Jensen v. Siemsen

• Decision Date: 14 June 1990
• Docket Number: Nos. 17686,17695,s. 17686
• Parties: , 59 USLW 2009 Ethel Marie JENSEN, Claimant-Appellant, v. F.H. SIEMSEN, M.D., and R.N. Peterson, M.D., Employers-Respondents, and State of Idaho, Department of Employment, Respondent.
• Court: Idaho Supreme Court

Page 271

794 P.2d 271

118 Idaho 1, 59 USLW 2009

Ethel Marie JENSEN, Claimant-Appellant, v. F.H. SIEMSEN, M.D., and R.N. Peterson, M.D., Employers-Respondents, and State of Idaho, Department of Employment, Respondent.

Nos. 17686, 17695.

Supreme Court of Idaho.

June 14, 1990.

Rehearing Denied July 31, 1990.

Carl Follevaag, Coeur d'Alene, for claimant-appellant Jensen.

Jim Jones, Atty. General, Evelyn Thomas, Deputy Atty. General, Boise, Idaho, for appellant Dept. of Employment. Evelyn Thomas argued.

Paine, Hamblen, Coffin, Brooke & Miller, Coeur d'Alene, Idaho, attorney for respondents Siemsen and Peterson. Ausey H. Robnett, III argued.

BOYLE, Justice.

This appeal is from a decision of the Industrial Commission which denied Ethel Marie Jensen unemployment compensation benefits. The appeals examiner for the Department of Employment held that Jensen (hereafter "claimant") had been subjected to sexual harassment and therefore had reasonable cause to resign her position. However, the appeals examiner denied unemployment compensation benefits to claimant because she failed to explore all the reasonable alternatives prior to terminating her employment.

Pursuant to I.C. § 72-1368(g), the Industrial Commission heard this matter de novo based upon the record of the proceedings before the Department of Employment appeals examiner. No additional evidence was admitted and the Commission issued its findings and conclusions denying benefits to claimant. The Commission held that the claimant failed to prove that she was sexually harassed and therefore lacked good cause for terminating her employment. We affirm the Commission's decision.

From March 17, 1986, until she left her employment on February 17, 1987, claimant worked as a secretary and receptionist for respondent physicians, Dr. F.H Siemsen, M.D., and Dr. R.N. Peterson, M.D. The claimant resigned her position alleging sexual harassment by Dr. Siemsen. The claimant complained of conduct by Dr. Siemsen which she found offensive and considered to be sexual harassment. In a hearing before the appeals examiner she testified that on several occasions Dr. Siemsen had unzipped his pants, ostensibly to tuck in his shirt, and claimed he would then manipulate his genitals and appeared to be masturbating. Claimant also alleged improper touching by Dr. Siemsen and that he often made sexual innuendos directed toward her.

Several co-employees, including the office manager, testified that they too had witnessed the shirt tucking behavior. One other witness testified that Dr. Siemsen appeared to be masturbating when tucking in his shirt and a former employee testified that he had touched her inappropriately. The office manager testified that she had received complaints from claimant and from other employees concerning this conduct. Dr. Siemsen acknowledged occasionally unzipping his trousers and tucking in his shirt while in view of his office staff. However, he denied that he was touching his genitals at this time or that he was aware that his conduct in tucking in his shirt was offensive to his employees. He also testified that he had no recollection of touching the claimant in an offensive manner. With regard to the alleged sexual innuendos, he stated that they were intended to be humorous and that the claimant generally laughed. Dr. Peterson stated that he was aware of Dr. Siemsen's shirt tucking actions and that it was offensive to some employees, but that he never saw Dr. Siemsen touch his genitals while engaging in this conduct.

Claimant testified that she complained to the office manager, concerning these incidents but Dr. Siemsen was never told about her complaints. Claimant testified that on January 6, 1987, she told Dr. Peterson about the incidents and stated she would be terminating her employment. Dr. Peterson testified that the claimant never used the term "sexual harassment" during this conversation. Dr. Peterson testified that on February 16, 1987, the day before claimant terminated her employment, she told him that she had been sexually harassed. Claimant discussed her concerns and allegations of sexual harassment with Dr. Siemsen on February 17, 1987, the last day of her employment. Thereafter, claimant left her employment at the doctors' office and filed this claim for unemployment compensation benefits.

