STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
KIM WRIGHT, Complainant
SAFE LINE LLC, Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 199801372, EEOC Case No. 26G981285
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 its review, the commission makes the following:
FINDINGS OF FACT
1. Kim Wright (hereinafter "the complainant") began her employment with Safe Line, LLC (hereinafter "the respondent") on July 21, 1997, as a charter dispatcher, at a pay rate of $8.50 per hour. The complainant's job duties included, but were not limited to, taking telephone calls for charter bus trips, matching available drivers with trips, and dispatching over the radio. She was also expected to drive bus routes when assigned.
2. At the time of her hire the complainant was notified that she would receive a probationary performance evaluation 90 days after her start date and that this review may or may not result in a pay increase.
3. The complainant was also notified that, as a condition of her employment, she would need to obtain a Commercial Driver's License (hereinafter "CDL"), with school bus endorsement, within 30 days. The complainant passed the written test for a CDL within a few weeks of beginning her employment and, at a later date, passed the road test. However, the complainant failed to notify the respondent's human resources department of this fact and, consequently, was not scheduled for the physical and drug test that were a prerequisite to the receipt of her CDL.
4. Starting with her first day of work, the complainant met with Al Hill, the terminal manager, on virtually a daily basis. Mr. Hill made it a habit of meeting with the complainant behind closed doors, during which time he would stare at her or put his hand on her shoulder. The complainant felt that Mr. Hill's conduct amounted to harassment.
5. The complainant also assisted Rick King, the recruiting supervisor, until August 18, 1997. Mr. King would frequently put his hand on the complainant's lower back and on several occasions he asked her out on dates. The complainant told Mr. King his actions were inappropriate, at which point he desisted.
6. On August 14, 1997, the complainant met with Cassandra Sturghill, the human resources supervisor, about her concerns regarding Messrs. Hill and King. Ms. Sturghill talked to Dan Becher, the assistant terminal manager, and the next day Mr. Becher met with the complainant. Mr. Becher told the complainant he was going to talk with Mr. King.
7. Mr. Becher did not report back to the complainant about his talk with Mr. King. However, the complainant did not report further harassment from Mr. King and has not alleged that any occurred. She was no longer assigned to work with Mr. King after August 18, 1997, and in September of 1997, Mr. King's employment with the respondent was terminated.
8. The record is silent with respect to whether Mr. Becher told the complainant he would talk to Mr. Hill and whether he took any action to address her concerns regarding Mr. Hill. However, the complainant did not report further harassment from Mr. Hill and has not alleged that Mr. Hill engaged in any further offensive conduct.
9. The conduct of which the complainant complained was not sexual in nature, was not sufficiently severe or pervasive as to interfere with her work performance or create a hostile work environment, and did not persist after her complaint to the respondent.
10. After the complainant complained about Messrs. Hill and King she began to receive disciplinary write-ups and was the subject of other adverse employment actions, both real and perceived, which she believed were in retaliation for her complaint.
11. Ms. Sturghill accused the complainant of having been insubordinate on October 16, 1997, when she refused to meet with Ms. Sturghill on her way out of the workplace at the end of day. The complainant was written up for her conduct. Although the complainant disagreed with this write-up, she failed to demonstrate it was undeserved.
12. On October 17, 1997, Ms. Sturghill and Mr. Hill met with the complainant to discuss the write-up. During that meeting, Ms. Sturghill brought up the complainant's harassment complaint and Mr. Hill apologized to the complainant for making her feel uncomfortable.
13. The complainant was not given a 90-day performance review. The respondent's failure to perform a 90-day performance review was related to the press of events and was not in retaliation for the complainant's complaints about Mr. King or Mr. Hill.
14. The complainant received her performance review in December of 1997, approximately five months after the start of her employment. The review was prepared by Mary Davis, the dispatch supervisor. The complainant was told that the respondent was extending her probation until January 23, 1998 due to deficiencies in her performance, including the fact that she had not yet obtained her CDL. The complainant did not get a raise along with her evaluation, nor after her extended probationary period was complete.
15. Neither the poor evaluation nor the lack of a salary increase were related to the complainant's complaint of harassment. It is not the respondent's practice to increase workers' salaries after the 90-day review. Moreover, Ms. Davis was unaware of the complaint until May of 1998, when the complainant filed her discrimination complaint with the Division.
16. On April 17, 1998, the complainant was written up by Ms. Davis for falsifying her time card for April 11, 1998. Although the complainant disagreed with the circumstances surrounding the write-up, she failed to demonstrate that she did not engage in the conduct of which she was accused or that the write-up was issued in retaliation for her previous complaints. As stated above, Ms. Davis was not yet aware of the complainant's protected activity.
