were heavily dependent upon plaintiff for their pet grooming income. Only one groomer testified. Less than one percent of her pet grooming income came from the few customers she had developed independently of plaintiff's customer list. What other income she might have had came from part-time work unrelated to pet grooming. Thus, the individuals were heavily economically dependent upon McKillips.

McKillips argues that reliance on the testimony of only one groomer was improper. However, the burden of proof was upon her, and insofar as there was a lack of proof McKillips must bear the consequences of that.

The workers had no proprietary interest in an enterprise which they could sell or give away on their own. While one of the groomers had a small customer list, this accounted for less than one percent of her income and could not be an enterprise of any value which she alone could sell or give away. Furthermore, the groomers' only tangible assets were their tools and equipment and their only value would come from performing grooming services which requires customers. Here 99 percent of the customers were attributable to plaintiff's customer list which was only available to a groomer who had entered into a contract with plaintiff, which contract was not assignable. Thus, there was nothing of a proprietary interest in a going business that could be transferred.

The weight to be attributable to the five factors found in Keeler must vary from case to case and the court will seek the real business substance of a relationship in making a determination whether individuals are employes.


Charles Mc Millon, Jr. v. LIRC and BPS Guard Service, No. 93-CV- 003955 (Wis. Cir. Ct. Milwaukee County December 2, 1993) 

The employe had worked for the employer as a security officer from March, 1988 through September, 1992. He received a copy of the employer's rules when he began his employment. During his employment he had received warnings, including a warning for failing to make rounds. Just prior to the termination of his employment the employer had received a complaint about the employe's work. The employer met with the employe about those complaints. The employe denied sleeping on duty but admitting not performing all of his tours and contended that that was an accepted practice. He was discharged at that meeting. The commission concluded that the employe had been discharged for misconduct and was not eligible for benefits.

Held: Affirmed. The evidence in the record supports the findings that the employe had been warned about his job performance and was required to file reports regarding his rounds. He admitted receiving the employer's rules. The employer testified that the employe admitted failing to make his rounds. The employe's denial of making such an admission is not grounds for reversing the commission. The commission could reasonably conclude that such conduct meets the misconduct definition. The employe was not denied due process by failing to have the complaining customer testify at the hearing. He had the opportunity to cross examine those who testified at the hearing.


Martin Melotte v. LIRC and Hollands of Wisconsin, Inc., No. 92-CV-405 (Wis. Cir. Ct. Outagamie County April 1, 1993) 

The plaintiff-employe worked as a sales associate for over five years for the employer, a jewelry store operation. He was discharged on January 10, 1991, for excessive tardiness after warning.

During the employe's employment he was tardy two or more times a week. His tardiness was reported as due to car trouble, oversleeping or weather conditions. He was warned, received disciplinary suspensions, and was given a written warning on January 5, 1991, that he would be discharged if he was late again. He was late on January 10, 1991, because he misread the work schedule and was discharged.

The ALJ allowed benefits on the ground that other workers were also frequently late and the employe was singled out because he was paid a higher salary than his co-workers. The commission reversed, agreeing that the employer was somewhat lax in enforcing its attendance policy but that the employe's attendance violations were greater than any of his co-workers plus he had received disciplinary suspensions and a final warning just five days before he was discharged.

Held: Affirmed. The findings of fact are supported by credible and substantial evidence. Given the employe's long history of tardiness, repeated verbal and written warnings, and disciplinary suspension, the commission's legal conclusion is reasonable.


Menard, Inc. v. LIRC and Brian A. Johnson, No. 92-CV-340 (Wis. Cir. Ct. Eau Claire County March 1, 1993) 

The employe began working for the employer in October, 1985 at its restaurant called The Peppermill. His last position was as assistant manager for which he was paid $6.50 per hour. On October 1, 1991 the employer promoted a person who had been the host and cashier to general manager. The employe and new manager did not get along and had some verbal exchanges. On October 11, 1991 the employer's vice president told the employe there was going to be a change in management and the employe was not part of it. The vice president did not appear at the hearing. The commission held that the employe was discharged but not for misconduct connected with his employment.

Held: Affirmed. Where there is a conflict in the evidence the commission's determination of credibility is final. The evidence supports the commission's findings of fact. The commission was not required to accept the employer's version of the employe's conduct. The commission correctly concluded, on the evidence in the record, that there was no misconduct.


Merrill Equipment Company, Inc. v. LIRC and Fellow M. Sloden, No. 93- CV-1196 (Wis. Cir. Ct. Brown County April 29, 1994) 

Claimant (co-defendant) worked as an employe for Allen Dock until February of 1991. In March of 1991 claimant and another former employe of Allen Dock went into business retailing dock and boat lifts under the name of Docks "R" Us. Plaintiff (employer) purchased the intangible assets and product line of Allen Dock at an auction in August of 1991.

Because of claimant's experience selling boat lifts and dock equipment, the employer's president and claimant negotiated an agreement. Claimant was to be paid a draw against commissions on sales with only telephone and business card expenses paid by the employer. Claimant was to be an independent sales representative selling only for the employer.

Claimant was or was not required to submit sales reports and to attend sales and production related discussions at the employer's office. Claimant used his own order forms for orders. Letters of credit had to be obtained from the customer and the customer's bank and approved by the employer's president in order to utilize the employer's merchandise floor plan.

The employer contacted dealers to determine if claimant was an acceptable representative. During June of 1991 claimant was advised by the employer's president that claimant's sales activity was unsatisfactory. Sales did not increase resulting in the employer's president terminating their sales agreement on July 31, 1992. However, the termination letter provided that claimant's overdraw against commissions would be forgiven if he met certain conditions.

The employer alleged that claimant was ineligible for benefits because he was an independent contractor and not an employe. The initial determination held that claimant was an employe and that he was required to report wages form such employment as the wages were earned.

The employer's president, although notified in advance of the hearing time, date, and location, appeared by telephone and the claimant appeared in person. The employer submitted numerous exhibits in advance of the hearing. The ALJ, affirmed by LIRC, affirmed the initial determination.

Held: Affirmed.

The employer alleged that there was an error of law because the ALJ stated on the record that any issue about self-employment was not relevant as concerns the contentions that claimant was selling for other concerns. Her statement has to be considered in context. Her decision shows that she was well aware of the tests involved. She went into a careful exam of the facts presented and the case law. The commission's MEMORANDUM OPINION also makes reference to the appropriate statutory tests.

The employer also raises an issue relating to the exclusion of certain exhibits. The ALJ went through each of the exhibits with the employer. The employer agreed and was allowed to testify so no due process rights were violated or relevant evidence excluded. (Several exhibits which were excluded were acknowledged by the court during oral argument to be hearsay.) Notices were sent to the parties in advance setting forth the time, date, and place of hearing so there was no violation of the employer's due process rights where it appeared by telephone rather than in person.

There is substantial credible evidence which supports the findings of fact, and if there is an error of law, it is harmless.


Midway Auto Body v. Earl V. Kusba and LIRC, No. 91-CV-002666 (Wis. Cir. Ct. Milwaukee County November 27, 1991) 

The employe, who worked as a mechanic in an auto body shop, alleged that in the last week of his employment the owner and relatives of the owner who were employed in the body shop subjected him to actual and attempted physical assaults and threatened further assaults against him. The employer's witnesses directly denied the allegations of the employe as to the occurrences of his last week of employment. Appeal tribunal and commission found that the employe's testimony was more credible, and that given the treatment to which he had been subjected, there was good cause attributable to the employer for his voluntary termination of employment.

Held: Affirmed. Resolution of the case turned on issues of credibility. Credibility of witnesses is exclusively the province of the agency. The fact that the employe did not corroborate his testimony with that of other witnesses was not significant; even if the ratio of witnesses was 50 to one, the court must affirm if the ALJ and the commission believes that one witness over 50 to the contrary. Court notes that it also would have affirmed if the ALJ and commission had believed the employer's witnesses. Accepting the facts found, the court holds that an employe who is subjected to actual and attempted physical assaults plus threats of more assaults has established good cause for voluntary termination.


Midwest Directories, Inc. v. LIRC and Gloria M. Ring, No. 92-CV-260 (Wis. Cir. Ct. Rock County December 15, 1992)

Ring sold advertising for Midwest, a "yellow pages" publisher. After a dispute between Ring and Midwest's owner, Kramer, the owner had an agent collect from Ring certain materials (contracts with customers from previous years and other forms) which she used in her sales activities. Ring applied for benefits, and Midwest asserted that she was an independent contractor and that she had in any event voluntarily severed her association with Midwest. LID found Ring was an employe and had been terminated but not for misconduct, allowed benefits and Midwest appealed. Midway through the hearing Midwest sought a continuance to allow it to call the agent Kramer had sent to pick up Ring's materials, but the ALJ issued a decision, which affirmed the LID, without granting the continuance. LIRC affirmed.

Midwest appealed, raising the employe/independent contractor, quit/discharge, and continuance issues, but not asserting that the separation was for misconduct.

Held: Affirmed. Substantial evidence supports LIRC's decision that Ring was not free from Midwest's control and direction, and that she did not provide her services in an independently established trade, business or profession. She was subject to a number of requirements as to how she performed her services, and there were no indicia of a business in her selling activities, which were also not initiated independently of Midwest. Substantial evidence also supports LIRC's decision that Midwest terminated Ring, in that it initiated the collection of her materials, the purpose and effect of which was to make it impossible for her to continue to sell for Midwest. Finally, Midwest was not diligent in attempting to ensure that the agent would be present at hearing, or in requesting a continuation when it learned that he could not be. In any event the testimony he might have given would merely have tended to support a finding not made by LIRC, when the relevant issue is whether the evidence that is in the record supports the findings LIRC did make.

(Affirmed in unpublished per curiam Ct. of App. No. 93-0343 (Wis. Ct. App. 1994).) Petition to Review denied.


Thomas J. Miller v. LIRC and Heiser Toyota, Inc., No. 92-CV-2953 (Wis. Cir. Ct. Waukesha County January 24, 1994) 

The employe worked for the employer as a salesperson on a commission basis beginning in August, 1986. On March 17, 1987 he was accused of having grabbed a female co-worker in a sexual manner. He received a verbal warning for that incident. On August 28, 1989 he was given a written warning for having called the female office staff dirty names on August 26, 1989. He received another written warning for calling a female co-worker foul names on February 21, 1990. He was suspended for three days for that incident since it was his third warning.

Beginning in April, 1992 the employe acted toward a new female salesperson in a way that she considered harassment. This included verbal comments, touching and other physical activities. The female salesperson told the employe to leave her alone. When the employe did not change, the female complained to the employer and filed a discrimination complaint alleging sexual harassment by the employe.

On May 26, 1992 the employer suspended the employe and presented him with a condition of employment agreement to sign. The employe denied the accusations, disputed the accuracy of the document, presented his version of the March 1987 incident and refused to sign the document. His employment ended on May 30, 1992. He was held to have quit his employment and not within any exception.

