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

KRISTIE K DENNING, Employee

NORTHWOODS FAMILY EYECARE LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02201829EC


On July 19, 2002, the Department of Workforce Development issued an initial determination which held that the employee's quit was not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on October 23, 2002 in Eau Claire, Wisconsin before a department administrative law judge. On November 1, 2002, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee in this case worked approximately five years as an optician for the employer, an optometry clinic. She quit her employment on July 2, 2002 (week 27), and the issue is whether the quit was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b). The commission concludes that it was, and so reverses the appeal tribunal decision.

The incident precipitating the employee's quit occurred on her last day of work. The employer had a conversation with one patient concerning another patient's divorce, in the waiting room of the office and with yet another patient present. The employer and the patient discussed the other patient's divorce, money difficulties, and the medications of the estranged wife of the other patient. The divorcing family the employer and patient were talking about, was very close friends of one of the employee's co-workers. That co-worker believed the estranged wife should know what had been said, and so contacted her and told her. The estranged wife apparently then contacted her husband, who contacted the employer and told the employer he needed to be careful about what he said in the office.

The employer then came into the room where the employee and co-worker were and said, "I think you better leave for the rest of the afternoon. I am very upset and may start throwing things." Although the employer did not specifically direct this threat to the employee or her co-worker, it was clear that the employer was speaking to the co-worker (as the co-worker had informed the couple in question of the employer's comments). The employee testified, and the employer conceded, that the employer was angry and very upset, using a tone the employee had never heard before. At this point, the co-worker quit her employment.

The employee asked the employer whether the employer's ultimatum was directed at the employee as well; the employer said that it was not. The employee indicated that the office staff was upset about what the employer had said in his conversation with the patient in the office that morning. The employee then said that she had to leave for the rest of the day as well. The employer told the employee that she would need to decide where her loyalties were. The employee subsequently decided, and quit the employment that afternoon.

Other factors contributed to the employee's quit of employment as well. First, the employer would visit pornographic websites on his office computer, the screen of which was visible to anyone walking past the door of the employer's office. The employer also regularly engaged in what is most charitably called sexual banter, which the employee and her co-workers considered unprofessional. For example, if something fell on the floor, the employer would offer to pick it up on the ground that all of the women in the office were wearing pants. On one occasion, a co-worker was scrubbing the bathroom floor with her jacket off and a tank top underneath. The employer came in and asked if he could watch. The employer conceded that he would make such comments but asserted that he would say them jokingly. He also denied that he made such comments daily; he testified that he only made such comments weekly. Finally, the employer made a racially derogatory remark on at least one occasion, referring to the adopted Hmong daughter of one of his employees.

It is a general principle that, before good cause attributable to an employer will be found for a quit, the employee should give the employer opportunity to correct the matters complained of. This principle is inapplicable, however, when to do so would be futile. The employee did not complain to the employer about his conduct, before quitting the employment the afternoon of her last day of work. Her failure to do so was based upon two previous discussions with management personnel. The employer had had an affair with another doctor in the office (a factor which contributed in part to the sexual innuendo in the office). The employer and other doctor subsequently married; the employee on one occasion asked the other doctor if she was weary of the sexual remarks the employer would make, to which the other doctor responded by giggling and stating that she agreed with them. The subsequent marriage created some tension in the office. In addition, approximately a year before the separation, there was a staff meeting to "iron out some things." The meeting did not go well and, two days later, the employer told the employee that if there was ever anything she did not like she could take her purse and leave. The employer conceded that he had told the employee something to that effect. He asserted that there had been accusations about his partner at the meeting in question, following which he had told the employee and co-workers that "this was the way it is and if [you] don't like it [you] can take [your] purse and go."

The employer's actions in this matter easily constitute good cause for a quit of employment, under Wis. Stat. § 108.04(7)(b). The employer's essentially public discussion of private matters of a patient's marital difficulties is at best completely lacking in professionalism and reflects poorly upon the employer's entire staff. The employer's comments to his office staff were absolutely inappropriate and, in the context in which it occurred, the employer's display of pornographic websites on his office computer was offensive. The commission does not believe it is its place to tell an employer what he may or may not view in the privacy of his office; it is another matter entirely when what is viewed is on display for the entire office to see.

As indicated above, the employee did not complain of these matters before quitting the employment. Indeed, this was a factor the administrative law judge relied upon, in finding that the employee's quit was not with good cause attributable to the employer. While it is a general principle that, before good cause attributable to an employer will be found for a quit, the employee should give the employer opportunity to correct the matters complained of, yet that principle is inapplicable when to do so would be futile. So it would have been here. The employer essentially had given the employee an ultimatum to the effect that she could leave the employment if there was anything she did not like about it. The employee reasonably could take the employer at his word, such that her complaining of the matters in question would have been of no effect.

The commission therefore finds that, in week 27 of 2002, the employee terminated her employment with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 27 of 2002, if she is otherwise qualified.

Dated and mailed April 30, 2003
dennikr . urr : 105 : 8    VL 1005.01

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Indeed, the employer freely admitted the accusations against him by the employee. The commission's reversal instead is on the legal ground that, based upon the employer's own statements, the employee was not obligated to give the employer opportunity to correct the matters complained of.


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uploaded 2003/05/09