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


PATRICIA A BOWE, Employe

UW PARKSIDE, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97201101EC


On July 1, 1997, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 23 of 1997 the employe quit her employment and not for a reason which would allow the immediate payment of benefits. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On August 22, 1997, the appeal tribunal issued a decision which reversed the initial determination to find that the employe's quitting was with good cause attributable to the employer. As a result, benefits were allowed. The employer has filed a timely petition for commission review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a university, as a programmer in the employer's computer center for about a year and a half. Her last day of work was June 3, 1997 (week 23).

In February of 1997 the employe filed a sex discrimination complaint with the employer's affirmative action office in which she alleged that she was being discriminated against with respect to work assignments. Two of the employe's co-workers filed similar complaints. On March 13, 1997, a meeting was held with the Assistant Director of Applications and Systems, Don Jahns, to discuss the employe's complaint. After this meeting the employe believed the matter had been resolved to her satisfaction.

On April 29, 1997, the employe received a performance review from Mr. Jahns in which he complimented her on some of her accomplishments, but criticized her ability and attitude in other areas, specifically noting a need to work on developing "co- worker skills" and to learn how to work as a team. The employe maintained that on that day her car was vandalized in the employer's parking lot and that she began to notice she was being followed at work by a male co-worker when she went to the bathroom or to other offices. The employe indicated that she began to get very paranoid.

On or about April 30, 1997, the employe received notification that a meeting had been scheduled for the following day with Ed Meachen, the Associate Vice Chancellor for Information Services, in order to discuss problems in the department. The employe and two of her co-workers wrote a memo to Mr. Meachen indicating they did not want to come to the meeting without union representation because they felt it was directed against them. Mr. Meachen e-mailed a response stating that the employes were not entitled to union representation at a staff meeting unrelated to a grievance or a formal written reprimand and that he expected them to be there. At the meeting the next day Mr. Meachen angrily addressed the staff about low productivity and morale and indicated that if people didn't start cooperating and working as a team he was going to start "playing hardball" and enforcing various management rights provided for in the labor agreement.

On May 6, 1997, the employe met with Mr. Jahns to discuss her performance review. During this meeting Mr. Jahns explained some of his concerns regarding the employe's productivity. He asked the employe whether she liked her job, to which the employe responded that she did not like coming to work and felt the work environment was too tense.

On May 18, 1997, Mr. Meachen reassigned a project that the employe had been working on to a co-worker because he felt the other worker could get it done more quickly. On May 20, 1997, the employe filed a complaint with the United States Equal Employment Opportunity Commission (EEOC), in which she alleged that she was discriminated against with respect to training, work assignments, and other terms and conditions of her employment based upon her sex. Her two co-workers filed similar complaints.

On May 23, 1997, Mr. Meachen informed the employe that the employer was considering reorganizing the department in order to address concerns about productivity and that her position might be eliminated as a result. Mr. Meachen stated that he was considering cutting one programmer position and that, if this occurred, it would be the employe because she had the least seniority. He stated that, although any reorganization was months and months away, he wanted to give the employe fair warning that her job was at risk.

Sometime thereafter the employe and her two co-workers met with their union representative to discuss their work situation and to submit grievances. However, the employe was not comfortable with the grievance process and felt she could not handle the situation any longer. Consequently, on June 3, 1997 (week 23), the employe submitted her resignation.

The issue before the commission is whether the employe's quitting was for any reason permitting the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employe 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 employe 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 employe's resignation is caused by some act or omission by the employer which justifies the employe's 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 appeal tribunal held that the employe's quitting was with good cause attributable to the employer. The appeal tribunal found that during the meeting on May 1, 1997, Mr. Meachen threatened to "play hardball" in response to those employes who filed affirmative action complaints and reasoned that, given the employe was notified that her position might be eliminated only a few weeks after this meeting and a few days after she filed her EEOC complaint, the employe was justified in her conclusion that there was a retaliatory threat of lay-off. The appeal tribunal further noted that, although the employe did not exhaust all internal methods of recourse available to her prior to quitting, given the health problems she was suffering because of her work situation, she was justified in quitting without exhausting those remedies. The commission disagrees, for the reasons set forth below.

