Wis.LIRC UC Decision: Wittlieff, James - November 4, 1998 - PC 712.6 - Hearing, failure to appear; PC 715 Hearing, Procedure, Miscellaneous - failure to appear at hearing on advice of counsel to avoid self-incrimination - adverse inference from fifth amendment refusal to testify permissible in civil case; MC 610.25 - Patrons, relations with

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

JAMES R WITTLIEFF, Employe

GREENDALE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97607841MW

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 46 of 1997, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay the sum of $2,264 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UC-700), issued on November 17, 1997, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed November 4, 1998
wittlja.usd : 135 : 6 MC 610.25 PC 712.6 PC 715

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

1. Issues surrounding the constitutional right against self incrimination at UI hearings.

The employe argues that the appeal tribunal decision should be set aside due to the then pending criminal charges (1 ) which prevented the employe from attending the hearing, to refute or place into proper context the allegations levied by the district. The employe further argues that the ALJ abused his discretion by thus denying the employe's constitutional right against self incrimination.

The employe however failed to invoke his constitutional right against self incrimination prior to or during the UI proceeding before the ALJ. The employe was not present at the hearing upon advice by legal counsel because of the status of an ongoing criminal investigation. The commission declines to infer that the employe invoked his right under the U. S. Constitution's Fifth Amendment and concludes he waived his right to argue this constitutional issue before the commission.

Even assuming for argument purposes that the employe did properly invoke his right not to testify, adverse inferences from the employe's non-appearance may be made. Although a fact finder may not draw adverse inferences from a defendant's use of the fifth amendment privilege by refusing to testify in a criminal case, a different rule applies in civil and administrative cases not involving the imposition of criminal penalties. State v. Heft, 188 Wis. 2d 288, 300 (1994). In fact, "Wisconsin has long recognized that the invocation of the fifth amendment in a civil case can result in an adverse inference." Id. at pg. 300. Thus, while the fifth amendment applies to prevent a witness from being compelled to incriminate himself in civil and administrative cases, the fact finder is entitled to draw inferences adverse to the interests of the witness from his refusal to testify. Grognet v. Fox Valley Trucking Services, 45 Wis. 2d 235, 239 (1969). See also Edward S. Gierczak v. LIRC, Independent Erectors, Inc. and Travelers Insurance Co., Racine Cty. Cir. Ct. Case No. 94-CV-1327, May 30, 1995, citing LIRC's decision, Edward S. Gierczak v. Independent Erectors, Inc. and Travelers Ins. Co., (Claim No. 91011120), LIRC, February 10, 1994). Thus, had the employe invoked his right under the fifth amendment at or prior to the hearing, the commission would not have deemed the ALJ's adverse inferences improper or in error.

2. Evidence to support misconduct finding.

The employe argues that the ALJ impermissibly reversed the presumption in favor of eligibility against the employe. The commission disagrees. The burden is on the employer to establish that its discharge of an employe was for misconduct connected with the employe's employment within the meaning of Wis. Stat. § 108.04(5). The commission is satisfied that the employer produced substantial evidence to demonstrate the employe's conduct rose to the level of misconduct within the meaning of the law.

In UI proceedings involving allegations of sexual harassment, the actual issue of the employe's discharge is often lost in a discussion of what constitutes sexual harassment for discrimination purposes or wrongful termination suits. The issue in this UI proceeding is rather straightforward: did the employe's alleged conduct establish an intentional disregard of the employer's interests and of the standard of conduct the employer had a right to expect of the employe? See Jerome A. Beatty v. LIRC and A Titan Wheel Co., Case No. 97-CV-135 (Washington Cir. Ct., March 23, 1998); Jerome A. Beatty v. A Titan Wheel Co., Hearing No. 96400410, LIRC March 14, 1997. The commission therefore does not believe that the ALJ reversed the statutory presumption in favor of eligibility against the employe. The employer made its case by producing credible competent firsthand evidence to support the ALJ's finding that the conduct occurred and that it constituted misconduct within the meaning of Wis. Stat. § 108.04(5).

The employe also argues that the ALJ's conclusion that the employe willfully or negligently disregarded the employer's rules or request is not supported by the evidence and is foundationless without the testimony of the employe.

As the commission has already noted, the employe waived his right to argue the issue of self-incrimination before the commission. And as the commission has also noted, a fact finder in a UI proceeding is entitled to draw an adverse inference against the non-appearing witness. Here the employer produced unrebutted and unrefuted firsthand testimony to the circumstances leading to the employe's discharge. The employe committed inappropriate behavior for which he was discharged. The commission is satisfied that this inappropriate behavior amounted to an intentional disregard of the employer's interests and the standard of conduct the employer had a right to expect of the employe.

cc:
Attorney Michael Aldana
Priscilla McDougal
Wisconsin Association

Appealed to Circuit Court. Affirmed November 29, 1999. [Circuit Court decision summary]

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Footnotes:

(1)( Back ) Ultimately no criminal charges were filed against the employe.