STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


CAROLYN J CURRY, Employee

SEARS ROEBUCK & CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00400792SH


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 3 of 2000, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $5,800.00 to the Unemployment Reserve Fund.

Dated and mailed October 27, 2000
curryca.usd : 132 : 1   VL 1080.20  VL 1023.10

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision which found that she voluntarily terminated her employment but not for any reason permitting immediate benefit payment. The employee maintains that the employer failed to provide her training and support, and breached its duty to provide an environment that was not hostile because of her sexual orientation. However, in order to establish that her quitting was with good cause attributable to the employer, the employee must establish some real and substantial acts or omissions on the part of the employer that justified the employee in terminating her employment rather than continuing in her work. The employee did not believe she was receiving the support and respect that she deserved from the general manager. However, the commission cannot conclude that the actions complained of provided the employee with justification for terminating her employment.

First, regarding the employee's allegations of a hostile work environment based on comments made by the operations manager, the employee failed to complain of the comments and apprise higher authorities that she considered the comments so objectionable that she was contemplating terminating her employment. Indeed, as noted by the administrative law judge, the employee did not even raise the issue with the district human resource representative until after she informed him that she was quitting her employment. The fact that it was not even raised prior to quitting deprived the employer of the opportunity to address the concern and thereby allow the employee to continue her employment if the matter was satisfactorily resolved. Instead, the employee merely concluded that apprising the employer of her concerns, and that she was contemplating terminating her employment, would do no good.

The human resource representative was in a general way aware of the employee's dissatisfaction with the level of training she received, particularly early on in her employment, but she did not apprise him that she considered the failures to train so serious that she was contemplating terminating her employment. The employee was not under any threat of disciplinary action nor was her employment in jeopardy because of any failures in performance due to lack of training. While the employee felt offended at the general manager's response to her failure to complete some reports, the general manager noted that it was not expected that the employee would be able to be successful and other workers were unsuccessful in completing their reports accurately. However, the general manager was upset that the employee failed to even attempt to complete the task. In this regard, the commission notes that the general manager had been willing and ready to assist the employee but due to the employee's illness the employee was not available to receive such training when the general manager had time to provide such assistance.

The employee also argues that the administrative law judge inappropriately held the employee to a standard of finding that she was unable to do her work in order to be eligible for benefits. That is the appropriate standard. When an employee alleges that medical problems resulted in her inability to work a more specific statutory section in Chapter 108 is applied in determining whether the alleged medical problems permit benefit payments. Specifically, Wis. Stat. § 108.04(7)(c) provides that an employee is eligible for benefits if she quits her employment because she is unable to perform her work and has no reasonable alternative. The employee's medical documentation did not establish that she was unable to perform her work and that she had no reasonable alternative to quitting. One reasonable alternative to quitting would have been to notify the employer of her dissatisfaction to allow the employer the chance to relieve any stresses the employee was experiencing relating to her position including the lack of training, the perceived lack of respect, and the objections to the comments of the operations manager.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: SEARS MERCHANDISE GROUP
ATTN SUSAN KUBOW HUMAN RESOURCES

ATTORNEY GODFREY Y MUWONGE
GODFREY Y MUWONGES LAW OFFICE LLP


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