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


JO A HODGSON, Employe

MEAT MARKET, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98001439BO


On March 11, 1998, the Department of Workforce Development issued an initial determination which held that the employe quit but not for a reason allowing the immediate eligibility for unemployment insurance. The employe timely filed a request for hearing on the adverse initial determination, and hearing was held on April 27, 1998 in Baraboo, Wisconsin before a department administrative law judge. On April 30, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe timely filed a petition for commission review, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately seven months as a counter person for the employer, a retail meat concern. Her last day of work was on or about February 17, 1998 (week 8), at which time she quit her employment. The commission concludes that the quit was with good cause attributable to the employer, and so reverses the appeal tribunal decision.

In December of 1997, a co-worker approached the employe, asked her for a pen, and then grabbed at her pocket and cupped his hand around her breast. The employe's supervisor, a Ms. Olson, was standing next to the employe; when the employe complained to her, the supervisor just laughed it off.

On or about February 16, 1998, the same co-worker came up from behind the employe, grabbed her hips, and began simulating sexual intercourse with her. The employe removed herself from the co-worker's grasp and told him to get away from her and to leave her alone. The employe then sought out Ms. Olson and informed her of the incident. The employer took no action against the co- worker, and the employe quit her employment the next day.

Generally, when an employe voluntarily terminates his or her employment, the employe is ineligible for unemployment insurance until he or she meets certain requalifying requirements. There are exceptions to this disqualification, the relevant one in this case being "good cause attributable to the employing unit," Wis. Stat. § 108.04(7)(b). The commission concludes that the co-worker's actions, coupled with the employe's complaints to her supervisor, were sufficient to give the employe good cause attributable to the employer for her quit of employment. The co-worker's two physical contacts with the employe each are fourth degree sexual assaults in the State of Wisconsin and, as such, are Class A misdemeanors. It must go without saying that employes are entitled to a work environment free of such harassment.

The critical issue is whether the employer as an entity is responsible for the co-worker's conduct despite not having direct knowledge thereof. In the limited circumstances of this case, the answer must be in the affirmative. An employer is subject to liability for the torts of its employes if the employer is negligent or reckless vis-à-vis the matters in question. Restatement (Second) of Agency § 219 (2)(b). An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct, and failed to stop it. In the present case, the employe informed her supervisor of the co-worker's sexual assaults against her (the employe), but the supervisor did nothing about it. At this point, the employer either knew or should have known of the assaults, so liability properly attaches to the employer for the employe's resulting quit.

The commission therefore finds that, in week 8 of 1998, the employe voluntarily terminated her employment with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

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

Dated and mailed: July 29, 1998
hodgsjo.urr : 105 : 1 VL 1005  VL 1080.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: As indicated, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is required where the commission is considering reversal of the appeal tribunal decision on the grounds of a differing credibility assessment from that of the administrative law judge. It was unclear to the commission, from the text of the appeal tribunal decision alone, whether the administrative law judge accepted as credible the employe's testimony regarding the sexual assaults themselves. The administrative law judge did accept that testimony as credible; the administrative law judge believed, though, that other, non-qualifying reasons, played a greater role in the employe's quit (than did the assaults by the co- worker). It is enough, though, that the qualifying factors be an actual reason for the quit; they need not be the sole reason therefor.


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