A. D. No. s. s. No. B. 0. No. STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF BAY

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1 A. D. No. s. s. No. B. 0. No. STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF BAY PATRICIA BAHM, Appellant, v Court No AE HON. LAWRENCE M. BIELAWSKI TARGET STORE 631 and MICHIGAN EMPLOYMENT SECURITY COMMISSION, Appellees.. /.ARTHUR M. FITZGERALD (P31130) -Attorney for Appellant DONNA J. DONATI (P28265) Attorney for Appellee, Target Store 631 FRANK J. KELLEY, Attorney General of the State of Michigan By: MARTIN J. VITTANDS (P26292) Assistant Attorney General Attorneys for Appellee, MESC / OPINI ON AND ORDER REVERSING THE DECISI ON OF THE MICHIGAN EMPLOYMENT SECURITY REFEREE DISQUALIFYING PLAINTIFF

2 PATRICIA BAHM,. ~. -,:.-... ~,..... :::--,... ~ ' -::.... ffif?f-:'$ J1Ali OF MI~IG'-H S T A T E 0 F M I C H I ::G A N. COUNIJY Of BAY. ATfESTED IN THE EIGHTEENTH CIRCUIT COURT FOR THE COUNTX 1UUIEMPY Plaintiff-Appellant, BARBARA ALBERTSON ClRCUil C URl v. File No AE TARGET STORE 631 and MICHIG~ EMPLOYMENT SECURITY COMMISSION, Defendants-Appellees. / OPINION AND ORDER REVERSING THE DECISION OF THE MICHIGAN EMPLOYMENT SECURITY REFEREE DISQUALIFYING PLAINTIFF RECITAL Plaintiff terminated her employment with defendant Target as the result of sexual harassment. Thereafter, plaintiff applied for unemployment benefits which were twice denied her. requested and was granted a Referee hearing. The plaintiff then Following the hearing, at which only the plaintiff appeared, the Referee disqualified the plaintiff from receiving unemployment benefits. The Referee concluded that plaintiff left her employment voluntarily without good cause attributable to her employer. Specifically, the Referee concluded that the plaintiff "was premature in leaving her work". This i s the Court's Opinion and Order reversing the decisi o n of the Referee.

3 FACTUAL BACKGROUND The record on appeal indicates that plaintiff began working for defendant Target in August of On her last day of work (i.e., January 26, 1993), plaintiff was employed as a customer service manager and was generally scheduled- to work from 7:00a.m. to 5:00p.m. or from 1:00 p.m. to 11:00 p.m. The store manager at that time was.ms. Brenda Kelp. It is undisputed that during the course of her employment, plaintiff was forced to endure sexual harassment at the hands of the Assistant. Manager, Dan Cherwinski. Specifically, at an average of four or five times a week, Mr. Cherwinski made remarks relative to the plaintiff's body parts and her clothing. Mr. Cherwinski also made remarks of a sexual nature to plaintiff when she was bent down and/ or was kneeling down scrubbing the floor. These remarks were made in front of other Target employees. On one occasion, Mr. Cherwinski went so far as to grab plaintiff from behind and lift her up. When the plaintiff told Mr. Cherwinski to put her down, Mr. Cherwinski did so but stated, "you're lucky you're skinny; otherwise, I wouldn't have been able to pick you up". On the morning of Monday, January 25, 1993, plaintiff complained to the store manager, Ms. Brenda Kelp, regarding Mr. Cherwinski's behavior. Plaintiff was then relieved of her duties and sent home. Later that evening (i. e., the evening of Monday, January 25, 1993), Ms. Kelp came to plaintiff's home and questioned her about Mr. "herwinski's behavior. Ms. Kelp then told plaintiff not to come back to work until she (Ms. Kelp) called her. At some point, plaintiff was 2

