STEVEN E ABRAHAMSON, Complainant

BASIC AMERICAN FOODS, Respondent

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 conclusions in that decision as its own, except that it makes the following modification:

The first sentence in paragraph 2 of the FINDINGS OF FACT is deleted and the following sentence is substituted therefor:

"Abrahamson, a male individual, was employed by BAF from October 15, 1999, until sometime after he completed and mailed his discrimination complaint in this matter."

This modification was made to make this finding better conform to the evidence.

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

Dated and mailed February 27, 2009
abrahst . rmd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

Steven Abrahamson, a male, alleges that because of an incident at work around the end of June 2006 and a second incident on August 14, 2006, while he was at a hospital for a work-related injury, the respondent discriminated against him in violation of the Wisconsin Fair Employment Act by engaging in or permitting sexual harassment. Abrahamson also alleges that the respondent violated the WFEA by discriminating against him in his terms and conditions of employment because of his sex.

The WFEA provides, in relevant part, that "Sexual harassment" means, among other things, "unwelcome verbal...conduct of a sexual nature", which the Act defines as including "the deliberate, repeated making of unsolicited...comments of a sexual nature...or deliberate verbal...conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employee's work performance or to create an intimidating, hostile or offensive work environment." Wis. Stat. § 111.32(13).

In June 2006 Dave Caldwell was in training for a position that would result in Caldwell becoming Abrahamson's supervisor. In June 2006, while in the respondent's control room Caldwell said "Hey Steve", to which Abrahamson replied, "What's up", and then Caldwell responded, "My penis until you walked in." Seeing that Abrahamson looked a bit shocked, Caldwell told Abrahamson that if he was offended he (Caldwell) apologized. Abrahamson stated that he was offended and Caldwell then stated that he was very sorry. When the incident was brought to the attention of Dennis Greco, Caldwell's supervisor, Greco conducted an investigation which included meeting with Abrahamson and two of his co-workers and then Caldwell. Greco instructed Caldwell to use a more professional approach in the future. Greco considered the incident to be resolved and several weeks later when he asked Abrahamson how things were going Abrahamson told him things were going well.

On August 14, 2006, Abrahamson sustained an injury at work. Company policy requires that an employee undergo a drug and alcohol test after a work-related injury. Caldwell took Abrahamson to the hospital. Abrahamson had difficulty providing a urine sample. Caldwell stated in the presence of Abrahamson and the lab technicians that they should catheterize Abrahamson, and related that when the military first started doing urinalysis tests they would catheterize you if you could not urinate and that the people assigned to watch you go to the bathroom were called "meat gazers". Abrahamson asserts that Caldwell begged and pleaded with the lab technicians to use a catheter and that "I flashed back to the penis comment [Caldwell] had made to me about a month prior. I felt threatened and terrified once again."

In his Memorandum Opinion, with respect to Abrahamson's claim of sexual harassment, the ALJ stated, in part, as follows:

For many reasons, including the implausibility of some of his claims, Abrahamson is not a credible witness. However, even accepting Abrahamson's version of the entire chain of events, Mr. Caldwell's statement in the control room and the catheterization comments at the lab are the only two incidents that comprise his sexual harassment claim....

Arguably, Mr. Caldwell's comments at the lab are not sexual in nature. Assuming, for the sake of argument, they are, we have two statements, some six weeks apart, which are sexual in nature. The vulgarity of the first cannot be denied. The tastelessness of the second (either version) cannot be understated. Interpreting them to fit the definition of sexual harassment cannot be accomplished. Abrahamson's claim of sexual harassment fails.

The commission agrees. While the "penis comment" was sexual in nature, the evidence indicates that Caldwell's comment was nothing more than an offhand comment, which Caldwell immediately apologized for making, that was neither sufficiently severe to interfere with Abrahamson's work performance, nor to create an intimidating, hostile or offensive work environment. Second, in view of the circumstances in which Caldwell's catheterization comments were made, it is extremely difficult to view them as sexual in nature. Abrahamson was having difficulty providing a urine sample at a hospital, and Caldwell related information about his experience in the military and suggested that Abrahamson be catheterized. Furthermore, to the extent the comments Caldwell made at the hospital could be viewed as sexual in nature there is no reason to believe those comments interfered with Abrahamson's work performance or created an intimidating, hostile or offensive work environment.

Finally, since Abrahamson provided no evidence that females were treated more favorably in their terms and conditions of employment than he, this claim fails.

cc: Attorney Brian G. Formella

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