Opinion
No. 77-AB-862, CA 8816
Argued November 21, affirmed December 19, 1977, reconsideration denied January 17, 1978, petition for review pending
Judicial Review from Employment Appeals Board.
David W. Hittle, Salem, argued the cause for petitioner. With him on the brief were Mike Dye, and Dye Olson, Salem.
No appearance for respondent Employment Division.
Jeannette M. Launer, Assistant City Attorney, Salem, argued the cause for respondent City of Salem. With her on the brief was William J. Juza, City Attorney, Salem.
Before Schwab, Chief Judge, and Thornton and Johnson, Judges.
PER CURIAM.
Affirmed.
Thornton, J., dissenting opinion.
The sole issue in this unemployment compensation case is whether petitioner had good cause for terminating her employment. The referee found that she did not. The Employment Appeals Board agreed with the referee and adopted his opinion, as do we. It follows:
"ISSUE AND LAW: The issue is whether Claimant is disqualified from benefits under ORS 657.176.
"FINDINGS OF FACT: (1) Claimant worked for the employer from February 3, 1975, until March 15, 1977. She was hired initially as a CETA employee and in August 1975 was hired as a regular employee in the position of Maintenance I. (2) Claimant's normal hours were from 8:00 a.m. until 4:30 p.m., Monday through Friday, and she was paid at a final rate of $4.65 per hour. (3) During her entire period of employment as a Maintenance Person I, the claimant experienced problems with two of her co-workers with whom she was often required to work. (4) Both co-workers were male and both made it clear to the Claimant and others that they did not approve of a female working in a maintenance position. (5) They often complained to the Claimant and her supervisor that she did not possess the necessary physical strength to perform her job. (6) The Claimant felt that both individuals intentionally ignored her and withheld information from her to impede her on-the-job training. (7) The Claimant contacted the employer's affirmative action officer on more than one occasion and she spoke to her supervisor frequently about the problem. She was told by her supervisor to let the remarks of these fellow workers go in one ear and out the other. (8) The supervisor made it clear to the Claimant that he was satisfied with her work performance and progress. (9) One of the two co-workers with whom the Claimant experienced difficulties had become particularly difficult after she had refused to meet with him socially. (10) The Claimant filed a grievance through her Union over the matter in June or July of 1976. (11) An informal meeting was held, the co-worker apologized, and no further action was taken on the grievance. (12) The Claimant's supervisor was pleased with the Claimant's work and had recommended her for periodic pay raises. (13) At the time the Claimant left work, a reorganization of the communication/signal department was under way. The Claimant's supervisor felt the reorganization would facilitate the Claimant's promotion and he hoped to promote the Claimant at the first opportunity. (14) The Claimant, during her employment, attended work-related seminars and an electronics course as well as being given on-the-job training including time to read technical manuals. (15) Despite the training that she received, the Claimant felt she was not receiving enough technical work experience. (16) The Claimant did not file a grievance over any of the problems she encountered except with respect to the one fellow worker who had attempted to date her. (17) The Claimant did not investigate the possibility of a transfer because she felt she would encounter the same sexist attitude elsewhere in the employer's organization. (18) The Claimant gave notice in February 1977 and quit work on March 15, 1977.
"CONCLUSIONS AND REASONS: The Claimant voluntarily left work without good cause. Good cause to quit work must be such cause as would compel a reasonably prudent person to quit under similar circumstances. Stevenson v. Morgan, 17 Or. App. 428, 522 P.2d 1204 (1974). In Stevenson, the Court held that an individual who voluntarily terminates suitable employment has the burden of showing good cause for having done so. The Claimant's primary reasons for leaving work were the sexist attitudes of two co-workers and her belief that her training was not progressing as rapidly as possible. The record contains no evidence that the Claimant was being denied training opportunities; in fact, it appears that she was being given a great deal of consideration of training necessary to enhance her qualifications for promotion. In Fajardo v. Morgan, 15 Or. App. 454, 516 P.2d 495 (1973), the Court held that discrimination based on sex may constitute good cause to quit work. The record, however, lacks any evidence that the Claimant was discriminated against by the employer. The Claimant received favorable performance appraisals and periodic merit pay raises. Although it was possible that the sexist attitudes of the Claimant's two co-workers could have affected her training and career development, it does not appear that the Claimant's career was adversely affected. The present case is similar to that of McCain v. Employment Division, 17 Or. App. 442, 522 P.2d 1208 (1974), in which the Court said:
" 'Discrimination on the basis of sex is an unlawful employment practice. ORS 659.030; 42 USCA § 2000e-2 (1974); Fajardo v. Morgan, supra, 15 Or. App. 459. This does not mean, however, that an employer's "sexist" attitude, by itself, is an unlawful employment practice or such other cause as would constitute 'good cause' for a female employe to quit. 'Good cause' would exist only if this "sexist" attitude produced some actual discrimination, undue harassment, or other grievous cause of reasonable foundation, evidence of which must appear in the record. James v. Unempl. Comp. Bd. of Review, 6 Pa Cmwlth 489, 296 A.2d 288 (1972), accord, Fajardo v. Morgan, supra. Generally, offensive character habits of fellow workers, however distasteful they may be to Claimant, will not constitute "good cause" for claimant to leave. Green Unempl. Compensation Case, 174 Pa. Super. 286, 101 A.2d 119 (1953). Claimant had the burden of producing evidence to establish at least a prima facie case. Von Poppenheim v. Morgan, 9 Or. App. 495, 497 P.2d 866 (1972). Thus, Claimant must at least establish that the prevailing sexual attitudes of her employer, or of her fellow employes were such as amounted to sexual discrimination, harassment or some other cause of reasonable foundation sufficiently grievous to compel a reasonably prudent person to quit under similar circumstances. Cf., Stevenson v. Morgan, supra.'
