Wis.LIRC ER Decision: Ryckman - May 20, 1999 - Sex discrimination

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

ROSIE RYCKMAN, Complainant

WISCONSIN PORCELAIN CO, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199701745, EEOC Case No. 26G971154

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:

1. Paragraph 4 of the ORDER is deleted and the following paragraph is substituted therefor:

"The respondent shall reimburse the complainant for her reasonable attorney's fees and costs incurred in pursuing her complaint under the Fair Employment Act. The amount of these attorney's fees and costs to the date of this order is $20,595.40. A check for this amount should be made jointly payable to Rosie Ryckman and her attorney, T. Christopher Kelly.

2. Paragraph 5 of the ORDER is deleted and the following paragraph is substituted therefor:

"Within 60 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 it has taken to comply with the commission's order. The report shall include a copy of the sexual harassment policy and evidence of Mr. Braun's attendance at the sexual harassment training. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708."

DECISION

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

Dated and mailed May 20, 1999
ryckmro.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Rosie Ryckman, alleged that she was sexually harassed by Mike Braun, the respondent's human resources director, and that Braun retaliated against her because she opposed and rejected his sexual advances. The ALJ agreed, finding that Braun had subjected Ryckman to unwelcome sexual advances and physical contact, that Ryckman opposed and rejected Braun's sexual advances, and that as a result of her opposition and rejection of such sexual advances Braun used his authority over Ryckman to take away her permission not to have to report to work until 6:45 a.m., thereby violating the Act's prohibition against retaliation for opposition to sexual harassment and making rejection of sexual harassment a basis for the employment decision affecting Ryckman. Ryckman also claimed that she was constructively discharged, but the ALJ found this had not been established as Jack Miller, vice president of engineering and manufacturing, and Scott Rose, respondent's president, had both offered to move her to a different location, and because Ryckman announced her quitting only a few hours after reporting the sexual harassment and before the company could complete its investigation and make any further offer. The ALJ's finding of no constructive discharge was not appealed.

The respondent argues that there are compelling reasons in the record, including Ryckman's false swearing to pre-hearing written interrogatories regarding her criminal record and initial reaffirmation of that false answer at the hearing before admitting the untruthfulness of the answer, which establish that she is a totally incredible witness and that this requires reversal of the ALJ's determination to believe her testimony concerning sexual advances by Braun rather than Braun's denials of same. At the hearing, Ryckman conceded to having felony convictions for bail jumping, forgery and theft. Ryckman testified that the bail jumping conviction was when she missed a court date, the forgery conviction involved a check from her ex-boyfriend and that the theft conviction involved removing her own property, which she did not know was theft. (There was also reference to a notice of entry of judgment dated February 2, 1998, relative to a money judgment entered July 13, 1993, in favor of Shopko Stores, Inc., against Ryckman, but Ryckman stated that she was not aware she had been sued by Shopko and had never received notice of the judgment.)

The respondent, citing cases and Wis. Stat., sec. 906.09, argues that these convictions, involving dishonesty, deceitfulness and immoral turpitude, impeach the credibility of Ryckman's overall testimony. The respondent argues that the ALJ seemingly acknowledged this when noting in his decision that Ryckman's "credibility in general was impeached on the collateral issue of whether she had been convicted of a felony since January, 1988" but then does not give this credibility impeachment any probative value on the sexual harassment issue.

