STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

STEFANIE RODEN, Complainant

FEDERAL EXPRESS, Respondent A

WILLIAM JANECK, Respondent B

ROBERT PAGE, Respondent C

FAIR EMPLOYMENT DECISION
ERD Case Nos. 8802134, 8802863, 8900131
EEOC Case No. 26G881644, 26G890300, 26G890415


Following complaints of alleged discrimination filed with the Equal Rights Division on September 7, 1988 (this complaint was subsequently amended for clarification on January 17, 1989); December 14, 1988 and January 19, 1989, six days of hearings were conducted before an Administrative Law Judge (ALJ) for the Equal Rights Division. The subject of the complaints included allegations of sex discrimination, sexual harassment and retaliation. Prior to the hearings on the complaints, the parties agreed that all charges would be heard on the merits as the Initial Determinations on the complaints of alleged discrimination had found both probable cause and no probable cause to believe discrimination had occurred and Complainant had appealed the no probable cause determinations. In three separate decisions issued, on August 29, 1991, the ALJ concluded in case #8802134:  (1) That neither Respondent A or B had discriminated against the Complainant because of her sex;  (2) although not expressly made a conclusion of law, that Complainant had been sexually harassed (i.e., hostile environment sexual harassment);  (3) that Respondents A and B had discriminated against Complainant with respect to terms and conditions of employment "because she opposed any discriminatory practice under the Act and/or because of failure to acquiesce to sexual advances;"  concluded in case #8802863: that neither Respondents A, B or C had discriminated against Complainant in her terms and conditions of employment because of her sex or because she made a complaint under the Act; and concluded in case #8900131 that neither Respondent A, B or C had discriminated against the complainant in compensation because of her sex or because she had made a complaint under the Act.

Both parties filed a timely petition for review of the matter by the Commission and thereafter submitted written arguments relative to their respective positions.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission hereby issues the following:

FINDINGS OF FACT

1. The Complainant, D.O.B. August 14, 1950, began employment with the Respondent in June 1986. She was hired as a customer service agent (CSA) at Respondent's Madison station. The duties of a CSA included answering customer questions, taking customer packages, tracing packages and processing couriers' paperwork.

2. Station managers serve as the first level of supervision. Above them is the senior manager. At all times material herein, Robert Page was the senior manager, serving as such for both the Madison and Janesville offices.

3. William Janeck was a co-worker of the Complainant, working as a courier, when Complainant initially commenced employment with Respondent. In June 1987, Janeck became a manager. He managed the Janesville office and the extended routes outside of Madison (Portage). Janeck had an office in both the Janesville and Madison stations (effective January 1988) for this reason.

4. Complainant's job aspirations were to advance and eventually go into either training or management. The position of courier was the next logical level for Complainant to be promoted. Couriers are Respondent's drivers who deliver and pick up packages.

5. Complainant worked full-time on what was called the evening shift, from 12 p.m. to 9 or 10 p.m. Complainant had initially gotten to know Janeck through working on Saturdays when Janeck was a courier. After Janeck became a manager, Complainant continued to come in contact with Janeck through her work at the Madison station.

6. Janeck habitually teased and joked with female Federal Express employes. Often the teasing and the jokes had sexual overtones or were sexually oriented. Some employes were amused by Janeck's behavior while others found it to be inappropriate.

7. Prior to February 1988 there was some kidding and joking between Janeck and Complainant, but nothing that was out of line. In February 1988 Janeck started making inappropriate comments to Complainant. Janeck's comments included the following: No one had ever driven him as wild as she had; he wanted to have an affair with her; he had never had an affair with a redhead before; she was as old as the hills and was a mature and experienced woman; and repeated requests to meet him over Complainant's breaks and after work so that they could start their affair. Further, when Complainant would tell Janeck she wasn't going on breaks with him he would state "(t)hat makes 80 for 80, or 20 for 20, or 16 for 16." Once when Complainant mentioned the name of co-worker Shawn Walsh, a male, during a discussion about a management development class, Janeck stated, "I just want to ask you something. Did you and Shawn do the big ugly?" Janeck also told Complainant that she was old enough to be Walsh's mother.

8. In response to Janeck's conduct, Complainant at first tried to act as if Janeck was just teasing but later she took it seriously when Janeck had failed to respond to her telling him that she did not find him amusing and to stop. Complainant told Janeck she did not like the way he was talking to her and he still would not stop, so then she just ignored him.

9. Complainant eventually discussed Janeck's behavior with other employes including, Nancy McAusland, Pam Walker, Virginia Fischer, and Debbie DuCharme.

10. On one occasion Janeck touched .Nancy McAusland's breast. According to McAusland, she believed Janeck's behavior was his way of determining if she was interested in him. McAusland states that Janeck had also once stopped by her apartment uninvited and unannounced. McAusland states that she told Janeck that she was not interested in him and that she had no further problems with him.

11. In early March, 1988 a number of employes including Virginia Fischer, a courier,. as well as Janeck, went to a party at a bar called Jericho's at the Midway Motor Lodge which is near the Madison Federal Express station. Complainant was asked to go but stated that she did not know whether or not she would be going. After the employes had left for the party Complainant told Pam Walker, a CSA, that she was not going and Walker commented, without being more specific, that she felt Janeck had a very unprofessional behavior toward Complainant and that Complainant should be careful. Complainant later decided to stop by Jericho 's to let everyone know that she was not coming to the .party. Complainant explained that previously in January she had arrived late for a party after work causing her co-Worker's to express concern since she had been working alone at the station. Complainant went up to the table occupied by Janeck and Fischer and stated that she just wanted to let them know she was not staying for the party. Janeck said something to Complainant which she could not hear because he was slurring his words and speaking softly to her, so she leaned over to hear what it was he was saying and then felt Janeck's arm crawling up her leg. Complainant moved away and stared at Janeck but did not say anything because Janeck' s eyes were "glazed over" and she couldn't figure out if he knew what he was doing.

12. At this point Complainant felt extremely uncomfortable and intimidated because of Janeck's treatment of her.

13. Several witnesses who testified that they had the opportunity to observe the interaction between Complainant and Janeck after February 1988, characterized Complainant as being flirtatious in the way she talked and acted with Janeck. Included in such testimony were assertions that Complainant would often use her CSA vest to mockingly "flash her chest" at Janeck, would stand very close to Janeck whereby she would actually make body contact, and had allegedly been observed standing in front of Janeck's office and, while in Janeck's presence, lifting up her skirt to scratch her upper thigh and then giggling. The Complainant denied having engaged in this conduct. The ALJ, after weighing the credibility of the witnesses, concluded that the Complainant's testimony (and that of her witnesses) were as a whole more credible than that of the Respondent's. The Commission agrees with the ALJ's assessment of credibility. In this regard, the Commission notes the testimony of Pamela Walker, one of Respondent's own witnesses, who testified, among other things, that in February 1988 Complainant had complained to her that Janeck was harassing her and wanted to have sex and Complainant refused, that she (Walker) had commented to Complainant that she thought Janeck's behavior towards Complainant was unprofessional and that that was one reason Complainant was not attending the party at Jericho's, and that she (Walker) recalled Complainant expressing concern because Janeck had made numerous comments about having an affair and that Complainant told her she felt uncomfortable with Janeck's approaches.

14. Complainant was absent from work on vacation most of the month of April 1988. On May 4, she sustained a work-related injury to her right hand. Complainant's hand was placed in a cast and she was out of work for a period of time. On May 13, complainant reported to the office per Jim Comparetto, who was then her immediate supervisor, to complete some paperwork concerning her injury. After speaking with Comparetto and Page, she then saw Janeck. Janeck commented about having found out her exact age and how they were close in terms of age and actual birth date, and then made another comment about having an affair with him. Complainant told Janeck that she didn't appreciate those kinds of comments and very firmly told him she didn't do affairs, not with married men, not with anyone, and then walked out of the office. Complainant felt upset and uncomfortable because of Janeck's comment.

15. On May 20, 1988, Complainant saw Dr. Rolnick, her primary physician who removed her cast and gave her an authorization slip to return to work on May 23, but with a 25-lb. lifting restriction. On May 23 Page refused to allow Complainant to return to work, stating that she couldn't. come back until she had an unrestricted return-to-work slip. The Respondent does not permit employes to return to their former position following an injury unless they can perform 100% of their job duties. Complainant's job duties included lifting up to 75 lbs. As a form of accommodation, Respondent permits employes to return to work and perform clerical type duties. There was no work available that Complainant could do on May 23.

16. Following a favorable nerve conduction test on May 25, Complainant contacted the Respondent. After speaking with Comparetto, the Complainant then .talked to Robert Kuta, a station manager who had responsibility for scheduling employes for work, about a return to work date of the first week in June. After some confusion as to exactly what date Complainant meant, Complainant made it known that she was talking about the week of Monday, June 6.