Held: Affirmed. There is credible and substantial evidence in the record to support the commission's finding that the employe terminated his employment. The record contains warning reports, evidence of progressive discipline of the employe, and a letter explaining the effect of failing to sign the condition of employment agreement. The employe admitted that he refused to sign the condition of employment agreement. The commission found that the condition of employment agreement was reasonable and that the employe did not have good cause to refuse to sign it. The evidence relied on was sufficient to raise a legitimate doubt that the employe was discharged. Given the judicially established scope of judicial review of commission decisions, the evidence is sufficient to support the commission's findings and conclusions.


Gary Millikin v. LIRC, No. 92-CV-2352 (Wis. Cir. Ct. Waukesha County December 21, 1992)

The commission moved to dismiss the plaintiff's action for judicial review because he failed to commence the action until after the 30-day appeal period had expired and because he failed to name the employer, an adverse party, as a party defendant.

Held: Motion granted.


Richard J. Milner v. LIRC and Zignego Redimix, Inc., No. 90-CV-636 (Wis. Cir. Ct. Washington County August 9, 1991)  

The employe worked as a truck driver for this supplier of ready mix concrete and materials. He began in 1984 and worked about 50 hours a week. He worked Monday through Friday and some Saturdays. On August 23, 1989 and in early October, 1989 the employe was given warnings for failing to perform assigned jobs.

On November 1, 1989 the employe contacted a babysitter in anticipation of working on November 4, 1989. The sitter advised that she was only available until 1 p.m. On November 3, 1989 the employer advised him that he was to work on Saturday, November 4, 1989. He told the employer that he could only work until about noon. The employer was unable to find a replacement and needed to have the employe haul another load before leaving. The employe refused and left. The employe was then discharged. The ALJ and LIRC held he was discharged for misconduct.

Held: Affirmed. The employe knew as early as Wednesday that he might have to work on Saturday and that he had a babysitter problem, yet the employe did not notify the employer of his babysitter problem. The employe did not explore other possible solutions to the babysitter's time limitation. The employe's attitude toward the employer was to "shove the job" if it didn't let him leave.

Though the employe's primary concern is his family, the employe failed to act reasonably in not attempting to make alternative arrangements to protect both his family and the employer. His attitude manifested a wilful, wanton and unreasonable disregard of the employer's interests. Prior warnings made him aware of the importance of this work to the employer.

The commission's findings are supported by evidence in the record and its conclusion of misconduct is reasonable.


David Moore v. LIRC, No. 92-SC-060998 (Wis. Cir. Ct. Small Claims Division December 1, 1992) (Bench decision)

Plaintiff-employe commenced an action for judicial review in small claims court. The commission moved to dismiss on various grounds which included that small claims court lacked jurisdiction to consider the matter and that the complaint failed to set forth a cause of action.

Held: Motion granted.


Debra Morgan v. City of Madison and LIRC, No. 93-CV-2555 (Wis. Cir. Ct. Dane County November 10, 1993) 

The commission concluded that the plaintiff, an attorney, was not eligible for benefits because she was on a voluntary leave of absence granted for a definite period even though the employer had ended the funding for her position.

The plaintiff, while residing in Minnesota, filed a summons and complaint with the Dane County Circuit Court. She typed the case number on copies of the summons and complaint, but did not have those copies authenticated by the clerk of courts. She served the unauthenticated copies on the commission by mail.

Held: Dismissed. Failure to comply with the statutory review procedure by serving authenticated copies of a summons is a fundamental defect. The circuit court is not competent to proceed to review a commission decision when the statutory requirements are not complied with. Actual notice of the action by the commission does not cure the defect. Therefore the summons and complaint are dismissed.


Fred E. Mueller v. LIRC and Wesley Crawford, No. 91-CV-0117 (Wis. Cir. Ct. Dane County January 28, 1992) 

The claimant began working as a clerk in Crawford's antique store on October 1, 1988. He worked for the fourth quarter of 1988 and until the business ended on February 1, 1989. He filed a claim for unemployment benefits indicating that he earned $1,420.35 in checks and $500 in cash "off the books" during the fourth quarter of 1988. The employer contended that he only paid the claimant the $1,420.35 supported by checks. The commission concluded that it was not established that the plaintiff had earned at least $1,500 in the fourth quarter of 1988.

Held: The claimant attempted to prove in various ways, including inferences from his bank and tax records, that he had earned more than $1,500 during the fourth quarter of 1988. The documentary evidence provided by the employer supports the finding that less than $1,500 was paid during that period. The commission did not err in choosing that evidence and in making that finding.

(Reversed and remanded for further hearing in unpublished Ct. of App. No. 92- 0702 (Wis. Ct. App. 1993).)

NOTE: At the subsequent hearing claimant established that he earned $1,808.85 in U.C. wages during the period in question based on the ALJ's decision, affirmed by the commission. This was more than the employer considered he was paid and less than the claimant claimed he earned.


Janet C. Mueller v. LIRC and Jefferson County, No. 92-CV-561 (Wis. Cir. Ct. Jefferson County June 29, 1993) 

The employe had prepared the food for county jail inmates since 1979 under the direction of the sheriff, who was her husband. She received an allowance per inmate per day. Her compensation was the difference between the allowance and the food cost. In January 1991 her husband retired and the county took over the provision of meals with a paid staff. The employe applied for the position of Food Service Director/Cook and was hired. She was paid $8 per hour. The employe became dissatisfied with the new food service operation and presented her complaints to the new sheriff. She addressed a memo to the sheriff and county administrator while the sheriff was out of the state and set a deadline for change which occurred before he returned. She did not perform any work after the day she delivered the memo. The commission concluded that the employe quit and not for good cause attributable to the employer.

Held: Affirmed. The employe's ultimatum to the employer constitutes a voluntary termination, not a discharge, especially when the employer is unable to meet her timing requirement. An employe cannot demand some action from an employer to the employe's liking without providing a reasonable time to respond to the demand. The commission correctly found that the employe voluntarily terminated her employment.

Although there was a substantial change in the job performed by the employe, primarily in the reduction of managerial duties and an increase in the cooking duties, the employe remained on the job. She did not use those changes as the reason for quitting, but quit because the employer did not respond to her demands within her time deadline. She has not demonstrated that her termination was for good cause attributable to the employer. Job description changes are managerial and not subject to approval by employes. They are not generally accepted as good cause for termination.


Timothy M. Mueller v. LIRC, No. 91-CV-355 (Wis. Cir. Ct. Walworth County July 22, 1991) (Bench decision)

Plaintiff-employe failed to commence his action for judical review within the 30- day appeal period and he also failed to name his employer, an adverse party, as a party defendant. The commission moved to dismiss.

Held: Motion granted.


Thomas Murphy v. LIRC and Northwest Hardwoods, Inc., Weyerhaeuser Company, No. 92-CV-750 (Wis. Cir. Ct. La Crosse County July 23, 1993) 

The employe worked about sixteen months for the co-defendant employer until he was permanently laid off when business closed on May 23, 1991. The Private Industry Council verified his status as a dislocated worker on June 21, 1991. Thereafter, he attended a technical school part-time during the summer of 1991. The employe commenced working for apple orchard number 1 as of July 27, 1991 and quit that employment on or about September 28, 1991. Thereafter, he worked for a temporary service agency earning gross wages of $340.63. Benefits were suspended at all administrative levels on the ground that he quit that non-subject employment with orchard number 1 and was ineligible until he requalified. That decision was not appealed and became final.

As of September 3, 1991, the employe attended the technical school full-time. He also worked about three weeks for orchard number 2 until October 13, which was the end of the harvest. This orchard was also a non-subject employer.

The employe was notified by letter dated in November 1991, that he was selected for funding by the Job Training Partnership Act for student financial aid for the winter quarter of school and he received funding for the period from December 1991 through May 1992.

On December 1, 1991, the department issued an initial determination that the employe had not requalified for benefits since the first determination which became final. Only his employment with the temporary service agency was considered, as the second orchard was a non-subject employer.

The employe contended that because he was a dislocated worker enrolled as a full- time student in an approved training program, sec. 108.04 (16)(b), Stats., exempted him from the requalification requirements of sec. 108.04 (7)(a), Stats. The ALJ held that in order for sec. 108.04 (16)(b), Stats., to apply, the employe would have had to quit his work at orchard number 1 in order to enroll in approved training. Instead, the employe quit that orchard because he disagreed with the way apples were picked.

The employe also contended that in addition to the wages he had earned with the temporary service agency, the wages he earned at orchard number 2 should he used to lift the disqualification. The ALJ held that the employe presented no evidence that orchard number 2 was a covered employer. The commission affirmed, noting in its Memorandum Opinion that a causal connection was required between the quitting and entering into training plus orchard number 2 was not a party to the action. The employe therefore should have but failed to subpoena that employer to establish it was a covered employer.

Held: Reversed. Because orchard number 2 is not a party in this action, the court does not have competency to determine whether it is or is not a covered employer.

Whether sec. 108.04 (16)(b), Stats., relieves the employe from requalifying for benefits as required by sec. 108.04 (7)(a), Stats., is a question of law. The court is not bound by the agency's conclusion of law and because this is a case of first impression for the commission, no weight is to be given its application of the statute to the facts.

The unappealed commission decision holding that the employe quit his employment with orchard number 1 is final (res judicata) and cannot be relitigated. The commission properly held that under sec. 108.04 (7)(a), Stats., he had to requalify to be eligible for benefits. Here, the employe does not have to requalify from the quit provisions because he entered approved training based on his status as a dislocated worker after quitting orchard number 1 without cause. This commission's application of the statute is contrary to the plain language of the statute. The effect of the commission's decision is that the employe must either quit the training program or earn requalifying wages which has the effect of disqualifying him, not for beginning, but for remaining in the training program. To force him to requalify in order to get U.C. is to force him out of the approved training program and into the labor market. The equities are with the employe and because his training program had been approved, he was no longer subject to the requalification requirements.

(The circuit court's reversal of the commission's decision was affirmed in a published decision, 183 Wis. 2d 205, 515 N.W.2d 487 (Wis. Ct. App. 1994).


Thomas P. Murphy v. LIRC and Northwest Hardwoods, Inc., Weyerhaeuser Company, 183 Wis. 2d 205, 515 N.W.2d 487 (Ct. App. 1994) 

Mr. Murphy was laid off from Northwest Hardwoods in May 1991, and qualified for retraining under JTPA. He applied for JTPA funding in July 1991, but due to a shortage in funds his application was not approved until December 1991. He did not actually receive JTPA funds until the beginning of the semester in January 1992. In the summer and fall of 1991, he had begun a training program at a technical college, paying for this himself. On July 27, 1991, he accepted part-time employment as an apple picker at an orchard. He quit his employment on September 28, 1991, but not for a reason which would allow benefits. He appealed the disqualification determination through the commission level, where he lost, but did not appeal to circuit court.

