Vocational, Technical and Adult Ed., Dist. 13 v. Department of Industry, Labor and Human Relations
| Decision Date | 01 March 1977 |
| Docket Number | No. 75-321,75-321 |
| Citation | 251 N.W.2d 41,76 Wis.2d 230 |
| Court | Wisconsin Supreme Court |
| Parties | VOCATIONAL, TECHNICAL & ADULT EDUCATION, DISTRICT 13, Respondent, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS and William S. Gosy, Appellants. |
The Department of Industry, Labor & Human Relations (hereinafter ILHR Department) and William S. Gosy, appeal from a judgment entered March 24, 1975, which reversed a decision of the ILHR Department and remanded the matter for further proceedings. The ILHR Department had determined that Gosy had not been discharged from his employment for misconduct within the meaning of sec. 108.04(5), Stats., and was thus eligible for unemployment compensation benefits.
James L. Pflasterer, Madison, for appellants; Uclair W. Brandt, Chief Counsel, David A. Pearson, Asst. Chief Counsel, on brief for Dept. of Industry, Labor and Human Relations, and Gregory A. Wilson, Wis. Ed. Ass'n Council, Madison, on brief for William S. Gosy.
Robert L. Bittner, Green Bay, for respondent; Bittner, Petitjean & Hinkfuss, Green Bay, on brief, and James R. Sickel, Green Bay, of counsel.
The Vocational, Technical & Adult Education District No. 13 (hereinafter respondent), has a facility located at Green Bay, Wisconsin, known as the Northeast Wisconsin Technical Institute (hereinafter NWTI). Gosy had been employed by NWTI as a data processing department teacher. The subject he taught was required for a person who wished to complete the data processing course.
Prior to October 16, 1973, Gosy had experienced some difficulties with Ronald Raddix, a student enrolled in the course he taught. The difficulties centered around Raddix's absence from class eight times, his missing of a six-week exam, and statements made by Raddix which Gosy perceived to be threats. Gosy discussed the matter with Raddix's advisor, Mr. Jacobs, on October 15th.
On October 16th, Gosy presented a drop slip to his immediate supervisor, Ernest DeRoche, to remove Raddix from his class. The drop slip was a standard form used by NWTI whenever a student withdrew from a course. It required three signatures to be effective, the instructor's, the student advisor's and DeRoche's. The drop slip had both Gosy's and Jacobs' signatures when submitted to DeRoche. DeRoche signed the drop slip on October 16th.
On October 17th or 18th, Gosy informed DeRoche that he had received additional threats from Raddix and that Raddix was protesting being dropped from the class. DeRoche called a conference with Gosy, Raddix, Jacobs and Henry Wallace, the student services supervisor, to discuss the problem. DeRoche testified that when a difficulty arose between an instructor and a student, his role would be to hear both sides of the conflict and to make recommendations to both parties.
At the meeting, the reasons for dropping Raddix were discussed and at the conclusion of the meeting, DeRoche orally made his recommendation. The record does not reflect the content of DeRoche's oral recommendation, but he did reduce it to writing on October 18th and it was delivered to Gosy. The October 18th memo represented the only written instruction ever received from anybody by Gosy relative to the reinstatement of Raddix. In pertinent part, it stated:
Gosy received the memo on October 19th. Gosy stated that he did not understand the memo to be an order to reinstate Raddix but that he believed that the question of reinstatement was still open.
DeRoche sent a report about the October 17th meeting to Dennis Humphreys, the administrator of NWTI, which report Humphreys received on October 18th. Humphreys called a meeting on October 19th with Gosy, DeRoche and two or three representatives of the faculty grievance committee, including Mr. Howlett. The purpose of the meeting was to review the report from DeRoche. Humphreys testified, in effect, that he had the responsibility for making the final decision of whether Raddix should be accepted back into Gosy's class. Humphreys listened to DeRoche and to Gosy. At the end of the meeting, he ". . . instructed Mr. Gosy to place in writing the reasons why he could not honor Mr. DeRoche's direct order to accept the student back into class." Humphreys also stated, ". . . I had told Mr. Gosy that until I would hear all sides of this, until a final decision was made I would have to honor Mr. DeRoche's decision and actions." (Emphasis added.) In response to the question of whether he had told Gosy on October 19th to let Raddix back into class, Humphreys stated: "I related this through Mr. Howlett, the faculty representative." Howlett was not in the supervisory chain of command.
Gosy testified that at the October 19th meeting he told Humphreys that he was not going to take Raddix back into class. Gosy stated that he did not consider Humphreys' statement to be a direct order to readmit Raddix because of ". . . the way it was said," and that although Howlett told him that his refusal to take Raddix back into his class would result in his suspension, Gosy considered that to be Howlett's opinion only.
Shortly after the meeting Gosy submitted to Humphreys, in writing, the reasons why he could not honor DeRoche's October 18th request. Humphreys reviewed the response from Gosy and decided that a further meeting with Raddix, Jacobs and Wallace was required. It was, however, too late in the afternoon to call the meeting, so Humphreys held it over until October 22nd.
On the morning of October 22nd, Humphreys reviewed Gosy's memo and reply to DeRoche's report; discussed the situation with Raddix, Wallace, the student service supervisor, and Jacobs, the student advisor; and made the final decision to ". . . stay with Mr. DeRoche." That meant ". . . to allow the student back in class." Gosy was not present and was not informed of the decision because it was not made until shortly before his class was scheduled to start. Humphreys stated ". . . however, Mr. Gosy had been relayed this information on Friday that until he heard further from me, that my decision was to honor Mr. DeRoche's decision of accepting the student into class."
Humphreys did convey his final decision to Wallace. Wallace told Raddix to attend Gosy's class and to report back if it created any disruption. Raddix left and came back shortly with a report that Gosy stated that he would dismiss the whole class if Raddix attended. Wallace took a statement to that effect from Raddix and gave it to Humphreys. Humphreys summoned Gosy to his office, summarized the situation, and informed Gosy that because of his refusal to admit Raddix into his class, he was suspended for insubordination. The suspension was followed by a written termination of employment because of insubordination.
After Gosy had been told he was suspended and before he was given his written notice of termination, Gosy said he would not let the student back into class even though the coordinator and others were of the opinion the student should be readmitted.
Under these facts, the ILHR Department found:
The Commission further noted at the bottom of its decision that it was the position of the Commission "that the employer did not advise the employe that the request made of him was mandatory and that therefore the action taken by the employe was not unreasonable."
On appeal, the circuit court held that Gosy had been discharged for misconduct connected with his employment and reversed the determination of the ILHR Department and remanded to the Department for further proceedings.
Two issues are presented by the facts of this case:
(1) Are the findings of fact made by the ILHR Commission supported by credible evidence and reasonable inferences therefrom so as to be conclusive?
(2) Was Gosy's conduct, under the circumstances, misconduct connected with employment within the meaning of sec. 108.04(5), Stats., so as to bar his eligibility for unemployment benefits?
FINDINGS OF FACT.
In the recent case of Consolidated Const. Co., Inc. v. Casey 71 Wis.2d 811, 238 N.W.2d 758 (1976), this court, commenting on its review of the Department's decision stated at pp. 815, 816, 238 N.W.2d at p. 761:
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