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04/14/95 HOMER KELLY v. LENORA W. PATE

April 14, 1995

HOMER KELLY
v.
LENORA W. PATE, DIRECTOR, DEPARTMENT OF INDUSTRIAL RELATIONS; DEPARTMENT OF INDUSTRIAL RELATIONS; AND EAST ALABAMA MEDICAL CENTER



Appeal from Lee Circuit Court. (CV-93-346). Robert M. Harper, TRIAL JUDGE.

Rehearing Denied May 19, 1995. Certiorari Denied August 11, 1995. Released For Publication February 5, 1996.

Thigpen, Judge, Robertson, P.j., and Yates, Monroe, and Crawley, JJ., concur.

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

This is an unemployment compensation case.

Following prior warning, Homer Kelly's employment by East Alabama Medical Center (hospital) was terminated in November 1992, for work-related misconduct. The record discloses that the misconduct involved inappropriate behavior toward a co-worker and alleged sexual harassment. After Kelly's request for unemployment compensation was initially granted by a claims examiner, the hospital appealed to the appeals referee, who determined that the claims examiner's decision was correct. The hospital then appealed to the Board of Appeals of the Department of Industrial Relations (Board). The Board reversed the appeals referee's decision and denied him unemployment benefits. Kelly filed a complaint for a trial de novo. Following ore tenus proceedings, the trial court found that Kelly's employment was terminated for cause after warning, and that, pursuant to Ala. Code 1975, § 25-4-78(3)(b), Kelly was disqualified from receiving unemployment benefits. Kelly's post-judgment motion was denied; hence, this appeal.

The dispositive issue on appeal is whether there was sufficient evidence for a determination that, pursuant to Ala. Code 1975, § 25-4-78(3)(b), Kelly was disqualified from receiving unemployment benefits.

Kelly testified that part of his duties included training new co-workers on his shift, and that in October 1992, a female co-worker he was training alleged that he had sexually harassed her. He testified that he had been previously accused of sexual harassment in 1991 by another female co-worker, resulting in a written warning being placed in his personnel file. The memo regarding that incident, which was received into evidence without objection, was signed by Jack Mitchell, director of environmental services, and witnessed by James Counts, Kelly's supervisor. That memo states:

"Several complaints have been registered against Homer Kelly by female hospital employees. The complaints are sexual in nature and consist of the following:

"1. Offering Money for sexual favors.

"2. Asking for dates.

"3. Hand gestures with his crotch.

"4. Conversations centered around sex.

"Wednesday, September 11, 1991, I counseled Mr. Kelly regarding his conduct especially in the presence of ladies. Any verbal or physical gestures that are sexual in ...


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