In December 1991, Murphy asserted a new issue, claiming that the quit disqualification should be lifted pursuant to section 108.04 (16)(b), Stats., because he had enrolled in JTPA training. Section 108.04 (16)(b), Stats., provides:

The requalifying employment requirement under sub. (7) and (8) and the general qualifying requirement under sub. (2) do not apply to an individual as a result of the individual's enrollment in training or leaving unsuitable work to enter or continue training under 19 UCS 2296.

The commission denied, finding that the statute required the quitting to be for the purpose of enrolling in JTPA training, and did not contemplate a retroactive lifting of the quit disqualification under Murphy's circumstances, where he quit for a reason not having anything to do with enrollment in training.

Held: Affirmed the circuit court's reversal of the commission's decision.

The commission has experience, technical competence and specialized knowledge in interpreting and applying the complex provisions of ch. 108 and various federal programs (and unlike the circuit court) LIRC's determination is entitled to great weight.

One of the exceptions to avoid the requalification requirements of sec. 108.04 (7)(a), Stats., is found in sec. 108.04 (16)(b), Stats. Section 108.04 (16)(b), Stats., exempts an individual from the requalification requirements in two situations--as a result of the individual's enrollment in training and as a result of the individual's leaving unsuitable work to enter or continue training. LIRC interpreted that requalification requirement to apply only if the individual quit employment, with or without cause, for the purpose of entering JTPA training. If the quitting was unrelated to enrollment in the JTPA training, the individual's future enrollment in JTPA training does not exempt the individual from the requalification requirements.

LIRC in its interpretation of sec. 108.04 (16)(b), Stats., added words to the statute which interpretation is unreasonable and inconsistent with the statute's language. The first part of the statute does not expressly relate to the individual's reason for terminating work nor does it condition relief from the requalifying requirement on anything other than enrollment in approved training. The legislature detailed several situations in which the requalification provisions do not apply. Also, the second part of sec. 108.04 (16)(b), Stats., relates to the reason the individual terminated his or her employment. If the legislature intended to provide relief from the requalification requirement only if the individual left employment for the purpose of enrolling in training, it could easily have done so.". . . the legislature's failure to do so reflects a deliberate intent to provide relief upon an individual's enrollment in training, regardless of whether the individual left his or her work for that reason." Our conclusion is supported by the fact the legislature in other parts of the statute expressly conditioned exemption from the requalification requirements upon the individual's reasons for terminating employment. Also LIRC's interpretation of the statute would render the second part of the statute superfluous. The provision that exempts individuals who leave unsuitable work to enroll would be redundant. Our interpretation gives effect to both parts. Individuals are exempt from the requalification requirement either at the time they enroll in JTPA training or at the time they leave unsuitable work to enroll in or to continue JTPA training.

LIRC's interpretation is inconsistent with the legislative history when sec. 108.04 (16)(4), Stats., was repealed and recreated in 1981, as well as the federal statute (19 U.S.C.A. 2296 (d) (West Supp. 1994)). It is also inconsistent with its purpose and policy as set forth in sec. 108.01, Stats., and would penalize the employe for seeking other employment after Northwest shut down the plant. Although LIRC's interpretation is entitled to great weight, it is inconsistent with the statute's language, origin and purpose and other issues are not addressed.

 


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Larry D. Names v. DILHR and LIRC, No. 90-CV-149 (Wis. Cir. Ct. Marquette County July 17, 1991)

DILHR's initial determination assessed plaintiff personally liable under sec. 108.22 (9), Stats., for the delinquent tax obligations of Laranmark, Inc. Laranmark was a book publishing and distributing business incorporated in September 1981 by plaintiff and Mark Dreger. The corporation operated until December of 1985, when it filed bankruptcy. However, DILHR did not determine the corporation liable for unemployment taxes until May of 1985, due to plaintiff's refusal to file an employer's report for the corporation. Initially, DILHR's coverage determination was based on the benefit claim of corporation's former bookkeeper, whose 1984 W-2 showed sufficient wages for coverage, and who persisted in her claim despite being threatened with a lawsuit by plaintiff because her claim exposed the business' evasion of its unemployment reporting and tax obligations. Plaintiff was aware of those obligations through his prior operation of another business which had not paid its unemployment tax obligations. DILHR subsequently obtained complete payroll data for Laranmark through an audit, but by the time the corporation's liability was fully determined, it was out of business.

On appeal, plaintiff's primary assertion was that he had not held the requisite 20 percent ownership interest in the corporation to be personally liable for its delinquency. The undisputed evidence was that during at least part of the time the corporation operated, 12 to 15 individuals, including plaintiff and Dreger, held shares of the corporate stock. Plaintiff was president of the corporation throughout its existence. The corporation's initial directors, besides plaintiff and Dreger, were a priest and two individuals who resigned after one year. Dreger, who also was the initial vice president and treasurer, resigned as an officer and director after two years. The corporation's last annual report, signed by the plaintiff on May 20, 1985, listed plaintiff, the priest and Margaret M. Eagan as the directors. Eagan was plaintiff's spouse, and was listed as vice president and secretary, while plaintiff was listed as treasurer in addition to being president. No formal vote was recorded designating Eagan as a director of the corporation.

Initially Dreger and plaintiff were the authorized signatories on the corporate checking account, which required two signatures. Later the bookkeeper, who owned no stock, replaced Dreger as authorized co-signer due to Dreger's unavailability and lack of involvement. The bookkeeper reported to plaintiff or Eagan. She gave mail from taxing authorities to plaintiff and received any further instructions concerning such mail from plaintiff. Plaintiff decided which bills should be paid when corporate funds were insufficient. Plaintiff also directed the payment of "profit sharing" or "investor's" checks to stockholders, and calculated the amount of the individual payments. These payments were made while the corporation was delinquent in some of its ordinary obligations, including federal withholding taxes.

Other evidence concerning the corporation's ownership conflicted. The bookkeeper recalled many of the shareholder names, but did not know the number or percentage of shares held by any of them. DILHR's auditor testified that plaintiff told him that plaintiff and Eagan owned the corporate stock, and that the corporate minute book and stock subscription list had not been produced despite his request. Plaintiff testified that he and Dreger each owned 400 shares out of 3,000 issued, and that none of the 13 other stockholders owned as many shares as did he and Dreger. Plaintiff's testimony was corroborated by a disbarred lawyer who had previously represented the corporation and plaintiff. All of the witnesses except the auditor had at one time seen or participated in preparing records which would have reflected the distribution of the corporation's ownership. The plaintiff asserted those records would support his testimony. Those records were last in plaintiff's possession, but were never produced.

Plaintiff testified that some of those records might have been destroyed in a fire, that a remodeling project at his house and his wife's illness made finding them difficult, and that he had searched for them the night before the hearing. He testified the records were not produced for the auditor because the IRS had them on the auditor's initial visit, but also testified he did not remember the auditor requesting them.

The appeal tribunal found that plaintiff had the requisite ownership interest to be personally liable. It based that finding on the auditor's testimony, as well as by explicitly drawing an adverse inference from plaintiff's failure to produce corporate records for either the auditor or at the hearing. In drawing the adverse inference, the appeal tribunal cited plaintiff's "incredible list of reasons why such records were unavailable from the audit until the hearing," and inferred that his failure to produce them was wilful.

LIRC adopted the appeal tribunal's findings. In a separate memorandum opinion, LIRC reasoned that the audit testimony established a prima facie case on the ownership issue, that plaintiff had access to the records of corporate ownership, and that under the circumstances, it was reasonable for the appeal tribunal to draw a negative inference from plaintiff's failure to produce such records or adduce testimony from other investors to corroborate his testimony on the ownership question.

In his pro se appeal to circuit court, plaintiff asserted that the ownership finding was not supported by the evidence, that LIRC and the appeal tribunal improperly shifted the burden of proof by drawing the adverse inference, and that he was denied a fair hearing.

Held: Affirmed. The drawing of reasonable inferences from the evidence is an act of fact finding and therefore lies exclusively within the province of the commission. Thus, an inference drawn by the commission, if supported by any credible evidence, is conclusive.

LIRC was required to resolve conflicting evidence concerning plaintiff's degree of ownership interest in the corporation, which required LIRC to assess the credibility of evidence and determine its weight. LIRC's resolution of this issue was one of the reasonable choices available to it, and thus its action as a fact finder acting reasonably must be respected.

Plaintiff had an obvious interest in the outcome of this proceeding. The former lawyer who supported his testimony was unable to provide any details as to the source of his claimed knowledge. He did not draft the original subscription list or retain any files of legal services provided to plaintiff or the corporation, and could not indicate when he provided such services. He was not an investor, so he had no knowledge on that basis. The bookkeeper as an outsider had limited knowledge. Her testimony that she did not know who owned how many shares was never qualified by any of her other testimony. The auditor's testimony relied upon notes made shortly after his audit which indicated that plaintiff and Eagan owned the corporate stock.

The record does not bear out the allegations that plaintiff was denied a fair hearing. There is no indication that the administrative law judge displayed any bias or prejudice during the hearing. She explained the hearing procedure prior to commencement, sought questions, and obtained opening statements. She recessed several times at plaintiff's request and permitted plaintiff to confer with the former lawyer. She conducted a neutral examination of plaintiff. On three occasions she asked plaintiff if he had additional evidence. She also assisted him in recalling a point he had tried to make during another witness' testimony.

Plaintiff now claims he lacked adequate notice of the evidence on the ownership issue. No such claim was made in plaintiff's brief to LIRC. The record does not support his claim. At no point did plaintiff request a continuance or adjournment of the hearing, even though the appeal tribunal indicated she would entertain such a request.


Billy J. Nash v. U.S. Postal Service and LIRC, No. 92-CV-003660 (Wis. Cir. Ct. Milwaukee County May 4, 1993) 

The employe worked for 18 years as a mail handler for the employer, the U. S. Postal Service. During his final 18 months of this employment he was frequently absent and received four substantial suspensions due to the attendance problems. He was ultimately discharged because the absences continued. He had been referred by the employer to an employe assistance program for treatment of a problem with alcohol, and regular participation in this program was made a condition of his continued employment. However, the employe failed to follow through with the program. The employe asserted that his intent was lacking due to asserted alcoholism, and that the attendance problems occurred over a relatively short period of time relative to his long employment with the employer.

Held: Credible and substantial evidence demonstrated that the employe's absences were not uncontrollable. No medical evidence was submitted in support of the employe's assertions. The number of unexcused absences constituted misconduct for unemployment compensation purposes. The commission's decision was affirmed.


