ERIC KURTH, Employee
GRAND ROYALE & REGENCY RESORT, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 40 of 2005, if otherwise qualified.
Dated and mailed April 21, 2006
kurther . usd : 115 : 1
PC 714.02
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The employee was discharged on September 21, 2005, because the employer believed that he had engaged in the sexual harassment of a female coworker.
The only firsthand evidence in the record as to the incidents at issue was the employee's testimony. The employee testified that, although he had engaged in lighthearted sexual banter and horseplay with the female coworker, she had never objected to this conduct, had engaged in it freely herself, and similar conduct was part of the workplace culture. This evidence alone would not establish either that the employee had engaged in unwelcome sexual harassment or that he had engaged in conduct which violated the employer's sexual harassment policy.
The employer asserts in its petition for commission review that it did offer competent evidence, through signed statements by witnesses to the subject incidents, that these incidents were severe, pervasive, and unwelcome. The individuals who signed these statements, i.e., Roger Bricko and Wayne Coulter, did not testify at hearing. The ALJ decided that these statements were hearsay and did not satisfy any exception to the hearsay rule.
The employer argues, however, that these statements, as records of a regularly conducted activity, satisfy the exception to the hearsay rule stated in Wis. Stat. § 908.03(6). (1)
However, although the statements may be admissible, for example, to show that they were presented to the employer, and that the employer relied upon them to discharge the employee, the version of events presented in these statements is not a "record of a regularly conducted activity," and is hearsay. See, Jones v. Franciscan Care & Rehabilitation Center LLC, UI Hearing No. 99401402AP (LIRC Feb. 17, 2000) (written witness statement as to an employee's behavior not record of regularly conducted activity). The administrative hearing process contemplates that an employee have an opportunity to cross-examine those whose observations have been relied upon by the employer in taking the action at issue, and that an administrative law judge have an opportunity to assess their credibility. Both of these considerations would be undermined if signed statements were allowed to substitute for hearing testimony.
cc: Attorney Andrew S. Caulum
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