MARY F PLACE, Complainant
WACKENHUT CORPORATION, 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 modifications:
Numbered paragraph 3. of the FINDINGS OF FACT section on page 2 of the decision is deleted and the following substituted:
In 2002, Place requested a larger cold weather jacket be issued to her. Place's request did not mention the manner in which the cold weather jackets provided by Wackenhut fit women in general, only how the jacket issued to her fit her in particular. Shimulanas consulted with the training unit to determine whether the larger jacket would interfere with Place's ability to draw her weapon. After assurance from the training unit that it would not, Shimulanas granted Place's request for a larger jacket. Also in 2002, Place requested snow bibs sized for females, and was informed by Wackenhut that the snow bib vendor did not have separate snow bib sizes for females.
The second sentence of numbered paragraph 4. of the FINDINGS OF FACT section on page 2 of the decision is deleted.
In numbered paragraph 13. of the FINDINGS OF FACT section on page 3 of the decision, the reference to "2006," is changed to "2005."
The final two sentences in numbered paragraph 14. of the FINDINGS OF FACT section on page 3 of the decision are deleted, and the following substituted:
Ms. Gauthier was removed from her security lieutenant position because she had failed her weapons re-qualification test, and was then appointed to fill a vacant security specialist position. Ms. Gauthier's date of birth was July 5, 1952. She had supervisory and management experience, and was certified to be a task performance evaluator.
Numbered paragraph 16. of the FINDINGS OF FACT section on page 3 of the decision is deleted.
Numbered paragraph 3. of the CONCLUSIONS OF LAW section on page 4 of the decision is deleted.
The MEMORANDUM OPINION section on page 5 of the decision is deleted.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed September 25, 2009
placema . rmd : 115 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
I. AGE AND SEX DISCRIMINATION
A. Sexual Harassment
The complainant alleges the following acts of harassment:
The respondent argues that those acts in this list occurring prior to the 300-day actionable period, i.e., July 15, 2004 - May 11, 2005, should not be considered because the complainant's charge was not timely filed as to them.
The Wisconsin Fair Employment Act (WFEA) requires that a complaint be filed within 300 days of the date that the alleged discrimination occurred. Wis. Stat. § 111.39(1). This 300-day filing limit is not a jurisdictional prerequisite, but a statute of limitations which is subject to waiver, estoppel, and equitable tolling. See, Milwaukee Co. v. LIRC and Nancy Williams, 113 Wis. 2d 199, 335, N.W.2d 412 (Ct. App. 1983). See, also, Mittelsteadt v. AJ Air Express, ERD Case No. 199604033 (LIRC, Jan. 16, 1998).
In AMTRAK v. Morgan, 536 U.S. 101, 122 S.Ct. 2061 (2002), the U.S. Supreme Court identifies two classes of employment actions, i.e., discrete acts and harassing acts underlying hostile work environment claims. Its basic holding is that discrete acts are generally not subject to application of the continuing violation doctrine but that harassing acts generally are.
Here, the acts of alleged harassment, one of which falls within the actionable 300-day period, are concluded to be part of a continuing violation and timely charged as a result.
The WFEA provides as follows, as relevant here, in Wisconsin Statutes § 111.36(1):
(1) Employment discrimination because of sex includes, but is not limited to, any of the following actions by any employer,...:
(a) Discriminating against any individual in promotion, compensation paid for equal or substantially similar work, or in terms, conditions or privileges of employment or licensing on the basis of sex where sex is not a bona fide occupational qualification.
(b) Engaging in sexual harassment; or implicitly or explicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment; or making or permitting acquiescence in, submission to or rejection of sexual harassment the basis or any part of the basis for any employment decision affecting an employee, other than an employment decision that is disciplinary action against an employee for engaging in sexual harassment in violation of this paragraph; or permitting sexual harassment to have the purpose or effect of substantially interfering with an employee's work performance or of creating an intimidating, hostile or offensive work environment. Under this paragraph, substantial interference with an employee's work performance or creation of an intimidating, hostile or offensive work environment is established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct sufficiently severe or pervasive to interfere substantially with the person's work performance or to create an intimidating, hostile or offensive work environment.
(br) Engaging in harassment that consists of unwelcome verbal or physical conduct directed at another individual because of that individual's gender, other than the conduct described in par. (b), and that has the purpose or effect of creating an intimidating, hostile or offensive work environment or has the purpose or effect of substantially interfering with that individual's work performance. Under this paragraph, substantial interference with an employee's work performance or creation of an intimidating, hostile or offensive work environment is established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct sufficiently severe or pervasive to interfere substantially with the person's work performance or to create an intimidating, hostile or offensive work environment.
