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


MARGARET A SOLL, Employe

KWIK TRIP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00001717FL


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 consulting with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for two years as a clerk for a convenience store. Her last day of work was February 22, 2000 (week 9).

Over a six month period, the employe witnessed a co-worker pull up her shirt and expose her bra or make reference to her breasts on several occasions. Once this was directed to her otherwise it was in the presence of other female workers who were not apparently offended. On one occasion, this co-worker announced that her boobs itched and invited a male co-worker to scratch them for her. In the final incident, the employe and two female co-workers were in the backroom and the co- worker agreed to wear a back belt under her shirt instead of over it. She then lifted her shirt above her bra so that it could be put on. The other co-worker complimented her bra. The employe decided this was the last straw and submitted her resignation to be effective on February 28, 2000 (week 10).

The employe had reported the earlier incidents when they occurred and the manager told her he would talk to the co-worker. When she complained again he said he had spoken to the co-worker and would do so again. He had earlier offered the employe a transfer to another store based on her poor relationships with her co-workers but the employe would not consider it. The employe did not raise the issue again until after she submitted her resignation. She then approached the employer and offered to rescind her resignation if the employer ended what she considered sexual harassment. Upper management investigated the allegations of sexual harassment but concluded none was present. It therefore accepted her resignation immediately and the employe's employment ended.

The issue is whether the employe had good cause attributable to the employer or any other reason for quitting which would amount to an exception to the general quit disqualification.

"Good cause attributable to the employing unit" means some act or omission by the employer justifying the employe's quitting; it involves "some fault" on the part of the employer and must be "real and substantial." Nottelson v. DILHR, 94 Wis. 2d 106, 120, 287 N.W.2d 763 (1980) (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965), and Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979)). For the exception to apply, the quitting must be "occasioned by" the act or omission of the employer which constitutes good cause. Hanmer, 92 Wis. 2d at 98 (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965)).

The employe objected to the co-worker's coarseness in showing her bra and talking about her breasts. While rude, these actions were generally not directed at the employe and the other workers did not complain about them. At least on the last occasion the worker had an acceptable reason for raising her shirt and the employe had no reasonable grounds for objecting. The manager talked to the co- worker after the employe complained and he also offered the employe a transfer to another store which she refused to consider. When the conduct recurred, the employe quit without putting the employer on notice that she was still dissatisfied with the situation and would quit if the issue was not finally resolved. It was only after she announced she was quitting that she approached the employer about resolving these issues so that she could return to her employment. She therefore failed to fully explore alternatives to quitting prior to submitting her resignation.

While an employe is not required to exhaust alternatives, in most cases she is expected to at least pursue some alternatives to resolve an employment issue short of quitting. The provocation in this case was not so severe as to justify her quitting without making a greater effort to resolve the matter short of quitting. Therefore the commission concludes that her quitting was not with good cause attributable to the employer. However since the employer did not permit the employe to work through her full notice period, she is entitled to benefits in week 9 when she was prepared to continue working.

The commission therefore finds that in week 10 of 2000, the employe terminated her work with the employer within the meaning of Wis. Stat. § 108.04(7)(a), and that this quitting was not for any reason constituting an exception to that section.

The commission further finds that the employe was paid benefits in the amount of $3,632 for weeks 10 through 25 of 2000; for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), she 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 appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 10 of 2000, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay the sum of $3,632 to the Unemployment Reserve Fund.

Dated and mailed July 28, 2000
sollmar.urr : 178 : 7  VL 1080.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the ALJ prior to reversing his decision. While the commission essentially accepts the ALJ's version of events, it reaches a different legal conclusion.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: KWIK TRIP


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