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

JAMES C BORTH, Employee

AD TECH INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06001486MD


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 10 of 2006, if otherwise qualified.

Dated and mailed October 18, 2006
borthja . usd : 115 : 1   VL 1005.01 VL 1080.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

Based on its conclusion that, prior to hearing, the employer, as it had argued in its petition, had no reason to be aware, and no ability to discover, that the employee was alleging that he had been threatened daily by coworker Bill, frequently subjected to severe verbal harassment, and, on his last day of work, referred to by Bill as "his nigger," the commission, in an order dated July 14, 2004, remanded this matter to the department for further hearing in regard to the employee's allegations of harassment.

In a memorandum opinion accompanying this order, the commission indicated "that the purpose of the remand hearing is to permit the parties the opportunity to present competent, first-hand evidence as to the employee's allegations that he was harassed by a coworker and reported these acts of his harassment to his superiors."

Despite this guidance from the commission, the employer, while acknowledging that both were still working for the employer, did not bring to the remand hearing either coworker Bill, the alleged harasser, or the employee's immediate supervisor, (1)  to whom he claimed in the first hearing he had been complaining about Bill for weeks. In the place of their testimony, the employer offered signed statements, which do not constitute competent, first-hand evidence.

Even though the employee's testimony varied in respect to when the alleged "nigger" statement was made to him, (2)  i.e., he testified at the first hearing that it was made the same day that he quit, but testified at the remand hearing that it was made two days earlier, it remains the employee's essentially unrebutted testimony that he had complained for weeks to his immediate supervisor that Bill was threatening him; trying to anger him; purposely annoying him by, among other things, frequently and repeatedly asking him if he was hungry, and what time it was; and had told him on one occasion that he intended to "make him his nigger for the rest of the day;" but the conduct of Bill continued despite these complaints and rendered the employee's work environment intolerable.

The only exception which could arguably apply 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." The courts have defined "good cause attributable to an employer" to mean some act or omission that reasonably justifies the employee's decision to become unemployed rather than to continue working. It must involve some fault on the part of the employer and must be "real and substantial." Nottleson v. ILHR Department, 94 Wis. 2d 106, 120 (1980); Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973). A necessary corollary to these considerations is that, before good cause can be shown, the employee must establish that she explored alternatives short of quitting. The employee must give the employer an opportunity to address and resolve matters that the employee finds so serious that she is considering terminating her employment because of them. See, e.g., Roth v. LIRC & Wisconsin Youth Co. Inc., Case No. 02-CV-00409 (Milw. Co. Cir. Ct. Aug. 5, 2002); Collier v. Rubbermaid & Co., UI Hearing No. 99604071RC (LIRC Oct. 14, 1999). Good cause attributable to the employer has been found where an employee has notified the employer of such concerns, and the employer has failed to take reasonable and necessary steps to address them, See, e.g., Opportunities Industrialization Center of Greater Milwaukee Inc. v. Barbara Dates & LIRC, Case No. 00-CV-7743 (Milw. Co. Cir. Ct. Mar. 20, 2001); Pinkos v. Burgess Car and Truck Service Center, UI Hearing No. 03604628MW (LIRC Nov. 26, 2003).

It is not implausible that frequent threats, frequent attempts to anger, and frequent and repeated questioning by a coworker as to time and hunger during 10-hour shifts over the course of several weeks, coupled with a reference to being that coworker's "nigger," could negatively alter one's working environment in a real and substantial way. Here, the competent evidence of record shows that the employee repeatedly complained about such conduct to his immediate supervisor, but does not show that the employer made any attempt to address it other than through the supervisor's statement to Bill on one occasion (see page 9 of remand hearing synopsis) that, "You better watch out, you're going to make him mad. Otherwise, I'll kick your ass.' This would not constitute the taking of reasonable steps to address the employee's legitimate concerns.

As a result, the commission affirms the administrative law judge's decision that the employee quit with good cause attributable to the employer.



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) Even though Jeremy Schober was characterized as the employee's lead worker at the first hearing, Jon Blas‚, the Production Director, clarified at the remand hearing that Schober functioned as the employee's immediate supervisor.

(2)( Back ) It should be noted that the employee is not black.

 


uploaded 2006/10/03