17. In a conversation with Dr. Rolnick on May 26, Complainant inquired. about obtaining an unrestricted return-to-work authorization. When asked what date she was looking at for returning to work, Complainant said the first week of June, meaning the week of Monday, June 6.. (June 1 fell on a Wednesday.) Complainant was given the option of picking up the authorization slip or having it mailed to her and chose to have it mailed. Complainant also states that Rolnick requested that she set up an appointment for mid-July, told her he would be going on vacation in June and that she should contact his assistant if she had any problems or questions about her hand. When Complainant had not received Rolnick's work release authorization by the time that she thought she should have, she contacted Rolnick's office and learned that it had been mailed to her former address. On Friday evening, June 3, Complainant learned from her mother that a letter from Rolnick's office had arrived after being forwarded from her previous address. Complainant had completed a change of address card forwarding her mail to her mother's house.

18. On her way to work on June 6, Complainant picked up Rolnick's letter at her mother's house. After she arrived at work she opened the letter and immediately noticed that it showed a return to work date of May 31. Complainant told Comparetto that the work authorization had the wrong date on it and inquired if she should contact Rolnick and get another one, but was told no, not to worry about it and that only if there were questions should she do something. Comparetto instructed her to send a copy of Rolnick's work authorization release to General Adjustment Bureau of Business Services, Inc. (GAB), the company which handled the Worker's' compensation claims and payments for the Respondent, and to let GAB know that she had received the authorization on June 3. Complainant made a copy of Rolnick's release for GAB (as well as herself) and sent it along with a letter to GAB. Complainant's letter to GAB noted that she had received the work release authorization on June 3. Additionally, among other things, Complainant noted that she was enclosing a copy of a dictation of her "history progress" by Rolnick describing her injury, treatment and progress, stated that she was scheduled to see Dr. Rolnick on July 15 and that he would be out of town throughout June, and noted that while she had received a check covering her absence from May 5 through June 1, she had not been paid for June 2 or 3.

19. Comparetto apparently retained the original of Dr. Rolnick's work authorization release. He also apparently wrote "(6/6/88) per Stef" following Rolnick's statement that Complainant was to return to work without restriction on May 31, 1988.

20. Upon Complainant 's return to work on Monday, June 6, Janeck called and told her that there was a part-time courier position open at the Janesville station, that he would like for her to apply for it and that the deadline for applying was that Friday. Complainant told Janeck that she would have to think about it. After thinking about it for a day, Complainant decided to apply for the job. Complainant was interested in applying for the job because she wanted to advance. Complainant states that in deciding to apply, although cognizant of her prior difficulties with Janeck, she considered the fact that in the conversation with Janeck on June 6 he seemed like. the Janeck she used to know, that perhaps her May 13 conversation caused him to understand that she definitely didn't care for his behavior, the fact that as a courier she would be out on the road and that it appeared that Janeck spent most of his time at the Madison station. During their conversation about the courier position Janeck told Complainant he would be sending her to international training because they needed a specialist in that area.

21. Complainant was promoted to the position of part-time courier the week of July 4. Couriers were paid more than CSA's. Also, when Complainant took the job Janeck had told her there would definitely be overtime hours available. During June Complainant continued to work as a CSA and saw Janeck almost every single day. Janeck's behavior was completely appropriate during June. In June, Janeck asked for Complainant's telephone number and she gave him her mother's telephone number, stating that she did not have another phone number at which she could be reached.

22. Complainant's first day of employment in Janesville was on July 7. Her days of work were Tuesday through Saturday. In Janesville, Janeck immediately reverted to inappropriate behavior. On her very first day there Janeck brought up the topic of Complainant's telephone number and stated that he wanted to reach her early in the morning, with an emphasis on early, and stated that he wasn't content with her mother's number. Janeck again also commented about Complainant's age, how she drove him wild and about having an affair. Janeck's comments were persistent. Complainant did not have a home phone. Her mother lived nearby and would drive down and tell her about any phone calls. Complainant had had this arrangement with her mother since September 1987, and no other manager had ever objected.

23. Complainant was sent to Brookfield, Wisconsin from Wednesday, July 13 through July 22 for courier training. As a result of .this training she had to cancel her July 15 appointment with Dr. Rolnick.

24. On the Monday and Tuesday prior to the courier training, and on July 28, 29 and August 1, Complainant was assigned CSA duties in Madison at either the station or the business service center. Complainant understood that Page was responsible for these assignments in Madison and that it was due to staffing problems. Complainant states that she did not object to these assignments; however, in August when Janeck began assigning her to perform CSA duties at the Janesville station she did object. Complainant states that during August, prior to the 27th, she was assigned to work on at least four times strictly as a CSA, and that every single night after completion of her courier route, she was also given the CSA's task of putting in timecards. However, with respect to assignments of duties, the testimony showed that all couriers would be assigned when the circumstances required that this be done. Further, at the time, in Janesville Respondent employed only one CSA.

25. In her new position as a courier, Complainant needed to order new uniforms. The courier uniform includes among other things, slacks and shorts. Complainant ordered two different sizes of slacks (size 4 and 6) because she liked to wear a looser pair in the summer when it's hot and her regular size in the winter. Complainant told Janeck why she had ordered the two sizes of slacks upon being informed by Janeck that he didn't think the computer would take two sizes, and Janeck responded that she should not have her uniform too loose, it should be tighter rather than looser. Complainant told Janeck that if only one size was being ordered she wanted the size 6, but prior to the arrival of the uniforms, Janeck told her that he had ordered the size 4. When the slacks arrived, Janeck stated in a suggestive tone of voice that he wanted her to try on the pants so he could see them on her before she started her route. Complainant declined and tried the slacks on- at home. Because the slacks were tighter than she wanted them to be, the next day she told Janeck she wanted to return them for the size 6 and Janeck responded that she should have let him be the judge of how the pants fit. The slacks were reordered at the size 6. Additionally, Complainant filled out another uniform requisition for shorts and Janeck commented that he thought she'd look good in shorts, as did two other couriers, stating "(t)hey looked real good in their shorts."

26. Complainant also testified about a series of events which occurred in August that seemed to surface in connection with her getting a ride to work by Shawn Walsh and Janeck's perception of her relationship with Walsh. Walsh was normally stationed in Madison as a courier, but had been assigned to Janesville as "cover driver," due to others being off work. Walsh gave Complainant rides to work on August 18, 19, and 24 because she had to have work done on her car. On each of said days she and Janeck would go through the following exchange:

"A. What he said to me is, where's your car? And I said, it's being worked on. And then he said, how did you get here. And I said, I got a ride. And then he said, who gave you the ride? And I said, Shawn. And that he stared at me and then he walked away, shaking his head."

Complainant testified that Janeck made a comment along the lines that she and Walsh were "having a relationship," and would engage in abusive or hostile behavior because of his perception of their relationship. After Janeck would walk away shaking his head following questioning her about the rides with Walsh, Janeck would immediately come back out of his office and he'd say, "I've decided I'm not going to send you to training," without any explanation offered. Complainant stated that Janeck also reacted in this manner on August 24 in connection with her expressed interest in a shift change that had been discussed on August 18 and 19. Complainant testified that Janeck's tone of voice appeared upset and that his face was a "bright red" when talking about her ride with Walsh and the shift change.

27. At some point after being questioned about the rides, Janeck also questioned Complainant about her social contacts when looking at her expense report submitted for the courier training in July. Complainant stated that she particularly remembered Janeck focusing on one restaurant and wanting to know exactly who she had gone there with.

28. On August 12, 1988, Complainant worked as a CSA to cover for Vicki Hall, the regularly assigned CSA. When Complainant closed out the cash bag, she mistakenly placed the cash recap form in one bag and mailed it to Memphis, while leaving the cash itself sealed in another bag at the Janesville station. Complainant was supposed to have enclosed the cash itself with the cash recap form and sent that along to Memphis. Complainant states that on the following Monday, she explained to Janeck that the error had occurred because she had been quite busy, that there had been a lot going on causing her to be pulled in a lot of different directions. Complainant states that when she spoke to Janeck about this he said it was no problem. Complainant worked as a CSA again on the following Friday, August 19, and committed the same error when closing out the cash bag. Apparently in explanation for the August 19 error, Complainant testified that by the end of the day on August 19 Janeck had been treating her abusively. Complainant testified that on that day Janeck had handed her expense report back and told her to re-do it because she had gone to the limit on all of her meals, despite having previously told her that .she could claim up to the limit. Complainant stated that Janeck's tone of voice with her that day seemed quite angry. She also stated that on August 19, she had a ride home with Walsh and that Janeck displayed an angry demeanor towards her when she was ready to go.- On Monday, August 22, when Janeck spoke to her about the second cash bag error she told him she simply must have forgotten to include the cash and Janeck stated, " (t) hat's fine," and later on Wednesday, August 24, Janeck mentioned that the cash bag incident had been all cleared up. Complainant testified that there was no mention that she would be disciplined and nothing further was said about the matter until August 25, when, to her surprise, Janeck announced that he was writing her up on a Performance Information Tracking (PIT) form. Complainant was asked to initial the PIT form but refused. Complainant states that Janeck said nothing about her refusal to initial the PIT form.

