Steffen v. Davison, Copple, Copple & Copple

*135BISTLINE, Justice,

concurring specially.

The finding made by the appeals examiner and adopted by the Industrial Commission that Donna Steffen is ineligible for unemployment benefits is most troubling as it turns largely on the fact that the appeals examiner simply did not believe that Steffen was reasonable in her reaction to certain stressful events that occurred while she was working at Davison, Copple, Copple and Copple. While it is clear that Steffen could not withstand the stress, the appeals examiner found that the mythical “average man or woman” would have been able to. What is reasonable and what is “overly sensitive” (in the words of the appeals examiner) can be an exceedingly difficult judgment to make, requiring in essence a determination whether the frustrated employee was or was not psychologically tough enough.

At the hearing before the appeals examiner Steffen presented considerable evidence demonstrating the precariousness of her job situation, which Terry Copple, her supervising attorney, and Joyce Johnson, the office manager, attempted to downplay. Steffen became uneasy about her job security when one week after she arrived one of the firm’s secretaries with three years of employment at the firm was fired for making too many errors. That firing reduced the number of secretaries from four to three. Another secretary, Barbara Feasel, was due to return to the firm in the near future after a maternity leave. This worried Steffen because one of the firm’s lawyers, Scott Ludwig, told her that there was not work for four secretaries and that the senior partner, Robert Copple, would not allow four secretaries in the office. Tr. 23. Joyce Johnson and Scott Ludwig told Steffen that Barbara Feasel would not be coming back to work. However, when Steffen called Feasel, Feasel insisted that she was coming back, that she had three years seniority, that the firm had paid for two months of maternity leave, and that Don Copple, the attorney in charge of personnel decisions, had assured her that she had a job when she came back from maternity leave. Tr. 23.

Steffen believed that no one was giving her straight answers about her future at the firm, and that she could not talk to the senior partner, Robert Copple, about the problem. On this issue of whether or not Steffen could have talked to the senior partner about her job security, Joyce Johnson, the loyal office manager who was called as a witness by the law firm, testified as follows:

EXAMINER: Did you ever tell her she would be fired on the spot if she ever went in and talked to Robert Copple?
A. I may have said that there was a girl, that I was told in the past, prior to my employment, that tried to discuss a personal office, I guess, problem with him and he did not like it. He more or less let her go pretty much on the spot. But I don’t recall telling her that she would be fired on the spot.

Tr. 87. In that equivocating response is found a substantial degree of truth supporting the claimant’s worries.

Steffen decided to leave the job the day after the incident occurred involving the “joke” made by her supervising attorney occurred. Steffen testified:

A. Okay. On Thursday morning, Terry Copple had been at my desk and I had asked him what this piece of yellow paper was for. There was a name and a phone number on it. He grabbed it and wadded it up and threw it away and he just laughed and he said, ‘Well, I just leave those things laying around to make you think you’re losing your mind.’
Q. Did you ask if he was joking?
A. Well, he was standing there laughing like he was joking. To him it’s a joke. To an employee it’s not a joke. When she knows that he has already done that to another employee.

Tr. 25-26.

The appeals examiner simply was not persuaded by any of Steffen’s testimony and ruled that Steffen was overly sensitive to the situation and had not proved that her only alternative was to leave the job. While this conclusion appears to be rather *136unfair and callous, the factual findings of the appeals examiner, as adopted by the Industrial Commission, will not be reversed on appeal when supported by substantial and competent evidence in the record. Jeri-sen v. Siemsen, 118 Idaho 1, 794 P.2d 271 (1990). As there was testimony that tended to minimize the seriousness of Steffen’s concerns, it cannot be said that there was not substantial evidence to support the appeals examiner’s findings. Equally substantial evidence supports the claimant. The appeals examiner obviously found Donna Steffen’s testimony to be less than credible, and a majority of this Court’s members decline to intervene.

Accordingly, I bow to the weight of past and present authority and concur, albeit not without reluctance.