Public Service Co. of Indiana, Inc. v. Review Bd. of Indiana Employment Sec. Div., 2-1281A401
| Decision Date | 28 July 1983 |
| Docket Number | No. 2-1281A401,2-1281A401 |
| Citation | 451 N.E.2d 371 |
| Parties | PUBLIC SERVICE COMPANY OF INDIANA, INC., Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, David L. Adams, and Paul M. Hutson, as members of and as constituting the Review Board of the Indiana Employment Security Division, and R.T. Crutcher, Appellees. |
| Court | Indiana Appellate Court |
R. Brent Gambill, Plainfield, for appellant.
Linley E. Pearson, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellees.
Employer, Public Service Company of Indiana (PSCI), appeals the decision of the Review Board of the Indiana Employment Security Division awarding claimant R.T. Crutcher (Crutcher) unemployment benefits on grounds that he had been discharged without good cause.
We reverse.
We are confronted with essentially one issue for review: whether the Board erred as a matter of law in requiring the employer to introduce corroborating evidence to sustain its burden of proving by a preponderance of the evidence that Crutcher had sexually harassed two fellow employees.
The evidence adduced at the hearing before the appeals referee indicated that Crutcher was employed by PSCI as a janitor from December 21, 1979 through June 22, 1981.
Betsie Routh testified that on June 18, 1981 at approximately 7:30 p.m., she and another employee, Becky Steinbaker were observing a company softball game when they left briefly to use the restroom on the PSCI premises. Upon entering the restroom, they saw Crutcher inside cleaning. Crutcher stated that he had asked them to use another restroom but that they insisted on using this one. This was contradicted by the female employees.
As Betsie Routh left the restroom and while Becky Steinbaker was still inside, she saw Crutcher standing immediately outside. She walked up to him and he allegedly made a comment about her shorts, and her halter top. She stated that he also asked her how she acquired her sunburn, and after she told him how, he reached out his hand and stroked her around her rib cage, on her shoulder, and down her arm as she started to walk away. Ms. Steinbaker soon came out and told her that Crutcher had patted her buttocks. Ms. Steinbaker's testimony essentially corroborated Ms. Routh's testimony. Both women were offended by such behavior and reported the incident to security officer, Dale Jordan, who subsequently made a written report to Samuel Johnson, manager of general headquarters and field facilities.
Mr. Johnson, along with an affirmative action officer and an administrative director held a conference on June 22, at which time Crutcher was questioned about the incident. According to Johnson, Crutcher initially denied either speaking to or touching the female employees, however, upon further questioning, Crutcher later admitted speaking to them.
James Zellers, Crutcher's immediate supervisor, testified that he had previously reprimanded Crutcher for allegedly patting another female employee's buttocks. Crutcher had maintained that he had only touched her arm.
Crutcher denied having spoken or touched Betsie Routh and Beckie Steinbaker. Because Crutcher violated the employer's rule against sexual harassment on at least two occasions, Crutcher was given the option of either resigning or being discharged. Crutcher resigned. 1
In the appeals referee's findings of facts, which were adopted by the Board, he stated:
Record at 99 (emphasis supplied).
However, in the section entitled "Conclusions of Law," the referee made these observations:
"I find that the claimant was discharged, but not for proven just cause within the meaning of the Indiana Employment Security Act . The allegations made against the claimant can be divided into two specific acts. The first act involved a female co-worked who exited the restroom first. She alleges that the claimant touched her right side and rubbed her rib cage toward the mid-section of her body. As she attempted to walk away from the claimant, he placed his hand on her shoulder and as she was moving away from him, let his hand trail down her arm until she was out of his reach. She indicates that the claimant did not grab or try to restrain her, but that there was an unauthorized touching. No one else witnessed this event. While she waited for her friend in a slightly removed area, she could not see what transpired when her friend exited the restroom. The second female to exit, indicates that as she left the restroom, the claimant patted her on her "butt". Again, no one witnessed this unauthorized touching. The employer conducted an investigation of these allegations after the two women had reported this incident the following day to security. The employer conducted a fact finding meeting which lasted between two and three hours. The claimant denied involvement in the incident with respect to the unauthorized touching. The claimant was given the option of resigning or being discharged. The claimant was found to be illiterate. The employer offered to draft a resignation statement for him. The claimant agreed and signed this document. Under these circumstances, the claimant cannot be held to have voluntarily left employment. The evidence establishes that the claimant left employment in lieu of imminent discharge which in effect is a discharge. The two female employees involved testified at the referee's hearing in this matter . The evidence they presented was credible. However, the burden of proof on a discharge case rests with the employer. Due to the fact that the two separate touching incidents were not witnessed by any other person besides those immediately involved, I find that the employer has failed to carry its burden of proof in this case. This finding is based upon the fact that in each incident, the allegation becomes in essence the female employees' word against the claimant's word. As previously stated, the claimant denies each and every material allegation made against him by each of the two female employees. Without corroborating...
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