Jean M. Nayes v. LIRC and Calumet Medical Center Assn., Inc., No. 93- CV-373H (Wis. Cir. Ct. Manitowoc County August 4, 1994) 

The employe began working for the employer in March, 1992. She worked as an OB ER staff registered nurse for 32 hours per week at $13.67 per hour. She normally worked the night shift for a shift differential of $1.25 per hour. The employer planned to close its OB unit in April 1993. The employe did not apply for several announced job openings because she preferred to work in OB. When concerns were expressed about the employe's ability to handle the ER work the employer required the employe to participate in a training program on the second shift. The employe objected to the shift change because of the need to obtain child care. She notified the employer in January 1993 that she was resigning because of the shift change. At the time of resignation the employe had obtained another job. Her application for unemployment benefits was denied for quitting.

Held: Affirmed. The burden to establish a voluntary termination for good cause attributable to the employer is on the employe. The employe's argument here is based on economic factors. She did not object to receiving training. The employer's reasons for providing the training on a different shift were reasonable. The shift change was not a pretext to compel resignation. Though there would be an economic impact on the employe, it was for limited duration and not unreasonable. It was not established that the quitting was for good cause attributable to the employer. The commission decision is based on substantial evidence in the record.


Cloy D. Neis v. Cardinal Float Glass and Pamela I. Anderson, Chair, Richard T. Kreul, Commissioner, James R. Meier, Commissioner, No. 93-CV- 93 (Wis. Cir. Ct. Buffalo County June 8, 1994) 

The plaintiff-employe worked about five months as a production worker for the employer, a glass products manufacturer, until he was discharged on January 27, 1993.

The employe left the employer's plant via a secured door that did not record exits and entrances for the purpose of starting his automobile. He had propped the door ajar so he could return to the plant after his automobile warmed up. He contended what he had done was customary and approved by the employer. Thereafter, he was asked to sign a warning slip for leaving the plant and blocking the door ajar. He refused to sign a warning slip until he had conferred with his attorney. His supervisor stated "okay." The employe considered the "okay" constituted permission to leave work immediately during the middle of his shift and that he had been told he could not return to work until he had signed the warning. The supervisor denied the employe could not return to work until the warning was signed and that the "okay" was merely permission to delay signing the warning.

The Labor and Industry Review Commission, after conferring with the ALJ, reversed and denied benefits based on the conflicting testimony. The employe, representing himself, commenced an action for judicial review. The commission's affirmative defense alleged that because only the individual commissioners were named as defendants and the Labor and Industry Review Commission was not named as a party defendant, as required by statute, the court lacked competency/jurisdiction to consider the matter.

Held: Dismissed.

The court lacks competency to consider the matter. The procedure for review is statutory and the statutory requirements must be strictly complied with. The failure to name the Labor and Industry Review Commission as a party defendant is a fatal defect.


Nelson Industries, Inc. v. LIRC and David G. Van Winkle, No. 92-CV- 0146 (Wis. Cir. Ct. Dane County December 21, 1992) 

Employe, a welder, had knee and back problems, which the employer was aware of. He regularly worked full-time, but in December 1990 the employer announced that all employes would have to work 53 hours per week, including four 12-hour days, for the indefinite future. Employe told employer that he could not work the extra hours because of his medical problems, and he offered to work 10-hour shifts, but he was told that if he refused to work the hours he would be terminated or be forced to quit. Employe continued to assert that he could not work the hours required and he was terminated. LIRC concluded that employe quit because he was unable to do his work and had no reasonable alternative, within the meaning of sec. 108.04 (7)(c), Stats., and was thus eligible. Employer appealed, arguing that there was no credible evidence supporting LIRC's conclusion that employe was unable to do his work, since employe presented no medical evidence of inability to work to the employer before his employment ended, and since the medical evidence offered at hearing was prepared six weeks after the fact, for purposes of litigation.

Affirmed. An employe does not have to provide medical proof of inability to work to the employer before quitting in order to allow application of sec. 108.04 (7)(c), Stats. Here, the employer knew of the employe's medical problems because he had spoken of them in the past. Employer's objection to the medical report which was offered at hearing goes to weight, and the court is not free to review the commission's resolution of questions of weight of evidence. The inference drawn by the commission, that the employer's ultimatum effectively foreclosed the employe's options and resulted in his having no reasonable alternative to quitting, is a finding of fact that cannot be disputed by the court.


Mary Nelson v. LIRC and San Camillo, Inc., No. 93-CV-015572 (Wis. Cir. Ct. Milwaukee County September 12, 1994)

The employe worked for three years as a food service worker and residential aide for the employer, a provider of assisted living care for the elderly. She was suspended on July 26, 1992, and discharged four days later for what the employer considered to be abusive or inconsistent treatment of residents on four occasions.

On July 14, 1992, the employe delayed changing the soiled bedding of a resident with the result someone else did. On July 23, 1992, the employe delayed for two or more minutes responding to a page by a resident because the employe was conferring with the employer's director of mission effectiveness. On July 25, 1992, the employe replaced an immobilizer on a resident's arm. The resident complained and a nurse was called. The nurse told the resident that the immobilizer had been correctly placed on her arm. On July 25, 1992, the employe gave a resident a different colored pill than what the resident normally received.

The ALJ held the employe was discharged but not for misconduct. The commission reversed holding the first incident was merely a single isolated instance of negligence, the third incident was not established because only hearsay testimony was offered, and the commission refused to infer that the employe had dispensed the wrong medication. The incident, however, on July 23, 1992, involving the delay in answering the page constituted misconduct. The page was from a resident who had fractured her arm and the employe should have considered that the page was not frivolous given that the resident was suffering from a fractured arm. The commission also noted that circuit courts have held that health care workers are held to a higher standard of care than normal workers citing Margaret Condon v. Waukesha County, No. 83-CV-240 (Wis. Cir. Ct. March 21, 1983). The higher standard is in part because of the vulnerability of the patients and in part the various governmental regulations governing care which could potentially subject the employer to liability.

Held: Affirmed.


Robert D. Nelson v. LIRC and D H L Airways, Inc., No. 91-CV-181 (Wis. Cir. Ct. Calumet County August 13, 1992)

The employe worked as a courier for the employer, a corporation engaged in overnight mail delivery.

While off duty the employe was arrested for operating a motor vehicle while under the influence of alcohol. He pled no contest to the charge and lost his regular license. He retained his chauffeur's license and applied for and obtained an occupational license.

Shortly after the employe was arrested he was off from work for surgery for a work-related injury some four years before. Before he was released to return to work, the employer learned of the OWI conviction and discharged the employe for violation of its rule which the employe was aware of. The rule provides that an employe will be discharged for driving under the influence of intoxicants on or off duty.

The ALJ allowed benefits on the ground that to constitute misconduct, the action for which the employe was discharged must be connected with his employment. LIRC reversed.

Held: Reversed. The employe was aware of the employer's rule and that it was applicable even while off-duty. At the hearing the only evidence offered by the employer relating to the reasonableness of the rule was that a violation prevented an employe from having a driver's license. In addition, it was contended by the employer's agent that federal regulations supposedly prohibited the employer from employing drivers with off-duty OWI convictions. The employe had a license so he was available for employment and the commission correctly found that 40 CFR 391.15 (c)(1)(i) (1990) applied only to on-duty or in-service violations.

The employer has the burden to establish misconduct and where the action occurs off-duty, the employer has the burden to establish that the rule was reasonably related to the employer's interest. The only evidence introduced by the employer which tended to establish any nexus between the employe's conduct and the employer's interest was the mistaken opinion the employe could not drive because of the lack of some form of a driver's license or because of a federal prohibition.

There is no evidence in the record that supports the commission inference that the rule was reasonable because the public might adversely view the employer's operation if it employs drivers who engage in such off-duty conduct. The employer may well have valid and compelling reasons for the off-duty work rule but the employer introduced no other evidence other than the lack of a license and the federal regulation, both of which concerns were unfounded.


Network 2000 Communications Corp. v. LIRC and Steven G. Knutowski, No. 90-CV-4696 (Wis. Cir. Ct. Dane County October 17, 1991).

An initial determination held that claimant Knutowski's work for plaintiff selling long distance phone services was as an employe and that he was required to report wages from such employment as earned. An appeal tribunal affirmed the initial determination which in turn was affirmed by LIRC.

The plaintiff commenced an action for judicial review. Because no benefits were at issue the plaintiff and the commission, by their attorneys, stipulated to dismiss the action. The court so ordered.


Vicki A. Neubecker v. LIRC and Capital Investment Services of America, Inc., No. 90-CV-008-672 (Wis. Cir. Ct. Milwaukee County March 6, 1991) 

The employe's immediate supervisor was a part owner of the firm. On occasion she also worked for a vice-president who was supervisor of operations. The supervisor of operations was confrontational and personality conflicts were developed with everyone in the office. The employe would confer on some occasions with her immediate supervisor about disputes she had had with the supervisor of operations. The immediate supervisor would tell the employe to ignore the operations supervisor's criticism and overlook her behavior. The immediate supervisor would also discuss the problem with the president of the firm and the operations supervisor.

The employe's performance reviews by her immediate supervisor, the operations supervisor and the president were always very good and the employe received pay raises and bonuses. Her work was complimented.

The employe testified that there were two occasions when she considered the operations supervisor questioned her integrity. The employe gave notice that she was quitting when the operations supervisor stated there was a lack of communication.

All administrative levels denied benefits on the ground that the employe's quitting was not with good cause attributable to the employer.

Held: Affirmed. The record contains no information to suggest the employer's president knew how seriously the employe regarded the problems created by the operations supervisor or that the employe considered quitting. As such, she failed to establish that she pursued reasonable alternatives to quitting.


Cheryl M. Neuy v. LIRC & Wesbar Corporation, No. 93-CV-551 (Wis. Cir. Ct. Washington County November 15, 1994)

Plaintiff-employe worked about five months on the second shift for the employer until she was discharged on June 16, 1992.

During the employe's short period of employment she was frequently tardy or absent. Some of her absences and tardinesses were with notice and for a valid reason and other absences and tardinesses were without notice or without a valid reason. She averaged one attendance violation a week during her 22 weeks of employment.

The Family and Medical Leave Act (sec. 103.10, Stats.) was posted on the employer's premises. Such act was not applicable to the employe because she had not been employed for 52 consecutive weeks as required by sec. 103.10(2)(c), Stats.

As of April 1, 1992, the employer initiated a no-fault attendance policy applicable to all bargaining unit employes, which included the employe. Points were assigned for various absences, tardinesses or leaving work early. Warnings were provided for as an employe accumulated points. Certain absences were not counted in the total and cash incentive awards were awarded for perfect attendance. On Friday, June 12, the employe was absent for unknown reasons for which she received two points for a total accumulation of 19 points. On Monday, June 15, she was 48 minutes tardy because her baby-sitter was late. She received one point. Because she had accumulated 20 points, she was discharged in accord with the no-fault policy.

