Opinion
No. 76-455
Decided December 2, 1976. Rehearing denied December 30, 1976. Certiorari denied February 28, 1977.
In unemployment compensation proceeding, Industrial Commission found that discriminatory treatment of employee because she, a white, began dating black co-employee constituted a change in working conditions that led to employee's quitting her job. From Commission's award of full benefits, employer sought review.
Order Affirmed as Modified
1. UNEMPLOYMENT COMPENSATION — Basic Findings and Conclusions — Reason for Quitting — Discriminatory Treatment — Change in Working Conditions — Supported by Evidence — Binding on Court of Appeals. In unemployment compensation proceeding, although there was considerable conflicting testimony as to what was said and done by the claimant and her immediate supervisor, there was sufficient evidence to support the basic findings and conclusions of the Industrial Commission as to claimant's having quit her job because of a change in working conditions consisting of hostile attitudes and discriminatory treatment which followed upon her having begun a social relationship with a co-employee of another race; and accordingly, the Court of Appeals is bound by those findings and conclusions.
2. Substantial Change in Working Conditions — Sufficient for Award — Ostracism Constitutes — Valid Factual Consideration. For an award of benefits under the Unemployment Compensation Act, it is not required that working conditions become impossible, only that there be a substantial change therein, and although ostracism is not a legal principle under the Unemployment Compensation Act that would dictate the granting or denying of compensation, it is a factual matter which may or may not evidence a change in working conditions; accordingly, where evidence was presented indicating that when claimant, a white, began dating a black co-employee, she was ostracized by fellow employees and supervisors, together with other evidence showing that there was a substantial change to less favorable working conditions for claimant, such evidence was sufficient to support an award of full benefits.
Review of Order from the Industrial Commission of the State of Colorado
Maley Schiff, P.C., John Maley, for petitioner.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Louis L. Kelley, Assistant Attorney General, for respondent Industrial Commission of the State of Colorado.
No appearance for respondent Jan B. Mink.
Gray Moving and Storage, Inc., employer, petitions for review of a final order of the Industrial Commission granting full unemployment compensation benefits to claimant, Jan B. Mink. We affirm.
It is undisputed that claimant, a Caucasian, had had a good personal and working relationship within the company up to the time she began dating a co-employee who is black. Claimant alleged that after that personal relationship became known, she was subjected to harassment from fellow employees and supervisors, and that she felt she had to quit as working conditions became impossible.
The Commission concluded that "claimant quit her job because of a change in her working conditions which became intolerable because of the ostracism she was receiving from fellow employees and supervisors of the company." The employer contends that there is insufficient evidence to support this conclusion.
[1] Though there is a considerable amount of conflicting testimony as to what was said and done by claimant and her immediate supervisor, part of which was rejected in the findings because of inconclusiveness, there remains sufficient evidence to support the findings and conclusions, and we are bound thereby. Gatewood v. Russell, 29 Colo. App. 11, 478 P.2d 679.
Employer asserts that there is no support for the finding that conduct of "supervisors of the company" affected working conditions. Employer contends that since claimant continued to receive all the necessary communication to fulfill her job responsibility, personal relationships within the company are not to be considered in evaluating the working conditions. We disagree. There is evidence that claimant was subjected to cold, curt treatment by the president of the company, the vice president, the dispatcher, and her immediate supervisor, and that this conduct created a great deal of tension in the office.
[2] Overt acts or conduct by the employer directed to one employee such as is present here is sufficient to support a full award. It is not required that working conditions become impossible, only that there be a substantial change. Section 8-73-108(4)(d), C.R.S. 1973.
Employer also contends that, as a matter of law, ostracism does not constitute a change in working conditions sufficient to support an award for compensation. We do not perceive ostracism as being a legal principle under the Unemployment Compensation Act that would dictate the granting or denying of compensation; rather, ostracism is a factual matter which may or may not evidence a change in working conditions. Here, the evidence of ostracism, along with other evidence, showed that there was a substantial change to less favorable working conditions for claimant.
The award recited that § 8-73-108(4)(e), C.R.S. 1973, is applicable in this case. It was agreed by counsel at oral argument that subsection (e) (reduction of pay) is not applicable in this case, and that the error is the result of an oversight or is a typographical error and that either subsection (c) or (d) is applicable. It was further stipulated that this court should direct the change to the appropriate subsection and that on review this case should be considered as if the award made reference to the correct subsection. The findings of the Commission, the arguments of counsel and the evidence in the record support the applicability of § 8-73-108(4)(c) or (d), C.R.S. 1973.
The award is modified to read that § 8-73-108(4)(c) or (d), C.R.S. 1973, is applicable and as modified, the award is affirmed.
JUDGE COYTE and JUDGE STERNBERG concur.