29. Complainant saw Virginia Fischer at the Madison station the night of August 25, told her that Janeck had started bothering her again, and agreed to meet at Fischer's house for lunch the next day, August 26. Complainant states that on August 26 she told Fischer about Janeck being inconsistent with his treatment of her (e.g., regarding training), about having an affair with her, the comments about her age and about Janeck's questioning her about rides from Walsh.

30. Complainant, who had driven Walsh's car to Madison for her Friday morning meeting with Fischer, then proceeded on to work. When Complainant arrived, she was called into Janeck's office for a telephone conference with Page regarding her failure to sign off on the PIT form. Page was involved as a witness to Complainant's refusal to sign the PIT form regarding the cash bag incident. Complainant asserts that she told Page she felt she was being treated unfairly, but was unable to tell him about the suggestive and harassing treatment by Janeck because Page kept telling her all he was hearing from her was excuses and would not let her talk. According to Page, Complainant was allowed to discuss the cash bag incident and could have mentioned any problems she was having with Janeck at that time, but failed to do so. Page states that because Complainant complained she felt she was being pulled in different directions because of performing courier and CSA duties, he said that Complainant was to no longer do CSA duties. At the end of the conversation Page told her that if she felt she'd been treated unfairly, she should contact Theresa Jones, the new personnel rep, in Milwaukee.

31. Complainant testified that at the end of the day on August 26, Janeck, who was sitting in his office, told her to "get in here and shut the door." Complainant testified that she told Janeck she would talk to him but not behind closed doors and did not want to be alone with him. Complainant testified that Janeck's tone of voice was very angry and that she could identify nothing work-related to explain Janeck's behavior. Complainant stated that Janeck gave this order two or three times. Complainant states that Walsh, who was waiting nearby, walked over when she looked at him and stated that she didn't want to be alone with Janeck. Complainant states that Walsh made a comment something similar to "why are you treating her like this?", and that Janeck then told Walsh it was none of his business and he should wait in the car. Complainant states that she nonetheless asked Walsh to stay and that Janeck eventually mentioned two things to her and then said she could go. Complainant stated that as she was starting to leave Janeck informed her that her ending time for her shift the next day, Saturday, August 27, would be at 12:45 p.m. rather than the usual 2 or 3 p.m. Complainant testified that no reason was given for this change and this was the first time her shift had ever been changed.

32. Because Virginia Fischer could not believe what Complainant was saying about Janeck at their August 26 luncheon, she called Janeck later that evening. Fischer told Janeck Complainant had made a lot of serious allegations ranging from feeling she had been treated unfairly due to the cash bag incident to being harassed (whether or not sexually) as far as being teased, including being teased about an alleged relationship with Walsh. Fischer states that she told Janeck that if he was teasing Complainant in any way that could be misconstrued as sexually harassing, not to do it. Fischer was asked to relate what she had told him to Robert Page.

33. Fischer called Page on Saturday, August 27, about the Complainant's allegations and Page told her there would be an investigation. On Monday, August 29, Fischer prepared and sent a memo to Page describing the allegations made by Complainant on August 26 and her subsequent calls to Janeck and Page. Fischer's memo to Page includes a statement that she (Fischer) asked Complainant if she had confronted Janeck about his behavior and that Complainant had responded "it wouldn't do any good because all managers stick together and she wouldn't get anywhere." Fischer's memo states that she told Complainant on August 26 that she found it very hard to believe her accusations about Janeck and that she did not believe Complainant's accusations. Fischer was described as being good friends with both Complainant and Janeck.

34. Janeck testified that at about midnight on August 26, he typed a memo for Page regarding the call he had received from Fischer. In the memo Janeck denies the allegations of Complainant. Referencing a claim that Fischer had commented he had "grabbed (Complainant's) ass (at Jericho's)," Janeck characterized this as an outright lie and slander. Janeck's memo then went on to state as follows:

"If this isn't undermining management I don't know what is! Given what we now know, I find that for my personal safety and liability, and the liability of Federal Express Corporation I can no longer have any type of contact with this woman. It is my strongest possible recommendation that she be terminated for gross misconduct before she has a chance to thoughtlessly ruin anyone else's reputation. I believe her inability to get along with any of her previous three managers only further proves that what we have here is a psychological problem that we have made every attempt to deal with and that is now beyond our capabilities. I invite whatever investigation needs to be done as I have never consciously harassed anyone I have worked with--sexually or any other way."

Janeck also prepared a memo on the night of August 26 (with copies to Page and Comparetto, Walsh's supervisor) regarding the alleged conduct of Complainant and Walsh at the end of Complainant's shift earlier that day.

35. On August 27, the Complainant reinjured her right hand (and her back) while delivering packages to a customer. Complainant finished her deliveries, went back to the station, got an injury report from her locker and then punched out. Complainant states that she did not report the injury to a manager that day because no manager was there and she had not been instructed that if no manager was there to just report to any manager. Complainant completed the injury report on Monday, August 29, and later was driven by her sister to see Dr. Schultz at Dean Urgent Care around 9 p.m. After seeing Dr. Schultz, she stopped by the Madison station and dropped off a copy of her injury report, along with a written excuse to be off work given her by Dr. Schultz. This excuse stated that Complainant could return to work on September 5. Complainant left copies of these items in Page's mailbox, and in the "Janesville bag" for Janeck. Complainant's sister called the Janesville station on August 30 and stated that Complainant would not be in to work.

36. On August 30, Complainant attempted to get in to see Dr. Rolnick, but he was booked solid until September 7. Complainant then saw Dr. Reich on September 1, but her medical condition was outside of his specialization. Reich provided Complainant with an excuse stating she was not to return to work and would be evaluated by Dr. Rolnick on September 7. Complainant remained off work after seeing Dr. Rolnick. Complainant received Worker's' compensation benefits for the second injury to her hand after a period of delay. Respondent had questioned whether Complainant's second injury was work-related. Margaret Maegli at GAB eventually determined that Complainant's second injury was work-related. Complainant's difficulties with her hand continued into the year 1989, until she had agreed to have a Dr. Livengood perform surgery on her hand. There was a second delay in Complainant's Worker's' compensation benefits that began in December 1988. Maegli eventually determined that Complainant should receive Worker's' compensation for the period continuing after December 1988 after communicating with Dr. Livengood in April and May of 1989.

37. Robert Page's first knowledge of Complainant's allegations of sexual harassment by Janeck came on August 27 when contacted by Fischer. At a meeting with the employes on August 30, Page made the following comments: Rumors hurt people; employes don't like rumors spread on them and management doesn't like rumors spread on management, that it can disrupt your family life and no one needs that; that employes can be discharged for false malicious statements on fellow employes and if he ever finds this true of an employe doing this, the employe will be terminated. Page's comments were in reference to the allegation of sexual harassment by Janeck. At no time was Complainant's name mentioned at the meeting. Page had not received any complaint of sexual harassment from the Complainant herself prior to the meeting. Page admits that the comments about the alleged sexual harassment bothered him and he let the employes know that he was a no-nonsense manager.

38. Debbie DuCharme, who recalled the meeting as basically being about gossiping, described Page as being angry and testified that the way things were presented, Page had already made up his mind that the employe was at fault and would be discharged.

39. Sometime before September 1 (probably on August 31) Complainant called Theresa Jones, Respondent's. senior personnel rep. It was Jones's duty to investigate claims of sexual harassment, as well as other problems that might arise. Complainant states that she called Jones mainly to determine how to proceed against Janeck and that she did not give Jones her name. Complainant told Jones she had recently had an incident with a manager involving a cash bag incident and that there was inappropriate behavior by this manager. With respect to the inappropriate behavior, Complainant was asked if she talked to anybody at Respondent and Complainant said no, she didn't know what to do. Complainant was informed that she could write Jones an informal letter.

40. The Respondent has a policy called the Guaranteed Fair Treatment Procedure (GFTP). Under this policy, if an employe feels she or he has been unfairly treated by their manager or senior manager they can send a written complaint to-that person's boss. The complaint is then investigated and a decision made. If the employe disagrees with the decision made the matter can be taken to step 2 before the vice president and senior vice president of the company for a review. If still in disagreement after this review, an appeal can be filed to have the matter brought before the company's chief executive for determination. Information regarding the GFTP procedure is included in the employe handbook and stated on plaques at the station.