While it has been held that evidence that a witness who has been convicted of a crime is admissible for the purpose of attacking the witness's credibility by an inference on the witness's character for truthfulness (State v. Smith, 203 Wis. 2d 288, 553 N.W.2d 824 (Ct. App. 1996)), and that Rule 906.09 reflects the longstanding view in Wisconsin that one who has been convicted of a crime is less likely to be a truthful witness than one who has not been convicted (State v. Kurtz, 160 Wis. 2d 722, 752, 467 N.W.2d 531 (1991), citing, Nicholas v. State, 49 Wis. 2d 683, 183 N.W.2d 11 (1971)), the respondent has cited no authority for the proposition it apparently maintains here--that because a witness has a conviction record, the trier of fact must completely ignore any credibility issues raised involving other witnesses when determining witness credibility. (1 )

The most obvious credibility issue involving Braun relative to Ryckman's claim of sexual harassment arises in connection with his appearance at Ryckman's apartment after work on March 5, 1997. Braun attempts to explain this away claiming that he was distributing fliers with offers of job opportunities at the respondent. However, as indicated by the ALJ, it is most improbable that having been at Ryckman's apartment earlier during the day on March 5, that he just happened to run into her again at her apartment that night while distributing fliers, and then that chatting with Ryckman and lingering at her apartment somehow became more important than distributing the fliers.

Moreover, significant evidence of record supports the ALJ's discounting of Braun's testimony in favor of that of Ryckman's claims that Braun made unwelcome sexual advances toward her and made unwelcome sexual contact with her person. For example: 1) Maria Morales, an employe with over three years of service with the respondent, testified that she observed that Braun frequently called Ryckman into his office and kept her there for a long period of time. Spencer Bramlett, an employe with over 4 years of service, and who worked close by Ryckman, testified that Braun frequently came out to get Ryckman, that when she returned from his office Ryckman would complain that Braun did not want anything, he just wanted her to come in so he could look at her, that Ryckman complained that Braun seemed to be looking at her breasts, and that he advised her to complain to Miller; 2) Braun admitted to Miller that he told Ryckman she was an attractive woman; 3) Braun provided Ryckman several favors, including permitting her to leave work early to seek energy assistance, personally transporting Ryckman and her sick son to the doctor and then returning to pick them up from the doctor's office and take them home, and also offering to arrange for Ryckman to receive a cash advance. Furthermore, it was on the same day that Braun transported Ryckman to the doctor's office and back, that he showed up at her apartment during the evening and performed additional favors such as moving Ryckman's car closer to her apartment and buying gas for her car, and offering to buy milk; and 4) Braun admits being in the kitchen with Ryckman and talking to her about job satisfaction.

The respondent attempted to characterize Morales as having reason to be biased because she had once been discharged for absenteeism by the respondent, because Braun once questioned her about whether or not she was working when seen talking to a coworker and because she had complained to Braun that he had rehired certain employes but not relatives of hers. The record fails to support a showing of bias on the part of Morales, however. There is no indication that Braun was involved in Morales' discharge. According to Morales, the other two matters which did involve Braun, occurred long after Ryckman's employment at the respondent had ended. Further, Morales testified that she had no personal animosity toward Braun. Moreover, Bramlett's testimony regarding the frequency with which Ryckman was called to Braun's office corroborates Morales' testimony on this point.

The respondent argues that the "favors" Braun did for Ryckman do not impugn his motives, since Braun altruistically helps employes with their personal problems. While there was evidence of examples given where Braun had assisted various employes with their problems, there was no evidence that Braun found those individuals attractive, frequently called them into his office or provided them with such personal favors as buying gas for their vehicle and offering to purchase milk for them.

Focusing specifically on Ryckman's claim that Braun touched her breast, the respondent argues that Braun's denial that he touched Ryckman's breast is corroborated by Miller's contemporaneously prepared memorandum of his March 13, 1997 meeting with Ryckman which shows Ryckman as only identifying Braun as having rubbed the back of her hand. While Miller's memorandum may not reference Ryckman's claim that Braun touched her breast, the evidence shows that Ryckman had complained about Braun touching her breast to her female coworkers and to the female union steward, Susan Reyes, before her meeting with Miller. The record also shows that Ryckman was apprehensive about reporting the sexual harassment to management.

