STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
DEBBIE BURKWALD, Complainant
GRANNY'S RESTAURANT, Respondent A
LEANNE WICK, Respondent B
BRIAN WICK, Respondent C
FAIR EMPLOYMENT DECISION
ERD Case No. 199512133 (formerly No. 199500102)
EEOC Case No. 26G950576
An administrative law judge 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 administrative law judge. Based on the applicable law, records and evidence in this case, the commission makes the following:
FINDINGS OF FACT
1. Granny's Restaurant is an unincorporated proprietorship owned by Leanne Wick and her husband, Brian Wick.
2. From 1987 until October 12, 1994, the restaurant was managed and supervised by an individual named Kay LaCount. Brian Wick supervised the restaurant during Ms. LaCount's absences from work, and he took over Ms. LaCount's supervisory duties after her employment was terminated. Leanne's Wick's role in operating the restaurant was primarily limited to bookkeeping and administrative functions.
3. The complainant, a female, began working for the respondents in January of 1994 as a waitress.
4. Brian Wick enjoyed telling jokes which had a sexual connotation and believed that this made the work place more fun. Leanne Wick was generally aware that her husband engaged in such conduct.
5. The respondents had no policy or procedure in place by which employes could file internal complaints about sexual harassment and employes generally directed such complaints to Ms. LaCount. During the course of her employment Ms. LaCount received a number of complaints about Mr. Wick's behavior. In her last four months of employment Ms. LaCount received two such complaints, which she relayed to Leanne Wick. At some point Ms. Wick advised her husband that he should watch his mouth.
6. On one occasion in August of 1994 Mr. Wick brought a gun into the restaurant, which he had borrowed from a friend and intended to bring with him on a fishing trip. Mr. Wick kept the gun with him in the kitchen for some time and showed it off to his employes before placing it in the restaurant safe. At one point Mr. Wick put the gun in his pants and told the complainant, "Feel this. It's hard and it's loaded."
7. Later that day the complainant notified Ms. LaCount that Brian Wick had a gun in his pants and that she found it disgusting. Ms. LaCount subsequently notified Leanne Wick that the complainant had said her husband brought a gun into the restaurant, but did not report any specific details of the incident and did not tell Mrs. Wick that the complainant was upset about the matter.
8. On one occasion in November of 1994, Mr. Wick held a meat thermometer and remarked to the complainant, "I want to probe you."
9. On another occasion during the same month, the complainant asked for a raise and Mr. Wick responded, "Bend over, I'll give you a raise that you deserve."
10. On a separate occasion a customer told the complainant she was doing a good job and the complainant stated, "Maybe you can put in a good word for me and get me a raise." Mr. Wick again commented, in the presence of customers, that if the complainant would bend over he would give her a raise.
11. The respondent had no specific rules or guidelines to determine whether or when its employes would receive salary increases. The complainant did receive a salary increase shortly after she requested one.
12. In December of 1994 the complainant was either complaining about her tips or asking for a Christmas bonus when Mr. Wick responded, "Suck my dick and I'll give you thirty bucks."
13. The complainant did not solicit or welcome any of the above- mentioned remarks and found them to be upsetting.
14. The complainant contended that on the morning of January 5, 1995, Mr. Wick sexually assaulted her by squeezing her breasts while she was on the telephone. The complainant informed her co-workers of her allegations and also informed one of her co-workers that Mr. Wick had told her he was having a sexual relationship with the co-worker's daughter. After her shift ended, the complainant went to the police station and filed a sexual assault complaint.
15. The next morning when Mr. Wick arrived at work he learned that the complainant had been telling other workers that he assaulted her and that she told a co-worker he said he was sleeping with her daughter. Mr. Wick also learned that the complainant filed a police report alleging that he grabbed her breasts while at work and that other employes had been called to the police station to give statements. Mr. Wick then telephoned the complainant and told her not to bother coming back to work.
16. Mr. Wick's decision to discharge the complainant was motivated by the fact that she filed a police complaint alleging that he had sexually assaulted her at the workplace.
