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

JACQUELINE BANKS, Employe

TCI CABLEVISION OF WISCONSIN INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97004079MD

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked as a customer service and sales representative for the employer, a cable television service provider, from August 5, 1996 (week 32) through October 22, 1996 (week 43).

The employer required that the employe take customer telephone sales on all of its services. Services included adult channels such as "Playboy" and "Spice." On or about October 21, 1996 the employe notified her supervisor that she objected, on religious grounds, to the employer's sale of pornography on its adult channels and that she would no longer be able to take those calls. According to the ALJ, the employer declined to allow her to avoid such calls.

The issue for review is whether the employe's quitting meets any exception to the quit disqualification found in Wis. Stat. § 108.04 (7)(a). The most relevant exception is whether the employe's quitting was with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04 (7)(b).

The ALJ reasoned that there was no evidence of a sufficient reason why the employer could not have permitted the employe to avoid taking calls concerning adult channel services in order to reasonably accommodate her religious beliefs. Under the circumstances, the ALJ concluded that the employe's termination was a reasonable reaction to the employer's failure to accommodate her religious beliefs against her involvement with pornography.

The commission reverses the appeal tribunal decision as a matter of law for the reasons set forth. The employer had no previous record or knowledge of the employe discussing her religious beliefs with management prior to her October 21, 1996 conversation with her supervisor. She resigned the next day. The employer also explained that during its hiring process it asks all of its employes whether they need any special accommodations. The employer contends that at that time the employe could have asked not to be involved with adult channels. Most importantly though, the employe did not appear at the hearing and did not establish what her religious beliefs and/or convictions were and how they prevented her involvement in the sale of what she believed to be pornography. An employe's burden of demonstrating the sincerity of a belief system, under the Wisconsin Fair Employment Act, is not a heavy one. See Marquardt v. Wal-Mart Stores, (LIRC, Equal Rights case, 6/14/93). Analogously for unemployment benefits, the burden is similar. Because the employe failed to appear, she failed to meet this minimal burden.

Because the employe did not meet the minimal burden of establishing a sincerely held religious belief, she prevented herself from the opportunity of establishing that her quitting was with good cause attributable to the employer or for any other statutory exception that would permit benefits.

Therefore, the commission finds that in week 43 of 1996, the employe terminated her employment but not with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04 (7)(b), or within any of the statutory exceptions that would allow benefits.

The commission further finds that the employe was paid benefits amounting to $1,472 for which she is not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

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 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the employe is ineligible for benefits beginning in week 43 of 1996, 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 employe is required to repay the sum of $1,472 to the Unemployment Reserve Fund. The employe has requalified as of the new claim week 28 of 1997.

Dated and mailed November 28, 1997
banksja.urr : 135 : 1   PC 714.03  VL 1005

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The appeal tribunal decision is reversed as a matter of law. The employe did not appear at the hearing and therefore failed to establish what her religious beliefs were and how they prevented her from performing her customer service duties for the employer.

cc: TCI CABLEVISION OF WISCONSIN INC

WRAY VASSAR
CONTINENTAL INVESTIGATIONS

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