Contrary to argument by the respondent, the ALJ's rejection of the respondent's suggestion that Ryckman fabricated her claim against Braun because of a realization that she was not going to survive her probationary period due to attendance and tardiness problems is not defective. As noted by the ALJ, a verbal warning, written warning and a 3-day suspension were listed as prerequisites to discharge under the respondent's attendance and tardiness policy. The respondent's contention that the attendance and tardiness policy did not apply to probationary employes cannot be sustained. The written attendance and tardiness policy is given to all employes, the written policy itself contains no language that probationary employes are not treated the same as other employes under the policy and the respondent does not advise new hires that the attendance and tardiness policy does not apply to them. While Braun asserts that he spoke to Ryckman about attendance problems, Ryckman had not been given any written warning or suspension because of excessive absenteeism or tardiness, nor had she been advised by anyone that her job was in jeopardy because of attendance problems.

Next, the respondent argues that Ryckman failed to satisfy her burden of proof that sexual harassment by Braun was the cause of her suffering a tangible job detriment since the uncontradicted evidence establishes that it was Miller and not Braun who made the decision to end Ryckman's permission to report to work later than 6:30. (2 ) The respondent argues that the ALJ erroneously rejects this clear evidence on the ground that the respondent's explanation depended on the coincidence of unrelated events and because there were a few contradictions between Miller and Braun that weaken Braun's credibility. The respondent argues that its explanation is not based on the coincidence of unrelated events but Miller's unambiguous testimony. Further, the respondent argues that Braun's credibility is not the issue, it would be necessary to reject Miller's testimony that it was his decision to end Ryckman's start time accommodation and Miller's testimony was not discredited by the ALJ nor would the record permit such a conclusion.

But the whole issue of who had responsibility for determining Ryckman's reporting time is called into question because of the contradictory testimony given by Braun and Miller over who had set Ryckman's start time at 6:45 a.m., and the reasons for ending Ryckman's 6:45 a.m. start time. Braun testified that Miller had set Ryckman's start time at 6:45 a.m., while Miller testified that he had merely instructed Braun to allow "some flexibility with her start time." Also, Braun testified that Miller told him on March 6, 1997, (coincidentally, the very next day after Ryckman's allegations of sexual harassment) that he had either been looking over the time cards or realized Ryckman had been given a grace period to show up at 6:45 but had actually shown up several times on time and therefore did not feel it necessary to give her a grace period, whereas Miller testified that he told Braun it was time to have Ryckman come in at 6:30 a.m. because a significant enough time had elapsed that she should report at the same time as other employes. Thus, under either of Braun's versions as to what transpired, Miller knew by virtue of Ryckman's time cards that she was now able to start reporting to work at 6:30 a.m. The problem with this testimony is that Miller testified that he did not see Ryckman's time cards until after his meeting with her on March 13, 1997. Further, contrary to argument by the respondent, the record evidence does permit the conclusion that Miller's testimony was discredited. It is simply not credible to believe that on March 6, 1997, without any word from Ryckman that her day care arrangements had changed, that Miller all of a sudden found it imperative that Ryckman's 15-minute grace period be eliminated and that she report for work by 6:30 a.m. Moreover, that there would have been such concern over a mere 15 minutes when Ryckman had frequently been working as many as 10 and 11 hours per day, and even 12� hours on one occasion, only increases suspicions about Miller's testimony.