Based on the FINDINGS OF FACT made above, the commission makes the following:
CONCLUSIONS OF LAW
1. The respondents discriminated against the complainant by engaging in sexual harassment and implicitly or explicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment, within the meaning of Wis. Stat. § 111.36(1).
2. The respondents discriminated against the complainant by discharging her because she opposed a discriminatory practice, within the meaning of Wis. Stat. § 111.322(3).
3. The respondents did not discriminate against the complainant in compensation or in other terms, conditions and privileges of employment because of sex, within the meaning of Wis. Stat. § 111.322(1).
4. The respondents did not discriminate against the complainant by terminating her employment because of sex, within the meaning of Wis. Stat. § 111.322(1).
Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:
ORDER
1. That the respondents shall cease and desist from engaging in unlawful sexual harassment or retaliation.
2. That Brian Wick shall attend and complete a training program covering the sexual harassment and anti-retaliation provisions of the Wisconsin Fair Employment Act.
3. That the respondents shall make the complainant whole for all losses in pay the complainant suffered by reason of its unlawful conduct. The parties have stipulated that this loss of pay amounted to $1,800 and that this amount shall not increase by interest. Any unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or the applicable welfare agency.
4. That the respondents shall pay the complainant's reasonable attorney's fees in the amount of $13,950 and costs in the amount of $1,832.64, for a total of $15,782.60 in reasonable attorney's fees and costs associated with this matter. A check in the amount of $15,782.60 shall be made payable jointly to the complainant and to Attorney Gregory B. Gill, Sr. and delivered to Mr. Gill.
5. Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin.
Dated and mailed: November 4, 1998
burkwde.rrr : 164 : 9
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
As the administrative law judge noted in his decision, the resolution of this matter requires an assessment of the credibility of witnesses. The commission believes that the credibility of the complainant's testimony is seriously compromised by numerous contradictions and clear embellishments therein. The commission is also inclined to doubt the complainant's version of events in those instances in which, in spite of having identified specific witnesses, the substance of her allegations could not be corroborated. After carefully reviewing the entire record in this matter and conferring with the administrative law judge regarding his impressions of witness credibility, (1) the commission is unpersuaded that the complainant was sexually assaulted as alleged.
However, even when removing the finding that the complainant was sexually assaulted and considering only those allegations which were undisputed or substantially supported by the record, the commission believes that the complainant has nonetheless established that she was subjected to illegal sexual harassment and, further, that she was discharged in retaliation for complaining about an act of sexual harassment.
The Wisconsin Fair Employment Act (hereinafter "Act") provides, in pertinent part:
111.36(1) Employment discrimination because of sex includes, but is not limited to, any of the following actions by an employer. . .
(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 employe, other than an employment decision that is disciplinary action against an employe 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 employe's work performance or of creating an intimidating, hostile or offensive work environment . . . .
The Act defines sexual harassment in the following manner:
111.32(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 employe's work performance or to create an intimidating, hostile or offensive work environment. (emphasis added)
In this case the complainant alleged and proved that Brian Wick engaged in unwelcome verbal conduct--the deliberate, repeated making of unsolicited comments of a sexual nature--and, further, that the respondents implicitly made or permitted acquiescence in sexual harassment to become a term or condition of employment, all in violation of the Act. Although the complainant was not able to prove her allegations of unwanted physical contact, it is undisputed that the respondent's owner, Brian Wick, deliberately and repeatedly made vulgar and obscene jokes and remarks, several of which were addressed personally to the complainant, and at least one of which was made in the presence of customers. The evidence also established that these remarks were unsolicited by the complainant and unwelcome by her. Consequently, the complainant has met her burden of establishing that the respondents discriminated against her because of sex, in violation of the law. (2)
In addition to proving that she was the victim of unlawful sexual harassment, the complainant also satisfied her burden of establishing that the she was subject to unlawful retaliation. Wisconsin Statute § 111.322(3) prohibits an employer from discharging or otherwise discriminating against any individual because he or she opposed any discriminatory practice under the Act or because he or she made a complaint, testified or assisted in any proceeding under the Act. Here, the complainant demonstrated that she engaged in statutorily protected oppositional activity in that she filed a police complaint alleging that her employer had sexually assaulted her while at work and that, once the employer learned of her complaint, she was immediately discharged. Given these facts, the commission is satisfied that the complainant met her burden of demonstrating that she was subjected to unlawful retaliation.