17. The complainant contended that she was assigned to routes that were more difficult than other routes, particularly exceptional education routes. However, the complainant drove exceptional education routes less often than she did regular routes and no more frequently than did other drivers. The respondent did not intentionally assign the complainant to cover difficult routes.
18. On May 7, 1998, the complainant filed her discrimination complaint with the Division. Upon receiving this complaint, the respondent began an internal investigation which involved interviews with the complainant, Mr. Hill, Ms. Sturghill, and other staff members. The respondent concluded that Mr. Hill had not sexually harassed the complainant, although he had engaged in some actions which made her feel uncomfortable, and that he had apologized for his actions. The respondent also reviewed the pay records, routing assignments, time card issues, and other disciplinary incidents, but found no evidence of retaliation.
19. In July of 1998 the complainant received her one year performance evaluation. This time she was given a four percent pay raise, as much or more than the raises other employes were receiving after a year's employment.
20. The complainant contended that a male charter coordinator named Larry Archibald received a higher salary than she did, although his position was equal to hers. However, the record indicates that Mr. Archibald worked in a different position and, further, that he began working for the respondent before the complainant did. Mr. Archibald did not receive a salary increase with his 90-day evaluation and, when he did receive a raise after a year, he was given only a two percent increase. There is no reason to believe that Mr. Archibald was compensated at a higher rate than the complainant because of his sex.
CONCLUSIONS OF LAW
1. The respondent did not engage in or permit sexual harassment to occur, in violation of the Wisconsin Fair Employment Act (hereinafter "Act.")
2. The respondent did not retaliate against the complainant because she opposed a discriminatory practice, in violation of the Act.
3. The respondent did not discriminate against the complainant with respect to compensation on the basis of sex, in violation of the Act.
ORDER
The complaint in this matter is dismissed with prejudice.
Dated and mailed August 10, 1999
wrighki.rrr : 164 : 0
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
In her petition for commission review the complainant argues that after she complained about Mr. King and Mr. Hill, she was retaliated against by Mr. Hill and other staff members. She contends that, after she filed her complaint with the Division, a "flurry" of write-ups and attacks against her were added to her personnel file to justify the respondent's actions against her. This argument fails. At the hearing the complainant did not argue that the respondent fabricated documents for her personnel file, as she now alleges, and the commission sees no reason to believe that this was the case. While the complainant may not agree with the respondent's assessment of her job performance and attitude, she failed to demonstrate that the respondent's complaints were unwarranted or that they were motivated by retaliatory animus.
The complainant also contends that the respondent did not take actions to address her complaints of sexual harassment and that Mr. Hill remained on staff and continued to concern himself with her personal affairs and look for reasons to discredit her abilities as an employe. Again, this argument fails. The complainant specifically acknowledged that the respondent discussed the matter with Mr. Hill and that he apologized to her, and she did not testify that Mr. Hill engaged in any sexually harassing activities after she reported his conduct to the respondent. Consequently, the commission sees no reason to believe that the respondent failed to take appropriate actions to address her complaints or that it permitted Mr. Hill to harass the complainant.
Next, the complainant argues that the four percent raise she received was not consistent with what Mr. Hill promised her when she accepted the offer of employment. The complainant maintains that Mr. Hill negated his offer immediately after she rejected his sexual advances. This argument is also without merit. In the first place, it was not demonstrated that Mr. Hill ever made the complainant any promises with respect to her salary, nor does it appear that he had any responsibility for determining the amount of the complainant's salary increase. The complainant's written offer of employment contains no promise of a raise and, to the contrary, clearly indicates that she was not to expect one. Further, while the complainant suggests that her salary was adversely affected after she rejected sexual advances by Mr. Hill, this is not supported by her testimony at the hearing. The complainant testified that Mr. Hill stared at her and touched her shoulder, but failed to allege that he made any sexual advances or that she ever specifically rebuffed his efforts.
Finally, the complainant argues, as she did at the hearing, that two other employes received significant pay increases after only six or seven weeks of employment. The complainant apparently believes that she would have received a similar increase in the absence of discrimination. However, as the respondent explained at the hearing, the individuals in question did not receive 90-day pay increases, as the complainant contends, but were promoted to different, higher paying positions. The complainant has not alleged that she sought and was denied a promotion during the course of her employment for the respondent, and the record is devoid of any evidence to suggest that discriminatory forces were at work in setting the complainant's salary or salary increase.
The commission has considered the other arguments raised by the complainant in her petition, but finds them similarly unpersuasive. Because the evidence adduced at the hearing failed to establish that the complainant was discriminated against in the manner alleged, her complaint is dismissed.
NOTE: The commission has rewritten the administrative law judge's decision to more accurately and completely set forth the facts in this case.
cc: Mark A. Peterson
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