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

JEROME A BEATTY, Employe

A TITAN WHEEL CO, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96400410WB

On January 13, 1996, the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) issued an initial determination finding that the employe was discharged for misconduct connected with his employment within the meaning of section 108.04 (5), Stats. The employe timely appealed and a hearing was held before an administrative law judge. On March 29, 1996 the administrative law judge issued her appeal tribunal decision reversing the department's initial determination, finding that the employe was discharged but not for misconduct connected with his work within the meaning of section 108.04 (5), Stats. The employer timely petitioned the commission for review of the appeal tribunal decision. The Wisconsin Manufacturers and Commerce filed an amicus curiae brief in support of the employer's petition. The employe submitted briefs in response to opposing briefs.

Based on the applicable law, record and evidence in this case, and after consultation with the administrative law judge, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately seven years as a laborer for the employer, a manufacturing company. His last day of work was December 8, 1995. He was discharged effective December 16, 1995 (week 50).

The employer's policy provides that all employes have the right to work in a discrimination-free environment. The policy states that each worker has the right to be free from sexual harassment, including any situation where the conduct interferes with an individual's work performance or creates an intimidating, hostile, or offensive working environment. The employe had received a copy of this policy.

On July 5, 1995 the employe told the employer's human resources manager that she looked nice. She told the employe not to make similar comments in the workplace, and the employe acquiesced.

On November 30, 1995 a female co-worker, Wald, informed the human resources manager that the employe had made sexual comments to her since her employment began with the company in October 1995. The employe told Wald that she had a nice butt; commented about a picture of rubber gloves, stating that they could be used as condoms, and made comments about placing his hands on various parts of her body. The co-worker never informed the employe that these comments made her feel uncomfortable. After Wald made these comments to the human resources manager, two other female co- workers provided statements alleging that the employe had also sexually harassed them.

Co-worker Schulist and the employe worked in the same department, but did not get along well at the workplace. She accused the employe of saying, in 1993 and 1994, that her ass looked better in jeans than in a uniform. Schulist did not report this to management at the time of the alleged occurrences. In November, 1995 Schulist alleged that the employe ran his hands down her back. She reported this incident to management in December, 1995. Schulist never told the employe that she believed his conduct to be inappropriate.

In the summer of 1995, the employe commented to co-worker Naughtin that she had a nice body, and that she should wear tighter clothes so that he would have something to look at. Naughtin did not report this comment to management until December, 1995, after she learned that Wald had spoken to management with her concerns. Naughtin did not inform the employe that his comments were unwelcome.

The employe was suspended on December 8, 1995 (week 49) and discharged on December 16, 1995 (week 50) for violating the employer's sexual harassment policy.

In response to the women's allegations, the employe either denied the statements, explained their context or provided a different rationale behind the employer's motivation for discharging him. The employe admitted that he made a comment about how nice the human resources manager looked and that when she confronted him about the comment he stated that it was only meant to be a compliment. He then apologized. The employe denied ever receiving a written warning for the offense or seeing Exhibit 5, the manager's reprimand, placed in his file.

The employe was unaware of any of the sexual harassment complaints prior to his suspension. When asked who his accusers were, the employer refused to identify anyone. The employe was told that he would be allowed to confront the accusers at the pre-discharge meeting to be held on December 14, 1995. That opportunity never materialized for the employe. The employe categorically denies making unwanted sexual overtures to any of the witnesses. The employe recalled the sealant spill involving Ms. Wald and stated that he had also gotten his hands dirty and held up his hands but did not make any move towards her chest or buttock. The employe agreed that none of these women ever complained to him or indicated that they felt uncomfortable with his comments nor did the employer warn the employe before discharge that his behavior was unwelcome, hostile or may be perceived as sexual harassment. Rather, at hearing, the employe asserts that the employer was motivated to discharge him because of his worker's compensation injury and his new set of medical restrictions.

The issue for review is whether the employe's discharge was for misconduct connected with his employment within the meaning of section 108.04 (5), Stats. In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good- faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The administrative law judge reasoned that although the employe exercised poor judgment in his choice of words and actions, he did nothing so egregious that a finding of sexual harassment could be found absent a clear statement from each of the women directly to the employe informing him that his actions were unwelcome.

