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

THOMAS J GABRYS, Employee

McDONALDS RESTAURANT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07201126RL


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked 2.5 years in a janitorial/maintenance position for the employer, a restaurant. He was discharged on May 23, 2007 (week 21).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

On or around May 14, 2007, the employer received a complaint from a 19-year-old female worker that the employee had made inappropriate and objectionable statements to her, including the following:

The employer investigated this complaint and concluded, based on its investigation, that the employee had made the alleged statements, and had engaged in sexual harassment in violation of the employer's policies when he had done so. The employer discharged him as a result.

Both the employee and the female worker testified at hearing. The employee denied making the alleged statements.

The ALJ credited the female worker, not the employee. The commission found no persuasive basis in the record to overturn this credibility determination, particularly given the female worker's contemporaneous memo documenting her version of events. Although it could have strengthened the employer's case had it provided the testimony of other witnesses to these statements, such testimony is not required for the employer to sustain its burden of proof.

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Kovach v. Farm/Fleet Janesville, Inc., UI Hearing No. 05005166WK (LIRC Feb. 24, 2006).

Although the employee claims that he never received the employer's personnel handbook, he does acknowledge that he had access to the employer's "Janitorial-Maintenance Handbook" (exhibit #1) which he signed and dated November 11, 2004. This handbook sets forth a detailed sexual harassment policy, and provides that actions in violation of this policy, including unwelcome comments of a sexual nature, would lead to disciplinary action, up to and including termination.

It is arguable that the "up to and including termination" language could reasonably have led the employee to anticipate that some sort of disciplinary action short of termination would be imposed for a first violation of the policy. See, Roloff v. US Cellular, UI Hearing No. 06400680AP (LIRC July 27, 2006). The question then becomes whether the employee's conduct was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that his job would be in jeopardy if he engaged in it. The commission concludes that it was.

The sexual message in the statements directed by the employee to the 19-year-old female coworker was targeted and predatory. He was clearly communicating his desire for a sexual relationship with her, i.e., for her to be his "dessert," as well as his desire that she regard him in a sexual manner by viewing naked photos of him. These statements were sufficiently egregious to support a conclusion of misconduct.

The commission therefore concludes that the employee was discharged in week 21 of 2007 for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $4,389 for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1),and that the employee is required, pursuant to Wis. Stat. § 108.22(8)(a), to repay this amount 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 employee, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

The commission further finds that department records do not show that the employer failed to provide correct and complete information requested during the department's investigation of this matter within the meaning of Wis. Stat. § 108.04(13).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 21 of 2007, 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. The employee is required to repay the sum of $4,389 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on May 23, 2007, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed October 25, 2007
gabryth . urr : 115 : 1  MC 665.04  MC 688.1  MC 699.05

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing her decision, because it did not overturn any of her findings of fact, and its reversal was not based upon a differing view as to the credibility of witnesses but instead upon a differing interpretation of the relevant law.

 

cc: McDonald's (Spooner, Wisconsin)


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