I. Scope of Judicial Review

The Court's review of unemployment compensation cases is limited by the Idaho Constitution and prior decisions of this Court to reviewing only questions of law. Idaho Const. art. 5, § 9; Puckett v. Idaho Dep't of Corrections, 107 Idaho 1022, 695 P.2d 407 (1985); Parker v. Saint Maries Plywood, 101 Idaho 415, 614 P.2d 955 (1980); Harris v. Green Tree, Inc., 100 Idaho 227, 596 P.2d 99 (1979); Simmons v. Department of Employment, 99 Idaho 290, 581 P.2d 336 (1978); Booth v. City of Burley, 99 Idaho 229, 580 P.2d 75 (1978); Hutchinson v. J.R. Simplot Co., 98 Idaho 346, 563 P.2d 404 (1977). Furthermore, our review in cases involving factual disputes is restricted to determining whether findings of fact by the Industrial Commission are supported by substantial and competent evidence in the record. Burnside v. Gate City Steel Corp., 112 Idaho 1040, 739 P.2d 339 (1987); Ullrich v. Thorpe Elec., 109 Idaho 820, 712 P.2d 521 (1985); Booth v. City of Burley, 99 Idaho 229, 580 P.2d 75 (1978). As stated in Booth, we decline to "independently adopt findings of fact at variance with those of the Industrial Commission where such findings are supported by substantial and competent evidence in the record." 99 Idaho at 232, 580 P.2d at 78. Where the factual findings of the Industrial Commission are sustained by substantial and competent, though conflicting evidence, they will not be reversed on appeal. Kyle v. Beco Corp., 109 Idaho 267, 707 P.2d 378 (1985); Wood v. Quali-Dental Clinics, 107 Idaho 1020, 695 P.2d 405 (1985); Cornwell v. Kootenai County Sheriff, 106 Idaho 823, 683 P.2d 859 (1984).

In I.C. § 72-1368(g), the legislature provided for a de novo review before the Industrial Commission based upon the record of the proceedings before the appeals examiner. The Industrial Commission's responsibility and scope of review in employment compensation claims is clearly set forth in I.C. § 72-1368(g) which provides in pertinent part:

The record before the Commission shall consist of the record of proceedings before the appeals examiner, unless it appears to the Commission that the interests of justice require that the interested parties be permitted to present additional evidence. In that event, the Commission may, in its sole discretion, conduct a hearing to receive additional evidence or may refer the matter back to the appeals examiner for an additional hearing and decision. On the basis of the record of proceedings before the appeals examiner as well as any additional evidence, if allowed, the Commission shall affirm, reverse, modify, set aside or revise the decision of the appeals examiner or may refer the matter back to the appeals examiner for further proceedings.

In reviewing the instant case, the Industrial Commission complied with the direction of the legislature by reviewing the record of the proceedings before the appeals examiner. No additional evidence was presented during the Commission's review.

The applicable rule used to determine whether a claimant is entitled to unemployment compensation benefits is set forth in I.C. § 72-1366(e). Unemployment benefits may be awarded if:

His unemployment is not due to the fact that he left his employment voluntarily without good cause connected with his employment, or that he was discharged for misconduct in connection with his employment.

Idaho law provides that claimant is eligible for unemployment compensation benefits, although she voluntarily terminated her employment, if she did so with "good cause," Burroughs v. Employment Sec. Agency, 86 Idaho 412, 387 P.2d 473 (1963); Ellis v. Northwest Fruit & Produce, 103 Idaho 821, 654 P.2d 914 (1982); Boodry v. Eddy Bakeries Co., 88 Idaho 165, 397 P.2d 256 (1964), and explored all viable options prior to terminating her employment, Ellis v. Northwest Fruit & Produce, 103 Idaho 821, 654 P.2d 914 (1982); Fong v. Jerome School Dist., 101 Idaho 219, 611 P.2d 1004 (1979); Rogers v. Trim House, 99 Idaho 746, 588 P.2d 945 (1979). In order to constitute good cause, the circumstances which compel the decision to leave employment must be real, not imaginary, substantial, not trifling, and reasonable, not whimsical; there must be some compulsion produced by extraneous and necessitous circumstances. The standard of what constitutes good cause is the standard of reasonableness as applied to the average man or woman. Burroughs v. Employment Sec. Agency, 86 Idaho 412, 387 P.2d 473 (1963). The test used to determine good cause is whether a reasonable person would consider the circumstances resulting in a claimant's unemployment to be real, substantial and compelling. Meyer v. Skyline Mobile Homes, 99 Idaho 754, 589 P.2d 89 (1979).

The burden of proving and establishing statutory eligibility for unemployment benefits rests with the claimant. Pyatt v. Idaho State Univ., 98 Idaho 424, 565 P.2d 1381 (1977). Thus, in the present case claimant had the burden to prove that the conduct exhibited by Dr. Siemsen created good cause for her to voluntarily leave her employment. Additionally, claimant must also prove that she pursued all reasonable alternatives prior to terminating her employment.

In its findings of fact and conclusions of law, the Commission concluded:

Claimant did not have good cause to leave her employment. While the atmosphere in Dr. Siemsen's office may have been unprofessional at times, it did not rise to the level of sexual harassment. The Commission concludes that the Claimant failed to prove that she was sexually harassed by her employer. The Commission concludes that Claimant has failed to prove that good cause existed for her to...