The WFEA defines "sexual harassment" in Wis. Stat. § 111.32(13) as follows:
(13) "Sexual harassment" means unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. "Sexual harassment" includes conduct directed by a person at another person of the same or opposite gender. "Unwelcome verbal or physical conduct of a sexual nature" includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical 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.
None of the conduct alleged here satisfies the definition of sexual harassment because none of the alleged conduct was sexual in nature. Although asking which security officers are pregnant, or why female officers take long bathroom breaks, could arguably be perceived as offensive, the content of these inquiries is not sexual in nature within the meaning of Wis. Stat. § 111.32(13). See, Braunschweig v. SSG Corp., ERD Case No. CR200400816 (LIRC Aug. 31, 2006).
The next question then is whether any of the conduct included as part of the complainant's sexual harassment allegation would come within the ambit of the language of Wis. Stat. § 111.36(1)(br).
The first requirement is that the conduct be directed at the individual claiming harassment because of her gender. Only the two earlier acts, i.e., the inquiries about pregnancy and bathroom breaks, satisfy this requirement.
The next requirement is that these acts are sufficiently severe and pervasive to create an intimidating, hostile or offensive work environment within the meaning of Wis. Stat. § 111.36(3)(br). These two acts, without more, do not come close to satisfying this requirement. In fact, even if all four of the acts of alleged harassment were considered, they do not, considered individually or as a whole, come close to meeting this standard.
The complainant failed to satisfy her burden to prove that she was sexually harassed as alleged.
B. Disparate Treatment-Terms and Conditions of Employment
The complainant alleges that she was treated less favorably than similarly situated younger male employees in regard to discipline she received in October of 2004.
The record shows that the complainant, Security Officer Tom Stangel, and Security Officer Claude Stangel received discipline for the same incident.
Although the record shows that Tom and Claude Stangel are male, it does not show their ages. As a result, the complainant failed to sustain her burden to show that age played any factor in the discipline.
Moreover, the record does not show that the complainant was treated less favorably than Tom or Claude Stangel in any material way. As hearing exhibits R-1, R-14, and R-15 show, all three received the same level of discipline, i.e., a level II written counseling reprimand. The complainant alleges that she was treated more "formally" than Tom or Claude Stangel, and, specifically, that her investigative interview was lengthier; her interview, unlike theirs, conducted in project manager Shimulanas' office; and her discipline imposed earlier than theirs, i.e., hers was imposed on October 19 and theirs on October 20 (Claude) and 22 (Tom). However, these differences represent an elevation of form over substance, and fail to establish any materially less favorable treatment of the complainant.
The complainant has failed to sustain her burden to prove that she was discriminated against on the basis of age or sex in regard to her terms and conditions of employment.
C. Disparate Treatment-Termination
Wisconsin courts, in the absence of the WFEA's establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985). See, also, Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003).
As stated by the court in Puetz:
McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).
In general, to establish a prima facie case of discrimination, a complainant must show that she was a member of a protected group and suffered the adverse action alleged, and that the relevant circumstances create an inference of discrimination, i.e., typically, that others not in the protected group were treated more favorably.
Although the complainant established that she was protected based both upon her age and her sex, the circumstances do not create an inference of discrimination, i.e., the record does not show that younger security officers or male security officers who failed any part of the weapons qualifying test three times retained their security officer positions.
The commission also notes that the record shows that the complainant tested under the same conditions as the others in her requalification class; other females, and other individuals in the protected age group, successfully passed the TWS test that day; and the individual who took the TWS test immediately after the complainant, using the same equipment, received a score of 20 out of 20.
The complainant, as a result, failed to prove a prima facie case of age or sex discrimination.
However, if, for purposes of argument, the complainant had proved a prima facie case, the respondent succeeded in articulating a legitimate, non-discriminatory reason for its termination of her employment in the security officer position, i.e., that she had failed to pass the TWS portion of the required weapons qualification test.
The burden would then shift to the complainant to show pretext.
The complainant first argues that pretext is demonstrated by the fact that, after failing twice to pass the thermal weapons sight (TWS) portion of the weapons qualifying test, she was not offered the same type of remedial training offered to security officer Pribek.
Although the record shows that Pribek is male, it does not show his age, so even if the record were to show a difference in treatment, it does not show that this difference resulted from age discrimination.