41. Respondent also has a written policy condemning sexual harassment in its Personnel Policy and Procedures Manual. There is a two-plus page statement outlining the policy and complaint procedure. This manual is located at the station and employes have free access to it. Complainant admits that she never complained to a manager about Janeck's behavior. She also admits knowledge about the GFTP and to having access to the Personnel Policy and Procedure Manual containing the employer's policy against sexual harassment.

42. On Tuesday, September 6, Theresa Jones contacted Complainant by phone at Complainant's mother's house and asked Complainant if she could come in to work early that day to talk. Complainant was not scheduled to work that day since September 5 had been Labor Day and employes working the Tuesday through. Saturday work schedule would have that Tuesday off as their holiday. Additionally, Complainant had obtained a doctor's excuse on September 1 to be off work through September 7 when she was to see Dr. Rolnick. Page was present when Jones made the call to Complainant. (Although not part of the record, based on Page's deposition testimony, at the time of the September 6 telephone call, Page had not yet received Dr. Reich's excuse for Complainant to be off work through September 7.) The record does show that Page had Dr. Schultz's excuse for Complainant to be off work through September 5.

43. Surprised that Respondent thought she was to be at work, Complainant told Jones that she did not know she had been scheduled to work and that she was still off having not been released to return to work. Jones stated that she would pass it on that Complainant was still off work per a doctor's excuse. (1)

44. Page apparently called Complainant back almost immediately after Complainant had spoken with Jones. Complainant testified that Page started yelling at her, telling her she was spreading rumors about sexual harassment that was damaging to a manager's career and family life, that this was major league and people were standing in line to sign a statement against her and that she'd better come up with some hard facts or he was going to fire her. Complainant states that Page also made a comment about not believing her August 27 injury and making her go to the company's doctor that very afternoon, despite her pleas that an appointment not be made until the next day because she could not drive and had no means of transportation.

45. Respondent's work rules specifically state that making false, malicious statements concerning an employe is grounds .for discipline, including discharge.

46. Page denies being rude or abusive during the phone conversation with Complainant on September 6. The evidence indicates that Page believed that Complainant needed to get into work: (1) to discuss her work injury which had not been discussed with any manager; and (2) to discuss the allegations of sexual harassment. Respondent's Policy and Procedural Manual rules regarding work injuries states that "(i)t is imperative that every job-related accident resulting in an injury be reported on the day it occurs, using the Employee First Report of Injury Form FEC-M-466" and that it is the employe's responsibility to "report(s) that injury to the manager immediately." Complainant's report was dated August 29, two days after the injury and at no time had she spoken to a manager regarding the injury. Page admits telling Complainant that these matters were major league and that there were people lined up to testify against her or say things about her.

47. On September 7, 1988, Complainant filed her first complaint of discrimination against the employer.

48. Page did not call Complainant back on September 6 about a doctor's appointment for that afternoon. Instead, he mailed Complainant a letter which she received on September 9 at her mother's house. The letter informed Complainant of a doctor's appointment scheduled for September 13 at 1:30, to be followed by a meeting with him and Theresa Jones. The letter advised Complainant that failure to attend the meeting would be considered a voluntary resignation.

49. Complainant states that she called Jones on September 12 because she had not been contacted by Jones on September 8 or September 9 as Jones had said she would do, and to see if the September 13 scheduled meeting could be changed because she had a physical therapy appointment scheduled at 2 p.m. that afternoon. Complainant and Jones then apparently hung up so that Jones could tell Page about the scheduling problems. Complainant states that when Jones called back Jones told her that Page wanted to talk to her and that she should call him about rescheduling the meeting on September 13 because "he was much calmer now." Complainant then went on to discuss her alleged problems with Janeck with Jones during a two-hour conversation.

50. Complainant called Page later at home on September 12. During this conversation Complainant told Page that she wanted to go strictly through Jones on the sexual harassment matter. Complainant states that Page told her he still wanted her to talk to him anyway and for her to keep the doctor's appointment. Apparently Complainant and Page got into a shouting match. On September 13, after Complainant had already canceled her physical therapy appointment, she learned that Page had canceled the appointment with the company doctor and that any further communication would be from Theresa Jones. Page testified that the September 13 doctor's appointment and meeting with himself was canceled at the advice of Don Mitchell, Respondent's EEO officer, and that the reason was because Respondent had received notice that Complainant had filed a complaint of discrimination with the Equal Rights Division.

51. On October 3, 1988, Jones submitted her investigative report regarding the alleged sexual harassment by Janeck to Don Mitchell. (Comp. Exh. 38) Jones's report indicated that she interviewed Complainant, Janeck, Page, Vicki Hall (Janesville CSA) and Virginia Fischer. Excerpts of Jones's summary read as follows:

"It is my general impression that while there was a lot of teasing and kidding around that went on between Stephanie Roden and Bill Janeck, there was not any conduct of a physical nature or any serious intent on Bill's part to make sexual advances. In most instances, their conversations were not witnessed by other employes, so it is difficult to totally ascertain the actual 'intent' of either party. It appears that Bill's kidding around with Stephanie may have gone too far and was misinterpreted. His comments were not tied to issues of performance, counseling, discipline, schedule changes, etc . . . .

Bill Janeck was informed by his senior manager, Bob Page, quite some time ago, to stop allowing Stephanie to spend so much time in his office, as she reported to another manager . . . .

It appears that Stephanie's (sic) upset over being counseled about the cash bag incident was followed by anger at Bill Janeck and subsequent rumors about possible sexual harassment . . . . I feel that for whatever reason Stephanie has chosen to misinterpret or somewhat exaggerate her conversations with Bill Janeck. Again, while there were no witnesses, it is difficult to give a 100% confirmed recommendation . . . ."

52. At the. close of her investigative report Jones issued a personal recommendation which included the following: Having Page counsel and document discussion with Janeck regarding kidding and jovial behavior and the potential for misinterpretation as possible sexual harassment; having Page and Jones meet with Complainant upon her return to work from her injury to discuss from beginning to end, what the concern was relative to her injury, proper notification and the employe's responsibility in the matter; informing Complainant of a temporary reporting relationship (to Robert Page) and that the sexual harassment issue will be dealt with through the outside agency (the Equal Rights Division) she has elected to' have address. the issue; and that pending the outcome of the external charge, making a determination as to Complainant's permanent management relationship and future conduct of both employes involved.

53. On November 30, 1988, Complainant received a letter from Page requesting her to come to Page's office on December 2 to discuss Dr. Rolnick's release which showed a change of the return to work date of 5/31/88 to state a return to work date of 6/6/88. As previously noted, when Complainant returned to work following her first injury on June 6, she told Comparetto that it had the wrong date on it. Attached to Page's letter were copies of two letters (dated November 21 and November 23) that Maegli had sent him. The November 21 letter to Page referenced a November 1 letter from Dr. Rolnick to Maegli stating that Rolnick had not extended Complainant's return to work date from May 31, 1988 to June 6, 1988.

54. Maegli's testimony, in conjunction with her activity log of recorded notes and telephone calls on Complainant's Worker's' compensation claims, explains what had happened. First, because Complainant was claiming she was owed more money on the May 4 injury (for June 2 and 3) , Maegli sought to have this verified. In this regard, on July 12, 1988, Maegli contacted Dr. Rolnick's office but the responsible person there (Gidget) needed to find Complainant's chart and was to get back to Maegli. That same day, Maegli then called the Respondent and spoke with Janeck who informed Maegli that the last doctor's note he had for Complainant showed a May 31 return to work date with different handwriting referencing a June 6 return to work date. Janeck sent Maegli a copy of this note which Maegli received on July 14, 1988. Because of the discrepancy with the return to work dates, Maegli sought verification of the return to work date. Maegli testified that she finally paid Complainant's claim for the June land 2 dates because no one at Respondent could identify who had written the June 6 return to work. Maegli testified that there were a lot of people missing on vacation. Per Page, Comparetto had "had some problems" and was away from the station for the period from June - September 1988.

55. Maegli testified that on October 17, when in contact with Gidget regarding something pertaining to Complainant's August 27 injury, Maegli mentioned that Gidget had never gotten back to her about Complainant's May 4 injury and was informed at that time that there was nothing in the record showing an extension of the May 31 return to work date. Maegli then wrote to Dr. Rolnick himself on November 1, 1988, for an explanation. On November 9, Rolnick responded by letter stating that his records showed that he released Complainant to return to work without restriction on 5/31/88, that there was nothing in their charts to show the May 31 date had been extended and that he had been available for two and a half weeks in June. Maegli then forwarded this information to Page in a letter dated November 21, 1988. Page, in turn, sent the November correspondence to Complainant setting up the December 2 meeting.

56. Maegli testified that neither Janeck, Page nor Jones had asked her to investigate Complainant's May 4 injury return to work date.

