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

KEVIN J RYE, Employe

PLACON CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001271MD

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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately four years as a production laborer for a plastic products manufacturer. His last day of work was February 17, 1999 (week 9), when he was discharged.

The employe was discharged for sexually harassing female co-workers. The employe intentionally touched a female co-worker's buttocks. He testified he had no reason for contact but was just being stupid. He did not think she would welcome his actions and knew she objected due to the look on her face. He also massaged her shoulders on 2-3 occasions. He got the hint she did not like it and stopped.

After these contacts, the employe's direct supervisor told the employe to watch himself and be careful or he could get himself into a lot of trouble. At the hearing, the employe acknowledged that he understood the supervisor was talking about his conduct with his co-worker. Another supervisor who occasionally works with the employe heard rumors that the employe had grabbed a girl on the line. When the employe later mentioned the incident to him, the supervisor told the employe that he had heard about the incident and the employe could get into a lot of trouble over it. The supervisor told the employe that people often lost their jobs over such incidents. The employe told the supervisor that he had not thought the worker would mind but that she did. The employe acknowledged that both supervisors were referring to the above incident and he did not grab anyone's buttocks thereafter.

Instead the employe undid a co-worker's bra strap. He later apologized. He indicated the worker was flirtatious and he believed she would welcome the contact. He also admitted to hitting a woman in the buttocks with a plastic band and showing another woman a picture of himself in a thong at her request.

The issue in this case is whether the employe's actions amounted to misconduct connected with his employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

Although the employe received no formal training on sexual harassment and no employer harassment policy was provided at the hearing, the employe was aware that his conduct breached the line of acceptable conduct in the workplace. He had received two different warnings about similar conduct in the past. Moreover, the employe's own testimony shows that he quickly got the message that the individual incidents were unwelcome and apologized. He acknowledged understanding the warnings he received. Nevertheless, he did not change his behavior. The commission does not believe it is reasonable that the employe would understand that he could not touch another worker's buttocks but he was permitted to unhook a co-worker's bra. Even the employe acknowledged he knew at the time it was stupid and wrong. The commission concludes that this conduct was knowing and in disregard of the standards of conduct the employer had a reasonable right to expect.

The commission therefore finds that in week 9 of 1999, the employe was discharged for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits totaling $7,231 during weeks 9 through 45 of 1999, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum 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 employe as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 9 of 1999, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $7,231 to the Unemployment Reserve Fund. The initial benefit computation (Form UCB-700), issued on February 23, 1999 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed December 1, 1999
ryekev.urr : 178 : 6  MC 666.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge prior to reversing. The ALJ concluded that the employe was not on notice that his conduct would place his job in jeopardy based solely on the supervisors comments. She further found the lack of a widely disseminated formal sexual harassment policy and training undermined the employer's argument that the employe knew his conduct was unacceptable. The commission reaches a different conclusion. The employe's testimony convinces the commission that the employe knew his conduct was unacceptable especially after two superiors expressly told him he could lose his job over it. Nevertheless he continued to sexually touch co-workers in knowing disregard of this reasonable standard of conduct.

cc:
ATTORNEY DANIEL A MACDONALD
MOHS MACDONALD WIDDER & PARADISE

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