Mervosh v. LABOR AND INDUSTRY REVIEW COM'N

2010 WI App 36, 781 N.W.2d 236
CourtCourt of Appeals of Wisconsin
DecidedJanuary 26, 2010
Docket2009AP271
StatusPublished

This text of 2010 WI App 36 (Mervosh v. LABOR AND INDUSTRY REVIEW COM'N) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mervosh v. LABOR AND INDUSTRY REVIEW COM'N, 2010 WI App 36, 781 N.W.2d 236 (Wis. Ct. App. 2010).

Opinion

781 N.W.2d 236 (2010)
2010 WI App 36

Simone N. MERVOSH, Petitioner-Appellant,
v.
LABOR AND INDUSTRY REVIEW COMMISSION, Defendant-Respondent,
Zyzeon Capital Corporation, Inc., Defendant.

No. 2009AP271.

Court of Appeals of Wisconsin.

Submitted on Briefs December 1, 2009.
Opinion Filed January 26, 2010.

*238 On behalf of the petitioner-appellant, the cause was submitted on the brief of Jeffrey R. Myer of Legal Action of Wisconsin, Inc., Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the brief of David B. Nance of the Labor and Industry Review Commission, Milwaukee.

Before CURLEY, P.J., KESSLER and BRENNAN, JJ.

¶ 1 BRENNAN, J.

Simone N. Mervosh ("Mervosh") appeals from an order affirming a Labor and Industry Review Commission ("the Commission") decision that denied her claim for unemployment compensation. Mervosh argues that the Commission erred in reversing the hearing examiner's factual findings without adequate explanation and concluding that Mervosh did not have "good cause attributable to the employ[er]" for terminating her employment, pursuant to WIS. STAT. § 108.04(7)(b) (2007-08).[1] We affirm.

BACKGROUND[2]

¶ 2 This case arises out of Mervosh's claim for unemployment compensation benefits, filed after she quit her employment with Zyzeon Capital Corporation, Inc. ("Zyzeon"). The Department of Workforce Development ("Department") conducted an investigation into the circumstances surrounding Mervosh's decision to quit. In December 2006, the Department issued an initial determination, denying Mervosh's claim.

¶ 3 Mervosh filed an appeal, and a hearing was held before a hearing examiner for the Department in March 2007. In April 2007, the hearing examiner issued a decision, reversing the Department's initial determination and concluding that Mervosh was eligible for benefits. In so holding, the hearing examiner found that Mervosh quit for "good cause attributable to the employ[er]," within the meaning of WIS. STAT. § 108.04(7)(b) because Zyzeon failed: (1) to uphold its promise to provide Mervosh with health insurance after three months of employment—noting that Zyzeon's health insurance policy was "a muddled mess"; (2) to provide Mervosh with a letter stating that Zyzeon did not provide her with health insurance, which would have allowed Mervosh to obtain state subsidized health care; and (3) to correct the *239 behavior of Alma Whitson ("Whitson"), Mervosh's direct supervisor, who was purportedly abusive to Mervosh.

¶ 4 Zyzeon then filed a timely appeal to the Commission. The Commission reversed the hearing examiner in September 2007. The Commission's decision stated:

When [Mervosh] was hired [Zyzeon] told her it would provide health insurance, but did not promise her that it would pay the entire premium. [Mervosh] began the process of applying for health insurance through [Zyzeon], but ultimately decided to obtain her insurance through the State of Wisconsin, which offered her free coverage. [Mervosh] requested that [Zyzeon] draft a letter indicating that she was not eligible for insurance coverage through [Zyzeon]. [Zyzeon] refused to do so, but stated that it would provide her with a letter saying that she had declined the coverage it offered.
[Mervosh's] supervisor, Alma Whitson, was a personal friend of [Mervosh's] with whom [Mervosh] socialized and carpooled to work. It was Ms. Whitson who assisted [Mervosh] in obtaining the job in the first place. During the course of her employment the personal relationship between [Mervosh] and Ms. Whitson turned sour and some of their disagreements carried over into the workplace.
On November 16, 2006, [Mervosh] gave [Zyzeon's] owner, Mr. Chovanec, a letter complaining about her working relationship with Ms. Whitson. [Mervosh] contended, among other things, that Ms. Whitson raised her voice in the office, slammed objects, and was argumentative. [Mervosh's] letter also addressed [Zyzeon's] failure to draft a letter indicating that it would not provide her with insurance coverage. In her letter [Mervosh] demanded that "any of the changes that obviously need to occur within the office ... be enacted by the end of the business day Friday, November 17, 2006."
Mr. Chovanec and [Mervosh] went to lunch to discuss the matter. Mr. Chovanec told [Mervosh] he would draft a letter for her indicating that she was not getting health insurance and asked [Mervosh] what she thought he should do about Ms. Whitson. [Mervosh] responded that that was his call.
The following day, November 17, 2006, Mr. Chovanec held a meeting with [Mervosh] and Ms. Whitson in an attempt to resolve issues. He told Ms. Whitson that [Mervosh] was unhappy with her behavior and summarized [Mervosh's] complaints. Ms. Whitson disagreed with [Mervosh's] allegations and about her conduct, to which Mr. Chovanec responded that they needed to find common ground so everyone could work together happily at the office. However, before any resolution could be reached, [Mervosh] stated that she was not going to argue anymore, grabbed her purse and left. She did not return to work thereafter. [Zyzeon] discovered that [Mervosh] had cleaned out her desk prior to the start of the meeting with Ms. Whitson.