57. On December 2, Complainant went to the scheduled meeting with Page. Complainant testified that she had Lisa Steva, a former employe of Respondent, accompany her to the meeting because of Page's abusive behavior on the telephone on September 6 and September 12. Page refused to allow Steva to attend their meeting. Page told Complainant that she was suspended pending an investigation leading to her termination and then had another manager come into the room to have him witness the announcement of Complainant's suspension. Complainant testified that she did not know what the alleged alteration involved. Complainant had made a copy of Dr. Rolnick's release prior to turning it over to Comparetto. Page had not provided Complainant a copy of his copy of Rolnick's release prior to the meeting, and he refused to show Complainant the altered release at the December 2 meeting.

58. On December 8, Complainant received a letter from Page dated December 2 stating that she was discharged and that fraudulent activity was the reason. The fraudulent activity involved included the fact that Maegli had learned Dr. Rolnick had not extended her May 31 return to work date and that Rolnick had been in the office the first two and a half weeks of June. Page testified that he immediately converted Complainant's December 2 suspension to a discharge after talking to Don Mitchell who stated that the evidence Page had already accumulated was sufficient reason to discharge her.

59. Janeck was not involved in the decision to suspend or discharge the Complainant.

60. Following her discharge, Complainant filed her second complaint of discrimination alleging that her suspension and termination were in retaliation for having filed her first complaint on September 7, 1988. Complainant's suspension and discharge were not because she had filed _a complaint of discrimination against Respondent but because Respondent reasonably believed that she had engaged in fraudulent activity.

61. Thereafter, Complainant filed her third complaint of discrimination on January 19, 1989, alleging additional acts of retaliation for having filed her September 7, 1988, complaint of discrimination. This complaint included charges involving Respondent's failure to pay her owed vacation and profit sharing, and the discontinuance of certain Worker's' compensation entitlements. Complainant was not retaliated against with respect to these matters because she had filed a complaints) of discrimination against Respondent. Page had simply forgotten to include Complainant's vacation hours when he had submitted the paperwork for Complainant's discharge. Respondent's policy is to issue profit sharing checks only to employes actively employed as of the distribution date of such checks. Profit sharing checks were distributed on December 20, 1988. Complainant's Worker's' compensation benefits were terminated because GAB had not received medical authorization from a doctor for Complainant to receive such benefits beginning in December 1988.

CONCLUSIONS OF LAW

1. The Complainant, Stephanie Roden, was an employe of Federal Express.

2. Respondent A, Federal Express, is an employer within the meaning of the Wisconsin Fair Employment Act.

3. Respondent B, William Janeck, is an agent of Federal Express.

4. Respondent C, Robert Page, is an agent of Federal Express.

5. Complainant has failed to establish that either Respondent A, B or C had unlawfully discriminated against her with respect to her conditions of employment, compensation or termination of employment because of her sex within the meaning of sec. 111.36(1)(a), Stats.

6. Complainant has failed to establish that Respondent A, B or C had unlawfully discriminated against her with respect to her conditions of employment, compensation or termination of employment because she made a complaint under the Act.

7. Complainant has failed to establish a violation of the Act with respect to her claim of sex discrimination within the meaning of sec. 111.36(1)(b), Stats.

8. Complainant did establish that Respondent B, William Janeck, and consequently Respondent A as the liable employer, had violated the Act by discriminating against her in her terms and conditions of employment because she opposed practices made discriminatory (i.e., sex harassment) under the Act.

ORDER

1. That except insofar as Complainant's complaint in case #8802134 alleges retaliation for having opposed practices made discriminatory under the Act by Respondents A and B, said complaint is dismissed; that the complaint in case #8802863 is dismissed; and the complaint in case #8900131 is dismissed.

2. That Respondent A shall require Janeck to attend a sexual harassment seminar or course conducted by an entity other than Respondent, and require that he certify that he has read and fully understands Respondent's policy against sexual harassment.

3. That Respondent pay Complainant the amount of $6,480.51 as reasonable attorney's fees, plus costs of $1,012.79 as reasonable attorney's fees and costs in this matter. The sum total of $7,493.30 shall be paid by check made payable jointly to Stefanie Roden and Attorney Daphne Webb.

4. That Respondent A shall within 30 days of the expiration of time. within which an appeal may be taken herein, submit a compliance report detailing the specific action taken to comply with the Commission's order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708.

Dated and mailed June 30, 1993.

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


NOTE: The Commission has reversed the ALJ's finding of hostile environment sexual harassment as a matter of law. The Commission has rewritten the ALJ's decisions in order to more fully set forth the facts and claims made in the Complainant's complaints.

 

MEMORANDUM OPINION

Section 111.36(1) of the Wisconsin Fair Employment Act (WFEA) states that employment discrimination because of sex includes:

"(a) Discriminating against any individual in . . . compensation paid for equally or substantially similar work, or in terms, conditions or privileges of employment or licensing on the basis of sex where sex is not a bona fide occupational qualification.

(b) Engaging in sexual harassment; or implicitly or explicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment or the basis or any part of the basis for any employment decision affecting an employe; or permitting sexual harassment to substantially interfere with an employe's work performance or to create an intimidating, hostile or offensive work environment. Under this paragraph, an employer . . . is presumed liable for an act of sexual harassment by that employer . . . if the act occurs while the complaining employe is at his or her place of employment or is performing duties relating to his or her employment, if the complaining employe informs the employer . . . and if the employer . . . fails to take appropriate action within a reasonable time."

Section 111.32(13) states that:

"'Sexual harassment' means unwelcome sexual advances, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. 'Unwelcome verbal or physical conduct of a sexual nature' includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments, or the deliberate, repeated display .of offensive sexually graphic materials which is not necessary for business purposes."

Section 111.322 makes it an act of employment discrimination to do the following:

"(3) To discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified or assisted in any proceeding under this subchapter."

The courts have recognized two forms of sexual harassment: Hostile environment sexual harassment and quid pro quo sexual harassment. Hostile environment sexual harassment occurs when an employer's conduct "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive environment." Meritor Savings Bank, F.S.B., v. Vinson, 477 U.S. 57, 40 FEP cases 1822, 1826 (1986), quoting EEOC Guideline, 29 C.F.R. § 1604.11(a)(3). Quid pro quo sexual harassment occurs when an employer alters an employe's job conditions as a result of the employe's refusal to submit to sexual demands. Vinson, at 1826.

Although no express conclusion of law was made, it is apparent in case #8802134 that the ALJ concludes the Complainant was subjected to hostile environment sexual harassment. Paragraph 1 of the ALJ's Order requires that the Respondent cease and desist from discriminating against the Complainant by subjecting her to "sexual harassment." Then, in a memorandum opinion attached to that decision the ALJ states:

". . . The major portion of Roden's co-Worker's were not offended by the joking and kidding so perhaps Roden did join in initially in order not to be or to feel alienated. Even if Roden did initially join in, there was a point in time at which Janeck's jokes and advances were not welcomed by Roden. Yet, Janeck continued with his obtrusive behavior. Roden established that these unwelcome sexual advances by Janeck were sufficiently pervasive to create an offensive and hostile working environment.

There were important factual discrepancies in this case and, therefore, the sexual harassment issue in this matter turned into one of credibility. The Findings of Fact were made as a result of weighing the credibility of the various witnesses and the testimony given. The Complainant's testimony and witnesses were as a whole more credible than those of the Respondent." (emphasis added)

HOSTILE ENVIRONMENT

The elements of a sexual harassment claim under Title VII of the Civil Rights Act of 1964 are also the elements of a similar claim under the WFEA. Zabkowicz v. West Bend Co., 589 F. Supp. 780, 35 FEP Cases 610 (1984), aff'd. in relevant part, 789 F.2d 540, 40 FEP Cases 1171 (7th Cir. 1986).

In a hostile environment sexual harassment claim under Title VII, the following elements must be alleged and proved:

(1) The employe belongs to a protected group. This requires a simple stipulation that the employe is a man or a woman. Henson v. City of Dundee, 682 F.2d 897, 29 FEP Cases 787, 792 (1982).

(2) The employe was subject to unwelcome sexual harassment. In order to constitute harassment, this conduct must be unwelcome in the sense that the employe did not solicit or incite it, and in the sense that the employe regarded the conduct as undesirable or offensive. Henson, Id. The parties are in complete disagreement as to whether or not the Complainant has satisfied this element of her case. This is not surprising though in view of conflicting testimony regarding the Complainant's alleged flirtatious and suggestive behavior toward Janeck. As noted by the ALJ's memorandum opinion statement on credibility, however, she found the Complainant and her witnesses' testimony to be more credible. The Commission agrees with the ALJ's assessment of credibility as it pertains to this particular element of proof. One reason is due to the testimony of Pamela Walker, one of Respondent's own witnesses, who testified that Complainant was complaining to her in February 1988 about being harassed by Janeck.

