Survey Solutions, Inc., Petitioner,
v.
The Industrial Claim
Appeals Office of the State of Colorado
and Bonnie R. Berg,
Respondents.
No. 97CA1897.
956 P.2d 1275
Colorado
Court of Appeals,
Div. V.
April 16, 1998.
Podoll & Podoll, P.C., Robert C. Podoll, Richard C. Hopkins,
Denver, for Petitioner.
No Appearance for Respondent Industrial Claim Appeals Office.
No Appearance for Respondent Bonnie R. Berg.
KAPELKE, Judge.
Survey Solutions, Inc., (employer) seeks review of a final order
of the Industrial Claim Appeals Office (Panel) which affirmed an
order of the hearing officer awarding Bonnie R. Berg (claimant)
unemployment compensation benefits. We set aside the order and
remand for entry of an order denying benefits.
Following an evidentiary hearing, the hearing officer found that
two events were the direct and proximate cause of the claimant's
resignation from her employment. As to the first incident, the
hearing officer found that when the claimant brought to work a dance
trophy that had been awarded to her seven-year-old daughter,
employer's president made a comment to the effect that the claimant
had better watch out because soon the daughter would be performing
"in a strip tease joint." The hearing officer further found that
this was a clearly offensive comment and that, even if it had been
intended in humor, the comment was in extremely bad taste.
With respect to the second incident, the hearing officer found
that the president had made extremely "unpleasant and unflattering"
comments to claimant's husband's new boss concerning the work
abilities of claimant's husband, who had previously worked for
employer.
The hearing officer concluded that claimant was entitled to an
award of benefits pursuant to §
8-73-108(4)(o), C.R.S.1997, because she had quit her employment as a
result of "personal harassment by the employer not related to the
performance of the job."
On review, the Panel determined that the findings as to the first
incident alone supported the award of benefits pursuant to
§ 8-73-108(4)(o). The Panel affirmed the
award of benefits on that basis and did not address whether the
president's comments about the claimant's husband also constituted
"personal harassment" under the statutory subsection.
On appeal, employer contends that the Panel erred in determining
that the first incident was "personal harassment" under the statute
and a proximate cause of the claimant's resignation. We agree that
the conduct did not amount to personal harassment within the meaning
of the statute.
Under § 8-73-108(4)(o), a claimant
may be awarded unemployment benefits if he or she quits "because of
personal harassment by the employer not related to the performance
of the job." The statute does not define personal harassment.
Webster's Third New International Dictionary 1031 (1986) defines
"harassment" as the state of being "harassed," and defines "harass"
as "to vex, trouble, or annoy continually or chronically."
Divisions of this court have held that an objective standard is
the appropriate measure for determining a claimant's entitlement to
benefits. See Wargon v. Industrial Claim Appeals Office, 787
P.2d 668 (Colo.App.1990); Rose Medical Center Hospital Ass'n. v.
Industrial Claim Appeals Office, 757 P.2d 1173 (Colo.App.1988).
We conclude that an objective standard, rather than a subjective
one based on the particular claimant's own sensitivities or
reactions, should also govern the determination whether an
employer's actions constitute "personal harassment" under
§ 8-73-108(4)(o). Thus, the issue is
whether a reasonable person in the claimant's position would have
found the employer's conduct to be so vexing, troubling, and
annoying as to warrant resignation from employment.
As noted, the Panel addressed only the first incident. We
conclude that this incident, standing alone, does not constitute
personal harassment within the meaning of the statute. While the
comment of employer's president relating to claimant's daughter may
have been considered offensive by claimant, it was not, in our view,
conduct that a reasonable person would find to be so vexing,
troubling, and annoying as to warrant quitting a job.
While we recognize that a division of this court has indicated
that conduct need not be continuous or ongoing in order to be
personal harassment, see Marlin Oil Co. v. Industrial Commission,
641 P.2d 312 (Colo.App.1982), the isolated comment of the employer
here nevertheless falls short of the required standard.
Although the Panel did not address the second incident--involving
the criticism of claimant's husband--we conclude that such conduct
also did not amount to personal harassment of the claimant.
In the hearing before the ALJ, the claimant testified that she
had been told by her husband that he had been informed by his new
boss that employer's president had "verbally slandered" the husband
"and his work ability." Claimant did not elaborate on what the
actual comments had been. Nor did she indicate that the comments of
employer's president had been made to or in any way directed at her.
Under these circumstances, the record does not support a finding
that this conduct amounted to personal harassment of the claimant.
We therefore conclude that the two incidents, considered either
separately or collectively, do not constitute personal harassment of
the claimant within the meaning of §
8-73-108(4)(o) and do not support an award of unemployment
compensation benefits.
In view of our determination, we need not address employer's
contention that the comments concerning claimant's husband's work
performance were subject to a claim of qualified privilege.
The order is set aside, and the cause is remanded for entry of an
order denying benefits.
Marquez and Rothenberg, JJ., concur.
Printer-friendly version