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

SHANNON FAITH REDLIN, Complainant

GENERAC CORP, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199700732, EEOC Case No. 26G970738

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 26, 1999
redlish.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review, the complainant argues that the fact she subsequently worked as a topless dancer does not indicate she was not a victim of sexual harassment. The commission agrees that an individual who has worked as a topless dancer does not waive her legal protections against unwelcome sexual harassment in the workplace. However, notwithstanding the complainant's suggestion to the contrary, the administrative law judge's dismissal of this complaint was not predicated on the fact that the complainant worked as a topless dancer. Further, the commission agrees with the administrative law judge that the complainant failed to demonstrate unlawful sexual harassment, and has arrived at this conclusion without consideration of the complainant's subsequent employment. Consequently, the complainant's arguments on this point are unpersuasive.

Next, the complainant argues that the respondent failed to take any corrective action, which demonstrates a hostile environment. This argument also lacks merit. Under the Wisconsin Fair Employment Act, it is unlawful for an employer to permit 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. Wis. Stat. § 111.36(1)(b). In this case, the alleged sexual harassment consisted of a single incident in which a co- worker hugged the complainant and ran a finger down the front of her sweatshirt-- which bore a "B.U.M. Equipment" logo--making a quip about seeing whether her "equipment" was "bum." This isolated incident, while doubtless unpleasant for the complainant, cannot be considered sufficiently severe so as to interfere substantially with her work performance or to create an intimidating, hostile or offensive work environment. In the absence of evidence establishing that the complainant was subjected to sexual harassment which affected her work environment in the manner described above, there is no basis for finding that the respondent permitted a hostile work environment to prevail, whether or not it took corrective action in response to a complaint. Moreover, in this case the record indicates that, after the complainant notified the respondent she believed she had been sexually harassed, she was told that the respondent would talk to the alleged harasser or take other action. No evidence was presented to suggest that the respondent did not genuinely intend to address the situation or that it would not have done so had it been given a reasonable opportunity to act. The fact that the respondent had no progress to report to the complainant, only one working day after she notified it of her complaint, cannot reasonably be construed as a failure to take corrective action.

Finally, the complainant makes the argument that the administrative law judge should have permitted her to present testimony about the statements made by an unnamed female supervisor (1) to the effect that the complainant should "get over it." The complainant maintains that this testimony was significant to her case, and that it would permit no other inference than that she was discharged because of her concerns about sexual harassment and her inability to handle employment in a hostile work environment. The commission finds this argument unpersuasive. Some of the testimony in question did come into the record prior to the point at which the respondent raised its objection, but even when considering that testimony, the commission is unable to conclude that a different outcome is warranted in this matter. Indeed, to the extent any inference can be drawn from the testimony in question, it is an inference that no discrimination occurred. The complainant testified that Ms. Clouser told her she would not be fired based upon her actions in fighting with a co-worker if she could calm down and behave herself. The complainant also testified that she asked Ms. Clouser if she knew anything about her sexual harassment complaint, to which Ms. Clouser responded she did not know anything about it and that the complainant should "get over it." Assuming the complainant's testimony is credible, it indicates that Ms. Clouser was unaware of the complainant's sexual harassment complaint, and that she was not concerned about that matter when it was brought to her attention. On the other hand, the testimony demonstrates that the respondent was considering taking an adverse employment action based upon the complainant's conduct in initiating a fight with a co-worker. The complainant acknowledged that the respondent might not wish to employ an individual who fights with other workers, and that when the respondent told Staff Right "things are not working out," this may have been in reference to the argument that took place on her last day of work, during which she threw a box at a co-worker and called her a "bitch." Given these factors, and considering that the complainant was sent home from work because of the fighting incident and discharged shortly thereafter, the commission sees no reason to conclude that the respondent's decision to discontinue the complainant's services was motivated by her complaint of sexual harassment rather than by her actions in instigating a fight at the work place.

For the reasons set forth above, the commission concludes that the complainant did not meet her burden of establishing that she was discriminated against in the manner alleged. Accordingly, the dismissal of her complaint is affirmed.

cc: John O. Olson
Arthur E. Beck

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

Footnotes:

(1)( Back ) At the hearing the individual in question was identified as Tracy Clouser, an assistant in the human resources department.