STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

KRISTIN GUTKOWSKI, Complainant

DOWNTOWN BOOKS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200503798


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed March 21, 2008
gutkokr . rsd : 125 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

Kristin Gutkowski petitions for commission review of the ALJ's decision, which concluded that Gutkowski had failed to prove probable cause to believe that the respondent Downtown Books violated the WFEA by engaging in or permitting sexual harassment, terminating her employment because of sex or discharging her because she opposed a discriminatory practice under the WFEA.

On appeal, Gutkowski asserts that she believes the ALJ's findings of fact and conclusions of law are contrary to the evidence presented and that probable cause exists to believe that discrimination has occurred. However, Gutkowski has not provided any specific indication as to why she believes any finding of fact or conclusion of law made by the ALJ is contrary to the evidence, nor has she identified any evidence presented that she believes establishes that probable cause exists to believe discrimination has occurred. Nevertheless, the record in this matter has been reviewed for the purpose of determining whether the ALJ's findings of fact and conclusions of law are supported. Concluding that they are, the commission has adopted them as its own.

Downtown Books is a bookstore that carries a wide variety of books and magazines, including pornographic material and magazines with pictures of bikini-clad women on the cover. Keith Pajot is the owner of the respondent. Gutkowski, who had been a customer of the respondent, began working for the respondent in August of 2003. Gutkowski primarily worked on the first floor at the front desk buying and selling books. Gutkowski did not have any responsibility to stock or shelve items in the pornographic section of the store. Gutkowski last worked for the respondent on July 21, 2005.

Gutkowski alleges that she was subjected to sexual harassment in violation of the WFEA. Specifically, she alleges that on numerous occasions a co-worker, Alexander Trifunovich, described to her in detail pornographic movies he had watched, "pushed pornographic pictures in her face", told sexually explicit jokes, talked about pornography and made sexually explicit comments to her. She alleges that Trifunovich first started talking to her about pornography three or four months before she left the employ of the respondent. Further, Gutkowski alleges that on or about July 15, 2005, Trifunovich posted pornographic pictures of women (two large posters and 10 small pictures) in an upstairs section of the store where customers had a clear, uninhibited view.

The evidence fails to support Gutkowski's allegations. The posters that Gutkowski objected to were on the third floor of the store in an area where Trifunovich worked, which was a raised stage area accessible by going up three steps and that had a "Keep Out" sign on an easel at the top of the steps. Gutkowski primarily worked on the first floor, only went to Trifunovich's area of the store once or twice a week and would not necessarily see these posters when she did go up to the third floor. In any case, Pajot, who learned about Gutkowski's objection to the pictures in Trifunovich's work area, understood that it was the two large posters that Gutkowski found objectionable. Pajot described the two posters as just sexy pictures of two movie stars that were not pornographic. Nevertheless, when Gutkowski came to work on her next scheduled work day, Tuesday, July 19, Pajot informed her that he was having the pictures removed. Furthermore, it was not until then that Pajot first learned about Gutkowski's complaints about Trifunovich making sexual comments and jokes to her. Pajot promised that he would talk to Trifunovich and tell him point-blank that he was not to make any sexual comments or jokes to her and to leave her alone. Asked if everything was okay now, Gutkowski stated that it was.

Gutkowski worked her scheduled shifts on July 19 and 20 and did not have any problem with any sexual comments or statements being made to her by Trifunovich, nor did she indicate any problem with any pictures in his work area.

Gutkowski alleges that when she reported to work on July 21, 2005, she discovered that "the pornography was still on the wall." Gutkowski alleges that shortly thereafter when Pajot arrived for work she asked him why the pictures were still on the wall and that Pajot responded, "What's your fucking problem? I looked at the posters and they're not so bad." Gutkowski alleges that Pajot gave her two options: (1) continue to work in the store without any remedial actions being taken; or (2) be terminated. Gutkowski alleges that she could not continue to work in a store where her complaints against pornography were ignored, and thus, she was constructively discharged. Further, Gutkowski alleges that the respondent retaliated against her for complaining about pornographic pictures hanging on the wall and about a hostile work environment.

The evidence fails to support Gutkowski's allegations. First of all, the ALJ credited Pajot's testimony as to what transpired on July 21, 2005, and the sequence in which those events happened that day. Specifically, the ALJ found as follows:

22. On Thursday, July 21, 2005, Gutkowski went to work as she normally did. After Gutkowski arrived at work, Pajot also arrived at work. At some point on the morning of July 21, 2005, Pajot discussed with Gutkowski that Pajot would like to change Gutkowski's days off to Saturday and Sunday. Pajot explained that he would then have Trifunovich work on Saturday and be off on Monday. Gutkowski told Pajot that she liked working on Saturdays and having one of her off days during the week. Pajot told Gutkowski that he would like Trifunovich to work on Saturdays, so Trifunovich could price comic books. Gutkowski insisted that she did not want to change her work schedule. Pajot decided not to continue discussing the issue with Gutkowski. Pajot told Gutkowski that he was going to work the front desk and that Gutkowski could work shelving books on the first floor.

23. At some point after Pajot told Gutkowski to work on the first floor shelving books, Pajot noticed that he had not seen Gutkowski for some time.

24. After Pajot told Gutkowski to put away books on the first floor, Gutkowski decided to go up to the third floor to see if the pictures to which she had objected were still up. Gutkowski was angry when she saw that some of the pictures of women wearing bikinis were still hanging up in Trifunovich's work area. Gutkowski then began tearing up the pictures in Trifunovich's work area and throwing them in pieces on the floor.

25. After tearing up the pictures in Trifunovich's work area on the third floor, Gutkowski came down to the first floor and confronted Pajot. Gutkowski angrily asked Pajot why he did not take down the pictures. Pajot said that he did take the pictures down. Pajot got angry and told Gutkowski that he did not know what the "fuck" her problem was. Pajot told Gutkowski that he had looked at the pictures and he did not think they were that bad. Gutkowski told Pajot, "This is bullshit. I quit. I am getting a lawyer." Pajot replied, "Fine. Give me the keys." Gutkowski gave Pajot her keys to the bookstore and left. Gutkowski never worked at Downtown Books after she left the store on July 21, 2005.

The commission finds no compelling reason to question the ALJ's findings.

Second, as further found by the ALJ, the pictures of bikini-clad women in Trifunovich's work area were the same as what would be found on the cover of standard magazines and would not be considered "offensive sexually graphic materials" by a reasonable person, nor would a reasonable person have believed that the working conditions caused by Trifunovich's pictures in his third-floor work area were so intolerable that the person had no choice but to quit their employment. Indeed, Pajot described these pictures as no worse than what you would see while standing in line at Pick 'N Save.

Finally, the record simply provides no reason to believe that the respondent retaliated against Gutkowski because she complained about alleged pornographic pictures hanging on the wall or about a hostile work environment. 
 

cc: Attorney Shannon D. McDonald 
 


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uploaded 2008/03/24