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

CYNTHIA L EISENZIMMER, Employee

DRYAIRE SYSTEMS CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09605696MW


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 1.5 years as a receptionist for the employer, a dehumidifier manufacturer.

The employee quit her employment on April 28, 2009 (week 18).

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

The employee attributes her quitting to a pattern of continuing sexual harassment by the employer's owner.

The employer denied that the owner engaged in the acts of sexual harassment alleged by the employee.

The employee's witness, who held the receptionist position with the employer prior to the employee, testified that the owner had sexually harassed her during her tenure, and cited specific examples of such harassment. These examples include the owner dropping his pants in the office several times, showing the witness "raunchy things" on the computer, and keeping a coconut in the office which would open and display a "make-believe penis."

The ALJ credited the testimony of the employee and her witness, rather than the testimony of the owner, and the commission has found no persuasive reason to overturn these credibility determinations.

The owner sexually harassed the employee more than two or three times each week over the entire course of her employment, and these acts of harassment included but were not limited to the following:

Stating he wanted to chew on her tits.

Stating "Hi, baby," or "How's my baby" even after she asked him to call her by her name rather than baby.

Stating "All women can be bought. What's your price?"

Asking the employee to come over to his place.

Asking the employee to go out with him.

Asking the employee why she did not wear tighter clothes.

Intentionally bumping against the employee.

Emailing her a photo of a Santa Claus dropping his pants.

Stating that he really enjoyed picking on the employee and all women.

The employee frequently objected to these acts of harassment.

The employee stayed in her position despite the harassment because she needed the work, and believed that the harassment would eventually cease, but, when the owner stated in April 2009 that he enjoyed picking on her and all women, she realized that he had no intention of changing his conduct and she resigned.

The only exception to the quit disqualification arguably applicable 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." This has been defined as a real and substantial act or omission by the employer that reasonably justifies the employee's decision to become unemployed rather than to continue working. See, Stetz v. DILHR, et al, Case No. 136-215 (Wis. Cir. Ct. Dane County February 13, 1973).

The ALJ held that the employee did not sustain her burden to prove good cause attributable to the employer for her quitting because she remained in her employment with the employer even after the more egregious acts of harassment, and, by doing so, implicitly "condoned" the owner's actions.

The commission disagrees.

If, for example, the employee had quit even though no acts of harassment had occurred for a significant period of time, this rationale could be persuasive. However, as the employee testified and the ALJ found, the harassment continued numerous times each week over the entire course of the employment relationship. In addition, the employee continued to object to the harassment, which should dispel any notion that she implicitly "condoned" it.

The severity and pervasiveness of the harassment to which the employee was subjected was sufficient to constitute good cause attributable to the employer for her quitting. See, Beaufeaux v. Meinnert Deliver, Inc., UI Hearing No. 03200621RH (LIRC Dec. 3, 2003).

The fact that the employee did not report the harassment to any other individual does not prevent a conclusion of good cause attributable to the employer, since the harassment was being perpetrated by the owner, the highest level individual in the employer's organization. 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 commission therefore finds that, in week 18 of 2009, the employee voluntarily terminated her employment with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 18 of 2009, if otherwise qualified.

Dated and mailed January 20, 2010
eisency . urr : 115 : 1 VL 1005 VL 1080.20

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge (ALJ) before reversing his decision, because it did not overturn any of the ALJ's findings of fact or credibility determinations, and its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.


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