P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. 199900706, EEOC Case No. 26G990805

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.


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

Dated and mailed April 24, 2001
ferguro . rsd : 110 :

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


Complainant Robert Ferguson was an inmate at Winnebago Correctional Center ("WCC"). He worked at Buechel Stone Corporation ("Buechel") through a work release program. His complaint is in part concerned with allegations that he was subjected to discrimination in conditions of employment while working at Buechel. His complaint also concerns the fact that his employment at Buechel ended when WCC revoked his work release privileges, because of information received from Buechel about things which had supposedly occurred there.

The commission has carefully reviewed the record, and on the basis of that review it is in agreement with the findings and conclusions of the administrative law judge concerning Ferguson's allegations of discrimination in conditions of employment at Buechel. The administrative law judge's findings of fact concerning those allegations are consistent with the record, and the record evidence persuasively supports them. The commission would also note that it consulted with the administrative law judge in order to obtain the benefit of her impressions as to the credibility of the witnesses, and that it found itself in agreement with her assessment that the witnesses for Buechel were more credible than Ferguson and his witnesses regarding the issues of workplace discrimination.

The circumstances surrounding the eventual termination of Ferguson's employment were clearly a major issue in this case. Ferguson's attorney summarized his theory of the case this way during the hearing:

What I want to show is this individual [Brenda Stevens] knew that all she had to do is talk about (sic) Dan Smith about an employee and that if she told negative things about the employee, that Dan Smith would basically believe her and then that person would eventually be removed from the work place. What our theory is in this case, is that my client complained to management around the same time that Ms. Stevens complained about his comments, he complained to management about the racial jokes in the breakroom. She got wind of it and she made up this story about Mr. Ferguson to Dan Smith in order to have him removed.

(T. 44).

This theory turns on a number of important factual issues which were in dispute. There was a factual dispute about whether Ferguson engaged in the sexual harassment of Stevens which she reported to Dan Smith; there was also a factual dispute about whether Ferguson complained to management of Buechel about alleged harassment at around that time, which complaints Stevens then could have "gotten wind of." The administrative law judge found against Ferguson on these factual issues.

In consultation with the commission, the administrative law judge indicated that Brenda Stevens testified strongly, without hesitation, and that she seemed credible to the administrative law judge. She also made the observation that Tim Buechel was quite direct and credible in his testimony concerning Ferguson's claim that he complained to the Buechels about alleged discrimination on his last day of work. The commission agrees with these assessments as to the credibility of the witnesses. On that basis, it agrees with the critical findings of fact made by the administrative law judge, to the effect that Ferguson did indeed make an offensive comment to Stevens which she then mentioned to the representative of WCC, and that Buechel's management played no role in the decision by WCC to terminate Ferguson's work assignment.

The commission also notes that, in addition to the fact that Ferguson's theory of the case was undercut by the findings made by the administrative law judge and now adopted by the commission, there is another reason why Ferguson could not be found to have established that Buechel Stone Corporation committed a violation of the Wisconsin Fair Employment Act. This reason has to do with the identity and role of various parties in this case, and whether or not they were made respondents in Ferguson's complaint.

Identities and capacities of parties -

Neither WCC nor its agent, Dan Smith, were made respondents. Therefore, it is not relevant whether they may have been motivated, in anything they did which contributed to the end of Ferguson's work assignment at Buechel, by any animus against Ferguson because of his race or because of a belief that he had made complaints at Buechel about alleged discrimination. Even if they were, this would not provide a basis for finding that Buechel violated the Fair Employment Act. Since the question of the motivation of the agents of WCC is not relevant to the question of whether Buechel violated the Act, the commission expresses no view on it.

Brenda Stevens was also not named as a Respondent in this matter. A question may be considered to arise, however, as to whether she could be considered a responsible agent of Buechel Stone Corp., such that her actions and motivations could be imputed to Buechel for purposes of establishing liability. If, as Ferguson claimed, Stevens was his supervisor, then it would be appropriate to treat Buechel as responsible for her conduct. Where an individual has acted under color of his or her authority as an agent of an employer, the employer is properly held liable for their conduct. Hoey v. County of Fond du Lac (LIRC, 07/09/97), Rathbun v. City of Madison (LIRC, 12/19/96). The essential question is not whether the act in question was authorized by the employer, but whether it took place in the scope of the agent's employment. Yaekel v. DRS Limited (LIRC, 11/22/96). Thus, for example, where an agent of an employer discharges an employee for an unlawful reason, it is not relevant that the owner of the business is unaware of the factors leading to the discharge; the manager is an agent of the employer and the employer is, therefore, liable for the manager's conduct. Koll v. Hair Design (LIRC, 04/27/95). However, if Stevens was nothing more than a rank-and-file employee who was just a co-worker of Ferguson, then even if Ferguson's allegations about her motives and conduct are true this would not support ruling against Buechel. An employer cannot be found responsible for discriminatory conduct unless it is carried out directly by the employer or, if carried out by co-employees, the employer knows or should reasonably know of it and fails to take reasonable action to prevent it. Valentin v. Clear Lake Ambulance Service (LIRC, 2/26/92), citing Crear v. LIRC, 114 Wis. 2d 537, 542, 339 N.W.2d 350 (Ct. App. 1983). It is thus necessary to decide if Stevens was a supervisor.

