Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Terry M. Butz vs. Entercom Milwaukee and LIRC, Case No. 01 CV 3319 (Wis. Cir. Ct., Dane County, May 17, 2002)  

Digest Codes:   MC 668    MC 673    MC 690

Entercom owns and operates radio stations in Madison. Butz began working for it selling advertising to area businesses in August 2000 as part of a 14 member sales staff. Entercom has a written policy against sexual harassment as part of its general policies and procedures. Butz received them when he started work. Near the end of 2000 a potentially offensive joke was circulated by e-mail by several employees. Butz and others were advised that this was against company policy. In December 2000 a vice-president read an ad about another sales representative in a local weekly newspaper. The vice-president brought it to Butz's attention. Butz said the other employee was aware of it. The vice-president said it could also be offensive to others and was inappropriate conduct.

On June 25, 2001, Butz received an e-mail picture of a female in a tight fitting shirt which contained a phrase across the breasts of the person in the picture. Butz thought the picture looked like another sales representative and used his computer to place the name of that employee on the hat of the person in the picture. He made copies of the picture, gave one copy to the person he thought it resembled and showed it to other employees. A printer that didn't operate properly resulted in a copy being left on the printer that was later found there. Butz was discharged the next day after admitting producing the modified picture The commission found that Butz was discharged for misconduct and denied unemployment benefits.

Held: The commission's decision is supported by credible and substantial evidence. Although Butz disputes the findings of fact, the record is void of evidence to conclude that the commission's decision is incredible or unreasonable. There can be no dispute that the picture is sexually suggestive and a reasonable person could be offended by it. Butz admitted generating the picture with Entercom equipment during work hours. Other employees saw the picture. This was not an isolated incident and Butz had received the employer's policy. An employer is responsible for maintaining a workplace free of such harassment. The court defers to the commission's determination that this conduct constitutes misconduct.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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