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

JUNE M LAUER, Employe

KENTUCKY FRIED CHICKEN, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97201127EC

On July 17, 1997, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 25 of 1997 the employe quit her employment and not for a reason which would allow the immediate payment of benefits. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On September 5, 1997, the appeal tribunal issued a decision which affirmed the initial determination. As a result, benefits were denied. The employe and the department have filed timely petitions 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 fast food restaurant, for over 13 years, most recently as store manager. Her last day of work was June 21, 1997 (week 25).

On May 1, 1997, the store in which the employe worked underwent a change of ownership. The store was bought out by an individual named Jim Bratley, who brought in a new area manager, Ben, (1) and a new operations manager, Eric Hanson.

On May 16, 1997, Ben engaged the employe in a conversation in which he asked her if the former owner had been sleeping with her assistant. Ben then speculated that there was probably something going on between the former owner and the assistant and that the employe's assistant was probably "blowing" him. The employe was shocked by these statements and did not respond.

In late May the employe met with Mr. Bratley and told him that there was a problem with Ben and Mr. Hanson, in that they were fighting for control of the store. During this meeting, Mr. Bratley told the employe to come directly to him if she ever had problems. The employe did not complain to Mr. Bratley at that time about Ben's shocking comments to her on May 16.

On June 11, 1997, Ben loudly asked the employe whether she was "on the rag," which caused her to suffer embarrassment. That day Ben also announced on the loudspeaker that he wanted to make the store into a strip joint and wanted all of the females in the store to put tattoos of Colonel Sanders on their breasts.

During a managers' meeting on June 13, 1997, Ben told the employe she needed to "grow some balls," meaning that he thought she should be more aggressive. Mr. Hanson, the operating manager, was present at the meeting and responded that he wanted to see when that happened. Subsequently, in the car ride home from the meeting, Ben commented in the employe's presence that he and his wife had not had sex for a long time. He also swore frequently and repeatedly used the expression "blow me," which the employe did not necessarily construe as an invitation for sexual contact, but nonetheless found very offensive.

At some point prior to the managers' meeting the employe had remarked to Ben that she could not believe the way he talked, to which he responded, "Why? What is anybody going to do, fucking fire me?"

On Saturday, June 21, 1997, the employe notified Mr. Hanson that she wanted to talk to Mr. Bratley, but was told that Mr. Bratley was away on vacation until July. The employe then told Mr. Hanson she was quitting and explained the reasons why. Mr. Hanson responded that he would be at the employe's store on Monday and wanted to talk to her. He also told the employe he would keep Ben out of the store until he could investigate the matter. However, the employe told Mr. Hanson that she had a problem with him too, in that he had humiliated her at the meeting when he indicated he wanted to see it when she "grew some balls." Mr. Hanson replied that he could not recall having said that, but if he did he was sorry. The employe did not attempt to make contact with Mr. Hanson on Monday and did not report to work thereafter.

The question to decide is whether the employe's quitting was for any reason permitting the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employe who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employe voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. "Good cause attributable to the employing unit" means that the employe's resignation is caused by some act or omission by the employer which justifies the employe's decision to quit. It involves some fault on the employer's part and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979). The quitting must be for a reason that would justify the employe in becoming unemployed rather than continue working. Hur v. Radio Shack Tandy Corp. & DILHR, Dane County Circuit Court, Case No. 153-082, June 6, 1977.

The evidence presented at the hearing demonstrated that the area manager, Ben, frequently used language that was crude and offensive, and the employe was justified in wishing to work in an environment free of such vulgarity. However, when the employe notified Mr. Hanson of her complaints he indicated he would address them, but the employe remained steadfast in her intention to quit. Although the employe maintained that her reluctance to let Mr. Hanson handle the situation was because Mr. Hanson was part of the problem, the commission does not find this explanation compelling. In the first place, the evidence did not establish that Mr. Hanson engaged in the inappropriate conduct about which the employe complained. To the contrary, the only specific complaint mentioned in the employe's testimony about Mr. Hanson was that, in response to Ben's comment that she should "grow some balls," he stated he would like to see it when that occurred. While that remark was neither polite nor professional, the commission does not consider it as outrageous as the employe suggests, particularly when taken in the context of a discussion about the employe's need to become more aggressive. Moreover, when the employe told Mr. Hanson that she objected to the remark he promptly apologized. Finally, and most importantly, Mr. Hanson volunteered to investigate the situation and address the employe's concerns, and the commission sees no reason to believe that he was not genuinely prepared to do so.