NOTE: The commission has rewritten the administrative law judge's decision to reflect that version of the facts which it believes is best supported by the record and to set forth its rationale for finding unlawful discrimination under that set of facts. Although the commission diverges from the administrative law judge's analysis in some respects, it agrees with the administrative law judge's ultimate conclusion that the complainant was discriminated against within the meaning of the Act, and finds that she is entitled to the same monetary remedy as that set forth by the administrative law judge.
In correspondence to the parties dated January 13, 1998, the commission directed the complainant's attorney to include with his brief any request for further attorney fees in conjunction with the petition for review. The complainant's attorney did not include a request for additional fees in his brief to the commission and to date has not submitted any such request. The commission, therefore, concludes that the complainant does not request additional attorney fees for work related to the petition for review, and no such fees will be awarded.
PAMELA I. ANDERSON, COMMISSIONER (Dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. I found the employe so wild in many of her allegations that she was incredible.
The gun incident is an example. She alleged that her supervisor had the gun sticking out through his zipper. The supervisor denied that and said that he had on an apron from his waist to his knees. The complainant's response was that she could tell when she pulled it out of his pants because it got caught on the button of his pants. I do not believe that the employe could have easily pulled the gun out if the supervisor was wearing the apron. She did not dispute that he was wearing the apron. The complainant's witness did not support her story.
I did not believe the post-discharge retaliation stories. The testimony that a local police officer was following her around at bumper to bumper distances to scare her are not to be believed.
I only credit the employer's version of the two comments about the raise. I do not believe that the supervisor was close to the complainant and I do not believe that she called him a pig. I credited the supervisor's version of the blow job story that he was talking about hookers.
I do not believe that these three incidents reach the level of sexual harassment under § 111.32(13) that is sufficiently severe to interfere substantially with the employe's work performance or to create an intimidating, hostile or offensive work environment.
I did not believe that the employer intentionally touched her when the complainant says he grabbed her breast. It is possible that he brushed against her as he passed her. I believe the co- worker would have noticed that if the supervisor had grabbed her breast the way the complainant alleged. I do not believe that the employer retaliated against the employe when he fired her. I believe he fired her for bringing up untrue issues at the workplace - this included filing a false claim with the police but the firing was not for opposing any discriminatory practice.
While I believe that the supervisor was far from an ideal supervisor I also believe that the co-workers were candid in their statements about what occurred. They mentioned things that did not place the supervisor in the best light but most of their testimony backed his version of the events.
For these reasons, I would reverse the decision and dismiss the claim.
Pamela I. Anderson, Commissioner
cc: Gregory B. Gill, Sr.
Appealed to Circuit Court. Affirmed September 23, 1999.
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Footnotes:
(1)( Back ) In the complainant's brief to the commission her attorney maintains, without citation, that it is well settled law in Wisconsin that, absent a showing of extreme prejudice, the commission is required to defer to the administrative law judge's credibility assessments. However, the commission is the ultimate finder of fact and may substitute its own credibility determination for that of the administrative law judge. See Hoell v. LIRC, 186 Wis. 2d 603, 613, 522 N.W.2d 234 (Ct. App. 1994).
(2)( Back ) The dissenting commissioner writes that the respondent's actions did not "reach the level of sexual harassment under 111.32(1) that is sufficiently severe to interfere substantially with the employe's work performance or to create an intimidating, hostile or offensive work environment." However, the Act does not require the complainant to establish that she was subjected to sexual harassment that substantially interfered with her work performance or created a hostile working environment, and the majority's conclusion that the respondents engaged in unlawful sexual harassment is not premised on such a finding.