Next, the respondent takes issue with the ALJ's determination that Braun's ending of Ryckman's flexible starting time qualified as a tangible job detriment. The ALJ found that it did because it adversely affected Ryckman's ability to get to work on time, thereby jeopardizing her future employment in view of the respondent's strict policy on tardiness whereby a one-minute tardiness was considered a half- point on the scale toward possible discharge after 12 points in a twelve month period. The respondent appears to suggest that the ending of Ryckman's flexible starting time does not amount to a tangible job detriment since the Supreme Court in Burlington Industries, Inc., v. Ellerth, 524 U.S. ___, 118 S. Ct. 2257, 77 FEP Cases 1 and Faragher v. Boca Raton, 524 U.S. ___, 118 S. Ct. 2275, 77 FEP Cases 14, stated that the concept of a tangible employment action "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." However, ending Ryckman's 15-minute period of flexibility during which she could report for work and not be considered tardy was an equally significant change in employment status because without this 15-minute period of flexibility this would very quickly lead to her firing for violation of the respondent's attendance policy. (3 ) Additionally, the respondent apparently maintains that Ryckman's flexible starting time was temporary and not an established employment condition to which she had some sort of apparent right and therefore ending her flexible starting time constituted neither a tangible job detriment nor an adverse job action. But this argument misses the mark. Ryckman's flexible starting time, even assuming for purposes of argument that it was only for a temporary period, constituted an existing term or condition of her employment. This term or condition of employment clearly provided Ryckman a tangible employment benefit as it was especially critical that she report for work on time during her probationary period. Braun's ending of Ryckman's flexible starting time due to her rejection of his sexual advances resulted in her suffering a material adverse employment action.

Finally, the respondent suggests that the complainant's requested hourly fee rate was reduced by 25 percent by the ALJ on the basis of its objection that it should not have to pay complainant's claimed rate of $200 per hour when the respondent was paying $150 per hour to defend the case, and to account for the complainant's unsuccessful claim, and therefore the complainant's fee request of $3,840 for representation of Ryckman before LIRC, which continues to be based on a $200 hourly rate, should likewise be reduced by 25 percent, or to $2,880. As correctly noted by counsel for the complainant, however, the ALJ found that $200 was a reasonable hourly rate in this case and awarded fees based on that rate. The 25 percent reduction was based on the complainant's failure to prevail on every issue, a factor not present on appeal as no party has appealed from a finding on which the complainant did not prevail.

Whether or not an hourly rate is reasonable is based upon a determination of whether that rate is in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. The rate charged by counsel for the respondent is not necessarily relevant to this determination. Counsel for the complainant's affidavit and that of another attorney experienced in the area of civil rights law submitted to the ALJ in support of the complainant's fee petition, established that an hourly rate of $200 was well within the prevailing rate charged by attorneys in the Dane County area who possess comparable skill, experience and reputation as that of the complainant's counsel. That rate continues to be the appropriate hourly rate for counsel's representation of Ryckman before the commission. The expenditure of 19.2 hours for research, preparation of a nearly 30-page brief and to draft a supplemental fee petition and supporting materials is not an excessive amount of time to perform these services, nor has there been any claim that these hours are excessive. Accordingly, the additional amount of $3,840 has been awarded as attorney's fees for representation of Ms. Ryckman before the commission.

cc: T. Christopher Kelly
Russ R. Mueller

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Footnotes:

(1)( Back ) The commission consulted the administrative law judge regarding his credibility impressions of the witnesses. The judge considered the matter of Ryckman's credibility in connection with the interrogatory answers about her conviction record and her testimony about those answers at the hearing, but found that any general credibility questions raised based on her conviction record did not outweigh the specific evidence in her favor in the instant sexual harassment complaint against Braun. Further, the judge did not find Braun to be a credible witness as he looked down when testifying, was defensive throughout the hearing, and did not appear to be someone who was innocent and intent on proving his innocence.

(2)( Back ) Ryckman's time cards, although often difficult to read, seem to conflict with her testimony that she arrived at work at 6:45 a.m. on March 6, 1997. Her time card for that date appears to show her with a punch in time of 6:17. The commission does not attribute any significance to this, however. The record is quite convincing that Braun had made sexual advances toward Ryckman on March 5 which she rejected. Further, regardless of what time Ryckman arrived at work the next day, as soon as she did report Braun advised her that she no longer had the flexibility of being able to report for work at 6:45 a.m. and had to report by 6:30 a.m.

(3)( Back ) Moreover, under the Fair employment Act it is employment discrimination to make "rejection of sexual harassment the basis or any part of the basis for any employment decision affecting an employe." Wis. Stat., s. 111.36(1)(b). (emphasis in bold text added)