Under the facts of this case, the female workers were not required to inform the employe that his comments and actions were unwelcome. Moreover, the commission does not require that the employer warn the employe prior to discharge that his actions are unwelcome, if the action is so egregious to warrant a finding of misconduct and the employer has set forth a standard or specific work rule or policy prohibiting harassment. See Gerald J. Renier vs. LIRC and Proctor & Gamble Paper Products Co., Brown County Circuit Court case no. 91-CV-920, 2/12/92 and William N. Grube vs. LIRC and Tecumseh Products Co., Calumet County Circuit Court case no. 90-CV-154, 8/14/92.

In Renier, the commission found that the employe was discharged for misconduct for statements and actions that crossed an "imaginary line" of an employer condoned "dirty hour" practice, even though the employe was never warned that his statements or actions were prohibited or crossed that "imaginary line". The commission's decision was affirmed in circuit court.

In Grube, the employe contended that his conduct could not be considered misconduct because his co-worker never complained to him or asked him to cease his actions and because the employer never warned him personally that his conduct was unacceptable. The employe had engaged in vulgar language consisting of sexual overtures. Affirmed by the circuit court, the commission held that the employe's conduct placed the employer in jeopardy of violating section 111.36 of the Wisconsin statutes and Title VII of the federal law prohibiting sexual harassment. Moreover, under these laws, a victim's yielding or capitulation i.e., a victim's "voluntary" submission to on the job sexual harassment is not a defense. Meritor Savings Bank, FSB vs. Vinson, 106 S. Ct. 2399, 40 FEP cases 1822 (1986).

The commission is aware when analyzing misconduct cases involving allegations of sexual harassment that its ultimate authority is to determine whether the employe's conduct is an intentional disregard of the employer's interests, thereby constituting misconduct. After reviewing the record and reaching essentially the same set of facts as the administrative law judge, the commission concludes that the employe's conduct was sufficiently egregious and intentional so as to support a finding of misconduct within the meaning of the law. The employe's conduct was prohibited under the employer's general work rule policy which the employe was aware of even though his female co- workers failed to inform him that his actions and comments were unwelcome. The employe's continued banter and gestures loaded with sexual overtures were a substantial and intentional disregard of the employer's interests and standard of conduct the employer had a right to expect of the employe.

The commission therefore finds that in week 50 of 1995, the employe was discharged for misconduct connected with his employment, within the meaning of section 108.04 (5), Stats.

The commission further finds that the employe was paid benefits in the amount of $266 per week for each of weeks 50 of 1995 through 1 of 1996, $274 for each of weeks 2 through 22 of 1996 and weeks 29 of 1996 through 1 of 1997 and $282 for week 2 of 1997 amounting to a total of $13,950, for which he is not eligible and to which he is not entitled, within the meaning of section 108.03 (1), Stats. Pursuant to section 108.22 (8)(a), Stats., he is required to repay such sum to the Unemployment Reserve Fund. The commission further finds that waiver of benefit recovery is not required under section 108.22 (8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in section 108.04 (13)(f), Stats., the overpayment was not the result of a department error. See section 108.22 (8)(c)2., Stats.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the employe is ineligible for benefits beginning in week 50 of 1995 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 his weekly benefit rate which would have been paid had the discharge not occurred. The department's monetary computation (UCB-700 form) issued July 19, 1996 is set aside. The employe is required to repay the sum of $13,950 to the Unemployment Reserve Fund.

Dated and mailed: March 14, 1997
beattje.urr : 135 : 6  MC 668

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission conferred with the administrative law judge regarding witness credibility. The administrative law judge indicated that she found the female co-workers credible and that she did not believe the employe's worker's compensation injury and new set of restrictions motivated the employer to discharge the employe. The commission accepts the administrative law judge's credibility impressions but as set forth in its decision reverses the appeal tribunal decision as a matter of law.

cc: ATTORNEY DAVID B HALLING
HALLING & CAYO SC

ATTORNEY J D THORNE
PETRIE & STOCKING

Appealed to Circuit Court; Affirmed March 23, 1998. Circuit Court Decision Summary.
Appealed to Court of Appeals; Affirmed (unpublished opinion) June 16, 1999. Court of Appeals Decision Summary.

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