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June 27, 1983


Appeal from a judgment of the Circuit Court for Portage County: Robert C. Jenkins, Judge.

Gartzke, P.j., Dykman, J. and W.l. Jackman, Reserve Judge.

The opinion of the court was delivered by: Dykman

Delores Shudarek appeals from the trial court's judgment affirming the Labor and Industrial Commission's decision denying her unemployment compensation benefits. She argues that she did not voluntarily terminate her employment under sec. 108.04(7) (a), Stats., and that her termination violated her right to religious freedom under the United States and Wisconsin Constitutions. We affirm because we conclude that Shudarek voluntarily terminated her employment and that the termination did not violate her right to religious freedom.

Shudarek was a sister in a Catholic religious order since 1948 and worked in various hospitals for several years. She was employed since 1976 as a pastoral associate by St. Michael's Hospital of Stevens Point. Her job duties included helping the patient and his or her family accept all aspects of the patient's illness, providing spiritual assistance to patients and their relatives and assisting hospital personnel. The job description, revised as of March 14, 1980, contained the statement that both religious and lay people could occupy the position. Endorsement by the bishop of the diocese was specifically stated as a prerequisite to employment, although there was testimony at the hearing that endorsement had not always been required.

Shudarek decided to leave her religious order for personal reasons not contained in the record. She discussed her decision to leave with her immediate supervisor. He encouraged her to take time off to reconsider her decision. She returned a few weeks later and informed him that her decision to leave the order remained the same. Her supervisor contacted the hospital's personnel director, and they informed her of her termination benefits. At that time, and during their initial Discussion, Shudarek's supervisor informed her that she would lose the bishop's endorsement by leaving her order. He also informed her that it was possible for a lay person to do her job and that she could reapply for the bishop's endorsement as a lay pastoral associate. She chose not to reapply for the lay position.

After Shudarek left her employment, she applied for unemployment compensation benefits. At a hearing, Shudarek testified that the hospital administrator assured her she would not lose her job by leaving her religious order. The hospital's personnel director testified that the hospital administrator did not have the authority to make such assurances because the bishop was the final decision maker for that position. He also stated that the hospital administrator said he had told Shudarek that it was uncertain whether she could retain her job.

Shudarek testified that she did not apply for the lay position because she believed that she had been fired as a religious pastoral associate and would not be rehired as a lay person. A letter from her supervisor to the bishop said Shudarek, by her decision to leave her religious order, lost her "good standing within the Church and within her community." The bishop's return letter confirmed that Shudarek had lost his endorsement to continue as a pastoral associate. *fn1

The Commission determined that the Church was legitimately concerned about Shudarek's continued adherence to its religious doctrine because she was required to perform duties of a religious nature as a pastoral associate. It found that even though some lay personnel were employed as pastoral associates, their authority was not coextensive with that of religious pastoral associates in regard to performance of religious functions. The Commission concluded that the Church was reasonable in requiring a special endorsement prior to allowing Shudarek to change her status to a lay position.


Section 102.23(6), *fn2 Stats., provides:

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.

In Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 54, 330 N.W.2d 169, 173-74 (1983), the court said:

The standard to be applied under sec. 102.23(6), Stats., continues to require that deference be accorded the Commission's findings of fact. A reviewing court may not substitute its own judgment in evaluating the weight or credibility of the evidence. Under the statutory restatement appearing in sec. 102.23(6), as prior thereto, if there is relevant, credible, and probative evidence upon which reasonable persons could rely to reach a Conclusion, the finding must be upheld.

On appeal from the decision of an administrative agency, our standard of review is the same as that of the circuit court. Miller Brewing Co. v. ILHR Department, 103 Wis. 2d 496, 501, 308 N.W.2d 922, 925 (Ct. App. 1981). Legal Conclusions drawn by the Commission from its factual findings are subject to judicial review. Wehr Steel Co. v. ILHR Dept., 106 Wis. 2d 111, 117, 315 N.W.2d 357, 361 (1982). Such questions of law are reviewable ab initio by this court and are properly subject to judicial substitution of judgment. American Motors Corp. v. ILHR Dept., 101 Wis. 2d 337, 353-54, 305 N.W.2d 62, 70 (1981). However, the construction of a statute by the administrative agency which must apply the law is entitled to great ...

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