4 1lso contacted by Target's Chief Personnel Officer from Minneapolis regarding this matter. In any event, at approximately 12:00 p.m. on Tuesday, January 26, 1993, plaintiff received a phone call from Ms. Kelp directing plaintiff to come back to work for her regularly-scheduled shift at 1:00 p. m. Plaintiff returned to work ~s directed and worked her entire shift. At the end of her shift, plain~iff been done about Mr. Cherwinski. spoke to Ms. Kelp and asked what had Ms. Kelp stated, "I don't know yet. Right now he's suspended for the week." As a result of Ms. Kelp's statement, plaintiff believed that Mr. Cherwinski had not and would not be terminated, and that Mr. Cherwinski would only be suspended for the week. Plaintiff then left work and did not return. On January 28, 1993 (i.e., two days after plaintiff left work), defendant Target fired Mr. Cherwinski. PROCEDURAL BACKGROUND After plaintiff left her employment with defendant Target, she applied for unemployment benefits which were twice denied her. Plaintiff then requested and was granted a Referee hearing. Following that hearing, at which only plaintiff appeared, the Referee disqualified plaintiff from receiving benefits. Said disqualification was based upon the Referee ' s conclusion that plaintiff left her employment voluntarily without good cause attributable to her employer. Specifically, the Referee concluded that the plaintiff "was premature in leaving her rork" The plaintiff then requested a rehearing and was denied. Plain- 3

5 .iff now appeals to this Court. DISCUSSION Plaintiff's -application for unemployment benefits was denied by defendant MESC pursuant to MCLA (1)(a) which provides, in relevant part, as follows: (1). An individu~l shall be -disqualified for bene. fits in the following cases in which the individual: (a) Left work voluntarily without good cause attributable to the employer or employing unit. This statute recognizes that where there is good cause attributable to the employer, an employee may voluntarily leave his/her employment and still remain eligible for unemployment compensation. The Court of Appeals has held that good cause exists "where an employer's ctions would cause a reasonable, average, and otherwise qualified worker to give up his or her employment." Warblow v. The Kroger Co., 156 Mich App 316, 321 (1986); Carswell v. Share House, Inc., 151 Mich App 392 (1986). As a general rule, a reviewing court may reverse a decision of the - Michigan Employment Security Referee only if it finds that the decicion is contrary to law or is not supported by competent, material, and substantial evidence on the whole record. MCLA (1). Chrysler Corp. v. Sellers, 105 Mich App 715, 720 (1981). If there is no dispute as to the underlying facts, questions presented on appeal are to be treated as matters of law. Id. In the present case, the hearing Referee concluded that good cause attributable to the employer did not exist because the plaintiff left.1er job prematurely. Specifically, the hearing Referee stated as follows: 4

6 "It is decided that after claimant registered her complaint with the employer, the employer made an investigation to determine the validity of the claimant's complaint. Claimant was questioned at home, her co-workers were questioned, claimant was contacted by the Chief Personnel Officer from Minneapolis, and the alleged offender was suspended. During the investigation the claimant voluntarily left her work. It is decided.that the claimant was premature in leaving her work. She should have waited until the investigation was concluded before she quit. If she had waited, she would have learned- that her problem had been eliminated, the Assistant Manager had been discharged. Thus, if she had continued working she would not have suffered further - harassment at the hands of this individual. That is why the Referee concludes that the claimant was premature in leaving her work. She should have continued working until it was decided.with certainty the status of the Assistant Manager." (R 32) It is this Court's opinion that this conclusion by the Referee is contrary to law and is not supported by competent, material, and substantial evidence on the whole record. More specifically, the Court of Appeals has stated as follows: "... [W]e cannot accept that portion of the referee's decision implying that an employee must seek either judicial or administrative relief as a prerequisite for preserving eligibility for unemployment benefits that may otherwise be due. Although the provisions of the Employment Security Act are to be liberally construed, the disqualification provisions are to be construed narrowly. Wilkerson v. Jackson Public Schools, 170 Mich App 133, 136; 427 NW2d 570 (1988), lv den 432 Mich 878 (1989). " Johnides v. St. Lawrence Hospital, 184 Mich App 172, 177 (1990). * * * "This now brings us to the central question: whether an employee who voluntarily leaves his employment, without first attempting to resolve through an available grievance procedure the grievance alleged to have led to his decision to quit, is precluded from establishing good cause for leaving." Id. at 178. * * * ".. --; - we -agree that, even where good cause to leave exists, it would be more beneficial to the employer, the employee, and society economically if employees with disputes attempt to first resolve such disputes through these grievance procedures. Nevertheless, we do not believe that an 5

