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

ROBERT PETTIBONE, Complainant

LAKELAND MEDICAL CENTER INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199555123, EEOC Case No. 26G960236

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: September 11, 1997
pettiro.rsd : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant, a male, worked as a Housekeeper II for the respondent. The respondent terminated the complainant's employment on October 31, 1995, after investigating a coworker's complaint of sexual harassment and concluding that he was in fact sexually harassing the coworker. Gene Krauklis, the respondent's Assistant Administrator of Human Relations, made the decision to terminate the complainant's employment. The complainant subsequently filed a complaint of discrimination alleging that the respondent discharged him because of his sex and a perceived handicap, and that he had been treated differently with respect to his terms or conditions of employment during his employment because of his sex and perceived handicap. After a hearing to determine whether probable cause existed to believe such discrimination had occurred, the administrative law judge concluded that there was no probable cause to believe that the respondent had violated the Fair Employment Act as alleged by the complainant and dismissed his complaint. A review of the evidence shows that the decision of the ALJ is fully supported and must be affirmed.

On appeal the complainant apparently argues that the respondent perceived him as having a mental impairment because in 1994 it had agreed to reduce a 5-day suspension given him for verbal harassment of coworkers to 3 days if he participated in the respondent's employe assistance program, and because Krauklis' decision to discharge him was based on a belief of coworker Dawn Brower's false accusations about him staring at and scaring her and therefore creating a hostile environment, behavior which "reflect(s) having a mental impairment." These arguments fail. The respondent's agreement to reduce the complainant's suspension came at the second step of the complainant's grievance over his 5-day suspension. The respondent had offered the complainant the option of participating in its employe assistance program as a means to reduce his 5-day suspension and the complainant accepted the offer. Further, the evidence shows that respondent entered into this agreement because it wanted to assist the complainant to learn how to manage his anger. The complainant has not shown how or why Krauklis' belief of Brower's accusations against him (i.e., his alleged sexual harassment of her), amounted to a perception that he had a mental impairment.

The complainant further argues, as evidence that he was perceived as having a mental impairment, that Gary Engen, his supervisor, would call him "crazy" when they were alone. Engen denied having ever referred to the complainant as crazy, however. The complainant has not cited any evidence or basis for the commission to conclude that he, and not Engen, was the more credible witness.

With respect to the termination of his employment, the complainant argues that no investigation was conducted by Krauklis. This argument fails. The evidence shows that Krauklis was provided the report from the security officer who received Brower's complaint that she had been sexually harassed by the complainant, and that Krauklis then arranged for a meeting with Brower, along with Engen and Kathy Tews from personnel, to hear Brower's account of her complaint. The evidence shows that next Krauklis arranged for a meeting with the complainant, along with his union representatives, to provide the complainant an opportunity to respond to Brower's complaint. The complainant also challenges the validity of the security officer's report regarding Brower's complaint of sexual harassment. The complainant argues that the security officer was not present at the hearings to verify the statement and that he suspected management had invented the report. This argument is without merit. Brower testified that this report was an accurate statement of the report she gave to the security officer. The complainant further contends that Brower's testimony at the hearing was totally different than that presented in the security officer's report. He has not identified how Brower's testimony differed from the security officer's report, however.

With respect to his terms or conditions of employment, the complainant argues that he received a 5-day suspension for swearing while a female, Sharon Bucholz, who also swore did not. The record shows, however, that the complainant had engaged in the use of profanity on several occasions while Bucholz had not. The complainant has also argued that because others (his sister, Karen Stickney, and June Dobbs) were not referred to the employe assistance program, this constituted sex discrimination. This argument also fails. First of all, the record fails to show that the respondent had reason to refer other employes to its employe assistance program. Secondly, the respondent did not require the complainant to enter the employe assistance program. The respondent offered and the complainant accepted this offer as a means to reduce his 5-day suspension.

cc: Mary Pat Ninneman

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