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

BRIAN J SMALLCOMBE, Employee

THE NOODLE SHOP CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02608958MW


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 as an assistant manager for five weeks for the employer, a restaurant. His last day of work was April 22, 2002 (week 17), and the employer discharged him on April 24, 2002 (week 17).

The issue is whether the employee's discharge was for misconduct connected with his employment.

The employer discharged the employee for allegedly violating its sexual harassment policy by calling Sophie, a subordinate employee, a "carpet muncher," which is a derogatory term for a lesbian.

Sophie, a high school student, had requested not to speak to anyone on her shift on April 10, 2002, as part of a "day of silence" show of solidarity for the gay/lesbian community. The employee congratulated Sophie on the stand she was taking when he learned of her decision to join this "day of silence."

During the April 10 shift, the employee called Sophie a "carpet muncher supporter" once, and teased her about her decision not to talk that day. Andrew Aaron, another of the employee's subordinates, overheard this comment and teasing.

At the end of the shift on April 10, Sophie sought the employee out, they had a friendly conversation, and she did not tell him that she objected to his language or actions that day.

It was part of Sophie's job responsibilities to communicate with customers, and she did speak to a customer late in her shift on April 10.

Sophie later reported to the general manager that she took offense at what the employee had said to her on April 10.

The employer decided to discharge the employee rather than to impose lesser discipline because "Sophie and Andrew were uncomfortable working with the employee and we thought he couldn't be an effective leader."

Prior to the April 10 incident, the employee had received no warnings and had been a good employee.

The employer's workplace harassment policy (exhibit #2) states, in relevant part, as follows:

Noodles & Company seeks to provide its Staff Members with a work environment free from sexual harassment, and other harassment based on race, sex, sexual orientation, color, religion, national origin, age, disability, protected activity, or other protected status. Workplace harassment will not be tolerated. .Sexual harassment also includes repeated and unwelcome physical, written, or spoken conduct that substantially interferes with a Staff Member's work performance or creates what a reasonable person would consider to be an intimidating, hostile, or offensive working environment..

Any Staff Member or supervisor found in violation of this policy may be subject to disciplinary action, up to and including termination of employment.

The employer failed to sustain its burden to prove misconduct. First of all, the record does not show that the employee violated the employer's workplace harassment policy. The single statement attributed to the employee is not "repeated" conduct as required by the policy. By failing to show that the employee, who had not been warned or disciplined before, engaged in an act which violated its workplace harassment policy, the employer failed to prove that the employee was aware or had any reason to be aware his job would be in jeopardy for uttering the subject comment, a necessary element for proving misconduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979).

Even if the employer had succeeded in showing that the employee had violated its workplace harassment policy, it failed to show that the employee's conduct rose to the level of misconduct necessary to justify a discharge. To sustain this burden, an employer would typically need to show that the harassing conduct was severe and pervasive, or, if a single act, unusually egregious. See, Braxton v. Research Products Corp., UI Hearing No. 9903077MD (LIRC Dec. 27, 1999) (a single offensive statement would typically not support a finding of misconduct). Such unusually egregious acts typically involve conduct such as physical touching in the sexual harassment context, or an actual or implicit threat (see, e.g., Bollman v. LIRC and Wisconsin Bell, Inc., (Waukesha Co. Cir. Ct., Dec. 13, 2002) (hanging a noose over an African-American employee's desk was threatening and, even though a single incident, rose to the level of misconduct). Even acknowledging that the employee's conduct should be held to a higher standard because he was a member of management, although actually a very new member of management, the fact situation under consideration here does not come close to demonstrating misconduct.

The commission concludes that, in week 17 of 2002, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a), but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed June 10, 2003
smallbr . urr : 115 : 1   MC 668  MC 673 

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission consulted with the administrative law judge. The commission's reversal of his decision did not rest upon a different credibility determination, but instead upon a different interpretation of the applicable law.

cc: 
The Noodle Shop Co., Wisconsin, Inc. (Milwaukee, Wisconsin)
Attorney John Gelshenen


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2003/06/18

3