7 employee ' s failure to resort to such a procedure should necessarily be dispositive on the issue of good cause so as to always result in disqualification for benefits under MCL (l)(a); MSA 17.53l(l)(a). We have reviewed the cases cited by the parties and believe the best rule is that stated in. Stonco Electric Products Co. v. Bd. of Review, Division of Employment Security, Dep't of Labor & Industry, 106 NJ Super -6, 10; 254 A2d 111 ( 1969): 'Evidence of a claimant's failure to seek redress of his grievances before quitting, including failure to press his right to pursue a grievance procedure, is certainly relevant and probative on the bona fides of his claim.... But failure to pursue such remedies does not, by itself, disqualify the claimant, disentitle him to benefits, or establish that the grievances alleged to have produced the quit were not sufficient to constitute "good cause"... [Citation omitted.] Thus, under this rule, the failure to follow an available grievance procedure would be just one factor in determining whether a claimant had good cause to leave his employment." Johnides, supra., at In the present case, there is no evidence whatsoever indicating that defendant Target had any type of formal grievance and/or investigative and/or remedial procedure i~ place for dealing with complaints of sexual harassment. It therefore escapes this Court how an employee of Target can be found to have terminated his/her employment "prematurely" on the basis of some alleged "investigation" and/or remedial process not being completed. Furthermore, such a finding is clearly contrary to the rule of Johnides, supra. Additionally, the record on appeal indicates that plaintiff did take reasonable steps to bring the harassment to the attention of her superiors. More specifically, plaintiff made a complaint to the store mana- Jer and spoke with the Chief Personnel Officer from Minneapolis. After plaintiff spoke to the store manager, she was relieved of her duties 6

8 :nd sent home. Later that same evening, the store manager came to plaintiff's home and asked her a. series of questions regarding the harassment. The store manager then instructed plaintiff not to return to work unless and until she received a call from the store manager. The store manager cal1ed plaintiff the next day and instructed her to return to work that day, _ Plaintiff did as she was instructed and worked her regularly-schedu~ed shift of 1:00 p.m. to 11:00 p.m. When she had completed her shift, plaintiff then spoke to the store manager and inquired as to what had been done about Mr. Cherwinski. The store manager told plaintiff that Mr. Cherwinski had been suspended for a week. and that was all she knew at this time. Plaintiff, believing that the one-week suspension of Mr. Cherwinski was all that was going to be done about the harassment, voluntarily terminated her employment at _hat time. In light of these undisputed facts, this Court believes that the hearing Referee was incorrect when he concluded that plaintiff had terminated her job "prematurely". This conclusion is based upon several factors. First of all, when plaintiff returned to work and asked the store manager what had been done about Mr. Cherwinski, the store manager es- ' sentially stated that she did not know anything other than the fact that Mr. Cherwinski had been suspended for the week. The store manager never told plaintiff that any type of investigation was still pending and/or that further remedial steps were being considered and/or that defendant Target was considering the termination of Mr. Cherwinski's ~mployment. The store manager simply stated that as of right now, Mr. Cherwinski had been suspended for the week. 7