(3) The third element the Complainant must establish is that the harassment was based on her sex. In short, the Complainant must show that but for the fact of her sex, she would not have been the object of harassment. Henson, 29 FEP cases at 793. In the typical case in which a male supervisor makes sexual overtures to a female worker, it is obvious that the supervisor did not treat male employer in a similar fashion. Henson, Id. Respondent has argued that Complainant failed to show that Janeck did not engage in the same type of behavior she alleges was harassing, with all other employer, regardless of sex. However, as noted by Complainant, the witnesses testifying as to Janeck's sexual harassing behavior testified that such conduct was directed at women; and, in any case, if Janeck had directed this conduct toward male employes, presumably Respondent would have produced some of these male employer to testify but did not.

(4) The fourth element Complainant must prove is that the harassment complained of affected a term, condition or privilege of employment. In order to prevail on this element, the Complainant must establish that the sexual harassment was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. Henson, 29 FEP cases at 793-794; Vinson, 40 FEP cases at 1827. In assessing this two-pronged element, in Brooms v. Regal Tube Company, 881 F.2d 412, 50 FEP Cases 1499 (7th Cir. 1989), it was held that the court must employ a dual standard when evaluating a sexual harassment claim, considering the likely effect of a defendant's conduct upon a reasonable person's ability to perform his or her work and upon his or her well-being, as well the actual effect upon the particular plaintiff bringing the claim. Id. at 1503. Further, the determination of the existence of sexual harassment must be made "in light of 'the record as a whole' and 'the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred." Vinson, 40 FEP cases at 1828, quoting EEOC Guidelines. The evidence as to this element of Complainant's case was also conflicting. Complainant's testimony shows that Janeck's conduct was persistent, made her feel extremely uncomfortable and intimidated. Respondent, on the other hand, emphasizes the testimony of Complainant's co-Worker's who stated they were not offended by Janeck' s "joking and kidding, " and argues that Complainant's dissatisfaction with Janeck stems more from her disappointment that he had reprimanded her for failing to properly perform her duties and not from any real harassing or intimidating environment. The ALJ concluded otherwise and found that Janeck's jokes and sexual advances were offensive and sufficiently pervasive to create an offensive and hostile working environment. The Commission agrees.

(5) The fifth and final element Complainant must prove is respondeat superior. Where a plaintiff seeks to hold the employer responsible for the hostile environment created by the plaintiff's supervisor or co-worker, she or he must show that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. The Commission finds that the Complainant has failed to establish this important element of her claim. The ALJ's decision is noticeably silent on this element of proof. Page testified that he first became aware of the alleged harassment on August 27, 1988, the last day Complainant was at work. There is nothing which disputes Page's testimony. Further, with all of the testimony about all of the friendly joking and kidding that took place between Janeck and other employes, there is no reason that Page would have suspected any problem. Complainant avoids any discussion of Page's knowledge about the alleged sexual harassment prior to August 27, instead focusing on what occurred after August 27. In this regard, Complainant emphasizes the testimony:  (1) about the staff meeting in which an angry. Page announced that an employe was claiming sexual harassment against a manager and would be fired; and (2) about Page's call to Roden in which he shouted that Complainant would be fired if she did not come up with hard facts to substantiate her claim of harassment. Further, Complainant argues that although Jones's investigative report concluded Janeck had engaged in sexually inappropriate verbal conduct toward employes and had recommended that Page counsel and document discussions with Janeck regarding kidding and jovial behavior for potential misinterpretation as possible sexual harassment, Page never counseled Janeck.

Although not attempting to justify or necessarily indicate approval of Page's behavior, his behavior is not something that could not be expected under the circumstances. Fischer was reporting to Page that Complainant's accusations were not believable, Janeck was of course denying everything, Complainant herself had not filed any charge of sexual harassment with Respondent, even though the Respondent had a policy condemning sexual harassment and a GFTP whereby Complainant could have raised her concerns, and Complainant had neither come in to work nor called to talk about Janeck's alleged conduct after having made her assertions about Janeck to Fischer. On the subject of the Respondent's GFTP and policy against sexual harassment, while the mere existence of a grievance procedure and a policy against discrimination coupled with the Complainant's failure to invoke that procedure will not automatically insulate the Respondent from liability, such facts are plainly relevant. Vinson, 40 FEP cases at 1829. The reason being that valid reasons may nonetheless exist to explain the Complainant's failure to invoke the employer's grievance procedure.

In this case, however, the evidence clearly shows that there was absolutely no valid reason for the Complainant's failure to invoke the grievance procedure or to otherwise make known to Respondent her claim of sexual harassment. When asked why she failed to complain to Page about Janeck's conduct, Complainant stated it was because "he was so abusive in the phone call on September 6 . . ." (emphasis added) All of the harassment complained of by Complainant had occurred prior to September 6, however. Complainant then asserted that she did not know whether she would feel comfortable talking to Page about it. In this regard, Complainant asserted that she didn't feel comfortable interacting with Page because "it was his whole behavior toward me about telling me he wanted me to remain in Madison (as a CSA)" and because through June, Page was criticizing her about becoming a courier. Complainant testified that Page would say "I am concerned about you becoming a courier and that's why I am talking to you about this," and that on her last day at the Madison station Page had said, "I don't think you are going to like being a courier. I was a courier for a year-and-a-half and I hated, every day of it."

The Commission finds Complainant's assertions for not going to Page about Janeck's conduct entirely unconvincing. Moreover, Page credibly testified that he and Complainant had an open relationship when Complainant was at the Madison station and that Complainant would frequently discuss any problems she had with him. Further, Page testified that he had once arranged an interview with personnel out east so that Complainant could be promoted and Complainant decided not to attend the interview.

Complainant has argued on appeal that her failure to grieve the sexual harassment internally does not invalidate her complaint and in support, cites the Commission's decision in San Filipo v. North Central Security Agency (LI RC, 8/15/86). The San Filipo decision does not support the Complainant's claim. In San Filipo, it appeared that the ALJ had interpreted the presumption of liability language portion of sec. 111.36(1)(b) as meaning that before an employer could be held liable, the employe must have informed the employer of sexual harassment while still employed. The Commission rejected this interpretation, stating that the existence of the statutory presumption did not preclude the imposition of employer liability simply because the employe had failed to inform the employer while still employed. However, the Commission then went on to explain why not, stating that such an interpretation would mandate dismissal of an individual's case, even where valid reasons existed for such failure, such as an employer's complete lack of a procedure to address sexual harassment, a case where a procedure was available but inadequate to deal with the sexual harassment or a .case where there was an adequate procedure but it had not been sufficiently publicized. In the instant case, the Respondent had a procedure to address Complainant's claim of sexual harassment, it was an adequate procedure and the Complainant knew about it.

Finally, with respect to Jones's investigative report, the Commission believes the Complainant unfairly characterizes that report. Also, Jones's recommendations were simply her personal recommendations to Don Mitchell. In any case, Complainant also completely ignores the fact that one of Jones's recommendations was that Complainant's claim of sexual harassment be dealt with through the outside agency (ERD) that Complainant herself had elected to have address her claim.

QUID PRO QUO SEXUAL HARASSMENT (2)

Although apparently never pursued by the Complainant (nor considered by the ALJ (3) ), in case #8802134 some of the allegations of sexual harassment were the following: that although promised by Janeck in June, July and as late as August 19 that he would send her to specialized training in dangerous goods and international packages., she was told by Janeck on August 24 that she didn't need anymore training; and that although asked by Janeck if she was interested in a different shift, when she expressed interest in the shift Janeck stated he wanted to offer such shift to another worker and would not offer it to her. The incident involving the PIT form write-up for the cash bag incident would also appear to come under quid pro quo sexual harassment.

The elements of a quid pro quo sexual harassment case, although similar to those involved in a hostile environment case, are distinguishable. The first three elements are identical. The differences begin with the fourth element of proof. What must be shown as the fourth element of proof is that the employe's reaction to the harassment complained of affected tangible aspects of the employe's compensation, conditions, or privileges of employment. Henson, 29 FEP cases at 797-798. Under this theory of sexual harassment, the acceptance or rejection of the harassment by the employe must be an express or implied condition to the receipt of a job benefit, or the cause of a tangible job detriment in order to create liability. Id., 797-798. Quid pro quo sexual harassment occurs when an employer alters an employe's job conditions as a result of the employe's refusal to submit to sexual demands. Vinson, 40 FEP Cases at 1826. The fifth element -- respondeat superior -- also differs. Henson holds that an employer is strictly liable for sexual discrimination by a supervisor that causes a tangible job detriment. Id., 798.

