Wis.LIRC ER Decision: Langston - August 27, 1999 - Sexual harassment and discharge in retaliation for opposing a discriminatory practice

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

LA MONICA M. LANGSTON, Complainant

RUCKER DETECTIVE AGENCY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199704555

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 August 27, 1999
langsla. rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, La Monica Langston, appeals from the ALJ's decision dismissing her claims of alleged sexual harassment and discharge in retaliation for opposing a discriminatory practice under the Act. The commission agrees with the ALJ's decision and therefore affirms his decision.

Langston, a female, was employed for two weeks for the respondent, commencing on Monday, October 27, 1997. The respondent is a detective agency, owned and operated by Carl Rucker. Prior to the start of the employment relationship, Rucker and Langston had met on Sunday, October 26, 1997, around 8 p. m. Apparently, Rucker picked up Langston that evening, showed her his office on Vliet street in Milwaukee where she completed an employment application, bought her something to eat at McDonald's and then drove her down to the lake to show her where he eats, before taking her home.

Rucker accuses Langston of being a prostitute, asserting that Langston's purpose in meeting with him on October 26 was to have sex with him for $20. He asserts that Langston was attractive, but was high on drugs when he met her, and that after she took her clothes off he decided not to have sex with her and instead told her that he would give her a job if she promised to "clean up" and stop getting high. Rucker asserts that Langston told him that she wanted the $20 to buy food because she was hungry and her welfare check would not arrive for a few days.

Langston denies being a prostitute, offering to have sex with Rucker for $20, or taking her clothes off on October 26. When asked how Rucker knew about the stretch marks and surgical scars on her abdomen Langston explained that Rucker must have seen her in a short top outfit exposing her midriff when she met him. Langston concedes that she may have smoked marijuana and been "stoned" before meeting Rucker on October 26. She states that she has been smoking marijuana since she was 13 years old. Langston was age 22 in 1997. Langston states that her mother kicked her out of the house when she was 13 and that she has been on the street most of her life. Langston also states that she only completed the eighth grade, that she had no vocational training after leaving school and that she had never worked before in her life until hired by Rucker.

Rucker asserts that Langston was to be a security guard but she had no money to pay the fee for the license so he allowed her to do miscellaneous office work until she had enough money to pay for the license.

Langston apparently asserts that on October 27, Rucker impliedly suggested that she go to his downtown office to have sex. Langston told Rucker that "mother nature was in my life at that time," meaning that she was menstruating. Langston asserts that she was sexually harassed during her entire employment with the respondent. She asserts that Rucker hugged her, that every day he rubbed her back and shoulders, that Rucker once showed her that he had an erection, and that he called to ask her to come over a couple of times. Apparently Langston did not complain or make any protest at the time of these alleged incidents of sexual harassment by Rucker, as she asserts that she "played along with Mr. Rucker to keep my job. " At the hearing Langston asserted that the hugging and display of an erection was offensive to her.

Langston asserts that on November 7, 1997, her last day of work, Rucker gave her a ride home, rubbed her leg all the way up to her panties, where she kept her money, and that Rucker then pulled her skirt down. Langston admits that she did not push Rucker's hand away or tell Rucker to stop rubbing her leg, however. Langston apparently claims that while in the car on November 7, Rucker told her to call in to work the following week and state that she could not come in to due to babysitting problems, and that after telling Rucker she could take it if she was fired, Rucker terminated her employment.

Rucker denies ever sexually harassing Langston, hugging her, rubbing her legs or doing anything like that. Rucker asserts that the only "sexual thing" going on was Langston's aggression toward him in an effort by her and another woman apparently employed by Rucker, Dorothy Perry, to make him her (Langston's) "sugar daddy. " Rucker also testified, however, that "Clearly, (Langston) did not oppose any sexual advances made to her. "

Rucker claims that he terminated Langston's employment because she was constantly arguing and fighting with the other employes, and because she lied on her employment application about her work history and criminal record. Rucker states that on Langston's first day of work she had a heated argument with her friend, Perry, about having had sex with him in order to get a job. Langston acknowledges that she and Perry became loud during their discussion and that Perry had stated that the only reason Langston had a job with the respondent was because she was having sex with Rucker.

Rucker asserts that he terminated Langston's employment on November 7, 1997, the same day he received the complainant's criminal file. Langston and Rucker apparently agree that prior to Langston's hire, she advised Rucker that she had a criminal record. Langston apparently claims that Rucker told her to lie on her employment application about having a conviction record. Rucker denies ever telling Langston to lie on her employment application. Rucker stated that often people with criminal histories can work as security guards, but that when he found out the whole story about Langston's background, he decided that she had been in more than a little trouble with the law. He testified that he did not learn to what extent Langston had been involved with crime until he obtained her criminal court records. Rucker states that he called Langston and told her not to come to work because he had begun to gather information that showed she was totally unfit to work.