The commission, reversing the ALJ, held the employe was discharged for misconduct connected with her employment.

Held: Affirmed. The employe's contentions that the no-fault policy is unfair, is contrary to public policy and discriminates against single parents, expectant mothers, individuals employed less than one year, employes who are occasionally tardy or absent due to their children's needs or their own illness are without merit. So are her contentions that the policy is arbitrary and capricious because employes who are absent an excessive number of hours are treated the same as those who are absent for fewer hours.

Considering the standards of judicial review (set forth in the decision) and the policy reasons set forth in the no-fault rule, the commission's conclusion has a rational basis and the findings of fact are supported by credible and substantial evidence. The employe's acts constituted an interference with the employer's interests. Contrary to the employe's contentions that a mere accumulation of points does not constitute misconduct, seven of the employe's 20 points arose out of non-illness related problems plus she was absent from work a total of 138 out of a possible 880 working hours or a total of 24 days out of a possible 100 working days.


New England Mutual Life Insurance Co. v. LIRC and Scott J. Stannard, No. 94-CV-008197 (Wis. Cir. Ct. Milwaukee County November 22, 1994)

Employe was an insurance salesperson. LID held he was excluded under 108.02(15)(k)6., Stats., (insurance salespersons compensated solely by commission); employe appealed. Employer did not appear at hearing. Employe testified that he was compensated by commission but could take "draws" (advances) against as-yet-unearned commissions; he also testified that he received what he described as "health benefits." ALJ held that he was not compensated solely by way of commission, because he was paid a draw on a regular basis which was not tied to commissions then earned and he also received a W-2 form, which was not consistent with status as a commission salesperson. LIRC affirmed.

Held: Reversed. The fact that the employe was paid a salary in past years was irrelevant, where by the time of his base period he was paid only by commissions and draws against commissions. The fact that he received a W-2 was not dispositive as under law employes compensated solely by commission may still receive W-2 forms. The employe's testimony that at one point he "owed" the employer over $10,000 in "draws" shows that the employe knew that he was obliged to repay these advances against future commissions. A theory (not mentioned by ALJ or LIRC, but argued in LIRC's brief) that the undescribed "health benefits" were also compensation, was not addressed by the court.

NOTE: Department policy already acknowledges that if an insurance agent who can take "draws" against future commissions is legally obligated to repay the "draws," the agent should be treated as compensated solely by way of commission under sec. 108.02 (15)(k)6. The issue here was one of fact: was the employe obliged to repay the "draws"? The employe was never asked this question at hearing, and neither the ALJ or LIRC made an express finding of fact on that question. Presumably the court feels that if the evidence shows payment by commission and the ability to take draws against unearned commissions, the employment should be considered excluded unless other evidence affirmatively shows that the "draws" do not have to be repaid.


Pamela A. Nowak v. LIRC and Cray Research, Inc., No. 91-CV-186 (Wis. Cir. Ct. Eau Claire County December 9, 1991) 

The claimant began working for the employer, a supercomputer manufacturer, as an assembler in January 1986. In December 1988, she received a written warning for making comments of a sexual nature to another employe. The warning indicated that further conduct of that type could result in her discharge.

On February 27, 1990, other employes placed material that appeared to be a used sanitary napkin on the chair of a male employe. On February 28, 1990, the claimant repeated that activity. The male employe became ill as a result. On March 2, 1990, the claimant was discharged. The commission concluded the claimant's conduct was sexual harassment and that claimant had been discharged for misconduct.

Held: Affirmed. Claimant contends that sexual harassment requires repeated conduct and that since hers was not, she was not guilty of harassment. However, the issue is whether she was discharged for misconduct. Misconduct does not require that her conduct be repeated or that it meet any technical definitions of harassment.

It is incredible that anyone could construe the final incident as anything but misconduct. An employer is not required to wait for repeated conduct to disqualify an employe for benefits. The warning in 1988 placed Nowak on notice that similar behavior or any further inappropriate behavior could result in discharge. The 1990 incident became her second act of misconduct of a sexual nature. It further buttresses the inclusion that her conduct showed an intentional and substantial disregard of the employer's interests.


Nowakowski, Inc., v. LIRC, No. 91-CV-8369 (Wis. Cir. Ct. Milwaukee County September 9, 1991) (Bench decision)

Plaintiff's action for judicial review failed to name the employe (Charles W. Walker) as a party defendant and failed to serve the commission timely within the 30-day appeal period. A sheriff's deputy served the commission one day late. The commission moved to dismiss the summons and complaint.

Held: Motion granted.

 


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Caroline T. O'Brien v. Pamela I. Anderson, LIRC, John Schoenecker & Associates and John Schoenecker, No. 91-SC-1104 (Wis. Cir. Ct. (small claims) Waukesha County July 21, 1991 (court commissioner) and September 20, 1993 (Circuit Court)

The employe quit her six weeks of employment because she considered her employer failed to pay her for nine hours of work a day during a five-day workweek. The ALJ held that her quitting was with good cause attributable to the employer. The commission reversed on the ground that she was hired on a salary basis, that she was not required to work during the noon hour, that she had received at least one paycheck paid on a salary basis but did not question the employer about her pay at that time and that on her last day of work, when she notified the employer she was quitting, the employer sought to resolve the issue if she would provide documentation of additional hours of work. In addition, the employer offered to pay her an additional amount for over eight hours of work a day when she gave notice of quitting.

The employe commenced an action in small claims court. The commission moved to dismiss on the ground that small claims courts lack jurisdiction to consider an action for judical review and the ground that in this case the complaint failed to set forth a cause of action. The court commissioner of small claims court denied the motion to dismiss and gave the employe 45 days to amend her claim- complaint in a written decision dated July 24, 1991. Thereafter following briefs and oral argument, court commissioner held that the commission erred in concluding the employe was paid a salary. He remanded the case to the commission for findings of fact consistent with the evidence in the record. The commission appealed to circuit court.

Held: The commission missed the statutory 10-day deadline for appealing a court commissioner's decision so "the commissioner's decision is therefore immune from review by this court. Even if the court had the authority to review, it would affirm the commissioner's decision, as an eminently equitable solution, calculated to give the plaintiff a chance to be heard on the merits without any prejudice to the defendants." The commission's finding that the employe agreed to work for a salary is not supported by the evidence and it is undisputed that she quit because the employer refused to raise her pay from $8 to $9 an hour. The employer's refusal to raise her pay after only 6 weeks of work does not constitute "good cause" for quitting, the commission's decision is affirmed, and plaintiff's appeal is dismissed on the merits.


Daniel G. O'Connell v. Riverfront Industries, Inc. and LIRC, No. 89-CV- 457-D (Wis. Cir. Ct. Manitowoc County August 28, 1991) (Bench decision)

The plaintiff employe worked about eleven months as a cabinet maker for the employer, a manufacturer of store fixtures until he quit his employment.

The employe brought his job-related safety concerns to the employer's attention. He was appointed to the position of safety director in addition to his other work. He complained anonymously to OSHA about the conditions on the employer's premises he considered were a threat to work health and safety. OSHA in turn brought the problems to the employer's attention. The employer commenced making corrections but not to the employe's satisfaction. The employer also requested a survey by a state employed consultant to evaluate safety problems on the employer's premises. The employer attempted to comply with the consultant's recommendations which primarily centered on alleviating potential respiratory hazards.

The employe quit pursuant to the two week's notice he had given.

The ALJ, affirmed by the commission, held that the employe's quitting was not with good cause. The employer was a relatively new business and not aware of potential hazards and safety hazards until they were brought to its attention. Corrective action was then taken. The employer's inaction was the result of the employer's inexperience and lack of knowledge rather than negligence or a lack of concern for workers' safety.

Held: Affirmed.


Michael J. Osowski d/b/a Owens Overhead Door Company v. LIRC, DILHR Unemployment Compensation, No. 93-CV-1666 (Wis. Cir. Ct. Waukesha County December 28, 1993)

The department determined that one Richard Hall had performed garage door installation services on behalf of the appellant as an employe for state unemployment tax purposes. An appeal tribunal decision affirmed the initial determination. The decision held that while Hall had performed his services free from any control or direction exercised by the appellant the appellant had failed to establish that Hall's services were performed as part of an independently established trade, business or profession in which he was customarily engaged. The commission affirmed.

In his action for judicial review the appellant timely served the department and the commission with summons and complaint. Neither the summons served on the department nor the summons served on the commission was authenticated.

The department and commission moved to dismiss the judicial review action on the grounds that the circuit court lacked jurisdiction/competency to proceed because of the statutory requirement at sec. 102.23 (1)(b), Stats., that the summons in a review action be authenticated. The department and the commission also argued that as the 30 day period for commencing a review action had expired the appellant could not correct the defect by serving an authenticated summons after the expiration of the 30 day appeal period.

Held: Motion granted. Where a judicial review action commenced under sec. 102.23, Stats., does not meet all the specified statutory requirements the reviewing court is deprived of jurisdiction in the matter. The failure of the appellant to have served an authenticated summons on either the department or the commission constituted a fatal jurisdictional defect. Because the 30 day appeal period had expired the appellant's failure to have served an authenticated summons on the department and the commission was not correctable. The court notes that, although it is preferable to allow the parties their day in court, strict compliance with the statutory requirements is necessary to confer jurisdiction on a reviewing court.


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George Paul v. LIRC and Case Corporation, No. 93-CV-2249 (Wis. Cir. Ct. Racine County August 30, 1994) 

The employe began working for the employer in 1964. His last day of work for the employer was December 21, 1991. The employer then started a Christmas shutdown layoff. The employe received a holiday payment from the employer. He then applied for unemployment benefits and received a benefit payment for week 2 of 1992. The employe broke his leg at home during that week. He subsequently received accident and sickness insurance benefits and holiday payments. He accepted an early retirement package offered by the employer in February 1992. He received accident and sickness payments until his disability ended in July 1992. He then received vacation payments, unemployment benefits and EUC benefits through May 22, 1993. At that time those benefits were exhausted and the employe reapplied for unemployment compensation benefits. His application was denied on the grounds that he had not earned sufficient wages subsequent to the start of the most recent benefit year in which benefits were paid as required by sec. 108.04 (4)(c), Stats.

Held: Affirmed. The commission correctly held that for the employe to be eligible for a second benefit year he would have to earn wages equal to at least five times his weekly benefit rate subsequent to the start of his first benefit year. The employe did not work after the start of his first benefit year and did not earn wages equal to at least five times his weekly benefit rate. The statutory language is clear and not ambiguous. The commission, which has been responsible for decades for applying and interpreting Wisconsin's U.C. laws, reasonably interpreted "earned wages" to require actual work and not to include vacation pay and sick pay. Benefits denied.