In this case, it could be argued that Janeck's repeated comments and inquiries about the Complainant's relationship with Walsh followed by Janeck's statements that Complainant would be denied training, denied a shift change or the fact that Complainant was disciplined for no apparent reason over the cash bag incident, constituted quid pro quo sexual harassment. The argument would apparently be as follows: the conduct, comments and inquiries by Janeck about the relationship would constitute sexual harassment and apparently be intended to dissuade Complainant from engaging in a relationship with Walsh in order to make Complainant submit to Janeck's sexual advances, but Complainant nevertheless refused his sexual advances thereby resulting in adverse treatment by Janeck. However, the viability of a quid pro quo theory of sexual harassment based on this. premise is highly doubtful because it involve; such an indirect approach. Moreover, the evidence does not readily lead to the conclusion that the Complainant's job conditions had been altered as a result of a refusal to submit to sexual demands by Janeck. Further, Complainant had in fact basically sought to tie her loss of job benefits and discipline to examples of evidence indicating how hostile the work environment had become. Further still, even on appeal Complainant has not pursued a theory of quid pro quo sexual harassment.

It appears that the actual intent of Conclusions of Law numbers 5 and 6 made by the ALJ was to find that Complainant had been discriminated against because she opposed sexual harassment, i.e., was retaliated against because she opposed sexual harassment. Indeed, the Complainant has expressly asserted on appeal that Conclusions of Law numbers 5 and 6 represent the ALJ's conclusion that "Federal Express and Janeck had discriminated against Ms. Roden because she opposed the sexual harassment."

A claim of retaliation requires: (1) a showing that an individual engaged in statutorily protected expression (i.e., opposed any discriminatory practice under the Act or made a complaint, testified or assisted in any proceeding under the Act); (2) an adverse action by the employer; and (3) a causal link between the protected expression and the adverse action. The employer, of course, can rebut this showing by articulating a legitimate, nondiscriminatory reason for the treatment of Complainant and this would then require Complainant to prove that the articulated reason constituted a mere pretext for discriminatory conduct.

The Commission concludes that the evidence supports a finding of retaliation for opposition to sexual harassment. Complainant was subjected to unwelcome sexual harassment, she opposed (i.e., expressed dissatisfaction with and asked Janeck to stop) the sexually related comments and inquiries and she was subsequently denied previously promised training and a shift change, harassed about her expense report and disciplined, all for no apparent good reason. Janeck's assertions that Complainant was not promised training or a shift change, as well as his explanations for his conduct with respect to Complainant's expense report and discipline is simply not credible.

Also, it should be noted that since retaliation may be found in a case where an individual opposes conduct reasonably believed to be discriminatory, even if he or she is mistaken and there was no discrimination (Berg v. Lacrosse Cooler Co., 612 F. 2d 1041, 21 FEP Cases 1012 (7th Cir. 1980), there would be no merit to an argument that Complainant cannot establish retaliation since she failed to prove a claim of sexual harassment.

In case numbers 8802863 and 8900193, the Complainant alleged discrimination in terms and conditions of employment because she made a complaint under the Act. The gist of Complainant's claim in case #8802863 is that she was suspended and then discharged on December 2 as a result of having filed the earlier complaint of discrimination on September 7, 1988. In addition to arguing that the proximity in time between her complaint of discrimination and suspension and discharge on December 2. can and does provide indirect evidence of retaliation, Complainant argues that she produced direct evidence that her termination of employment was "because she complained about being sexually harassed by Janeck." Among the evidence Complainant cites is the following: Janeck's August 26 memorandum to Page in which Janeck states that it is his strongest possible recommendation that Complainant be terminated for gross misconduct before she has a chance to thoughtlessly ruin anyone else's reputation; Page's anger and alleged comment at the August 30 meeting with employes referencing an intent to discharge employes who spread gross malicious statements about others, while nothing was said about employes who commit sexual harassment; and Page's anger on September 6 when talking to Complainant, his reading of a statement regarding rumors of sexual harassment to her and statement that if she did not have some hard cold facts he would fire her. The Commission concludes that the evidence does not establish that Complainant was suspended or discharged because she made a complaint under the Act.

All of the incidents cited by Complainant preceded her filing of a complaint. It is not clear how this evidence would indicate that Complainant was discharged because she had filed a complaint of discrimination on September 7, 1988. In any case, with respect to Page, as previously noted Page's conduct is not something that could not have been expected under the circumstances. Fischer was reporting to him that Complainant's accusations were not believable, Janeck was denying everything, Complainant herself had not filed any charge of sexual harassment with Respondent, even though Respondent had a policy condemning sexual harassment and procedures to deal with such assertions, and Complainant was not coming in to work or talking to Page about the alleged sexual harassment. Additionally, the evidence showed that it .was Page alone who made the decision to discharge Complainant and that it was not until November 1988, after Page had received communication from Maegli that Dr. Rolnick had not extended Complainant's 5/31/88 return to work date to 6/6/88 as Complainant had indicated, leaving Page to suspect that Complainant had engaged in fraudulent representations regarding her entitlement to Worker's' comp benefits, that a decision was made by Page to discharge Complainant.

As further direct evidence of retaliation, Complainant cites the fact that Page never interviewed her to find out what her experience had been with Janeck, and alleges that Page never met with Janeck to discuss Complainant's allegations. However, Page had tried to get Complainant to come in and discuss her claims, but they could never agree on a suitable time. Moreover, at one point Complainant told Page that she only wanted to discuss the matter with Jones. Page eventually did in fact give up his attempts to meet with Complainant but he then turned the entire matter over to Jones. While it does appear that Page may never have met with Janeck to discuss Complainant's allegations, Page did have Janeck's written statement about Complainant's allegations. Under the circumstances, there would have really been no purpose in meeting with Janeck until Complainant had presented her charges of sexual harassment to Page.

Returning to Page's decision to discharge Complainant due to the discrepancy in the date she was to return to work after her first injury in May, Complainant argues that this constitutes "smoking gun evidence of retaliatory motive . . . and some mighty suspicious circumstances." In this regard, Complainant cites testimony by Theresa Jones as evidence that Page had decided to discharge the Complainant in September and simply waited to act on this decision until he had a "legitimate" reason. In testimony under cross-examination, Jones states that she first became aware Page was going to place Complainant on investigative suspension and then termination in September. This testimony by Jones came during the following question and answer exchange:

"Q.. Mr. Page did not tell you that he was going to fire her before he did it; is that right?

A.. We were in communication during that time, yes.

Q.. Did he tell you beforehand he was going to terminate her?

A.. We were as a manager and as a personnel representative working closely on issues like that so yes I was aware of the investigative suspension and the termination.

Q.. When were you first aware he was going to place her on investigative suspension and then termination?

A.. I couldn't tell you the specific date; sometime in September."

(II, 169-170)

A number of reasons convince the Commission that Jones's testimony does not support the contention Complainant seeks to make. First, based on the evidence, Jones's testimony does not make sense and leads the Commission to conclude either that Jones simply misspoke or the transcript is in error. For example, although testifying to having worked closely with Page on the issue of termination; later at page 173 Jones testified that it was probably late November or early December that she became aware that there may have been a falsification on the return to work release submitted by Complainant. Even stronger proof exists, however, in that: (1) the evidence shows that. on September 28, 1988 and October 24, 1988, Jones was contacting Maegli at Page's request to inquire about when Complainant might be able to return to work (Maegli had been in regular contact with Complainant's various doctors in an attempt to determine whether Worker's' compensation claims should be paid); and (2) at the conclusion of Jones's October 3, 1988 investigative report regarding Complainant's sexual harassment claims, Jones had made recommendations for Page and herself to meet with Complainant upon her return to work to discuss her second work injury and her responsibility for reporting same, as well as a recommendation that she be informed about a new temporary reporting relationship (i.e., someone other than Janeck), that her sexual harassment claim would be dealt with through the outside agency she selected and to remind her of her responsibility to report any concern to the senior manager or Jones versus a co-worker, to decrease rumors. In short, plans were being made for Complainant's return to work after September.

Finally, Complainant attributes retaliatory motivation to Page because he did not allow her to address the fraudulent activities charge at the December 2. meeting. Although perhaps not the "best defense" to this assertion, Page explained that Complainant's recourse was to utilize Respondent's GFTP if she believed she had been treated unfairly.

In the memorandum opinion portion of her decision on Complainant's claim of retaliation because she had filed a complaint of discrimination (case #8802863), the ALJ, after placing the blame for the cause of Complainant's absence from work "during the week of May 31" partly on both the Respondent and Complainant, but placing the ultimate blame for the mix-up in the return to work date on Complainant and finding that there was objective evidence to show that Page's discharge of Complainant was not pretextual, concluded with the following paragraph:

"Roden's termination appeared to have been the result of a culmination of increasing tension between her and management. Although there was a good cause, nondiscriminatory rationale for her termination, if another employe had been similarly situated, that employe might have been afforded more of an opportunity to explain the extenuating circumstances and may have been given a second chance at employment. While Roden's resultant termination may not have been fair, it was not discrimination."

