S.S. #: ***********

Employer's Name, Address & Reg. No.

E.R. #: 53-500-06

Board Case No.: 1244-BR-01

Date mailed to interested

parties: December 19, 2001

DECISION OF THE BOARD OF REVIEW

I. CASE HISTORY AND JURISDICTION

The administrator ruled the claimant eligible for unemployment benefits for the week ending April 28, 2001, and notified the employer of its chargeability on September 13, 2001. On September 20, 2001, the employer appealed the administrator's decision to the Waterbury office of the appeals division. The appeals division scheduled a hearing of the appeal for October 18, 2001, which the claimant and employer attended. By a decision issued on October 19, 2001, Associate Appeals Referee John W. Blair, Jr. reversed the administrator's ruling.

The claimant filed a timely appeal to the board of review on October 22, 2001. Acting under authority contained in General Statutes § 31-249, we have reviewed the record in this appeal, including the tape recording of the referee's hearing.

II. ISSUE

The referee ruled that the claimant left her job without good cause attributable to the employer. The referee specifically found that after a coworker sexually harassed the claimant in the employer's fitting room during working hours, the employer acted reasonably in its response to the claimant's complaint. The referee further found that the employer's offer to transfer the claimant to another department in the store was an adequate remedy to the claimant's request that it avoid scheduling her during hours that overlapped with the coworker's hours. Additionally, the referee found that by failing to request a transfer to another store, the claimant did not meet her burden of exploring all available remedies.

In support of this appeal from the referee's decision, the claimant contends that the employer's failure to provide her with a suitable remedy to the working conditions provided her with good cause to leave her employment. She maintains that working hours that overlapped with those of the coworker who had sexually assaulted her, no matter what department in the store she was assigned, did not provide her with adequate protection from the coworker's assaulting her in the future. She further maintains that each store is run independently, her manager in the Milford store had no authority to arrange a transfer to another store, and her requesting a transfer would have been futile.

The issue before the board is whether the claimant left her job with good cause attributable to the employer.

III. PROVISION OF LAW

Section 31-236(a)(2)(A) of the General Statutes provides that an individual shall be ineligible for benefits if it is found that she has left suitable work voluntarily and without good cause attributable to the employer, until such individual has earned at least ten times her benefit rate, provided no individual shall be ineligible for benefits if she leaves suitable work for good cause attributable to the employer, including leaving as a result of changes in conditions created by her employer.

IV. FINDINGS OF FACT AND CONCLUSION OF LAW

The board adopts the referee's findings of fact, except that we make the following modifications to the referee's findings of fact nos. 10, 13, 14, 16, 17 and 20:

• Teeuwen believed the claimant and was aware that the claimant was upset due to the incident. However, he was unable to corroborate her statement.

• From March 26, 2001, the coworker avoided the claimant. However, the store manager scheduled them to work overlapping hours during the week and to work several hours together on Saturdays.



• On April 15, 2001, the claimant advised Teeuwen that she still felt unsafe working while the coworker was in the store.

• Teeuwen advised the claimant that he would still continue scheduling her for hours that overlapped with the coworker.



• Teeuwen did not have authority to transfer the claimant to a different store. The claimant understood that he could not arrange for such a transfer and did not request one.

• Dr. Rivera issued the claimant a note, restricting her from work for one week due to job-related stress. The claimant gave the note to the employer and commenced a one-week leave of absence.

Sexual harassment in the workplace is a form of sexual discrimination which is prohibited by both state and federal law. In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the United States Supreme Court held sexual harassment as a form of sexual discrimination prohibited by Title VII. In addition, General Statutes § 46a-60(a)(8) proscribes sexual harassment by categorizing it as prohibited employment practice. Sexual harassment includes unwelcome sexual advances, requests for sexual favors or any conduct of a sexual nature that substantially interferes with an individual's work performance or creates an intimidating, hostile or offensive working environment. See 29 C.F.R. §1604.11(a)(3); General Statutes § 46a-60(a)(8). Charges of harassment must be specifically substantiated. Bevino v. Administrator, Superior Court, judicial district of Ansonia/Milford, Docket No. CV-840015785S (December 30, 1986); Campbell v. Stop & Shop Companies, Board Case No. 2106-78-BR (4/30/78).