Neville I. Paul v. LIRC and ORC Industries, Inc., No. 92-CV-164 (Wis. Cir. Ct. La Crosse County March 5, 1993) 

The employe worked as a controller for the employer, a non-profit vocational rehabilitation facility. On April 11, 1991 the employer's president told all employes who were to attend a conference in Las Vegas, Nevada, including the employe, that no cash advances would be allowed. This was a change from prior practice to avoid any appearance of impropriety. On April 20, 1991 the employe obtained a $200 cash advance at a Las Vegas hotel by using a company issued credit card. On April 25, 1991, after returning from the conference the employe told the president about the cash advance. He was told to pay it back immediately. The employe reimbursed the employer for the cash advance on May 1, 1991, after returning from a vacation. He was discharged on May 6, 1991. The commission held he was discharged for misconduct connected with his employment.

Held: Affirmed. The commission found that the employe received clear notice that he was not to take a cash advance for the Las Vegas conference. By taking a credit card advance the employe deliberately disobeyed that order. His action was an intentional and substantial disregard of the employer's interests. He also disobeyed an order when he delayed reimbursement of the advance. The commission's findings are supported by credible and substantial evidence and its conclusion of misconduct is also correct.


Carol L. Peterson v. LIRC and Marquette University, No. 92-CV-017798 (Wis. Cir. Ct. Milwaukee County July 13, 1993) 

The employe, the Assistant Dean of Residence Life, began working for the employer in July, 1980. She worked pursuant to an annual contract that ran from September 1 to August 31 of each year. Her last contract ran from September 1 through August 31, 1992. The appointment of a new Dean of Residence Life, effective July, 1992, was announced in December, 1991. The new dean became responsible for staffing at the time of the announcement.

In March, 1992 the new dean told the employe that he was considering not giving her another contract. He gave her a written statement of performance expectations. On April 24, 1992, the new dean gave the employe clarified performance expectations and told her he would give her a contract for the period from September 1, 1992 to December 31, 1992. Employment subsequent to that time would be contingent on performance. The plaintiff submitted written resignation on April 27, 1992 to be effective on May 31, 1992. The employer's expectations were not unreasonable. The employe's decision that a trial period would be too stressful does not amount to real, substantial fault on the part of the employer. Under the narrow scope of review in these cases the courts cannot overturn an agency's decision.

Held: Affirmed the commission's decision concluding that the employe voluntarily terminated her employment without good cause attributable to the employer.


Michael T. Peterson v. LIRC & Osseo Sales & Service, No. 92-CV-228 (Wis. Cir. Ct. Trempealeau County September 9, 1993) 

The employe worked full-time as a finance and insurance manager beginning in October, 1989 for an automobile dealership. The dealership changed ownership in July, 1992. The new owners asked the employe to prepare an employment proposal. The employe presented his proposal at a meeting with the new owners and they presented counter-offers. The following day the employe declined the offers of the new owners. The commission concluded that the plaintiff did not have good cause to fail to accept an offer of suitable work pursuant to sec. 108.04 (8)(a), Stats., and was not eligible for benefits.

Held: Affirmed. The compensation proposal presented to the new owners by the employe was different than the one he had had with the prior employer. There is no evidence in the record to establish his actual prior income. The record does show that the skill level of both jobs was essentially the same though the new job would have had some additional duties. It would be speculative to attempt to determine the actual pay rate with the new employer. The new rate of pay is not necessarily significantly lower than the prior rate of pay. Therefore the six week canvassing period does not apply.

(Affirmed in unpublished decision case No. 93-2903, 184 Wis. 2d 401, 405, 516 N.W.2d 789 (1994 Ct. App).)


Precision Metalsmiths, Inc. v. LIRC and Christopher P. Wuest, No. 91-CV-20 (Wis. Cir. Ct. Green Lake County November 23, 1992)

The employe requested a meeting with two supervisors of his nonunion employer, primarily to request a raise. At the meeting he requested a four percent raise and several additional matters were discussed including the employer's vacation policy, profit sharing distribution, a complaint the employe had filed with OSHA, and the employer's handling of the employe's recent worker's compensation claim. At one point the employe brought up the possibility that he and other employes might attempt to unionize the plant. At another point he told the supervisors that he suspected the employer's president had given him a raise three years previously in order to forestall unionization of the plant. The supervisors told the employe they would look into his request and get back to him later.

The supervisors contacted their corporate attorney and two days later discharged the employe by handing him a letter drafted by that attorney. The letter accused the employe of attempting to extort a raise from the employer by threatening to organize the plant if he did not receive a raise. The employer also contended that this "threat" violated federal law at 29 USC sec. 186.

The commission affirmed the appeal tribunal's finding that the request for a raise was part of a broad-ranging conversation, and was not intended to be extortionary. The commission argued before the court that the employe's right to voice an intention to organize for a collective bargaining agreement was protected under state and federal labor law, and that the federal statute cited by the employer was inapplicable to the circumstances of this case.

Held: The court summarily affirmed the commission's decision.


Plus, Inc. v. LIRC and Rhonda A. Frisque, No. 93-CV-1641 (Wis. Cir. Ct. Brown County February 25, 1994) (Bench decision) 

Plus, Inc., timely filed and served a petition for review. Because no summons, authenticated or otherwise, was filed and served, the commission moved to dismiss the action. Plus, Inc., filed and served an authenticated summons and amended complaint-petition for review which were filed and served several days after the 30-day appeal period expired.

Held: Motion to dismiss granted.


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Carl Quick v. LIRC and Gateway Foods, Inc., No. 92-CV-560 (Wis. Cir. Ct. La Crosse County April 20, 1993) 

The employe worked as an over-the-road driver for the employer for about two and one-half years until he was discharged on October 23, 1991.

The employer permits members of an employe's immediate family to accompany an employe on a trip provided a permission slip is completed in advance and given to the dispatcher. The employer also permits non-family members, such as a girlfriend in this case, to accompany an employe on a trip provided express permission is obtained in advance from the employer's superintendent of traffic.

On October 13, 1991, the employer's dispatcher observed the employe filling out a permission slip for his girlfriend, with whom he lived, to accompany him on a trip. The dispatcher told the employe his girlfriend could not accompany him without the permission of the superintendent of traffic. The employe protested that his girlfriend had accompanied him in the past. The dispatcher again told him his girlfriend could not accompany him. He took his girlfriend on the trip anyway considering that the dispatcher was just having a bad day. He was thereafter discharged.

The ALJ affirmed the initial determination allowing benefits on the ground that the employe's insubordination merely demonstrated poor judgment. The commission reversed on the ground that the employe's action was an intentional disregard of an employer's reasonable work rule (required by 49 CFR 392.60 as adopted by Wis. Admin. Code secs. TRANS 325.01 and 325.05), as well as an instruction from a supervisor. In addition, the employer's superintendent of traffic reviewed over 350 permission slips without finding one from the employe.

Held: Affirmed. Although the employe's girlfriend had accompanied him on trips before, his actions were as determined by the commission a blatant disregard of a superior's direct order, regardless of what transpired in the past.


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R & L Management Company v. Kim R. Peterson and LIRC, No. 93-CV- 005855 (Wis. Cir. Ct. Milwaukee County December 9, 1994)

Co-defendant employe worked about three and one-half years as a night manager and teller for the employer until she quit her employment. The employer operated a check cashing service in a high crime area. The employe was protected from attack while housed in a cashier's gate protected by bullet-proof glass and various other safety devices. She closed the business at midnight on Thursdays and Fridays. She was escorted from the premises to a vehicle in a dark parking lot by an elderly security guard.

During the course of her employment the employe witnessed a number of violent crimes on or near the premises including an incident in which an individual died on the premises of a gun shot wound.

The employe and co-workers expressed concerns about their safety to the employer. A number of promises were made by the employer but not fulfilled. In addition there was a periodic failure of safety devices.

Six days before the employe quit she observed a robber hold a revolver to a customer's head. The customer's money and car were taken. The employe wrote a note to the employer indicating that she was scared, that it was the last night she would work alone and that she needed some security or she would quit. She worked several days when her shift and the business closed at 8 p.m. When she was next scheduled to work until midnight, she inquired beforehand to determine what changes the employer was going to make for additional security. She was told of no steps that would be taken by the employer. She did not report for work.

The employer did expend large sums of money in an effort to make the premises safe and had authorized payment to be made to the employe's boyfriend to escort her to his car. This was for a short period of time, however, when the security guard was not available. Her supervisor also planned to work with the employe the night she did not report for work but the employe was not notified of this fact.

The commission affirmed the ALJ's decision which held the employe's quitting was with good cause attributable to the employer because of the employer's failure to address the employe's reasonable concerns. The employer had a reasonable opportunity to address her safety concerns but failed to do so.

Held: Affirmed. The underlying facts are largely undisputed (and recited in detail). Case law provides that the commission's conclusion of law will be sustained if reasonable even if another conclusion might also be reasonable. To quit with good cause attributable to the employer there must be fault of the employer that is real and substantial or some act or omission by the employer constituting cause which justifies the quitting. The commission could reasonably conclude that the employer's failure to address the employe's safety concerns constituted a cause which justified her quitting.


Richard Raasch v. Venture Graphics and LIRC, No. 92-CV-018174 (Wis. Cir. Ct. Milwaukee County August 30, 1993) 

The attorney for the employe-petitioner served the commission seven days late with a petition for judicial review of two LIRC decisions. No summons was included with the papers served. It was contended that the attorney for petitioner timely filed the action because he did not receive a copy of the commission's decisions until one day after the 30-day appeal period expired. No decisions were returned to the commission by the U. S. Postal Service. The attorney conceded his client received the decisions.

The commission moved to dismiss on the grounds that the court lacked jurisdiction/competency to review the merits of the decisions because no summons was served and because the action was commenced untimely.

Held: Motion to dismiss granted. The court accepts the statement of petitioner's attorney that he did not timely receive a copy of the commission's decisions. His client, however, did and there was no allegation made by the petitioner that he was prejudiced by the delay. In addition, sec. 108.09 (7)(a), Stats., does not require that a copy of the commission's decision be mailed to a party's attorney. Furthermore, sec. 102.23 (1), Stats., requires that a summons be served on the commission which was not done in this case.


Racine Psychological Services, S.C. v. LIRC, No. 91-CV-1222 (Wis. Cir. Ct. Racine County March 29, 1993)

DILHR audited the books of Racine Psychological Services, S.C. (RPS). Based on the information then available, the department determined that certain psychotherapists performing services through or for RPS were its employes for unemployment compensation purposes and assessed it for additional unemployment compensation taxes. One of the individuals picked up as an employe was a psychiatrist.

RPS appealed the initial determination, and a hearing was held. The ALJ held that certain of the individuals who performed services as psychotherapists for RPS were its employes but that the psychiatrist and certain others were not. The department petitioned LIRC for review. LIRC held that all of the individuals in question were employes for unemployment compensation purposes.

