Holy Name School of Congregation of the Holy Name of Jesus of Kimberly v. Department of Industry, Labor and Human Relations

• Decision Date: 19 October 1982
• Docket Number: No. 81-2245,81-2245
• Citation: 326 N.W.2d 121,109 Wis.2d 381
• Parties: , 7 Ed. Law Rep. 691 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.
• Court: Wisconsin Court of Appeals

Page 121

326 N.W.2d 121

109 Wis.2d 381, 7 Ed. Law Rep. 691

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.

Submitted on Briefs Aug. 16, 1982.

Opinion Released Oct. 19, 1982.

Opinion Filed Oct. 19, 1982.

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.

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 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 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 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 depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission's order or award and remand the case to the commission if the commission's order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.

Substantial evidence for purposes of this statute does not constitute the preponderance of the evidence. The test is whether reasonable minds could arrive at the same conclusion the commission reached. Farmers Mill of Athens, Inc. v. DILHR, 97 Wis.2d 576, 579, 294 N.W.2d 39, 41 (Ct.App.1980). In reviewing administrative agencies' factual findings under similar provisions containing the "substantial evidence" standard, our supreme court has stated that "there may be cases where two conflicting views may each be sustained by substantial evidence. In such a case, it is for the agency to determine which view of the evidence it wishes to accept." Robertson Transportation Co. v. PSC, 39 Wis.2d 653, 658, 159 N.W.2d 636, 638 (1968).

We are not bound by the commission's determination of a question of law. Nottelson v. DILHR, 94 Wis.2d 106, 115, 287 N.W.2d 763, 767 (1980). The commission's legal conclusion will be given weight, however, when its expertise is significant to a value judgment involved in a question of law. Id. at 116-17, 287 N.W.2d at 768.

In this case, the commission made findings concerning Retlick's conduct and intent in engaging in such conduct. The commission then determined whether the statutory concepts of "voluntary termination" and "misconduct" had been met. Questions concerning employe and employer conduct and intent are questions of fact. See Nottelson, 94 Wis.2d at 115, 287 N.W.2d at 768; Cheese v. Industrial Commission, 21 Wis.2d 8, 14, 123 N.W.2d 553, 557 (1963). Whether Retlick voluntarily terminated her employment under sec. 108.04(7)(a) is a question of law. Nottelson, 94 Wis.2d at 115, 287 N.W.2d at 768. Similarly, a determination that Retlick engaged in "misconduct" under sec. 108.04(5) is a legal conclusion. Cheese, 21 Wis.2d at 15, 123 N.W.2d at 557. In reviewing the commission's determination that Retlick is qualified for unemployment compensation benefits, the law presumes that an employe is not disqualified from such compensation, and it places on the employer the burden of introducing credible evidence sufficient to convince DILHR that some disqualifying provision should bar the employe's claim. Consolidated Construction Co. v. Casey, 71 Wis.2d 811, 820, 238 N.W.2d 758, 763 (1976).

Holy Name contends that Retlick intended to leave her employment with the school because she failed to pursue the option of waiting to marry until all steps had been taken to have her marriage blessed and because she married with full knowledge that her marriage would be contrary to tenets of the Catholic faith and to her employment contract. Holy Name therefore asserts that she "voluntarily terminated" her employment under sec. 108.04(7)(a).

In Dentici v. Industrial Commission, 264 Wis. 181, 186, 58 N.W.2d 717, 720 (1953), our supreme court set forth the applicable test to determine whether an individual has voluntarily terminated employment under ch. 108:

When an employee shows that he intends to leave his employment and indicates such intention by word or manner of action, or by conduct inconsistent with the continuation of the employee-employer relationship, it must be held ... that the employee intended and did leave his employment voluntarily ....

See also Hanmer v. DILHR, 92 Wis.2d 90, 94, 284 N.W.2d 587, 589 (1979); Fish v. White Equipment Sales & Service, Inc., 64 Wis.2d 737, 745, 221 N.W.2d 864, 868 (1974). A determination of whether there has been a voluntary termination is therefore dependent on findings of fact concerning an employe's conduct and intent.

We conclude that there is credible and substantial evidence to support the appeal tribunal's finding, which the commission adopted, that Retlick intended to preserve the employment relationship and did not intend to leave her employment. The record indicates that even prior to her discussion with the principal concerning the ramifications of her impending marriage, Retlick had contacted a priest to initiate annulment proceedings. Retlick testified at the hearing before the appeal tribunal that she and her fiance had not set a definite wedding date when she began the annulment and marriage validation procedure, and that only a personal crisis involving her fiance's two small children prompted their sudden decision to marry so that she could be a mother to the children. Retlick did, however, continue to take steps to have her marriage validated after the board voted not to renew her contract and after her marriage.

The record also indicates that Retlick attempted to preserve the employment relationship by asking the principal if she could attend the February 23 board meeting to discuss her personal predicament. The principal requested,...