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

KENNETH F SCHMIDT, Employe

SCHUETTE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97003993WU

On July 25, 1997, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 24 of 1997 the employe was discharged for misconduct connected with his employment. As a result, benefits were denied. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On September 22, 1997, the appeal tribunal issued a decision which affirmed the initial determination and found that the employe's discharge was for misconduct. As a result, benefits were denied. The employe 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 material fabrication manufacturer, for about a year as a second shift supervisor. His last day of work was June 6, 1997 (week 23) and he was discharged on June 9, 1997 (week 24).

The employer's work rules provide, in relevant part:

"Schuette, Inc. will not allow any form of sexual harassment within the work environment. . . .

"Sexual harassment as defined in this policy includes, but is not limited to, sexual advances, verbal or physical conduct of a sexual nature, visual forms of a sexual nature, or requests for sexual favors."

During the week of May 22, a cleaning person by the name of Pamela Berndt reported to the employer that an "incident" had occurred involving the employe. Ms. Berndt contended that she was changing the towels in the paper towel dispenser in the shop when the employe, who was standing about a foot away and had just washed his hands, put the palms of his hands up about 4 inches from her chest and made a motion as if he were going to dry his hands on her chest. Ms. Berndt told the employe to knock it off. Ms. Berndt stated that later the same day she was lifting up the rugs to sweep, but that every time she bent over she heard whistling. She indicated that she then looked over at the employe, who was snickering and feigning a look of innocence. Ms. Berndt stated she was so upset by the employe's conduct that she left work early.

During the next two weeks two male employes also complained about the employe's conduct. One employe reported that there had been an incident in which he was bending over to pick something up when the employe made a lewd gesture in his direction. The other stated that he had noticed some "weird gestures" and that the guys in the shop did not think it was funny.

On June 3, the plant manager telephoned the employe and informed him that he had "a report of a sexual nature" from someone in the office and two people out on the shop floor, and that the employe should stop it immediately. Three days later the employe was notified that he was suspended pending an investigation into allegations of sexual harassment. The employer, however, did not tell the employe about the specific allegations against him and did not ask him for his side of the story. He was discharged on June 11 (week 24).

The issue to resolve is whether the employe was discharged for misconduct connected with his employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The employer contended that the employe was discharged for sexual harassment and that his actions amounted to misconduct. However, the commission does not believe the evidence supports a finding that the employe engaged in sexual harassment or any other blameworthy conduct which rose to the level of misconduct, within the meaning of the law.

Neither of the two male co-workers to whom the employe reportedly made "weird gestures" appeared at the hearing, and the employe denied having made the gestures described. Thus, there is no competent evidence to support a conclusion that the employe engaged in such conduct.

While Ms. Berndt did appear at the hearing to testify about the employe's actions, the commission does not find her testimony sufficient to establish that wilful misconduct occurred. Ms. Berndt alleged that, while standing at the sink and waiting for her to replace a roll of paper towels, the employe put his hands about 4 inches from her chest and acted as though he were going to dry his hands on her. Ms. Berndt acknowledged that the employe was not gesturing as if to touch her breasts, but stated that he was acting "like [she] was a paper towel or something." Based upon Ms. Berndt's own description of the incident, the commission is unable to conclude that it constituted an act of sexual harassment. There is nothing inherently sexual about pretending to dry ones hands on a co-worker's clothing and, although the commission can understand how such conduct might be misconstrued, the fact that his co-worker was offended by the gesture is not a basis for concluding that the employe intentionally engaged in sexually inappropriate conduct.

With respect to Ms. Berndt's allegation that the employe later whistled at her when she bent down and then feigned a look of innocence when she turned around to look at him, the commission is similarly unpersuaded that sexual harassment was established. While better judgment might have dictated that he refrain from whistling at a female co-worker, it is apparent that this was a crude attempt at humor on the employe's part, and although his actions were not well-received, the commission believes that they fell short of deliberate sexual harassment or misconduct.

In concluding that the employe did not engage in misconduct, the commission has also considered the fact that he had no previous warnings for similar conduct and could not reasonably have been expected to know that his actions could result in his discharge. While the employer's rules prohibit "sexual advances, verbal or physical conduct of a sexual nature, visual forms of a sexual nature, or requests for sexual favors," the employe had been given no other instruction as to what types of conduct the employer considered sexual harassment, and it is not at all clear from the policy that a single whistle or lewd gesture would be considered sexual harassment for which an employe could expect to be discharged.

In addition, the evidence suggests that the employe had reason to believe that "off-color" conduct was actually permitted at his workplace. Ms. Berndt acknowledged that she frequently heard dirty jokes on the shop floor and never objected to them. Indeed, the plant manager testified that he has seen sexual cartoons passed around at the workplace and has witnessed "gestures" between employes like those reported by the employe's male co- workers, but has never taken disciplinary action against any employe as a result. Consequently, the commission questions the employer's assertion that it has adopted a "zero tolerance" approach to such conduct and concludes that, in fact, a certain amount of such behavior was condoned. Given this circumstance, and for the other reasons mentioned above, the commission finds that the employe did not engage in any conduct which constituted a wilful and substantial disregard for the employer's interests or the standards of conduct the employer had a right to expect of him.

The commission, therefore, finds that in week 24 of 1997 the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits, if he is otherwise qualified.

Dated and mailed: May 7, 1998
schmike.urr : 164 : 1 MC 666.01 MC 687

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: Although the commission did consult with the administrative law judge regarding witness credibility, its reversal of the appeal tribunal decision is not based upon a differing assessment of the credibility of witnesses, but is as a matter of law. Even accepting the employer's version of events, the commission does not believe that the employe was discharged due to actions on his part which amounted to misconduct.

cc: ATTORNEY TOM TERWILLIGER
TERWILLIGER WAKEEN PIEHLER & CONWAY SC

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