In the case before us, the claimant and the male coworker at issue were both sales associates in the mens' clothing department of the employer's Milford store. On the evening of March 20, 2001, they were alone in the department. The coworker lured the claimant under false pretenses into the dressing room and sexually assaulted her. The claimant pushed him away, yelled at him to stop and exited the dressing room. Under these circumstances, we concur in the referee's conclusion that the coworker subjected the claimant to sexual harassment. We depart from the referee's conclusion, however, that the claimant failed to meet her burden of exploring reasonable alternatives to leaving her employment.

We do not require an individual who quits a job that has become unsuitable to explore alternatives to leaving where the employer is unable or unwilling to provide suitable alternatives. Auger v. Administrator, 19 Conn. Sup. 184 (1954); Kelliher v. Prentice Hall, Inc., Board Case No. 916-BR-90 (9/18/90). Similarly, when a claimant has a reasonable belief that a further exploration would have been futile, she is relieved of exploring all possible alternatives. See Stern v. Northern Middlesex YMCA, Board Case No. 1190-BR-99 (Decision on Administrator's Motion to Reopen, 3/13/00); See also Regs., Conn. State Agencies § 31-236-22(2). The reasonableness factor is subjective and depends on the individual's perception of whether the prospect of a remedy existed and whether her perception is reasonable under the circumstances. Id.

The claimant reported the March 20 assault to the department supervisor. The coworker denied the incident. However, the store manager believed the claimant and knew that she was upset due to the incident. On March 26, 2001, the store manager instructed the coworker to stay away from the claimant and advised the coworker that he would continue his investigation of the matter. He further advised that he would adjust the work schedules to minimize contact between the coworker and the claimant. Nonetheless, the store manager continued scheduling the coworker and claimant for overlapping hours. On April 15, 2001, the claimant advised the store manager that she felt unsafe during those hours that the coworker was on duty with her. In response, the store manager stated that he would continue to overlap their scheduled work hours. He offered to transfer the claimant to a different department in the store. The claimant declined the offer, and remarked that she would not feel safe without knowing when the coworker was in the store with her.

The store manager continued scheduling the claimant and the coworker together. The claimant was treated by her physician, who recommended a one-week leave of absence due to the job-related stress. The claimant provided the employer with the doctor's note. On April 24, 2001, the claimant resigned her position with the subject employer.

The referee found that the claimant's continued fear of the coworker was unreasonable and that she failed to explore all available alternatives to leaving because she did not request that the store manager transfer her to another store. The claimant's reaction to her coworker's assault caused her symptoms of stress that were sufficiently severe to require a leave of absence. Had the claimant returned from her leave of absence, she still would have been working in the store with the coworker. It is not likely that her fear of the coworker would have abated under those circumstances. The claimant correctly understood that the store manager could not have arranged to transfer her to a different store. The store manager did not suggest such a transfer to the claimant. Moreover, he conceded that he had no authority to transfer the claimant to a different store. He could only have checked the possibility.

Since the employer usually has the best knowledge of what alternatives it might offer, it is the employer's burden to establish that specific alternatives did exist and that it would have made an effort to remedy the individual's grievance. This is especially true in the case before us. The claimant fully expressed her concerns to the employer and was not offered any remedy that would effectively protect her from continued contact with her harasser. The employer was free to fashion a reasonable alternative, including transfer to another store, if it were truly unable to schedule the claimant at times when the coworker was not working. It failed to do so. If the employer could not have, or would not have, resolved the complaint, we will not deny the claimant benefits for failing to seek a remedy. Moraski v. NW Regional Center, Board Case No. 593-BR-88 (8/17/88). The employer did not have a specific store transfer available for the claimant. The employer was unable or unwilling to provide the claimant with any other suitable remedy. The claimant held a reasonable belief that any further exploration of alternatives would have been futile. We thus conclude that the claimant quit her job with good cause attributable to the employer.

V. DISPOSITION AND ORDER

The referee's decision is reversed and the appeal is sustained. The claimant is not disqualified from receiving unemployment compensation benefits from August 12, 2000.

BOARD OF REVIEW

________________________________

Bennett Pudlin, Chairman

In this decision, Alternate Board Member James M. Parent concurs.

BP:KHH:bk

IF YOU WISH TO APPEAL THIS DECISION, YOU MUST DO SO BY JANUARY 18, 2002.

SEE LAST PAGE FOR IMPORTANT INFORMATION REGARDING YOUR APPEAL RIGHTS.

COPIES OF THIS DECISION PROVIDED TO:

BENEFIT PAYMENT CONTROL UNIT

Department of Labor

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Wethersfield, CT 06109