While an employe is not required to exhaust all alternatives to quitting, in most cases she is expected to at least pursue some resolution to an employment issue prior to terminating her employment. See Gilkay v. Servicemaster of Stevens Point (LIRC, September 28, 1995); Unemployment Compensation Benefits Manual, Volume 3, Part VII, Chapter I, June, 1992, page 40. In this case, the employe quit her job without giving the employer an opportunity to resolve the issues that were making her work environment unpleasant, in spite of the fact that it had displayed a willingness to do so. Under all of the circumstances, the commission is unable to conclude that the employe was justified in choosing to become unemployed rather than continue working for the employer.

The commission, therefore, finds that in week 25 of 1997 the employe voluntarily terminated her work with the employer, and not with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b), or within any other statutory exception which would permit the immediate payment of benefits.

DECISION

The appeal tribunal decision is modified to conform with the foregoing and, as modified, is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 25 of 1997 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 the employe's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed November 28, 1997
lauerju.urr : 164 : 3 VL 1005  VL 1080.20

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

In the briefs to the commission, the employe and the department both make the argument that it was the managers who were the source of the improper sexual comments and that it is understandable that an employe would not want to go to the person who is making the inappropriate comments to express her concerns. However, while the commission agrees with the general proposition that a worker cannot be expected to complain about offensive conduct to the same person who is subjecting her to such conduct, that argument is unavailing in this case. First, there is some question regarding the extent of Mr. Hanson's participation in the offensive conduct and the commission is unconvinced that he was, in fact, the source of any legitimate complaint. Most of the employe's allegations regarding Mr. Hanson's conduct were vague and ambiguous, and the only incidents which the employe specifically attributed to Mr. Hanson were his remark about wanting to see it when she "grew some balls" and a comment to a female food service worker not to "fuck his order up," which was mentioned in the employe's original statement to the department (Exhibit 1), but not alluded to in her hearing testimony. As stated in the body of the decision, the commission does not believe that the former comment was as egregious as the employe paints it to be, particularly given the context in which it was made. Further, while the employe may have considered Mr. Hanson's remark that he did not want a worker to "fuck his order up" to be offensive, an employe cannot reasonably expect to be spared from having to hear any profanity in the work place, and the mere use of obscenity does not necessarily create an abusive working environment.

More importantly, even if the employe had demonstrated that Mr. Hanson behaved in an inappropriate or offensive manner, the fact remains that the employe did tell him about her complaints and that he did offer to remedy the situation. The notion that an employe is not expected to complain to the same person who is engaging in the conduct about which she is complaining is based on the premise that requiring workers to approach their harassers for assistance would have a chilling effect on their ability and desire to come forward and is intended to recognize the unlikelihood that an employe will receive any meaningful redress from the very individual that created the adverse situation. In this case, however, the employe clearly did not feel intimidated about confronting Mr. Hanson with her complaint and Mr. Hanson displayed both a willingness and an ability to address it.

Finally, the employe and the department point out that the employe wanted to express her concerns to the employer's owner, but that she would have had to wait about a month before doing so. The commission initially notes that, in spite of the employe's insistence that she was unable to contact Mr. Bratley for an entire month, she testified only that she was told he would be out of town until an unspecified date in July, and Mr. Bratley stated that he, in fact, returned on July 2, only a week and a half later. The commission also notes that the final incident about which the employe complained occurred more than a week prior to her resignation, and other than to generally state that her situation was unbearable, the employe offered no explanation as to what precipitated her decision to quit on June 21 or why she was unable to wait until Mr. Bratley returned from his vacation. Most importantly, however, considering that Mr. Hanson had offered to investigate the matter and to keep Ben out of the store until it could be resolved, it is unclear why the employe felt she required Mr. Bratley's immediate presence or why she considered it preferable to lose her employment rather than to allow Mr. Hanson to address the situation until Mr. Bratley returned.

NOTE: In its response to the petition for review the employer attempted to supplement the hearing record with new factual assertions that were not made at the hearing and with numerous documents that were not presented at that time. The commission did not consider any of the information which the employer presented for the first time in answer to the petition for review and has based its decision solely upon the sworn testimony presented at the hearing.

cc: 
CHRIS A GRAMSTRUP
ATTORNEY AT LAW

GREGORY A FRIGO
DIRECTOR, BUREAU OF LEGAL AFFAIRS

Appealed to Circuit Court. Affirmed July 20, 1998. Court Decision Summary

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Footnotes:

(1)( Back ) The area manager's last name is not contained in the record and he is referred to only as "Ben."