326 N.W.2d 121 (Wis.App. 1982), 81-2245, Holy Name School of Congregation of the Holy Name of Jesus of Kimberly v. Department of Industry, Labor and Human Relations

Docket Nº:81-2245.
Citation:326 N.W.2d 121, 109 Wis.2d 381
Opinion Judge:The opinion of the court was delivered by: Cane
Party Name:HOLY NAME SCHOOL OF the CONGREGATION OF THE HOLY NAME OF JESUS OF KIMBERLY, Plaintiff-Appellant, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, and Mary P. Retlick, Defendants-Respondents.
Attorney:For the appellant the cause was submitted on the briefs of Everson, Whitney, Everson, Brehm & Pfankuch, S.c., Philip R. Brehm and Bruce B. Deadman of Green Bay.
Case Date:October 19, 1982
Court:Court of Appeals of Wisconsin
 
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Page 121

326 N.W.2d 121 (Wis.App. 1982)

109 Wis.2d 381

HOLY NAME SCHOOL OF the CONGREGATION OF THE HOLY NAME OF

JESUS OF KIMBERLY, Plaintiff-Appellant,

v.

DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, and Mary

P. Retlick, Defendants-Respondents.

No. 81-2245.

Court of Appeals of Wisconsin.

October 19, 1982

Submitted on Briefs Aug. 16, 1982.

Opinion Released Oct. 19, 1982.

Page 122

[Copyrighted Material Omitted]

Page 123

[109 Wis.2d 382] Everson, Whitney, Everson, Brehm & Pfankuch, S.C., Philip R. Brehm and Bruce B. Deadman, Green Bay, for plaintiff-appellant.

Melvin H. Jarchow, Labor and Industry Review Commission, Madison, for defendant-respondent Department of Industry, Labor and Human Relations.

[109 Wis.2d 383] Before FOLEY, P.J., and DEAN and CANE, JJ.

CANE, Judge.

Holy Name School appeals from a judgment affirming a decision of the Labor and Industry Review Commission that Mary Retlick is qualified to receive unemployment compensation benefits pursuant to the Unemployment Compensation Act, ch. 108, Stats. Holy Name contends that Retlick is not entitled to these benefits because she voluntarily terminated her employment with the school under sec. 108.04(7)(a), Stats. 1 Alternatively, Holy Name asserts that Retlick is disqualified from receiving such benefits because she engaged in "misconduct" within the meaning of sec. 108.04(5), Stats. 2 Because we conclude that the commission's findings of fact are supported by credible and substantial evidence and that Retlick did not "voluntarily terminate" her employment or engage in "misconduct," we affirm.

Holy Name School is a private institution operated by the Green Bay Diocese of the Roman Catholic Church. The school employed Retlick as a kindergarten teacher [109 Wis.2d 384] for approximately five years. Retlick signed a contract when she was hired containing the following provision:

IT IS FURTHER AGREED that the Teacher is subject to all policies, rules and regulations of the Diocesan Department of Education and the Parish School now in force and as may be hereinafter enacted by the aforementioned bodies.

Retlick also signed a document entitled "Declaration of Catholic Educational Philosophy," which the contract incorporated by reference. This declaration contains a provision that teachers should set an example for their students and "lead by their lives in bearing witness to Christ."

During Retlick's employment, school personnel discovered that Retlick planned to marry a divorced man. The school principal informed Retlick that in order to comply with the tenets of the Catholic Church and to be considered a practicing Catholic, she and her fiance had to take steps to have the church annul her fiance's former marriage and to bless her marriage to her fiance. The principal also advised Retlick that her failure to comply with these requirements could result in a loss of employment because she would be in violation of her teaching contract, the "Declaration of Philosophy," and a written diocesan educational board policy for religion teachers containing requirements for practicing Catholics.

The board of education met on February 23, 1978, to determine the effect of Retlick's impending marriage on her employment. The board decided not to renew Retlick's

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contract for 1978-79, but it agreed to permit Retlick to teach until the end of the school year, and it provided Retlick with the option to reapply for employment after she had taken all appropriate steps to have her marriage blessed. Although Retlick had initiated proceedings to have her fiance's former marriage annulled and her marriage blessed, this process was not completed [109 Wis.2d 385] when she married on February 25, 1978. Retlick continued to teach at the school until June 7, 1978, after which she applied for unemployment compensation.

The Department of Industry, Labor and Human Relations (DILHR) made an initial determination that Retlick was discharged, but not for "misconduct" under sec. 108.04(5), and that she was therefore entitled to unemployment compensation benefits. Holy Name appealed, and an appeal tribunal of DILHR affirmed the initial determination after it concluded that Retlick's conduct was neither "misconduct" nor a "voluntary termination." Holy Name appealed this decision to the commission, which supported the appeal tribunal's findings of fact and conclusions of law and affirmed the initial eligibility determination. The circuit court subsequently affirmed the commission's decision. 3

Our standard of review of the commission's determination is the same as that of the circuit court 4 and is governed by statute. Judicial review under ch. 108 is primarily confined to questions of law. See sec. 108.09(7), Stats. Section 102.23(6), Stats., which sec. 108.09(7) incorporates by reference, 5 sets forth the following limited standard of review of the commission's findings of fact:

If the commission's order or award...

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