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

SHEILA A OGREN, Employee

TERRACEVIEW LIVING CENTER , Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03201616HA


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 almost five years as a dietary aide and relief cook for the employer, a nursing home. Her last day of work was August 10, 2003 (week 33), when she was discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with her work.

The employer had a policy that prohibited the creation of an intimidating or offensive work environment, including comments about a worker's sexual preference. The policy defined harassment as including unsolicited and repeated derogatory statements. The company policy further provided that a worker responsible for harassment would be subject to disciplinary action or termination from employment. The employee was aware of this policy.

The employee was supervised by the dietary manager. A worker complained that the employee had made comments regarding the dietary manager's sexual orientation, his failure to be state-certified and his conduct during a class. The manager investigated the complaints and discharged the employee for violating the employer's policies.

The employee asserted that her actions did not amount to misconduct connected with her work. The commission agrees.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute."

In this case, the employer failed to present any firsthand witnesses to establish that the employee made derogatory comments about her supervisor. The employee testified that her co-worker asked her about the new manager and she informed them that he was "gay" and "that makes him a lot more sensitive to the job." She also informed her co-workers that he was a good manager. The manager may have believed his sexual orientation was a private matter. However, under the employer's policy the employee did not engage in harassment of him by making this comment. The employer's policy provides that harassment is unsolicited and repeated derogatory comments, among other things, that are made to a person because of his or her protected status. Sexual harassment is defined as creating and intimidating, hostile or offensive working environment by making persistent comments on a co-worker's sexual preference. The employee did not make persistent comments about the manager's sexual orientation. She made only one comment, that she thought the manager was gay, which is not a disparaging comment.

The commission therefore finds that in week 33 of 2003, the employee was discharged, but that her discharge was not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 33 of 2003, if otherwise qualified.

Dated and mailed April 23, 2004
ogrensh . urr : 145 : 2   MC 668

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing her decision. The commission reached a different legal conclusion when applying the law to the facts found by the ALJ.


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uploaded 2004/04/26