ROBERT M SEATON, Employee

TOWN OF MADISON, Employer

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.

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

Dated and mailed December 12, 2003
seatoro . usd : 135 : 8   MC 673

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The employer states that the misconduct standard defined in Boyton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941), requires an inquiry of whether the employee intentionally violated standards of behavior which the employer had a reasonable right to expect from the employee, whether the negligence was such a degree as to constitute an intentional violation of those standards or whether the conduct showed an intentional and substantial disregard of the employer's interests. In summary, the issue here is whether the employee intentionally disregarded the employer's interests by showing a female co-worker sketches that included nudes or whether this conduct was so grossly negligent so as to manifest equal culpability or wrongful intent necessary to support a finding of misconduct. Because the employer discharged the employee, the employer has the burden of establishing misconduct.

After a thorough review of the evidence and consideration of the parties' briefs and arguments, the commission is satisfied that the employer failed to establish that the employee's actions constituted misconduct as defined in Boyton Cab. Co., supra.

As the ALJ found, the employee's actions in showing the female co-worker his sketches, while inappropriate, did not rise to the level of misconduct. While some of the sketches were questionable and might offend various people, the sketches as a whole could be argued to contain artistic merit. The employee thought of himself as a fledgling artist and maintained a sketchbook of his drawings at work. The sketchbook contained a variety of sketches and studies (indeed more than 30) depicting still lifes, abstracts, pastoral scenes, human hands, readings, imaginary objects, mechanical drawings, nudes, a disc, a javelin, a swordsman and one miniature depiction of a nude couple viewed from the back apparently engaged in a sexual act but not showing any sexual body parts. The nude sketches were of his wife. See Exhibit 11.

These sketches were contained in a black folder that the employee sometimes took home, but generally kept at work. When the employee began working for this employer he took this black folder to work. The employee had also kept this black folder at his former workplace.

One night while at work, the employee asked his co-worker, a female officer if she wished to view the sketches contained in his folder; she replied, "Sure." The employee had discussed with this officer at some point in time his dream of becoming a composite sketch artist. After only viewing some of the sketches the female officer replied "Unique" and handed the folder back to the employee. The female officer subsequently left the room she had been working in with the employee that evening.

The co-worker testified that when reviewing these sketches she did not look at all of the sketches contained in the black folder. Had the co-worker examined more or all of these sketches she may not have been as offended by the employee's overall artwork. When questioned on this subject by the ALJ, the co-worker testified she examined all nine pages of the nudes depicted in Exhibit 7 and identified pages 1-3, 5 and 6 as those seen by her during the incident in question. She further testified that she found pages 1, 2, and 5 to be offensive of Exhibit 7. Page 1 contains the representation of a sexual act between a man and a woman; pages 2 and 5 are similar sketches of a naked woman lifting a barbell. The co-worker did not identify as offensive either page 3 (a full frontal male nudity holding a decapitated head) or page 6 (a full frontal nudity of a woman at seaside).

The commission agrees with the ALJ's finding that it is not clear that the employee's actions were intended to offend, let alone harass, the co-worker. Indeed, the commission's review of the interim Chief of Police's testimony magnifies this very point. Thus, while the Chief of Police found the employee's conduct to be deliberate for purposes of terminating the employee, he later testified he did not know whether the employee's actions were intentional. The commission
therefore is unwilling to find that the employee intentionally disregarded the employer's interests by showing his sketches to the co-worker or that this conduct was so negligent as to manifest equal culpability or wrongful intent. The appeal tribunal decision is therefore affirmed.

cc: 
Attorney Alan G. B Kim, Jr.
Attorney Gregory P. Seibold

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uploaded 2003/12/16