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


BARBARA A DATES, Employe

OPPORTUNITIES INDUSTRIALIZATION
CNTR/GRTR MILW INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99608436MW


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, an organization that helps administer the W-2 program, for about seven months as a financial employment planner. Her last day of work was May 28, 1999 (week 14), when she quit because she was being sexually harassed by a supervisor.

In October of 1998 the employe and other workers went to a casino for a pleasure trip. While there, the employe's supervisor, Everett Grantsberry, knocked on the door of her hotel room and, when her roommate opened the door, came in and jumped on top of the employe, who was lying on her bed. The employe told Mr. Grantsberry to get the hell off her bed, and he complied. She later reported the incident to Mr. Williams, Mr. Grantsberry's supervisor, who was also at the casino. Mr. Williams stated he would talk with Mr. Grantsberry. Later, as they were leaving the casino, Mr. Grantsberry tried to "grope" the complainant in the elevator and kiss her. Mr. Williams was present, and told Mr. Grantsberry to leave the complainant alone or be in a "whole world of trouble."

In November of 1998 the employe reported to Mr. Williams that Mr. Grantsberry had taken her personal keys and hid them. Mr. Grantsberry was instructed to desist. In December of 1998 the employe again complained to Mr. Williams about the keys, and also had words with Mr. Grantsberry. In response to her complaints, the employe was transferred to a new location.

After the transfer the employe worked under the supervision of Margaret Hudson. However, Mr. Grantsberry still came to the employe's new building once or twice a month to perform inspections. On one such visit, on January 8 1999, Mr. Grantsberry came over to the employe's cubicle to ask how everything was going, then began feeling her back and touching her shoulder. The employe told Mr. Grantsberry that she was fed up and that he should keep his hands to himself. The employe reported the incident to Ms. Hudson, who indicated that she would talk to Mr. Grantsberry.

In March or early April of 1999 the employe ran into Mr. Grantsberry at a conference. The employe testified that Mr. Grantsberry said to her, "You know the dogs are out to get me," then grabbed her around the waist. The employe removed Mr. Grantsberry's hand and told him to keep his hands to himself, stating that he caused his own troubles by being a "pervert." The employe reported the incident to Ms. Hudson.

The final incident occurred in April of 1999, while at a nightclub during non- working hours. Mr. Grantsberry approached the complainant and stated that, by making complaints against him, she was ruining his career. The employe responded that her career was also ruined, which was why she was leaving her job. Mr. Grantsberry told the employe to "lighten up," and began rubbing her back. The employe told him not to touch her and, at her request, the owner of the nightclub asked Mr. Grantsberry to leave the premises.

The employe reported the incident to Mr. Williams, who stated that there was not much he could do about it, since it occurred outside of the workplace, but that he would talk with Mr. Grantsberry. The employe also reported the incident to Ms. Ford in human resources, who stated she was aware of what was going on and that it was going to be addressed.

About a week later, in early May, the employe gave written notice that she was quitting and that her last day of work would be May 28. Shortly thereafter the employe asked Ms. Ford what was being done about her complaint, and was told that the matter was being investigated and that the employer would get back to her. However, the employer did not follow up on the employe's complaint before her last day of work.

The question to decide is whether the employe's quitting was for any reason permitting the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employe who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employe voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. "Good cause attributable to the employing unit" means that the employe's resignation is caused by some act or omission by the employer which justifies the employe's decision to quit. It involves some fault on the part of the employer and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979).

The employe had a right to work in an environment free from sexual harassment, and the commission concludes that the employer's failure to address her complaints regarding Mr. Grantsberry provided her with good cause to quit. Although the appeal tribunal found that the employer had addressed the employe's complaints by transferring her away from Mr. Grantsberry, the commission does not believe that transferring the employe to a new location was a reasonable response to her complaints of harassment on the part of her supervisor. Moreover, after her transfer the employe still had contact with Mr. Grantsberry, who continued to harass her. The employe complained about this conduct on at least two occasions, once in January of 1999 and again in March or April of 1999, yet the employer failed to address the matter. The commission believes that, once having been placed on notice of the problem, it was the employer's obligation to investigate and take prompt corrective action, and its failure to do so provided the employe with good cause to quit.

The commission, therefore, finds that in week 14 of 1999 the employe voluntarily terminated her work with the employer, and that her quitting was with good cause attributable to the employer, with the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 14 of 1999, provided she is otherwise qualified.

Dated and mailed August 18, 2000
datesba.urr : 164 : 1  VL 1080.09  VL 1080.20

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: Although the commission conferred with the administrative law judge regarding witness credibility and demeanor, its reversal is not based upon any differing assessment of witness credibility, but is as a matter of law.

cc: 
ATTORNEY KARYN L ROTKER
LEGAL ACTION OF WISCONSIN INC


Appealed to Circuit Court. Affirmed March 20, 2001. [Circuit Court decision summary]

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