TONY A. COLLINS, Employee

MILWAUKEE PUBLIC SCHOOL, 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 ineligible for benefits beginning in week 49 of 2006 and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed August 9, 2007
collito . usd : 150   MC 666.01

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employee petitioned the appeal tribunal decision raising several arguments to support his contention that his discharge was not for misconduct connected with his employment.

The first argument, that the ALJ was biased, is not supported by the record. While it is understandable that the employee is unhappy with the results of the hearing, the rejection of a particular argument based on the evidence and the law, should not be confused with bias. In particular, a thorough review of the record in this matter, including the digital hearing, reflects that the ALJ held a fair and thoughtful hearing and there is no reason to believe that he decided the case on any basis other than the evidence which was credible.

The employee also disputed several of the factual findings set forth by the ALJ. Without itemizing each, the commission notes that in several instances the employee and employer provided conflicting evidence. As such, the ALJ was required to make credibility findings and the commission has found no compelling reason in the testimony or elsewhere in the record to question the ALJ's findings. The findings are supported by the record and are adopted by the commission.

As to whether the employee's actions constituted misconduct, while the employee argued that he had the "employer's best interests in mind," the commission strongly disagrees. Specifically, the employee intentionally subjected a coworker, with whom he was not familiar, to an offensive conversation. The employee admitted raising the issue of "gays, lesbians and alcoholics." Although the coworker replied that she had two individuals in her family that were homosexual, this reply did not justify or even logically flow into the employee's next comments. Specifically, after discovering that she did not have children, he testified that he told her, "Hopefully one day you'll have children, if you don't have any walls." He then referenced a "friend" who had an invisible shield based upon the friend's experiences. The employee then detailed,

. . . I share with her a situation that happen to a friend of mined [sic], who was in the fifth grade with me, when her cousin rapped [sic] her at a young age, then rapped [sic] again when she was about a 17 or 18. And had children late in life at the age of 33, 34, 36. She told me that the incident had shut her system down and how she became a pleasure unit, and how she hated him for doing that to her. . .

He further testified,

I was leaning in the door while Ms. Raymond was sitting down. She appeared to be looking for something. I did not say that "walls"
referred to rape or other trauma. I did not say that my friend was unable to orgasm. I explained to her that my friend said that she had become a "pleasure unit." I told Ms. Raymond that people who had been raped needed to talk to someone to help them get past it.

The employee disagreed with the discharge, arguing that the coworker blew the situation out of proportion. At the hearing, he explained that he "thought it was okay to talk about sex, rape and 'pleasure units' during his first conversation" with the coworker, that she should have complained, and "[w]ith freedom of speech, we can talk about anything we want."

Yet, an employing unit is responsible for maintaining a work environment free from verbal conduct of a sexual nature that has the purpose or effect of interfering with an employee's work or creating an intimidating, hostile or offensive work environment. Towards this goal, the employer provides new hires a copy of its sexual harassment policy, which prohibits verbal remarks of a sexual nature that have

the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.

Further, the employer's general rules of conduct prohibit "[t]hreatening, harassing, intimidating, interfering with, coercing, injuring or using abusive language."

In addition to these policies, the employee signed a last chance agreement four months earlier in order to be rehired by the employer. The agreement explained, in relevant part, that the employee could be discharged if he engaged in "any inappropriate conduct . . . including but not limited to physical conduct, intimidation, insubordination, threats, or use of profanity."

While the employee argued that the last chance agreement should not be considered because he signed it "under duress," the fact is that the employee and his union agreed to the terms in order to be rehired. Additionally, as it relates to the employee's conduct in the last incident, the terms of the agreement are reasonable.

It is in the context of these three separate behavioral standards that the employee's actions on December 4 must be analyzed. The employee, a male, initiated a conversation with a female coworker, who was alone in a classroom, after school hours, with the employee standing in the doorway. The employee directed the conversation from "gays' to a story about repeated sexual assault, the resulting psychological damage and how it could affect childbearing. This was not only bizarre but could reasonably be interpreted as offensive and threatening. The employee's admitted further reference to whether the employee would have children in the future and the need to discuss matters which create "walls," could reasonably be interpreted as the employee's attempt to solicit such information from the coworker. This behavior was in substantial disregard of the employer's interests and constituted misconduct.

For these reasons, as well as those set forth by the ALJ, the commission affirms the misconduct finding.

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