Prior to a briefing schedule and after the decision in Goldberg v. DILHR, 168 Wis. 2d 621, 484 N.W.2d 568 (Ct. App. 1992), the parties stipulated that RPS was only disputing the commission's decision regarding Dr. Charles A. Cahill and in effect conceding that all of the other individuals at issue were its employes for unemployment compensation purposes.

Held: Reversed. Dr. Cahill, a psychiatrist, and the only M.D. on the employer's staff licensed to issue prescriptions, was not an employe for Wisconsin unemployment compensation purposes. In Goldberg v. DILHR, 168 Wis. 2d 621, 484 N.W.2d 568 (Ct. App. 1992) concerning a certified mental health clinic, such as RPS, having to control the activities of those who worked in it to avoid running afoul of the Wisconsin Department of Health and Social Services administrative rules, the court found that this was no different than the type of control to which any independent contractor would be subject. The present case is distinguishable from Goldberg because there was no evidence the psychiatrist could be subject to any kind of supervision by clinic management, unlike in Goldberg.

Dr. Cahill performed his services in an independently established trade, business or profession in which he was customarily engaged. He performed psychiatric services for four or five different entities. The evidence of economic independence and the professional reputation clearly showed an independent business.


John H. Randolph v. LIRC and American National Can Co., No. 91-CV- 1452 (Wis. Cir. Ct. Winnebago County April 15, 1992)

Plaintiff-employe was granted a six-week leave of absence under the Wisconsin Family and Medical Leave Act following the birth of his son. The leave ended October 5, 1990. As soon as the leave was granted he requested but was denied a nine-week leave starting October 8, 1990 (when he was to return to work from the first leave) and ending December 7, 1990. The second leave was to "bond" with his son.

On October 4 the employe set forth additional reasons why the employer should grant him the additional leave. One of the reasons was that he had experienced and been treated for post traumatic stress disorder as a combat infantryman in Vietnam. He explained that the condition was getting worse and was to the point where he considered he was a danger to himself as well as people he worked with.

The employer's human resources director, who had also been a combat infantryman in Vietnam, advised the employe he would be removed from the work schedule but that the employer would have to be provided with the necessary medical documentation that the employe was unable to do his work. Medical information was submitted but failed to establish the employe was unable to do his work. The deadline to submit medical information was extended several times by the employer. On January 14, 1991, the employer notified the employe that because he had failed to provide the required medical information his employment was terminated. This was because he failed to supply a satisfactory explanation for his absence for at least five working days, in violation of the labor agreement.

The ALJ reversed the initial determination that held the employe was discharged but not for misconduct. The commission agreed with the ALJ that the employe quit and not within any exception.

Held: Affirmed. The commission's findings of fact are supported by substantial credible evidence.

The procedural error raised by the employe concerning his due process rights was raised after the pleadings were finalized and no testimony was ever taken. The procedural issue was not raised timely and "is deemed to be waived."

(After the pleadings were finalized, the employe was provided with a copy of the hearing office record pursuant to his request under the Open Records Act. The hearing office file is available for inspection prior to the hearing as provided by Wis. Admin. Code Chapter ILHR 140.08. (The same record is routinely filed with the court pursuant to sec. 102.23 (1)(d), Stats. and the parties are notified of the right to purchase a copy of the record.) He moved for Summary Judgment on the alleged ground that the record established that the employer, by its agent, failed to request a hearing. The commission opposed the motion as inapplicable to an action for judicial review under secs. 108.09 (7) and 102.23, Stats. The motion was never scheduled and a decision was never issued on the motion.)

NOTE: Plaintiff commenced a court of appeals action from the court's decision prior to a judgment which was subsequently entered. The court dismissed the appeal which was again timely filed appealing the judgment.

(Affirmed in unpublished per curiam decision in case 92-1582, 172 Wis. 2d 574 (1992 Ct. App).)


R. S. Rehal v. LIRC, No. 91-CV-13677 (Wis. Cir. Ct. Milwaukee County March 23, 1992) 

The employe was discharged for grabbing the genitals of another male employe. An administrative law judge found this act was a single isolated incident and not misconduct. The department petitioned for commission review. The commission reversed and denied benefits. The employe sought judicial review but failed to include the employer as a party.

The employe contends that the employer's failure to appeal from the decision of the administrative law judge is a waiver or admission that it is not an adverse party. However, the statute makes the employer a party. Its account is adversely affected by a claim for benefits. The employe's request to amend his summons and complaint is denied since the statutorily prescribed method for obtaining judicial review is exclusive and must be strictly complied with. Action dismissed.


Dale E. Reich v. LIRC and UW-Whitewater, No. 92-CV-509 (Wis. Cir. Ct. Jefferson County November 3, 1993) 

The employe's supervisor told him that a local business would get no more business from them in part because it had not made a contribution to a fund raising effort by the university. Employe disclosed this to the business. Employe was reprimanded for making this disclosure and a statement was made that unspecific changes were planned in his job. In November the employe tendered a resignation, effective January 30, to the Chancellor. He was persuaded to stay on the job based on a statement that an effort would be made to find him another position. No position was found by January, but he was allowed to stay at his job. Beginning July 1 he was given a new assignment. It paid 70 percent of his old salary. He then quit at the end of October. ALJ and LIRC held no good cause attributable to the employer.

Held: Reversed. The reprimand and statement about a planned change in the employe's employment were imposed for disclosing what may have been an unlawful or unethical decision by the supervisor. The employe delayed the resignation he offered in response to the reprimand, in response to the promise of acceptable alternate employment. The sequence of events from employe's disclosure to final resignation is sufficiently unbroken to establish that employe quit because of the reprimand and statement about change in his employment. The commission's findings to the contrary are not supported by credible and substantial evidence. The employe's good cause for resignation was not extinguished by waiting. Case remanded for making of further findings and conclusions consistent with the court's decision.

NOTE: Pursuant to the court's remand and directions. The commission held the employe quit with good cause attributable to the employer.


Gerald J. Reiner v. LIRC and Procter and Gamble Paper Products Company, No. 91-CV-920 (Wis. Cir. Ct. Brown County February 12, 1992)

Employe, a machine technician, was discharged for sexual harassment of female co-employes. There was evidence, much of which was disputed by the employe, that he had engaged in overt, sexually graphic verbal harassment of female co- employes, and some acts of physical contact. There was also evidence that a number of other employes (female included) had engaged in frequent use of profanity and sexually graphic jokes and comments during sporadic "dirty hours" in which the on-line supervisor tolerated such conduct and sometimes engaged in it. Employe argued, and the ALJ found, that his conduct had not exceeded that of his co-workers, but the commission reversed and found misconduct based on the conclusions that the employe's actions exceeded what was tolerated in "dirty hour" and crossed the line into prohibited sexual harassment.

Held: Affirmed. Substantial evidence supported the commission's determination as to the view of the evidence on the factual question of what conduct the employe engaged in. The commission's conclusion of law, that the employe engaged in misconduct, was entitled to weight because the commission has experience in determining whether an employe's conduct constitutes misconduct and because its conclusion is interwined with factual and policy determinations. Because the commission chose to believe the witnesses who testified that employe's conduct was more than merely "dirty hours" or "shop talk" such as that engaged in by co- workers, the commission's determination that he crossed the fine line between tolerable behavior and sexual harassment is reasonable. The court notes that even if no weight were given to the commission's conclusion of law, it would reach the same conclusion based on the record before it. Because employe had previously been suspended for one day for giving a co-worker a "bear hug", and had been given training in sexual harassment issues, the commission legitimately concluded that he should have known that his conduct constituted sexual harassment.


Lucio N. Reyes v. LIRC, Pamela I. Anderson, Richard T. Kreul and James R. Meier, in their official capacities as LIRC, No. 92-CV-0920-C, (W.D. Wis., August 11, 1993)

Plaintiff-employe, entered the U.S. from Mexico in 1980 without a visa, legal documentation or notice to the U.S. Immigration and Naturalization Service (I.N.S.). He was employed in Wisconsin by Leach Farms from July 30, 1986 to October 18, 1986, and from July 17, 1987 to October 1, 1987.

On July 2, 1986, the employe, an adult citizen of Mexico, married a U.S. citizen. On the same day he and his wife filed a petition for alien relative with I.N.S. asking that he be granted permanent resident status in the U.S. based on his marriage to a U.S. citizen. His request was granted on October 9, 1987.

Based on his Leach Farms employment the employe was paid $1,575 in unemployment benefits in 1987 and 1988. DILHR issued an initial determination on April 27, 1991, which held that he was ineligible for the benefits paid and ordered that he repay such sum. An ALJ and LIRC affirmed on the ground that at the time of his employment he was not permanently residing in the U.S. under color of law (PRUCOL).

The employe brought a federal civil action for declaratory relief pursuant to 42 U.S.C. sec. 1983 contending that LIRC's decision violates federal unemployment compensation laws, 42 U.S.C. secs. 501, et seq. and 26 U.S.C. sec. 3304 (a)(14)(A), and the equal protection clause of the Fourteenth Amendment. Both parties filed motions for summary judgment.

Held: Affirmed, with complaint against LIRC dismissed for lack of  jurisdiction, motion for summary judgment of the named commissioners granted and plaintiff's motion for summary judgment denied.

LIRC, a defendant in this case, is an agency of the state. It is protected by the Eleventh Amendment which prohibits states, including state agencies, from being sued in federal court for monetary damage equitable relief unless the state consents to suit in federal court or Congress uses its enforcement powers under Fourteenth Amendment to abrogate the states' immunity. Wisconsin has not waived its immunity from suits under 42 U.S.C. sec. 1983 and Congress did not abrogate the states' sovereign immunity when it enacted that statute. Summary judgment is granted for defendant commission.

The Eleventh Amendment, however, does not protect the defendant state officials. The employe is not suing them for money damages. He is suing for a declaration that it was proper for him to receive the benefits paid him in 1987 and 1988. No disbursement of state funds will be required and the state will only be prevented from getting money back paid to him more than five years ago. The Eleventh Amendment permits federal court order that will have fiscal consequences on state treasuries in the future but it prohibits orders requiring the use of state funds to make retroactive payments. In addition, an order allowing the employe to keep his U.C. benefits, paid years before, would not have the effect of inserting the federal court into the state's political decisions on the allocation of its limited fiscal resources. Although a close question, the employe's request for declaratory relief against the defendant state officials escapes the Eleventh Amendment bar.

26 U.S.C. sec. 3304 (a)(14)(A) excludes aliens from receipt of U.C. benefits subject to three exceptions, one of which is PRUCOL. States are required to follow federal law in the administration of federally funded U.C. programs. Defendants rely on a Department of Labor (DOL) unemployment insurance program letter (No. 1-86), which contains the DOL's interpretation of statutes and instructions to states for the administration of U.C. programs.

