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

CHERYL L BATTERMAN, Employee

COLONIAL CLUB INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02004366MD


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a senior activity center, for four years as program director. Her last day of work was April 16, 2002, and she tendered her resignation on May 6, 2002 (week 19).

During the course of her employment the employee had difficulties getting along with a co-worker by the name of Greg Miller. On various occasions she complained to the employer about Mr. Miller's job performance and her belief that he exhibited inappropriate behavior. The employer agreed that Mr. Miller had occasionally exhibited a bad temper and some inappropriate behavior, and it had talked to him about these issues on more than one occasion.

On April 4, 2002, the employee was setting up chairs in a conference room when Mr. Miller came and stood in the doorway, and watched the employee struggle with the chairs. The employee remarked that if he was not going to help out, he could just leave, to which Mr. Miller responded, "Screw you." The employee retorted, "Screw you, too." Mr. Miller then left the room, but returned shortly thereafter, slammed the door behind him, and asked the employee who the hell she thought she was. The employee responded something to the effect of, "I'm Cheryl Batterman, and you can't talk to me like that." An argument ensued, during which both Mr. Miller and the employee yelled at one another. The altercation ended when the employee left the room.

Immediately after this incident the employee went into the employer's main office and cowered behind the door crying. The employee subsequently prepared a written report of the incident for the employer, in which she indicated that she was convinced Mr. Miller intended to physically harm her and that the incident exemplified the hostile environment he had created. The employee later met with her supervisor to discuss the incident. During this meeting the employee reiterated that Mr. Miller's behavior had scared her and that she was convinced he was going to hit her. The employee's supervisor stated that she was doing an investigation and was there to listen, but that was all she going to do on that occasion. The employee believed she should have been asked whether she felt safe returning to work and left the meeting upset that her safety concerns were not specifically addressed.

The employer also talked to Mr. Miller to obtain his side of the story. Mr. Miller indicated that he had been trying to help the employee, but that she was snobby and sarcastic with him. He stated that he did not intend to slam the door when he returned to confront the employee, and that he basically told her if she wanted his help all she needed to do was ask, but that he was not going to "kiss her feet."

The employer believed that the employee had an attitude problem and, after talking to Mr. Miller, it concluded that the employee had contributed equally to the incident by goading him. The employer decided to give both parties a three-day suspension and to require them to go to the employee assistance program to discuss conflict resolution issues. The employer told the employee it was taking disciplinary action against Mr. Miller, but did not specifically tell her what discipline he received. The employer also did not specifically discuss the employee's stated concerns that she believed Mr. Miller was going to hit her. The employer indicated that the employee's prior complaints about Mr. Miller did not suggest a level of violence and that it felt requiring Mr. Miller to go to the employee assistance program was an adequate remedy for the concerns she had raised.

The employee served her suspension from April 17 through April 19, then took personal time off work. She resigned on May 6 because she felt she was working in an unsafe environment. The employee further contended that she felt she was unfairly disciplined and was hurt that her supervisor did not ask her about her personal safety at work.

The issue to resolve is whether the employe's quitting was for a reason permitting the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. Good cause attributable to the employer means that the employee's resignation is caused by some act or omission by the employer which justifies the decision to quit. It involves some fault on the employer's part and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979).

The commission is not persuaded that the employee's stated concerns for her personal safety were reasonable or warranted. The employee was a participant in the incident which precipitated her decision to quit, and it appears from the record that she bore some degree of responsibility for the altercation. Mr. Miller did not threaten to hit the employee, and did not raise his hand as if to strike her, nor did he otherwise act in a manner that could be described as physically menacing. Although the employee stated that she was convinced Mr. Miller intended to hit her, she was able to walk past him and leave the room unharmed. While the incident was unpleasant, it did not justify a conclusion that the working environment was unsafe.

Moreover, even if the commission were to find that the employee did have a legitimate safety concern, the employee did not put the employer on notice as to the extent of her concerns. The employee told the employer she felt Mr. Miller was going to hit her during the course of their confrontation, but did not indicate that she felt generally unsafe about returning to work or that the situation was so critical she would feel compelled to quit unless it were addressed. The employer's actions in sending Mr. Miller to the employee assistance program in order to discuss conflict resolution issues were a reasonable response to the concerns expressed to it by the employee.

Finally, the commission believes that the employee's quitting was motivated as much by a sense of disappointment that the employer disciplined her rather than taking her side in the altercation as by any genuine concerns about her personal safety. Under all the facts and circumstances, the commission does not find that the employee's quitting was justified by a reasonable concern for her personal safety which the employer failed to adequately address or that it was otherwise with good cause attributable to the employer.

The commission, therefore, finds that in week 19 of 2002 the employee voluntarily terminated her work with the employer, and that her quitting was not with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

The commission further finds that the employee was paid benefits in weeks 22 through 49 of 2002 in the total amount of $9,072, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 19 of 2002, 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 her weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay $9,072 to the Unemployment Reserve Fund.

Dated and mailed March 28, 2003
battech . urr : 164 : 1  VL 1080.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner


NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that she felt the employee had a tendency to exaggerate, but believed she was genuinely concerned for her personal safety. The commission does not disagree with this credibility determination. While it is possible the employee may have feared for her safety, for the reasons set forth in the body of the decision, the commission is unpersuaded that such fears were reasonable, nor does it believe the employee put the employer on notice as to the extent of her concern.

cc: Attorney Nia Enemuoh-Trammell


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