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

DEANN E BUTTS, Employee

LABOR TEMPLE COOP ASSN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07201167WU


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 seven months as a part-time assistant cook for the employer, a labor temple food/beverage operation.

The employee quit her employment by failing to report to work on and after May 4, 2007 (week 18).

The issue is whether this quitting satisfied any exception to the quit disqualification.

The employer was overseen by a 15-member board of directors. Board members frequently volunteered in the kitchen.

The chairman of the board of directors was Randy Olmstead (Olmstead), who also functioned as the chief cook. Olmstead was the employee's immediate supervisor. The employee testified that she liked Olmstead and he was "wonderful" to her.

When Olmstead was not present, the employee's lead worker was Tamika Jenkins (Jenkins) who was not a supervisor or member of management. Jenkins was a neighbor of the employee's, and had asked the employer to hire the employee.

The board of directors employed a general manager, David Wadinski (Wadinski). The employee testified that Wadinski treated her very well and was "wonderful" to her, she liked him and felt comfortable with him, and, when she believed she should get a raise, she wrote him a letter and he approved it.

The employee attributed her quitting to several incidents of alleged sexual harassment. She detailed these incidents in a charge she filed with the Equal Rights Division as follows:

(1) On January 5, 2007, David Pecha (Pecha), a board member who was present as a volunteer, touched her "backside" while she was standing at her work station-the employee testified that it may have been an inadvertent "tap" due to the close quarters in the kitchen and she "didn't even know how to say I feel about it;"

(2) On February 23, 2007, Roger [Slominski], a board member who was present as a volunteer, hit her on her "backside" with a box;

(3) On March 2, 2007, Slominski, while passing behind her in the kitchen, "rubbed his groin area and grinded his private area into her backside while lifting up his arms and making the sound 'oh'"-the employee "gave him a dirty look"-the employee testified that "it's a small spot and he could have touched me inadvertently," but could have asked her to move rather than touching her.

(4) Also on March 2, 2007, Pecha hit her on her "backside" with a box;

(5) On March 23, 2007, Slominski, while passing behind the employee, "turned his body and grinded his backside into hers," and later "blew on her neck and in her ear;"

(6) Also on March 23, 2007, Slominski commented to her, after she said she was warm, that "he would like to take her into another room to 'cool her off,'" which the employee interpreted as an implication that he wanted to have "some sexual liaison" with her.

The employee told Jenkins, the lead worker, about these incidents. Jenkins told the employee she had not passed them on, and did not know what to do with them.

The employee did not report these incidents to her supervisor/board chairman Olmstead, or to general manager Wadinski.

On May 4, more than one month after the final incident, the employee told her husband about the incidents "and put the matter in his hands," and he directed her not to return to work. The employee did not report to work her shift on May 4 or thereafter, and did not contact the employer again.

Pecha testified at hearing that, in regard to the January 5 incident, he never touched the employee, and her allegation "is a lie." He also testified, in regard to the March 2 incident, that he doesn't carry boxes, and did not hit the employee with a carryout container.

Slominski did not testify at hearing.

The ALJ credited Pecha's denials. The commission found no persuasive basis in the record for overturning this credibility determination.

In the absence of Slominski's testimony or other competent rebuttal evidence, the ALJ appropriately credited the employee's testimony and found that Slominski had engaged in the incidents of alleged harassment.

The employer asserts in its petition that it was unaware prior to hearing of the nature of the employee's allegations and, as a result, requests further hearing to permit Slominski's testimony to be taken. However, the employee's statement to the department investigator detailed her allegations of harassment and identified Slominski by his first name, and her request for hearing referenced the alleged harassment. It would have been possible, therefore, for the employer, which was represented by counsel at the time, to obtain this information prior to hearing, and, as a result, further hearing to obtain Slominski's testimony is not merited.

Wis. Stat. § 108.04(7) provides that an employee who quits her employment is ineligible for benefits until she requalifies, unless her quitting falls within a statutory exception. 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." According to this statutory provision, good cause includes "sexual harassment, as defined in s. 111.32(13), by an employing unit or employing unit's agent or a co-worker, of which the employer knew or should have known but failed to take timely and appropriate corrective action."

The ALJ, reasoning that, since Slominski was a member of the board of directors, "there would therefore have been no one in the employer's organization who could exercise supervisory authority over him in response to this situation," held that the employee was not required to report Slominski's harassment of her in order to sustain her burden. The commission disagrees.

Where sole or primary management authority is invested in a single individual and that individual is the harasser, the commission has generally not required the claimant to show that she brought her concerns to the employer's attention in order to sustain her burden to show good cause. See, Bell v. Gardner Barn Equipment Co., UI Hearing No. 07400152AP (LIRC May 24, 2007) (good cause for quit shown even though employee did not report harassment where harasser was company owner and no one else to whom employee could have complained); Koeser v. McDonald's 91, UI Hearing No. 0440303443GB (LIRC Dec. 8, 2004) (good cause for quit shown even though employee did not report harassment where top-ranking manager was harasser and no one superior to him to whom employee could reasonably have been expected to complain).

The harasser here, however, is one member of a multi-member volunteer board with a chairman (Olmstead), who not only held a board position superior to the harasser's, but who also functioned as the chief cook and as the employee's immediate supervisor. Moreover, this board delegated authority for managing day-to-day operations to a general manager (Wadinski), and the employee was obviously aware of this delegation of authority since she previously took her request for a pay increase to Wadinski. Given the management structure here, there were individuals, including Olmstead and Wadinski, to whom it would have been reasonable and appropriate for the employee to take her concerns, and this list of individuals did not include Jenkins, who not only was not a member of management, but who told the employee she had not passed on her concerns and did not know what to do with them.

The employee testified that she was "scared" to mention her concerns to Wadinski. However, she also testified she liked him and felt comfortable with him, and had previously taken her concerns regarding her rate of pay to him.

The employee also testified that she was too embarrassed to talk about her allegations to any of the men in the organization. However, on June 26, the employee filed an ERD complaint, a public document, in which she describes in detail the incidents of alleged harassment.

The employee did not sustain her burden to prove good cause attributable to the employer for her quitting because the record does not show that the employer knew or should have known of the incidents of sexual harassment within the meaning of Wis. Stat. § 108.04(7)(b).

The commission therefore concludes that, in week 18 of 2007, the employee quit her employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission therefore concludes that, in week 19 of 2006, the employee quit her employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission finds that the employee was paid benefits in the amount of $2,394 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The commission 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 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 18 of 2007, 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 her weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $2,394 to the Unemployment Reserve Fund.

Dated and mailed October 25, 2007
buttsde . urr : 115 : 1 VL 1005.01 VL 1080.20

/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 his decision, because it did not overturn any of his 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.

 


Appealed to Circuit Court.  Affirmed, April 28, 2008.    [Summary of Circuit Court decision]

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