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

DANIAL H TOLAND, Employee

NASH FINCH CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11203620EC


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 most recently for a little over three years for the employer, a grocery store. His last day of work was October 24, 2011 (week 44), when he was discharged. At the time of discharge, the employee was the assistant meat department manager.

The issue before the commission is whether the employee was discharged for misconduct connected with his employment. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations, or of negligence so gross or repeated as to demonstrate equivalent culpability. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

On October 21, 2011, a female cashier reported to the store director and area manager that, about one to two weeks earlier, she had gone into the meat department to get butcher paper. The cashier reported that the employee asked her to show him and another meat department worker her boobs.

On October 24, 2011, the employer interviewed the other meat department worker and the employee. The other meat department worker remembered the cashier coming in to the department for butcher paper, but he did not recall anything being said about her body parts. The employee recalled the incident, but denied that he said what the cashier accused him of saying. The employer discharged the employee for violating its policy prohibiting sexual harassment. Specifically, the employer discharged the employee for making remarks or comments about an individual's private body parts.

At the hearing, the employer testified that the employee admitted to saying something in reference to the cashier's boobs or breasts. The employer also testified that the employee said he had teased the same cashier before and she was never offended. The other meat department worker testified consistent with what was reported by the employer; he did not recall anything being said about the cashier's body parts. The employee, on the other hand, disputed the employer's testimony and denied that he admitted saying anything in reference to the cashier's breasts. The employee testified that the cashier was upset with him because she wanted to work in the employee's wife's flower shop but they would not hire her.

The employer's policy manual defines sexual harassment as "making unwelcome sexual advances, requests for sexual favors, or other verbal and/or physical conduct of a sexual nature when this conduct explicitly or implicitly affects an associate's employment, unreasonably interferes with an associate's work performance, or creates an intimidating, hostile, or offensive work environment." Sexual harassment may include remarks or comments about an individual's private body parts, if the behavior is unwelcome or unwanted. The employer's policy further provides that if, after investigation, any incidents of sexual harassment have been confirmed, the employer will take timely and appropriate remedial action, including disciplining the offender, up to and including termination of employment. If sexual harassment reoccurs, employees are directed to report it immediately.

The ALJ was satisfied that the employee's response to the employer when questioned about the incident involving the cashier, as relayed by the employer, constituted an admission. The ALJ found that the employee had requested a female cashier to expose her breasts to him and a co-worker and that making such a request constituted misconduct connected with his employment.

To sustain its burden to establish that an employee's violation of a workplace harassment policy is misconduct, an employer typically needs to show that the harassing conduct was severe and pervasive, or, if a single act, unusually egregious. Such unusually egregious acts typically involve conduct such as physical touching in the sexual harassment context, or an actual or implicit threat. Smallcombe v. The Noodle Shop, UI Dec. Hearing No. 02608958MW (LIRC June 10, 2003), citing Bollman v. LIRC and Wisconsin Bell, Inc. (Waukesha Co. Cir. Ct., Dec. 13, 2002)(hanging a noose over an African-American employee's desk was threatening and, even though a single incident, rose to the level of misconduct). See, also, Schmidt v. Schuette Inc., UI Dec. Hearing No. 97003993WU (LIRC May 7, 1998)(crude attempts at humor, while not well-received, were not overtly sexual in nature and not misconduct); Braxton v. Research Products Corp., UI Hearing No. 9903077MD (LIRC Dec. 27, 1999)(a single offensive statement typically does not support a finding of misconduct); Konruff v. Appleton Medical Center, UI Dec. Hearing No. 99401236AP (LIRC March 24, 2000)(repeated and escalating comments of a sexual nature to a subordinate is misconduct); Schmitt v. Milwaukee Journal, UI Dec. Hearing No. 02402180SH (LIRC Feb. 6, 2003)(continued sexual comments to a subordinate after warning is misconduct); Gabrys v. McDonalds Restaurant, UI Dec. Hearing No. 07201126RL (LIRC Oct. 25, 2007)(statements made to a 19-year-old female co-worker that contained sexual messages, were targeted and predatory, and clearly communicated a desire for a sexual relationship were sufficiently egregious to support a conclusion of misconduct, even absent any prior warning).

Here, the employee was discharged for allegedly making a single comment. Even if the commission were to accept everything the employer testified to at hearing as true, misconduct has not been established. The employee's single comment to a female co-worker does not meet the employer's policy definition of sexual harassment, and the employee's conduct was not severe and pervasive or unusually egregious. The employer's policy concerning sexual harassment refers to advances, requests, remarks, comments, and incidents. In other words, the policy addresses repeated conduct, not a single incident. There is no evidence in the record that the employee had previously made comments similar to that for which he was discharged or that he had engaged in inappropriate behavior. The cashier reported the employee's comment a week or two after the incident and did not testify at the hearing. While one can assume that the cashier found the employee's comment offensive, she did not tell him so. It was not shown that the employee's comment explicitly or implicitly affected the cashier's employment, unreasonably interfered with her work performance, or created an intimidating, hostile, or offensive work environment.

While worthy of some level of discipline, the employee's conduct in this case did not rise to the level of misconduct necessary to justify a discharge or sustain a finding of misconduct.

The commission therefore finds that, in week 44 of 2011, the employee was discharged but that the discharge was not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 44 of 2011, if otherwise qualified. There is no overpayment as a result of this decision.


Dated and mailed March 27, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not reverse the ALJ's decision based on a differing impression of witness credibility and demeanor but, rather, because it reached a different legal conclusion when applying the law to the facts found by the ALJ. Consequently, the commission did not discuss witness credibility with the ALJ who held the hearing.

 


tolanda . urr : 152 : 2


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