¶ 5 The Commission then addressed the issue of whether Mervosh had shown "good cause attributable to the employ[er]" for terminating her employment, citing WIS. STAT. § 108.04(7)(b). The Commission noted that under Kessler v. Industrial Commission, 27 Wis.2d 398, 134 N.W.2d 412 (1965), good cause involves some fault on the employer's part and must be real and substantial. See id. at 401, 134 N.W.2d 412. The Commission's decision stated:

[Mervosh] contended that she quit because [Zyzeon] refused to provide her *240 with [the] health insurance it had promised and because she was harassed by her supervisor. The [C]ommission does not find either assertion persuasive.
The evidence did not establish that [Zyzeon] reneged on any promise to [Mervosh] regarding health insurance. Although [Zyzeon] said it would provide [her] with health insurance, it did not offer to pay all the premiums. [Mervosh] was no longer interested in obtaining insurance through [Zyzeon] once she learned it would not be free. [Mervosh's] quitting was not related to a failure by [Zyzeon] to provide her with insurance.
At the time her employment ended[,] [Mervosh] was not getting along with her supervisor, with whom she had a difficult personal relationship outside of the workplace. However, the [C]ommission is unpersuaded that Ms. Whitson engaged in the type of objectionable conduct alleged by [Mervosh]. Neither Mr. Chovanec nor Jessica Wickgers, another secretary who worked in the office during the two week period immediately preceding [Mervosh's] resignation, had ever seen or heard Ms. Whitson swear or slam things, as [Mervosh] alleged. Moreover, when [Mervosh] finally brought her concerns to Mr. Chovanec's attention he made immediate and reasonable efforts to resolve the situation. Mr. Chovanec went to lunch with [Mervosh] to discuss the problem and then held a meeting the following day with [Mervosh] and Ms. Whitson to try to iron out their differences. However, [Mervosh] walked out of the meeting prior to its conclusion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Charolais Breeding Ranches, Ltd. v. FPC Securities Corp.
279 N.W.2d 493 (Court of Appeals of Wisconsin, 1979)
Klatt v. Labor & Industry Review Commission
2003 WI App 197 (Court of Appeals of Wisconsin, 2003)
Tannler v. Wisconsin Department of Health & Social Services
564 N.W.2d 735 (Wisconsin Supreme Court, 1997)
State Bank of Hartland v. Arndt
385 N.W.2d 219 (Court of Appeals of Wisconsin, 1986)
Kessler v. Industrial Commission
134 N.W.2d 412 (Wisconsin Supreme Court, 1965)
Wirth v. Ehly
287 N.W.2d 140 (Wisconsin Supreme Court, 1980)
Bretl v. Labor & Industry Review Commission
553 N.W.2d 550 (Court of Appeals of Wisconsin, 1996)
Wilson v. Waukesha County
460 N.W.2d 830 (Court of Appeals of Wisconsin, 1990)
ITW Deltar v. Labor & Industry Review Commission
593 N.W.2d 908 (Court of Appeals of Wisconsin, 1999)
City of Appleton v. Department of Industry, Labor & Human Relations
226 N.W.2d 497 (Wisconsin Supreme Court, 1975)
Mervosh v. Labor & Indusrty Review Commission
2010 WI App 36 (Court of Appeals of Wisconsin, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
2010 WI App 36, 781 N.W.2d 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mervosh-v-labor-and-industry-review-comn-wisctapp-2010.