ROSE M SPENGLER, Employee

MARITIME INC, 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 makes the following:

The employee worked six months as a server for the employer, a restaurant. Her last day of work was January 11, 2005 (week 3).

The issue is whether the separation was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

The employee's boyfriend (Robertson), with whom she resided, worked for the restaurant as a cook.

The girlfriend (Conroy) of the employer's president (Pickos) worked as a bartender at the restaurant. During the early part of the employment relationship, the employee, Robertson, Pickos, and Conroy socialized together outside the work place, and the employee gave Conroy clothes which she had outgrown. When the employee gave Conroy these clothes, the employee commented that she, the employee, was "getting a fat ass."

In October of 2004, the employee and Robertson became involved in a loud verbal altercation in the employer's parking lot and in the restaurant, and Pickos warned them that such conduct was not acceptable.

In November of 2004, Robertson was incarcerated on a probation hold, and missed several days of work as a result.

On December 30, 2004, the employee and Robertson engaged in a verbal and physical altercation in the restaurant's kitchen which could be heard in the front of the restaurant where customers were present. Pickos drew Robertson aside to speak with him. Robertson was loud, threatening, and intoxicated, so Pickos sent him home for the day. On December 31, 2004, Pickos met with both the employee and Robertson and issued them a final warning for their altercations at work, and for Robertson's absenteeism and intoxication.

On January 7, 2004, Robertson was arrested and subsequently incarcerated on charges (filed 1/12/05) of domestic abuse (disorderly conduct/battery/ intimidation of a victim) of the employee. Robertson missed numerous days of work due to this incarceration, and Pickos terminated him as a result.

On January 11, 2005, the employee asked Pickos to cash Robertson's paycheck because Robertson remained incarcerated and needed the money, but Pickos told her that he would not do so without Robertson's signed endorsement on the check. The employee became upset with Pickos. Later on January 11, the employee phoned and told Pickos that she had been forced to borrow money for Robertson from others because he had refused to cash Robertson's paycheck for her, and that she couldn't work for him any more. The employee did not mention sexual harassment during this conversation.

From the start of her employment, Pickos would on occasion snap the employee with a wet towel and comment that her "ass" was getting large. This conduct is the basis for the employee's contention that Pickos sexually harassed her.

Some time between October 25 and November 12, 2004, Pickos asked certain employees and friends to write letters to the court before which his drunk driving charge was pending, in response to an anonymous letter the court had received urging his punishment. The employee wrote a detailed letter which included, in part, the following:

Scott [Pickos] goes out of his way to help employees in any way he can and is considered a valuable boss. He works very hard twelve hours a day and deals with stress better than anyone I know...LeAnn and Paulette told me they would stop at nothing till they destroy him. These two women who have extreme amounts of anger and vengeance due to the fact that they were fired and denied unemployment which should not cost punishment for Scott Pickos for doing the best he could for his business. We all make mistakes in our lives and pay for them, some longer than others. So for whatever wrong Scott Pickos has done he deserve to prove his life has changed and his priorities are his business and his children. As a boss sometimes you can't or don't have all the answers but you make the best choices you can. We need him and pray you don't believe he should be punished for two women who are out for revenge only.

During the period of her employment, the employee did not consider Pickos's towel snapping or "large ass" comments objectionable.

The employee did not quit her employment because she believed she had been sexually harassed by Pickos, but instead because she was angry with Pickos for the warnings he had issued to her and Robertson, for terminating Robertson, and for denying her request that he cash Robertson's check and give the money to her.

The only exception to the quit disqualification arguably applicable here is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." This has been defined as a real and substantial act or omission by the employer that reasonably justifies the employee's decision to become unemployed rather than to continue working. See, Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973).

Sexual harassment of an employee has been held to meet the good cause attributable standard. See, Dates v. OIC, UI Hearing No. 99608436MW (LIRC Aug. 18, 2000). However, by definition, such harassment is required to have been objectionable to the employee, applying both a subjective and an objective standard. The record does not support a conclusion that the employee found the subject conduct to be objectionable.

Moreover, in applying the good cause attributable standard, the commission considers the actual reason underlying the employee's decision to quit her employment. See, Keeler v. B&T Mail Service, Inc., UI Hearing No. 02002630MD (LIRC Oct. 31, 2002); Rabe v. Main St. Station, UI Hearing No. 01005679MD (LIRC March 8, 2002). Here, the employee did not quit because of the conduct of Pickos' which she now attempts to characterize as sexual harassment, but instead because Pickos issued her a reasonably justified disciplinary warning, terminated Robertson, and reasonably refused to cash Robertson's paycheck without his endorsement and give the money to the employee. Although the employee may have had valid personal reasons for quitting her employment, she failed to establish that her quitting was with good cause attributable to the employer.

The commission therefore concludes that, in week 3 of 2005, the employee quit her employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employee was paid benefits in the amount of $1,202 for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1); and that waiver of this overpayment is not required under Wis. Stat. § 108.22(8)(c ), because, although the overpayment did not result from the fault of the employee, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See, Wis. Stat. § 108.22(8)(c).

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 3 of 2005 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 her weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $1,202 to the Unemployment Reserve Fund.

Dated and mailed June 20, 2005
spengro . urr : 115 : 1   VL 1038 VL 1080.20

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission consulted with the administrative law judge before reversing his decision. The administrative law judge stated during this consultation that, after reviewing the record, he no longer credited the employee's testimony that she quit her employment because of the allegedly sexually harassing conduct of Pickos, which had been the basis for his decision that she had quit for good cause attributable to the employer, but instead believed that the record supported a finding, as the commission has found here, that the employee quit because she was angry with Pickos for issuing her a disciplinary warning, for discharging Robertson, and for refusing to cash Robertson's paycheck without his endorsing signature.

 

cc: Scott A. Pickos

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uploaded 2005/06/27