9 Secondly,. it must be remembered that after plaintiff made her initial complaint to the store manager, plaintiff was immediately relieved of her duties and sent home. She was then "reinterviewed" by the store manager and told not to return to work unless and until instructed to do so by the store manager. Under these facts, it was not unreasonable for plaintiff to believe that the. matter was being "investigated" (albeit not in accordance with any formal investigative procedure known.to this Court), and that she would not have to return to work until after the matter was resolved. Thus, when the store manager called plaintiff and instructed her to return to work, it was not unreasonable for plaintiff to assume that the matter had been resolved. Needless to say, when plaintiff was thereafter told by the store manager nothing more than that Mr. Cherwinski had been suspended for one week, it was not unreasonable for plaintiff to assume that nothing more was going to be done about the matter. As a result, it was not unreasonable for plaintiff to conclude that she had no choice but to leave her employment. Thirdly, this Court believes the Referee was incorrect when he found that plaintiff had "prematurely". terminated her job because plaintiff had failed to ascertain "with certainty the status of the Assistant Manager". This finding is incorrect because the facts do not indicate that plaintiff failed to ascertain the status of Mr. Cherwinski; rather, the facts indicate that when plaintiff attempted to ascertain the status of Mr. Cherwinski, defendant Target (via its store manager) failed to appraise plaintif "with certainty, the status of Mr..,1erwinski". Furthermore, the Referee failed to cite any legal authority what- 8

10 ;oever for the proposition that an employee has an ongoing duty and/or responsibility to ascertain "with certainty" the status of the remedial steps being taken by the employer to correct a hostile work environment. This oversight is particularly fatal in light of the fact that: (1) plaintiff took reasonable steps to advise her employer of the sexual harassment; (2) plaintiff was led to believe that the matter was bei~g investigated and that she would not be called back to work until after the matter was resolved; (3) upon being calle.d back to work, plaintiff inquired as to the status of Mr. Cherwinski and was told that he had been suspended for the week; and (4) plaintiff was never told by defendant Target that any further remedial action [other than the one week suspension] was being looked into and/or contemplated. Needless to say, the Referee's conclusion that plaintiff left her job prematurely invites the rhetorical question: What else was the plainti~f suppose to do? Fourth, by failing to appraise plaintiff "with certainty, the status of Mr. Cherwinski", defendant Target has run afoul of the rule set forth in Tomei v. General Motors Corporation, 194 Mich App 180, 186 (1992) wherein the Court of Appeals stated as follows: "In p~ant-closing cases, the burden of proof in demonstrating the voluntariness of a claimant's decision to leave employment under Section 29(1)(a) first falls on the employer to demonstrate that the choices it offered its employee were reasonable, viable, and clearly communicated to the employee. If the employer fails in carrying its burden such that a clearly communicated offer of viable, reasonable employment choices and their consequences are not demonstrated, the issue of voluntariness must be resolved in the claimant's favor. " As correctly stated by plainti~f J..n.ller brief, "even though Tomei, supra. involved a plant-clo~ing case, the circumstances involved are clearly the same. In the instant case, [plaintiff] was not given a 9

11 ~hoice that was clearly communicated, reasonable and viable. (Plaintiff] was not aware that the offender would be fired. ~he only thing she was ever told was that the assistant manager was suspended for a week. This was not a solution to the problem." Plaintiff's Brief at pp Finally, a close reading of the Referee's decision indicates that the Referee viewed the termination of Mr. Cherwinski as inevitable. As a result, the Referee was operating under the assumption that if plaintiff had simply waited a couple of days, the matter would have been completely resolved [via Mr. Cherwinski's termination] and there would have been no need for plaintiff to leave her employment. Unfortunately, such an assumption ignores the very real possibility that defendant Target had no intention of terminating Mr. Cherwinski and did so only because plaintiff had left her employment. For all of the aforementioned reasons, this Court finds and holds that the decision of the hearing Referee must be REVERSED. Furthermore, because there is no dispute as to the underlying facts involved in this matter, this Court can and has decided the issue as a matter of law and remand is therefore unnecessary. Johnides, supra. at 179 citing Chrysler. Corp. v. Sellers, 105 Mich App 715, 720 (1981). ORDER NOW, THEREFORE, IT IS ORDERED that for all of the reasons herein stated, the decision of the hearing Referee finding that plaintiff is 10

12 disqualified from receiving unemployment benefits be, and the same hereby is, REVERSED ~ 1,