Rucker apparently claims that Langston lied on her employment application about her work history with respect to employment at Milwaukee Recycling. (1 ) At the hearing, Langston asserted that she had not lied about the amount of time she worked at Milwaukee Recycling, that she worked there less than a month, from September to October 1996. As noted above, Lansgton also testified at the hearing that she had never worked before in her life until hired by Rucker.

The ALJ, who found both Rucker and Langston to be "less than truthful with much of their testimony" made findings effectively indicating that Rucker had requested sexual favors of Langston, made physical contact of a sexual nature and engaged in physical conduct of a sexual nature toward her, but that such conduct was not unwelcomed by Langston, that Rucker had not engaged in sexual harassment of Langston, that Rucker had not threatened Langston with termination of her employment if she rejected his sexual advances and that the reason Rucker terminated Langston's employment was that she had not been completely candid on her employment application about her criminal record.

In a memorandum opinion attached to his decision the ALJ sets forth the elements for establishing a claim of hostile environment sexual harassment, indicating that Langston had not established the existence of a hostile work environment. After the issuance of the ALJ' s decision, in Jim Walter Color Separations (JWCS) v. LIRC, 226 Wis. 2d 334, ___N.W.2d___ (Ct. App. 1999), the court of appeals held that employment discrimination based on sex occurs if the employer, that is the owner or an agent in a position of responsibility such that it is appropriate to apply the rule of respondeat superior and treat the actions of the agent as being the actions of the employer, engages in conduct including making unwelcome sexual advances, unwelcome requests for sexual favors, or engaging in unwelcome physical contact of a sexual nature or unwelcome physical conduct of a sexual nature even though such conduct may not create a hostile work environment. All of the conduct listed, if found to be unwelcome, constitutes "sexual harassment" under section 111. 32(13) of the Wisconsin Fair Employment Act. The decision in JWCS does not require a different result in this case since the ALJ specifically finds that Rucker had not engaged in sexual harassment of Langston. The ALJ reached this conclusion based on his findings that Langston never said or did anything to indicate to Rucker that his actions were unwelcome, and for reasons relating to her lack of credibility.

On appeal Langston argues that the testimony submitted at the hearing was sufficient to prove by a preponderance of the evidence that sexual harassment occurred. Langston argues that the ALJ's finding that she did not find the respondent's conduct unwelcome is untrue as she testified at the hearing that the conduct of Rucker was offensive to her. Further, she alleges that she feared the loss of her job if she were to complain, and that one cannot expect the individual to complain about the advances to the same person that is making the advances. Langston's arguments are unconvincing under the circumstances presented here. Langston never made it known to Rucker that any conduct by him was unwelcome. Also, Langston admits that at no time did Rucker ever tell her that if she did not have sex with him he would terminate her employment. Thus, if she feared the loss of her job for not acceding to sexual harassment by Rucker, he would have had to have implicitly made this known to her. Langston has not shown how this was implicitly made known to her by Rucker. One might suspect that after allegedly enduring sexual harassment by Rucker every day for two weeks, Langston's claim would be that she had no choice but to allow him to drive her home on what turned out to be her last day of work. However, Langston has not claimed that she had no choice but to ride home with Rucker, which therefore suggests that she did not regard any conduct by Rucker to be undesirable or offensive. Moreover, absent any evidence of any implicit or explicit threat of loss of her job from Rucker for not acceding to sexual harassment, Langston's allowing Rucker to rub her leg all the way up to her panties and then to remove her skirt, without so much as even pushing his hand away or telling him to stop, only further suggests that she did not regard Rucker's conduct as undesirable or offensive and therefore unwelcome.

With respect to her discharge, Langston asserts that Rucker offered no evidence as to when he obtained her criminal record, and that it is her contention that Rucker obtained this evidence after her discharge and used this as an excuse for her discharge when he actually discharged her in retaliation for not complying with his sexual advances. However, Rucker testified, and the ALJ so found, that Rucker terminated Langston's employment after learning that Langston had not been completely candid about her criminal background. The record in this case simply fails to establish that Langston was discharged in retaliation for "not complying" with sexual advances made by Rucker. As noted by the ALJ, Langston bore the ultimate burden of proving by a preponderance of the evidence that the respondent violated the Act but she has failed to meet that burden.

cc:
Randall L. Rozek
Carl Rucker

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

Footnotes:

(1)( Back ) What appears to be a copy of Langston's employment application is contained in the file but this document was not entered as evidence at the hearing.