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


SALLIE K KONRUFF, Employe

APPLETON MEDICAL CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99401236AP


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 majority 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 majority agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 18 of 1999, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the quitting not occurred. The employe is required to repay the sum of $5,049 to the Unemployment Reserve Fund.

Dated and mailed March 24, 2000
konrusa.usd : 132 : 6 MC 668

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employe has petitioned for commission review of the adverse appeal tribunal decision which found the employe was discharged from her employment for misconduct connected with her work. The employe argues in her petition that the record does not support some of the administrative law judge's findings. Specifically, the administrative law judge's finding that C.T. "was so uncomfortable with her remarks that he left the premises immediately, without her knowledge, for the remainder of the day." The employe argues that while C.T. left after the April 16 meeting, his leaving had nothing to do with the employe's comments. The ALJ's finding is supported by the testimony of Ms. Frederickson. (8/16/99 Synopsis, page 3) (1)

The employe argues that there is no evidence to support the ALJ's description of the food show as an "important business seminar." Whether or not the food show can be appropriately described as a "seminar" the point of the administrative law judge's finding was that C.T. declined to go to the show with the employe because of the employe's comments to him. Contrary to the employe's assertion, this demonstrates substantial interference with C.T.'s work. Further, C.T. told Ms. Ausloos that he was aware the show was important for him to attend, but he was uncomfortable with attending because he was afraid of being alone with the employe. (7/13/99 synopsis, pages 5-6; 8/16/99 synopsis, page 40.)

The employe asserts that she did not act intentionally contrary to the employer's interests. However, her comments demonstrate otherwise. The employe made repeated and escalating comments of a sexual nature to a subordinate. The majority notes that in the process of reviewing this case it did speak to the ALJ regarding her impressions of witness credibility and demeanor. The ALJ found C.T. to be a very credible witness. The ALJ indicated that her credibility impressions of the employe were most unfavorable. Neither the ALJ nor the majority find to be credible the employe's denial of statements attributed to her or her denial of admissions at the April 27, 1999 meeting,

The dissent suggests that the employer used the sexual harassment complaint as a means to fire the employe. The majority agrees. However, this is not a case where an employer manufactures a reason to discharge a worker. The employer did not coax C. T. into complaining about the employe. C. T. brought his own valid concerns to the employer's attention. The dissent states that the male co-worker was embarrassed by the comments but they did not rise to sexual harassment. The majority notes that C. T. was not a co-worker but a subordinate of the employe. The employe was a supervisor who was not only responsible for knowing the employer's policies but was responsible for enforcing those policies.

The dissent finds the employe creditable because the employe admitted not having read the employer's sexual harassment policy. The majority notes that the employe originally assured the employer when first confronted that she was familiar with such policies. Only later did the employe claim unfamiliarity with such policies. The majority does not find that such contradictory positions enhance the employe's credibility.

The dissent also believes that asking the employe why a "co-worker" would make up a comment is burden shifting. The majority cannot agree. Rather, it is merely another factor that an ALJ and the majority may consider in reaching a decision. If an employe knows of a reason why a "co-worker" would make false allegations such testimony is relevant in making a finding. Likewise, the fact that an employe can offer no persuasive reason why another worker would make false allegations against the employe is relevant in making a finding.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent.

The employer alleged that the employe was fired for sexual harassment and work performance problems. The major issue at the hearing related to the sexual harassment question. I believe the employer wanted to fire the employe for performance questions but took the complaint about sexual harassment as the means to fire her.

The employer rule about sexual harassment is very broad mentioning "unwelcome flirtations" and "graphic, verbal commentary about an individual's body, sexual prowess, or sexual deficiencies." While the male co-worker was embarrassed by the employe telling him he was attractive by whatever word she used, I do not believe that violated the rule about verbal commentary. I believe that rule was meant to prohibit graphic comments about body parts or comments of a specific sexual nature. Telling someone they are handsome, gorgeous, attractive or similar words may make a person blush but I do not think it violates the rule. The employe immediately stopped the comments that could be regarded as flirtatious as soon as the co-worker told her he was uncomfortable.

The co-worker submitted notes from 3 different days. The first two were prior to his telling the employe her comments were unwelcome. The second note was the day that Dan told the co-worker that he should go to the food show with her because it would be fun. There was no allegation that the employe put Dan up to making the comment and the employe's comment of "tell me about it," does not reach any level of sexual harassment.

The only troubling comment is the co-worker's allegation that the employe said "sometimes I want to jump you" which the employe denied to the employer and at the hearing. The administrative law judge did not credit the employe's reason for pausing when answering a question about that comment. The employe indicated that she paused because she was trying to think where this was coming from. She continued with "I guess I think of that as a strange thing to say. I think jumping someone usually is some type of weapon in taking someone's money or purse. That type of thing."

The employe also testified that she did not say she had overstepped her bounds but she did say something about being in trouble. The employe immediately told the employer about the situation with the co-worker and did not seem to hold things back. I found her to be creditable especially where she made admissions about not having read employer policies.

The administrative law judge asked the employe why the co-worker would make up the comment "sometimes I want to jump you." The employe could not say but in a misconduct case it is the employer's burden to establish misconduct not the employe's burden to explain another person's actions. In this case, I do not believe that the employer showed that the employe was fired for misconduct connected with her employment. I do think the employer did show that she was not an ideal supervisor but that is not necessarily misconduct.

I want to make perfectly clear that sexual harassment if proven is misconduct but I do not believe that it happened in this case. The co-worker even told the employer he could take care of the situation himself.

For all these reasons, I would reverse the administrative law judge and find that the employe was discharged but not for misconduct and the employe should be allowed benefits.


____________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY SHANNON B FARRELL
QUARLES & BRADY LLP

ATTORNEY MICHAEL A I WHITCOMB
633 W WISCONSIN AVE STE 510


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Footnotes:

(1)( Back ) Although both parties refer to a transcript the commission has not been supplied with a transcript in this matter. The commission's review is based on the synopses of the hearings. Neither party has shown the commission that the synopsis is not sufficiently complete and accurate to fairly reflect the relevant and material testimony and other evidence taken. See Wis. Admin. Code § LIRC 1.04. 3