Monday, July 9, 2012

Wisconsin Court of Appeals Upholds Denial of Unemployment Benefits, Employee Puts Foot in Mouth

I opened up the weekly Wisconsin CaseLaw Express issued by the State Bar and came across a Court of Appeals case for an unemployment compensation appeal hearing I handled two years ago, to my surprise.  The Administrative Law Judge sided with my client (occasionally I represent employers) in denying benefits, LIRC affirmed and the circuit court also affirmed.  Now the Court of Appeals has affirmed.

The case involved an employee at Stein Optical who was also a student at Alverno College.  The employee, Lalita A. Sallis, was confronted with a problem not uncommon to students with full and part-time jobs in that she had an exam that conflicted with her work schedule.  Stuck between a rock and a hard place, Sallis was unable to get off work so she falsified the optometrist's appointment book so that she could leave early and make it to her exam.  While one may be sympathetic with what Sallis did, the ALJ found misconduct and Sallis appealed based on evidence presented at the hearing.

Sallis appealed claiming the Commission erred because: (1) she contends that there was no evidence, other than hearsay, to support a finding of misconduct; and (2) it did not credit her undisputed testimony that she had created false appointments previously for a Stein Optical doctor who needed to leave early.

Sallis ultimately lost because she ADMITTED to the conduct she was terminated for but tried to defend her actions by claiming that she had falsified the appointment book previously without discipline but the ALJ simply did not find this testimony credible, in part, because of testimony from the employer's sole witness, the new store manager (who did not work with Sallis or terminate her), and because in her application for unemployment insurance she said she "had never done this before."  Thus it was fairly obvious Sallis was not too credible.

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