In determining whether an employee's co-workers are supervisors for purposes of imputing liability for alleged discriminatory acts, the courts will look to the test for supervisory status as set forth in City Firefighter's Union v. Madison, 48 Wis. 2d 262, 179 N.W.2d 800 (1970). Crear v. LIRC, supra, 114 Wis. 2d at 540-41.

In City Firefighters Union Local No. 311 v. City of Madison, 48 Wis. 2d 262, 270-71, 179 N.W.2d 800, 804-05 (1970), the court approved the following WERC criteria for deciding whether supervisory capacity exists under sec. 111.70, Stats.: (1) the authority to effectively recommend the hiring, promotion, transfer, discipline or discharge of employees; (2) the authority to direct and assign the work force; (3) the number of employees supervised and the number of other persons exercising greater, similar or lesser authority over the same employees; (4) the level of pay, including an evaluation of whether the supervisor is paid for his skill or for his supervision of employees; (5) whether the supervisor is primarily supervising an activity or is primarily supervising employees; (6) whether the supervisor is a working supervisor or whether he spends a substantial majority of his time supervising employees, and (7) the amount of independent judgment and discretion exercised in the supervision of employees. Id. We interpret the case to mean that these criteria are not to be considered in the disjunctive such that any one factor is determinative. Rather, the totality of the criteria must be considered.

Crear, 114 Wis. 2d at 541.

The commission has carefully considered all of the evidence in the record which bears on the question of whether Stevens could be considered Ferguson's supervisor under the test set out in City Firefighters Union Local No. 311 and Crear. The commission believes that the evidence does not satisfy that test. It shows at the most, as the evidence did in Crear, that Stevens may have had de facto authority to direct other employees' daily activities. However, there is little if anything to suggest that Stevens had authority to effectively recommend the hiring, promotion, transfer, discipline or discharge of employees, or that she had authority to direct the activities of any more than a few other employees, or that her possession of any such authority was reflected in her level of pay. It is also clear that Stevens was "primarily supervising an activity" rather than "primarily supervising employees", that she was primarily spending her time in working rather than in supervising employees, and that she was not called upon to exercise a significant degree of independent judgment and discretion in the course of directing work activities of the few other employees in the saw shop.

The commission therefore has concluded that Stevens was not a supervisor but was merely a co-worker to Ferguson. Thus, even if what Ferguson alleged about her had been true -- that is, even if she completely made up the alleged sexual harassment incident and told Dan Smith about it in order to get Ferguson removed from Buechel, based on discriminatory animus against him -- that would not allow a decision that Buechel discriminated against Ferguson.

NOTE: After all briefs had been filed, Complainant filed a Motion To Stay requesting the commission to stay its decision until the completion of an investigation of a grievance which Complainant had filed against Respondent's attorney with the Office of Lawyer Regulation. After due consideration, the commission is of the opinion that the pendency of the grievance which Complainant has filed with the Office of Lawyer Regulation does not warrant a stay in the issuance of a decision in this matter. This is because the disposition of the Complainant's grievance against Respondent's attorney would not be relevant to the commission's role in deciding Complainant's allegation that Buechel Stone Corporation violated the Wisconsin Fair Employment Act.

Any questions concerning the role played by Respondent's attorney during the Equal Rights Division's investigation of the complaint in this matter are irrelevant at this point, because the ultimate decision on the complaint is not made based on the Division's investigation, but based on the evidence received into the record at the hearing. The Administrative Law Judge and the commission are required to make their decisions solely on the basis of that hearing record. Furthermore, any questions concerning the way Respondent's attorney described the facts of this case in the hearing, or in his briefs, is similarly irrelevant. Respondent's attorney was not a witness at hearing, and he did not himself give evidence. While he made statements at the hearing and in his brief indicating how he thought the facts of the case ought to be viewed, such representations are understood by the commission to be in the nature of argument, not evidence. While such argument is considered, it is always measured against the evidence in the record, and it is that evidence, rather than assertions made about it by counsel, that is the basis for the decision.

The commission has decided this case based on the facts as established by the evidence in the record. There is no need for the commission to wait for the determination of some other tribunal. Therefore, Complainant's Motion To Stay is denied.

cc: Attorney Steven R. Sorenson

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