Can a Meijer store greeter fired for anti-gay remarks about a co-worker collect unemployment?

A long-running state unemployment dispute between a supermarket chain and one of its former employees isn't really about the money. It's about whether bigotry in the workplace bars any compensation.

Susan A. Wozniak had been a part-time greeter at a Meijer store for about two months when she was fired in December 2017. Four and half years and several decisions later, there's still dispute about whether she deserves the benefits.

The Court of Appeals says she does not, though a dissenting judge in the 2-1 decision says she does.

Wozniak complained to some cashiers about the co-worker's perceived shortcomings on the job. She also referred to him as a pretty boy, a fairy and a fruit loop. She didn't feel he was doing his share of the greeting duties and that the "way he skipped around the store made her want to throw up."

Meijer fired Wozniak for violating work rules and she filed for unemployment. The Department of Workforce Development allowed benefits. Meijer appealed. An administrative law judge found Wozniak was fired for misconduct as defined in state law, and therefore ineligible for benefits.

Wozniak, 65, of Oak Creek, appealed that decision to the Labor and Industry Review Commission, a state agency that reviews administrative law judge decisions for workplace issues. 

In a 2-1 vote, an LIRC panel disagreed with the hearing officer, found Wozniak's behavior was not misconduct and approved benefits. DWD appealed that decision to circuit court in Milwaukee.

 A judge said LIRC erred in concluding a single act couldn't be harassment, and remanded to LIRC for a new decision.

In March 2020, LIRC again found in Wozniak's favor. DWD again sought a judge's review and this time, Milwaukee County Circuit Judge William Pocan reversed LIRC, which then went to the Court of Appeals.

Judge Joseph Donald wrote the May 10 majority opinion, joined by Judge Maxine White. They agreed Wozniak's comments amounted to harassment, one of the specific kinds of misconduct that can bar unemployment benefits.

In dissent, Judge Timothy Dugan noted Wisconsin's unemployment reflects "a strong policy in favor of compensating the unemployed" and should be liberally construed. 

Dugan concluded Wozniak's behavior did not amount to misconduct under the unemployment law because there is no evidence she intended to harass the subject of the remarks. Her comments were part of a single, brief conversation with two co-workers "with whom she believed she shared an affinity," Dugan wrote.

One obviously did not; she reported Wozniak to management.

Even though Meijer's work rules said harassment could lead to discharge, it didn't define harassment, Dugan wrote. Wozniak had no reason to think her short, private talk with two co-workers constituted harassment and could be grounds for termination, he wrote.

The majority said the law does not require a showing of intent to harass. "We will not read additional language into a statute," Donald wrote.

The general counsel to the LIRC, Anita Krasno, said "the appeal period for this decision has not yet run and, unfortunately, the commission is not able to comment on pending litigation."

A lawyer for the DWD did not return messages.

Contact Bruce Vielmetti at (414) 224-2187 or bvielmetti@jrn.com. Follow him on Twitter at @ProofHearsay.