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


DANIEL M BRAXTON, Employe

RESEARCH PRODUCTS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99003077MD


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Paragraph 11 of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW is deleted.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employe is eligible for benefits, if otherwise qualified.

Dated and mailed December 27, 1999
braxtda.usd : 105 : 1  MC 660.01   MC 668

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, as modified, because it fully agrees with the administrative law judge's conclusion of no misconduct. The employer's representative asserts that misconduct can include reckless disregard of an employer's legitimate interests. This is true; such reckless disregard, though, must be tantamount to gross negligence. The commission has found such gross negligence, but in far worse factual scenarios than occurred in the present case. For example, a police officer who shot a fellow officer in the chest because he did not think his gun was loaded, was guilty of gross negligence sufficient to constitute misconduct for unemployment insurance purposes. That case illustrates how far the employe's comment in the present case is from misconduct for unemployment insurance purposes.

The employer's representative also argues that it turns public policy "on its head" to find that a single comment by itself cannot contribute to an offensive work environment. This, however, is exactly the point. A group of improper comments can constitute an offensive work environment sufficient to constitute illegal harassment. The employe's comment, alone, is not close. It goes too far to suggest that the single remark created an "intimidating, hostile or offensive work environment," as claimed by the employer's representative. An offensive statement does not necessarily, by itself, equate with an offensive work environment. The employer's representative hypothesizes that a statement like the employe's, if endorsed or ratified by an employer, would be the preverbal "smoking gun" in a discrimination case. Again, this proves the point. Such a piece of evidence is not discrimination by itself. Rather, it brings to light an otherwise-hidden motive of other conduct which, given the motive shown by the statement, constitutes discrimination. That is not this case.

For these reasons, and those stated in the appeal tribunal decision, the commission agrees with the administrative law judge's conclusion of no misconduct. The commission has modified the appeal tribunal decision to delete the administrative law judge's analysis of the employe's last chance agreement. That agreement is only relevant if the employe's comment were a violation of the employer's anti-harassment policies. For the reasons stated above and in the appeal tribunal decision, the commission concludes that it was not.

cc: ATTORNEY THOMAS R CRONE
MELLI WALKER PEASE & RUHLY SC


Appealed to Circuit Court. Affirmed November 9, 2000. [Circuit Court decision summary]

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