The commission has listened to the tape recording of the May 1 meeting which the employe submitted at the hearing and, while it is true that Mr. Meachen indicated that people should think about why they were running to the union and the affirmative action office and stated that he could "play hardball," the commission does not believe that Mr. Meachen was specifically threatening to retaliate against employes who filed complaints. It is clear that Mr. Meachen was greatly dissatisfied with the low productivity and poor morale in his department and that he felt workers were devoting more effort to pursuing their rights than to performing their work. In the course of the meeting Mr. Meachen enumerated the management rights provided in the labor agreement, which included the right to discharge or lay off employes whom management believed were nonproductive, and threatened to make the work environment unpleasant for everybody if people did not start cooperating and working as a team. These remarks, which were undoubtedly ill- received by Mr. Meachen's staff, appeared to stem from Mr. Meachen's general sense of frustration and helplessness over what he perceived as a great deal of internal bickering at the expense of productivity and were not directly related to the fact that staff members had filed complaints or grievances.

More importantly, even if the commission were to conclude that Mr. Meachen was suggesting that workers should stop filing complaints or face consequences, it nonetheless can find no reason to believe that his subsequent conversation with the employe regarding her potential lay-off was related to her actions in filing a complaint. To begin with, the record contains no evidence to indicate that Mr. Meachen was aware of the employe's EEOC charge and, given that she filed that charge only three days earlier, there is no reason to presume that it would have come to Mr. Meachen's attention as yet. Further, the employe did not challenge Mr. Meachen's statement that the reason she was being considered for lay-off was because she had the least seniority and because her position was not viewed as productive, and the record contains no evidence to the contrary. Although other workers also filed EEOC complaints when the employe did, no evidence was presented to suggest that these workers were threatened with any adverse consequences, and the commission believes that the decision to consider the employe for lay-off was based upon legitimate, work-related factors.

Finally, if the employe felt that she was being set up for a discriminatory lay-off, she should have made some effort to address this issue through the employer's affirmative action office, through her labor union, or through other avenues available to her before tendering her resignation, and the commission does not share the appeal tribunal's view that the employe did not need to pursue internal remedies prior to quitting. While the employe testified that she was experiencing chest pains and feared for her safety as a result of the employer's actions, this reaction to the stresses at the employe's work place was extreme, and the commission is reluctant to ascribe the employe's health concerns and fears for her personal safety to any blameworthy action on the part of the employer. Moreover, the employe failed to demonstrate that her physical and mental state rendered her unable to pursue the internal remedies available to her.

In conclusion, the evidence established that there were serious personality conflicts and hard feelings between the employe and some of the employer's management personnel. However, the record did not demonstrate that the unpleasant work environment was due to any fault on the employer's part of the sort that might justify an employe's decision to quit, particularly where the employe has not first made reasonable efforts to address the situation.

The commission, therefore, finds that in week 23 of 1997 the employe voluntarily terminated her work with the employer, and not with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b), or within any other statutory exception which would permit the immediate payment of benefits.

The commission further finds that the employe was paid benefits in weeks 25 through 36 of 1997 in the total amount of $3384, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1).

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 employe as provided in Wis. Stat. § 108.04(3)(f), the overpayment was also not the result of a departmental error.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 23 of 1997 and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay the sum of $3384 to the Unemployment Reserve Fund.

Dated and mailed November 25, 1997
bowepat.urr : 164 : 2   VL 1005   VL 1080.20

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

NOTE: The commission consulted with the administrative law judge regarding his impressions of the credibility of the witnesses in this case. The administrative law judge was unable to offer any specific observations regarding witness demeanor or credibility other than to state that he had no reason to doubt the employe's good faith. The commission also sees no reason to doubt the employe's good faith but, for the reasons set forth in the body of the decision, concludes that her quitting was not with good cause attributable to the employer.


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