By Gretchen Schuldt
A Meijer Store employee's use of derogatory, homophobic terms when talking about a co-worker disqualified her from unemployment after she got fired for the comments, a divided state Court of Appeals panel ruled recently.
Susan A. Wozniak's comments constituted harassment, Appellate Judge M. Joseph Donald wrote in the 2-1 decision for the District I Court of Appeals panel. He was joined by Appellate Judge Maxine A. White. Appellate Judge Timothy G. Dugan dissented.
The decision affirms Milwaukee County Circuit Judge William S. Pocan, who ruled in favor of the Department of Workforce Development in its action against the state Labor and Industry Review Commission.
LIRC had contended that Wozniak was entitled to unemployment benefits; DWD disagreed.
The case began when Wozniak, frustrated that a fellow greeter was not doing his job, complained to co-workers. One of them reported the conversation to management, saying that Wozniak said the co-worker was a “pretty boy,” “fairy,” and “fruit loop.” Wozniak also said that he was gay, and that “the way he skipped around the store made her sick,” according to the appeals court decision.
Wozniak, interviewed by management, admitted calling the co-worker a "pretty boy," denied calling him a "fairy," and said if she had used the other terms she should not have done so. Wozniak was suspended and eventually fired.
Meijer, in its dismissal, cited Wozniak's “discriminatory remarks towards a team member."
Wozniak filed for unemployment, and DWD found that the firing was not for "misconduct or substantial fault connected with her employment." Wozniak was entitled to benefits, the agency said.
Meijer appealed. The administrative law judge reversed DWD and ruled that Wozniak was fired for misconduct and not entitled to benefits.
Wozniak appealed again, this time to the LIRC. The administrative law judge was overturned and Wozniak was back to being eligible for unemployment compensation. The LIRC vote was 2-1.
DWD asked a circuit court to consider the matter, and Pocan eventually ruled that LIRC had erred in finding that Wozniak’s comments did not constitute misconduct or substantial fault.
Wisconsin law, Donald wrote, defines misconduct as one or more "threats or acts of harassment, assault, or other physical violence instigated by an employee at the workplace of his or her employer.”
While the law does not define harassment, DWD and LIRC agreed on a definition as "words, gestures, and actions which tend to annoy, alarm, and abuse (verbally) another person. ... [h]arassment may include verbal abuse, epithets, and vulgar or derogatory language, display of offensive cartoons or materials, mimicry, lewd or offensive gestures, and telling of jokes offensive to protected class members.”
Wozniak’s comments were derogatory and aimed at the co-worker's sexual orientation, Donald wrote.
"Whether the comments were made directly to the co-worker is of no consequence" under the statute, he said.
LIRC contended that Meijer did not provide a definition or examples of harassment in its work rules, Donald wrote, but the law does not require that the company have an anti-harassment policy or rule. There also is no requirement that a person "knowingly" engage in harassment, he said.
"We will not read additional language into a statute," he said.
Dugan, in his dissent, said that Meijer had not met its burden in showing that Wozniak was fired for misconduct or substantial fault.
Harassment that fits the definition of "misconduct" must include an element of intent, which Wozniak's statements did not, Dugan said.
"Her comments were not loud enough for anyone to hear," he wrote. "She did not make her comments to customers, and she did not make her comments directly to the co-worker about whom she was complaining. The record is also devoid of evidence that either of these co-workers were offended or unable to continue with their work responsibilities as a result of the conversation. Thus, Wozniak’s comments were part of an isolated incident during a brief, private, casual conversation that does not rise to the level of misconduct and that demonstrates no intent to harass her co-worker within the meaning of" the law.
While the majority did not address the substantial fault issue because it already found Wozniak committed misconduct, Dugan did.
"As has been repeatedly stated, there is no dispute that Meijer’s workplace rules prohibited harassment but also provided no definition of what was considered harassment under the rule. ...Wozniak would have had no reason to believe that her brief, private conversation with two co-workers would qualify as harassment," he wrote.
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