DOL's program letter provides that "unless the INS has affirmatively exercised its discretion against deportation or authorized an alien to work, the alien is not entitled to work and cannot be considered available for work." All states require that an individual be able and available for work to be eligible for U.C. Although written assurance that the alien will not be deported is not a requirement set forth in the statute and there is no definition of PRUCOL in the statute, DOL's construction is not arbitrary, capricious, or manifestly contrary to the statute and is reasonable based on case law. In addition, FUTA has been amended several times without defining PRUCOL indicating Congress is satisfied with the department's interpretation.

The employe's contention that INS's inaction or purported policy against deporting aliens married to citizens is not persuasive and is counter to common sense. Although, he was married to a citizen on July 2, 1986, he did not become a permanent resident under color of law until October 9, 1987, when he was granted permanent resident status.

The employe also argues that aliens are a "suspect class" under the equal protection clause of the Fourteenth Amendment and that statutes infringing upon aliens' rights and privileges must meet a strict scrutiny standard. By case law, he is correct that a restriction on lawfully resident aliens is subject to strict scrutiny if it affects economic interests primarily. However, when the classifications are among subclasses of aliens, the classifications are evaluated under the rational basis test. Here, there is a rational basis for the requirement that an alien be PRUCOL as there is a legitimate state interest in not depleting U.C. funds by payments to aliens who enter the country illegally and then file a petition with INS without being eligible for permanent residency.


David Ridgeway v. Glenfield Health Care Center Beverly California Corp. and LIRC, No. 93-CV-0093396 (Wis. Cir. Ct. Milwaukee County October 25, 1993)

LIRC, reversing the ALJ's decision, held that plaintiff-employe was discharged for misconduct connected with his employment. Plaintiff, representing himself, served LIRC timely with a single copy of a complaint. The commission moved to dismiss because plaintiff failed to serve as many copies of authenticated summons and complaints as there are defendants plus no summons of any nature was served on the commission.

During oral argument plaintiff produced certified mail receipts showing the commission and co-defendant had been mailed copies of something. At the court's request for response, it was pointed out that in sec. 102.23 (1)(b), Stats., service on the commission constituted service on all defendants, that no summons, authenticated or not, was served on the commission, and that even if only a single copy of an authenticated copy of a summons had been served on the commission, by case law if the commission photocopied the summons and served co-defendant such service would not be valid.

Held: Motion granted. (A copy of the court's bench decision was not requested. The court merely explained that if he denied the motion, a higher court would reverse his decision.)


The Ritz, S.C.S, Partnership, d/b/a Puttin' on the Ritz v. LIRC and Sandra S. Smethurst, No. 90-CV-15 (Wis. Cir. Ct. Crawford County March 14, 1991) 

The employe was hired as salon manager for this beauty salon when it opened in September, 1984. During the summer of 1988 the employe and the employer discussed ways to increase the profitability of the business. In October, 1988, the employer entered into an employment agreement with Layne, a cosmetics representative with his own line of cosmetics. Subsequently several of the employes became unhappy with their working conditions and the role that Layne was playing in the operation of the business. The employe was discharged on December 16, 1988, when she was given a letter of discharge.

The employe's discharge was in part because she hired Layne who was not licensed as a designer. When one of the partners learned of the lack of a license, it was suggested Layne be terminated. The employe refused to do so even though she knew Layne was not licensed. In addition, letting Layne work for compensation without a license was a violation of Ch. 454 which could subject the employer to a fine.

The commission held the employe's discharge was not for misconduct connected with her employment.

Held: Reversed. There is sufficient evidence in the record to show the employer met its burden of proof. The employe's conduct was a deliberate violation of the standards of behavior which the employer has the right to expect of his employe and such conduct meets the standards of misconduct.

(Reversed in an unpublished per curiam decision in case No. 91-0907, FT., 165 Wis. 2d 394, 478, N.W.2d 595(1991 Ct. App.) 9413, (decision set forth in full). Petition to Review denied.


Robert Robinson v. Olsten of Milwaukee and LIRC, No. 94-CV-1615 (Wis. Cir. Ct. Racine County November 8, 1994)

Two initial determinations, one involving an overpayment assessment and the other a forfeiture, were issued and sent to the employe, who timely requested a hearing on both issues. Notice of Hearing was subsequently sent to the employe, but he did not appear, and a dismissal decision was issued. Six days after the issuance of the dismissal decision the employe submitted a statement indicating he had not appeared at the hearing because he had not received the hearing notice. He indicated that his address had changed but he had not notified the department of this change until the day the hearing was scheduled to occur. The initial determinations, notice of hearing and dismissal ATD had all been sent to the same, last-known address for the employe.

The ALJ set aside the dismissal ATD, and after considering the facts, issued a new ATD finding no probable good cause for the failure to appear at the hearing. The ALJ explained that the employe should have notified the department of his new address at the time he moved. The commission affirmed.

Held: Affirmed. Under the law the employe was responsible for keeping the department informed of his current address (in its brief, the commission cited section 108.08, Stats., and ILHR 129.02 as legal authority for the employe's responsibility to keep the department informed). The employe had submitted no good reason for failing to notify the department of his changed address.


Roehl Transport, Inc. v. LIRC and Carol A. Groff, No. 93-CV-727 (Wis. Cir. Ct. Wood County July 25, 1994)

The employe worked over seven years as the employer's accounts payable clerk until her employment ended on March 5, 1992, because she was considered to be an accomplice in an embezzlement scheme. Her duties included payment to a money transfer business used by the employer to forward funds to its over-the-road drivers and otherwise as appropriate. She continued to make such payments after the employer's controller left the company based on approval by the former controller because of a number of circumstances that were present. She continued to make detailed reports to the employer's new controller of funds paid. The employer's president gave her the benefit of the doubt until about seven months later, when he learned the employe had received money from the former controller. The president considered the money to the employe was a gift instead of a loan from the former controller even though money was paid to the employe a number of months before there was any evidence the former controller was engaged in embezzling funds from the employer. She was discharged because the employer's president stated he could no longer trust her.

The ALJ held the evidence was not clear and convincing that the employe was engaged in theft, and her discharge was not for misconduct connected with her employment. The commission reversed on the ground that she was grossly negligent. The employe's attorney submitted a transcript of testimony taken at the former controller's sentencing hearing for embezzlement and requested the commission to reverse its decision. The request was based on the additional evidence from the employer's president at the sentencing hearing or in the alternative to take additional testimony. A copy of the request and a copy of the testimony were sent to the employer's attorney.

The commission set aside its original decision pursuant to sec. 108.09 (6)(b), Stats. It also invited the employer's attorney to submit a position statement without specific reference to scheduling a hearing to take additional testimony. The commission then reversed its earlier decision and allowed benefits making reference to facts from the sentencing hearing transcript. After the employer commenced an action for judicial review, it was offered the opportunity for further hearing to present evidence that was not before the ALJ. It declined the opportunity.

Held: Remand under sec. 102.24 (1), Stats. The employer was denied due process when the commission failed to schedule the case for a further hearing before considering the testimony from the sentencing hearing and using that testimony to make findings of fact.


Roger Roenneburg v. LIRC and H. Samuels Company, Inc., No. 92-CV- 212 (Wis. Cir. Ct. Rock County October 13, 1993) 

Plaintiff-employe worked as a crane operator, customarily working from 8 a.m. to 4 p.m., five days a week. The employer assigned the employe and a co-worker to work overtime commencing work at 5 a.m. The employer's manager, who was also the employe's supervisor, was concerned with the amount of work being accomplished. The manager went to the premises about 4:45 a.m. He checked the employe's time card about 5 a.m., but the employe had not punched in. The manager, while waiting across the street in his car, observed the employe arrive at work about 5:54 a.m. The manager opened the office at 7 a.m., his usual starting time. The employe came in and noted his starting time as 5 a.m. A short time later the manager advised the employe of his observation and discharged him.

The employe contended that he had written in his 5 a.m. starting time the night before because the office did not open until 7:30-8 a.m. and that if he had to adjust his time he did so at the end of the day. He also conceded that he was late for work on the day he was discharged.

The ALJ's decision allowed benefits. The commission reversed after discussing credibility with the ALJ.

The employe, representing himself, set forth a number of factual assertions in a document denominated a complaint. The commission set forth the affirmative defense that the action should be dismissed because the so-called complaint did not meet mandatory statutory requirements.

Held: Affirmed. The commission's demand to dismiss the action is denied. The first sentence of the complaint sets forth an adequate prayer for relief where it states "I would like a review on the basis of Statute 102.23, section (e)3." He also sets forth an adequate factual basis to show his disagreement with the factual findings.

The commission's findings of fact, however, are supported by credible and substantial evidence. Where there is a conflict in the testimony, the commission is the judge of credibility and the court cannot question the commission's decision regarding credibility.

The commission's conclusion that the employe was discharged for misconduct for intentionally falsifying his starting time is supported by the facts. That it is tantamount to theft from the employer and that it constitutes misconduct is in the commission's area of expertise.


Keith W. Ruby v. LIRC and WEBKO, Inc., Nos. 91-CV-411 and 92-CV- 173 (Consolidated) (Bench decision) (Wis. Cir. Ct. Marathon County March 18, 1993)

Plaintiff, employe, worked full-time for a metal fabrication shop and about every other weekend for WEBKO, Inc., a sporting goods business. Because of last minute scheduling changes in his job with the metal fabricator, he and the president of the sporting goods business agreed he should quit his sporting goods job which he did. He was subsequently laid off by the metal fabricator due to lack of work on January 16, 1991 and he filed claims for U.C. benefits.

An initial determination appealed by the employe held that he quit his sporting goods job on Saturday, January 5, 1991 (week 1). Another determination, which was not appealed, held that as of week 6 of 1991, the calendar week ending February 9, 1991, he had requalified for benefits which would be charged to the fund's balancing account.

Based on the sworn testimony of the employe and the president of the sporting goods business, the ALJ held that the employe quit on Sunday, January 7, 1991 (in week 2) and that he was overpaid benefits. The employe's attorney petitioned the commission for review submitting affidavits that the quitting had occurred on Sunday, December 30, 1990 (in week 1). The commission refused to remand the case for additional or corrective testimony, requested DILHR to resolve the disqualification issue and the employe's attorney commenced an action for judicial review.

DILHR issued a new initial determination holding the employe had not requalified as of week 6 of 1991. The employe and the president of the sporting goods business testified and submitted records in support of the December 30, 1990 date of quitting. The ALJ held the date of quitting was not an issue before her and that the employe had not requalified as of week 6 of 1991. The commission affirmed. The employe's action for judicial review on the requalification issue was consolidated by motion with the quit issue.

Held: Affirmed. The scope of judicial review is limited. The date of quitting determined by the commission may be inaccurate but determining credibility and the weight of the evidence are solely within the commission's province and not the court. The commission's decision is based on testimony under oath, the conclusion is reasonable and rational, and plaintiff's request to remand for the purpose of testimony to correct an error is denied.

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