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

KELLY J BEHRENT, Employee

YMCA OF STEVENS POINT WIS AREA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04403192MD


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 for about 14 months as the program director for children ages 5 through 12 for the employer, the area Young Man's Christian Association organization. During the school year she supervised the daytime summer camp program. Her last day of work was June 4, 2004. On June 7, 2004 (week 24) she notified her immediate supervisor that she was quitting.

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

The employee explained that on a regular basis the organization's male executive director would use explicit sexual terms to describe his relationship with women. He would also flex his muscles in her presence. He would tell jokes with sexual innuendoes. In January of 2004, she began keeping a record of his comments. During lunch with him and the employee's immediate supervisor on April 27, 2004, she stated that he had made a number of extremely crude references to her supervisor's sister being a lesbian and depictions of lesbians having sex. On that occasion she had told him that he was not funny and that he should stop. In mid-May 2004, he told her he was getting a tattoo of a rooster on his shin so that he could tell people his cock hung below his knees. On June 1, 2004, he had announced at a meeting attended by all of the staff that he and the employee's immediate supervisor were not having an affair and that if anyone did not like the way he ran things that he or she should consider finding another job.

On June 4, 2004, the employee told her immediate supervisor that the executive director's behavior had to stop; that she was tired of crying and was considering quitting. Her immediate supervisor replied that the supervisor was not going to initiate any attempt to change things because the executive director made the immediate supervisor's job fun. Thereafter, over the weekend the employee decided to quit her job.

Generally, an employee who voluntarily terminates his or her employment is ineligible for unemployment insurance until he or she meets the requalification requirements of Wis. Stat. § 108.04(7)(a). An exception found at Wis. Stat. § 108.04(7)(b), allows immediate unemployment insurance eligibility for claimants who quit their employment with good cause attributable to the employer. "Good cause" for quitting requires a real, substantial and unreasonable act or acts by the employer. Worachek v. Koch Brothers, Inc., Circuit Court Case No. 104-461, June 2, 1961. It must involve some fault on the part of the employer. Kessler v. Ind. Comm., 27 Wis. 2d 398 (1965). It must be a reason which would justify an employee in becoming unemployed rather than in continuing working. Hur v. Radio Shack Tandy Corporation, Dane County Circuit Court Case No. 153-082, June 6, 1977. The commission is satisfied that the employer's conduct meets this standard.

Clearly the executive director's behavior was real, substantial and unreasonable. The employee brought this matter to the attention of her supervisor who refused to take action. The employee was not required to bring the matter to the attention of the executive director, who was the perpetrator of the harassment and who indicated that he would be "pissed off" with anybody who complained to human resources. As such the employee could not reasonably be expected to complain to anybody in human resources or the board of directors about the director's behavior.

The employee established that her quitting was with good cause attributable to the employer.

The commission therefore finds that in week 24 of 2004, the employee terminated work with the employing unit, with good cause attributable to the employer pursuant to Wis. Stat. § 108.04(7)(b).

The employer's attorney agreed that the employee quit with good cause attributable to the employer. The employer's attorney wished to contest the issue of whether the employee was able to work or available for work. The attorney reached the conclusion that the employee's availability for work was at issue based on the hearing notice that references the employee's ability to work.

The employer's attorney states that the employee was not able to work and available for work and also that she refused an offer of work. The commission remands this matter for the department to investigate whether the employee was able to work and available for work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 24 of 2004, if otherwise qualified. This matter is remanded to the department for an investigation, and if appropriate, a determination with respect to whether the employee was able to work and available for work.

Dated and mailed March 8, 2005
behreke . urr : 145 : 4  VL 1005.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ based on a differing assessment of witness credibility and demeanor but rather, it reverses the ALJ's decision as a matter of law. If the employer believes that the employee refused an offer of work, the employer should bring this to the attention of the department so it can investigate the matter and issue a determination if the department concludes that a determination is warranted.

cc:
Attorney Kennard N. Friedman
Attorney Brian G. Formella


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