The administrative law judge did not credit Pribek's testimony that respondent proposed the remedial training he received, instead finding, consistent with training instructor Webber's testimony, that Pribek had approached Webber with a request for "extra practice." The commission has discovered no persuasive reason to overturn this credibility determination.
The re-qualification class in which the complainant participated before taking the TWS test for the third time is considered remedial training. Complainant argues, however, that Pribek received his remedial training through one-on-one instruction from Webber, but she received hers through participation in a multi-member class. The record shows, however, that, during most of the eight-hour re-qualification class, the complainant received one-on-one instruction. The record also shows that participation in a multi-member class was not an option for Pribek's remedial training since he was the only individual at that time who had failed the dim light handgun part of the weapons qualifying test.
The record also shows that, even though the complainant was offered additional training as part of her requalification class, she declined that additional training and opted instead to take the test.
The complainant also argues that pretext is demonstrated by the fact that Lieutenant Gauthier (Gauthier) was offered an unarmed security position when she failed the TWS test three times, but the complainant was not. Gauthier, however, is also female, and is older than the complainant. Consequently, any difference of treatment in this regard could not have been due to sex or age discrimination, and could not establish pretext. It should also be noted in this regard that the record shows that Gauthier was significantly better qualified than the complainant for the security specialist position to which she was appointed.
The record also shows in this regard that the complainant indicated to Shimulanas that she was not interested in a watch person position, and did not respond to Shimulanas's efforts to contact her to discuss her employment status after she failed the TWS test for the third time; and that, during the relevant time period, there were no vacant positions, other than the security specialist position to which Gauthier was appointed, for which the complainant may have been qualified.
The complainant further argues that the fact she was not offered a fourth opportunity to take the TWS test establishes pretext. However, the record does not show that this opportunity was offered to male or younger employees, or, in fact, to any employees; and does not show that anyone in the complainant's chain of command even had this authority.
The complainant failed to demonstrate that the reason offered by the respondent for her termination was a pretext for age or sex discrimination.
II. FAIR EMPLOYMENT RETALIATION
The complainant alleges that she was terminated in retaliation for engaging in certain protected fair employment activities.
In a retaliation case under the Wisconsin Fair Employment Act (WFEA), the employer's motivation is the ultimate issue. Callaway v. Madison Metro. School District, ERD Case No. 9101304 (LIRC, Nov. 27, 1996) In order to establish a prima facie case of retaliation, the employee must show (1) that she opposed an unlawful employment practice, (2) that she suffered an adverse employment action, and (3) that there was a casual connection between the opposition and the adverse action. Sarazin v. W & G Transport, ERD Case No. 199601006 (LIRC, March 9, 1999) This causal connection can be established by showing that the adverse employment action followed within a fairly short period of time after the protected opposition activity. Notaro v. Kotecki & Radtke, S.C., ERD Case No. 8902346 (LIRC July 14, 1993); Horton v. Hopkins Chemical Co., ERD Case No. 8822828 (LIRC, June 8, 1992), aff'd sub nom., Wis. Cir. Ct. Dane Co., April 28, 1993. The employer can rebut the prima facie case by showing a legitimate non-retaliatory reason for the adverse action, and the employee can prevail by showing that the proffered reason is merely a pretext for retaliatory conduct. Acharya v. Carroll, 152 Wis.2d 330, 448 N.W.2d 275 (Ct. App. 1989).
The record shows that the complainant engaged in a protected fair employment activity when she complained of sexual harassment to regional director Pallansch in April of 2005, and, due to the close proximity in time between this activity and her termination, established a prima facie case of retaliation. .
The respondent articulated a legitimate, non-discriminatory reason for the termination, i.e., the complainant's failure to pass the TWS portion of the required weapons qualifying test.
In addition, as set forth above in relation to the complainant's allegation of sex and age discrimination, she failed to show that the reason given by the respondent for her termination was pretextual. Any differences in the remedial training offered Pribek resulted from his request for additional training, and his status as the only individual who had failed the dim light handgun portion of the weapons qualifying test. The only vacant position for which the complainant may have been qualified at the time she failed the TWS test for the third time was a security specialist position for which Gauthier was better qualified and to which Gauthier was consequently appointed. Finally, no employee had been offered the opportunity to take a portion of the weapons qualifying test a fourth time.
The complainant failed to sustain her burden to prove that she was retaliated against as alleged.
cc: Attorney Michael J. Cieslewicz
[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]
uploaded 2009/10/02