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

Subject: Alice F. Howard v. LIRC and Woodland House, Case No. 00-3547 Ct. App. Dist. IV, December 28, 2001 (unpublished)

Please note that Wis. Stat. § 809.23(3) provides that an unpublished decision of the Court of Appeals is of no precedential value and for that reason may not be cited in any court in this state as precedent or authority. Summaries of unpublished Court of Appeals decisions are included in this collection as an informational service only, and their use contrary to 809.23(3) is not encouraged.

Digest Codes:  VL 1007.01  PC 752 

The employee worked as a residential care assistant in a nursing home. She telephoned a co-worker on Friday, 2/11/00, indicating that she was sick and would miss her shift that evening. She was also absent for her scheduled shifts the next two days, 2/12 and 2/13/00, and did not call to give notice. She did not contact the employer again until coming in to pick up her paycheck on 2/18/00. Her supervisor, Marcia Ripp, testified that the employee's actions were considered to amount to a quit. Ripp also testified that on 2/12/00, a co-worker came in to cover the employee's shift and told Ripp the employee had quit.

The employee gave contrary testimony to the effect that she called in sick before her shift started on 2/11/00, but that Ripp telephoned her later that day and "screamed" that if she didn't get to work she was fired. The employee testified that she hung up the phone and did not report to work. Apparently, she assumed she was fired. Ripp denies that she even talked to the employee on 2/11/00. The employee further testified that she telephoned Ripp after learning her unemployment was being contested, and asked Ripp why she had alleged a quit. She testified that Ripp told her to go find a life and thereafter called the police saying that the employee had threatened her. Ripp testified that when the employee telephoned her about the unemployment claim she threatened Ripp. Ripp said she tried twice to call the employee back to try to calm her down but the employee hung up on her.

The appeal tribunal and the commission both found Ripp's testimony credible and found that the employee had quit her employment. The employee appealed and argued that her version of the events was accurate. Dane County Circuit Judge David Flanagan reversed and framed the dispositive credibility issue as being whether or not Ripp telephoned the employee on Friday, 2/11/00. Judge Flanagan determined that it was so "compellingly plausible" that such call was made that Ripp's testimony that there was no such call was incredible on its face. The commission appealed to the Court of Appeals District IV.

Held: The circuit court is reversed and the commission's decision is reinstated. The facts found by the commission were at least as plausible as the facts found by the circuit court, because the court overlooked the employee's prior history of absenteeism, which lends credence to Ripp's testimony that she believed it would be futile to telephone the employee on 2/11/00. Furthermore, the applicant's testimony that Ripp telephoned her that day and told her she had to come to work or be fired, was inconsistent with her prior written statement to the department that she telephoned Ripp that day and that Ripp simply told her she was fired. The commission was entitled to rely upon Ripp's testimony, and the commission's factual findings are conclusive on the court.

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

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