Gray Moving and Storage, Inc., Petitioner,
v.
Industrial Commission of
Colorado (Ex-officio Unemployment
Compensation Commission of Colorado), and
Henry M. Brewington,
Respondents.
No. 76--454.
38 Colo.App. 419, 560
P.2d 482
Colorado
Court of Appeals,
Div. I.
Dec. 2, 1976.
Rehearing
Denied Dec. 30, 1976.
Certiorari Denied Feb. 28,
1977.
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty.
Gen., Edward G. Donovan, Sol. Gen., Louis L. Kelley, Asst. Atty.
Gen., Denver, for respondent Industrial Commission of the State of
Colorado.
No appearance for respondent Henry M. Brewington.
ENOCH, Judge.
Gray Moving and Storage, Inc., employer, petitions for review of
a final order of the Industrial Commission granting full
unemployment compensation benefits to claimant, Henry M. Brewington.
We affirm.
Claimant worked as a driver, helper and packer from February 21,
1974, to September 22, 1975, when he quit because of alleged
discrimination. The discrimination was evidenced by an alleged
change of attitude and treatment by his supervisor and by the
assignment of the least desirable jobs. Claimant contends that the
discrimination began when the employer learned that claimant, who is
black, was dating a female co-employee who is Caucasian.
The Commission concluded that 'claimant quit his job because of a
change in his working conditions which became intolerable because of
the attitudes and working atmosphere which deteriorated following
his association with the other employee.' Employer contends that
there is insufficient evidence to support this conclusion, and in
any event such change in working conditions would not support an
award under s 8--73--108(4)(c) or (d), C.R.S. 1973.
Though there is conflicting evidence with regard to work
assignments, and some of the findings are not supported by evidence,
there is evidence to support the basic findings and the conclusions,
and we are bound thereby. Gatewood v. Russell, 29 Colo.App.
11, 478 P.2d 679. Employer contends that since claimant continued to
receive all the necessary communication to fulfill his job
responsibility, personal relationships within the company are not to
be considered in evaluating working conditions. We disagree. There
is evidence that claimant was subjected to cold, curt treatment by
his immediate supervisor who spoke openly of claimant in derogatory
terms.
Overt acts or conduct by the employer directed at 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 further contends that ostracism, as found by the
Commission, cannot, as a matter of law, 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.
Employer also contends that the change of conditions was created
by the employee and not employer; therefore no award is proper. We
do not agree. The only change created by claimant was the
relationship between himself and the other employee, and there is no
evidence that this relationship affected working conditions, job
performance, or attitudes of claimant or any other employees. The
change in working conditions as found by the Commission was brought
about by the supervisor, and was directed toward claimant and not to
all employees.
The award is affirmed.
Coyte and Sternberg, JJ., concur.
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