"The Claimant in the present case has failed to show discrimination, harassment, or other cause sufficient to constitute good cause for having left work.
"* * * * *."
Affirmed.
Claimant appeals from an adverse determination of the Employment Appeals Board. The Board affirmed the decision of both the referee and the Employment Division that claimant was disqualified from receiving unemployment benefits on the ground that she voluntarily left work without "good cause." ORS 657.176(2). The majority has affirmed the Board on the basis of this court's holding in McCain v. Employment Division, 17 Or. App. 442, 522 P.2d 1208 (1974).
Claimant does not challenge the findings of fact made by the referee, so the issue of "good cause" becomes one of law. Therefore, our review is not for substantial evidence but, rather, we exercise our independent judgment. Baker v. Cameron, 240 Or. 354, 360, 401 P.2d 691 (1965); Chamblee v. Employment Div., 23 Or. App. 53, 541 P.2d 165 (1975).
The undisputed facts may be summarized as follows:
Claimant was employed by the City of Salem from February 3, 1975 until March 15, 1977. In August 1975 she was promoted to the position of Maintenance Person I within the traffic signal department. This position had been held only by men in the past and, in fact, many men in the workshop objected to claimant's promotion. Over the course of the year and a half that claimant worked for the city in this position she complained of frequent problems with two male co-workers with whom she was often required to work. Both of the workers made it clear to claimant and her supervisor that they did not approve of a woman working in what they perceived as a man's job. When claimant was on the job with these two men they would often make insulting remarks such as calling her a "floozy" or "snake." They would ignore her on the job or refuse to give her instructions on how to perform certain tasks. This occurred despite the fact that the fieldwork claimant did with these men was a necessary part of her on-the-job training. On heavy tasks for which it was customary for employes to assist each other, these male co-workers would refuse to help claimant, although they would help each other. The men frequently would tell claimant's supervisor that she was too weak to do the job. Claimant herself complained to her supervisor several times per month about the conduct of the two male co-workers. The supervisor's response would be to "let it go in one ear and out the other" or to "toughen up her skin," because he felt a woman should expect some hostility when she was working in a man's job. He would call the male workers in and tell them to ease off, but his warning would be effective for only a few days. As time went on the situation worsened, but the supervisor did not take any additional action against the male workers. Instead, he would warn the males and reassign the claimant to the shop.
Good cause has been defined as "such cause as would compel a reasonably prudent person to quit under similar circumstances." Brotherton v. Morgan, 17 Or. App. 435, 438, 522 P.2d 1210 (1974). One circumstance which may provide good cause to voluntarily leave employment is undue harassment by fellow employes. McCain v. Employment Division, supra at 446.
The referee relied upon McCain v. Employment Division, supra, to support his decision that claimant did not leave voluntarily with good cause. In McCain we stated:
"* * * Discrimination on the basis of sex is an unlawful employment practice. ORS 659.030; 42 USCA § 2000e-2 (1974); Fajardo v. Morgan, [ 15 Or. App. 454, 516 P.2d 495 (1973)] supra at 459. This does not mean, however, that an employer's 'sexist' attitude, by itself, is an unlawful employment practice or such other cause as would constitute 'good cause' for a female employe to quit. 'Good cause' would exist only if this 'sexist' attitude produced some actual discrimination, undue harassment, or other grievous cause of reasonable foundation, evidence of which must appear in the record. [Citing cases.]" 17 Or App at 445-46. (Emphasis supplied.)
In McCain we concluded that the evidence of a "sexist" attitude on the part of the employer was insufficient to constitute good cause. I believe this case differs from McCain. The general sexist attitude present in McCain also exists in the instant case, but so do recurring specific acts constituting direct harassment of the claimant. The claimant was frequently insulted, criticized and ignored by two co-workers without justification. When she sought assistance from the supervisor his response was either to suggest that she toughen up, or take her off fieldwork, which was an aspect of her on-the-job training. The fact that the complaints and actions of the co-workers did not affect claimant's performance ratings or good standing with her supervisor does not make them less onerous and harassing.
The only evidence of a sexist attitude was a collection of cartoons and posters depicting women in varying degrees of nudity, and statements of male co-workers, that they liked the pictures. The concurring opinion noted that the cartoon she most objected to was in the men's lunchroom, an area where claimant was not required to go, and that claimant in effect sought out the harassment.
I conclude that the claimant left the job with good cause after making repeated efforts to remedy the situation, and is entitled to unemployment benefits.
In addition to claimant's frequent complaints to her supervisor, she filed a grievance with her union when one of the male co-workers who was married became more insulting because she rejected his personal advances. The matter was handled at an informal hearing with the claimant, her co-workers, their supervisor and a union representative. Since the supervisor and union representative did not want to jeopardize the male worker's employment opportunity with the county sheriff, he was asked to apologize.