(emphasis added)

Complainant apparently picks up on the underscored language quoted above as implying that the ALJ had concluded that even though Respondent had an impermissible motive as part of its reason for discharging Complainant, it did not violate the Act because Respondent had another, nondiscriminatory reason for the termination of Complainant's employment. Complainant thus argues that this is a "mixed motive case," and that under the "in-part" test, followed by Wisconsin courts and the Commission, once an employe shows that the employer's decision was motivated at least in part by an illegitimate reason, the discharge violates the law.

The Commission does not believe that the ALJ had concluded that Respondent's decision to discharge Complainant had been based in part on an impermissible motive, nor does it believe that the evidence would support such a conclusion. The evidence indicates that Respondent's belief that Complainant had engaged in fraudulent activities was the sole reason for the decision to discharge Complainant. This is shown by the fact that even after Complainant had filed a charge of discrimination with the ERD, the Respondent was making plans to meet with her and to implement changes to take place upon her return to work. The only thing that transpired after this point was that Maegli, after having initiated her own investigation, presented Respondent with information indicating Complainant had made fraudulent representations regarding her entitlement to Worker's' compensation. (4)  Secondly, if indeed "increasing tensions between (Complainant) and management" factored into the Complainant's termination, these tensions appear clearly to be related to the fact that Complainant had made allegations of sexual harassment but had never made them known to the Respondent, even though the Respondent had a policy condemning sexual harassment and a procedure to deal with such claims, and the fact that after they were made known she would not come in to work and talk about them (or her second work injury) , and not related to any reason associated with her filing of a complaint with the ERD on 9/7/88.

Complainant's complaint of retaliation in case #8900131 filed on January 19, 1989 alleges that she should have been paid unused vacation pay for fiscal year 1987-88 and accrued vacation pay for fiscal year 1988-89 in the next pay period following her date of termination but was not, that she was not issued a profit sharing check and that her Worker's' compensation checks and medical coverage were stopped without any explanation or notice. Arguably, Complainant's claims regarding the Worker's' compensation matters would be matters for which the Worker's' Compensation Division had exclusive jurisdiction. In any event, Maegli testified that complainant's Worker's' compensation benefits were terminated because GAB had no medical authorization from a doctor for Complainant to be receiving Worker's' comp benefits beginning in December 1988. Maegli learned from Dr. Rolnick that Complainant had canceled a December 5 appointment without rescheduling it and that it. was not Rolnick's practice to authorize any disability payments beyond the date of a canceled appointment. Maegli learned from Dr. Livengood that Complainant had canceled a December 21 appointment leaving Livengood to conclude that Complainant was doing well enough to return to work on a full capacity basis. Livengood did later conclude that Complainant did need surgery, however. Also, Maegli testified that she did not call and explain this to Complainant because she expected Complainant to call her as Complainant had done in the past when a payment was missed. with respect to Complainant's vacation pay, Page testified that he had simply forgotten to include the vacation hours when he had submitted the paperwork for Complainant's termination. Lastly, with respect to profit sharing, Page testified that Respondent's policy is to issue profit sharing checks only to employes who are actively employed as of the distribution date of such checks. The evidence shows that profit sharing checks were distributed on 12/20/88.

The Commission simultaneously issued a proposed decision and scheduling request for submission of the parties' documents and position statements on the question of attorney's fees and costs in this matter on February 19, 1993. This was followed by a period during which the parties stipulated to several extensions for briefing the fee petition issue. Apparently, the potential for a settlement between the parties themselves accounts, at least in part, for one or more of the stipulated extensions. In any event, the chance for settlement has apparently now fallen through and the final brief on the attorney fee issue was filed with the Commission on June 4, 1993.

Prior to addressing the attorney's fees question, however, the Commission will first briefly discuss the matter of a "Motion for Reconsideration" and accompanying brief that Complainant has filed with heir petition for attorney's fees and costs. Complainant's motion for reconsideration contends that the Commission's decision at page 25, wherein the Commission sets forth the fifth element that a complainant must establish in order to prove a case of hostile environment sexual harassment, "misstates the law." Complainant requests that the Commission amend its decision to find that the Respondent engaged in sexual harassment of the Complainant. The Commission's decision at page 25 states as follows:

"The fifth and final element Complainant must prove is respondeat superior. Where a plaintiff seeks to hold the employer responsible for the hostile environment created by the plaintiff's supervisor or co-worker, she or he must show that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. The Commission finds that the Complainant has failed to establish this important element of her claim."

Complainant states that the law recognizes a distinction between the actions of a supervisor, and the actions of a mere co-worker. She states that supervisor Janeck's actions in this case were the actions of the employer, and therefore the fifth element of the hostile environment test is satisfied. In essence, Complainant contends that employers are strictly liable for the acts of their supervisors, regardless of whether the employer knew or had constructive knowledge of the discrimination.. Complainant cites three eases, including two from the Seventh Circuit, North. v. Madison Area Assn. for Retarded Children, 844 F.2d 401, 46 FEP Cases 943 (7th Cir. 1988) and Hunter v. Allis Chalmers Corp, 797 F.2d 1417, 41 FEP Cases 721 (7th Cir. 1986), apparently as support for her assertions regarding an employer's liability for the actions of its supervisor.

The Supreme Court's decision in Meritor Savings Bank v. Vinson, 477 U.S. 57,, 40 FEP Cases 1822 (1986) (a case involving alleged sexual harassment of a female by a male supervisor and cited in the Commission's decision) strongly suggests that Complainant's contentions about employer strict liability for a hostile environment created by a supervisor is in error. Although declining "to issue a definitive rule on employer liability," due to the state of the record before  it, (5)  the Court reversed the District of Columbia Circuit Court's finding of employer strict liability stating that "the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors," but also noting that "absence of notice to an employer does not necessarily insulate that employer from liability" and suggesting that courts look to general agency principles for guidance when addressing issues of employer liability. Vinson, 447 U.S. at 72. Additionally, while rejecting the view that "the mere existence of a grievance procedure and a policy against discrimination, coupled. with (an employes) failure to invoke that procedure, must insulate (an employer) from liability," the Court held that "those facts are plainly relevant," and further stated that "the (employer's) contention that (the employe's) failure (to invoke the grievance procedure) should insulate it from liability might be substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward." Id.

The clear implication of the above language quoted from Vinson is that before an employer can be held liable for sexual harassment engaged in by a supervisor, the employer must have knowledge of the harassment, either actual or constructive, and must have failed to remedy the situation. Indeed, following Vinson, a majority of the courts have required something more than supervisory capacity for imputing liability to the employer in cases involving sexual harassment by a supervisor, with most requiring a finding of both actual or constructive notice and a failure to correct the harassment before liability can be imputed to the employer. Larson and Larson, Employment Discrimination (1992), § 41A.64(c), Vol. 1, p. 239. Further, while Complainant has cited North and Hunter, supra, apparently as evidence of the standard for imputing employer liability in the Seventh Circuit, the later case of Brooms v. Regal Tube Co., 881 F.2d 412, 50 FEP Cases 1499 (7th Cir. 1989) (Brooms was also cited in the Commission's proposed decision, but not specifically in connection with the standard of employer liability issue. See p. 24), indicates that this issue has not been resolved in the Seventh Circuit. In Brooms, the district court offered two alternatives for finding the employer liable under Title VII for a supervisor's sexual harassment of plaintiff Brooms: (1) the supervisor was a manager of the employer and his acts were the acts of the corporation; or, in the alternative, (2) the employer knew of the problem but failed to take appropriate action. On appeal, after noting, the Supreme Court's pronouncement in Vinson that "employers are no longer held to be strictly liable for sexual harassment by their supervisory employes," (Brooms, 50 FEP Cases at 1504), and the employer's contention that the district court had failed to employ traditional agency principles such as had been previously discussed by the court in North, the Seventh Circuit Court of Appeals specifically declined to resolve the issue of employer strict liability in this circuit stating:

"However, we need not address the alleged conflict between our statements in North, in which we stated that the proper focus is upon the employer's apparent authority, and our general pronouncements in Hunter v. Allis Chalmers Corp., (citation omitted) (dicta), in which we focused solely upon whether the employe was a co-worker or a supervisor. The district court's alternative holding, regarding the corporate defendants' knowledge and the adequacy of their response, provides a basis for affirming their liability under Title VII."

The Commission's decision herein specifically finds: (1) that the employer has a written policy condemning sexual harassment and a guaranteed fair treatment procedure under which an employe who feels she or he has been unfairly treated by their manager or senior manager can send a written complaint to that person's boss, both of which Complainant was aware but failed to invoke (Finding of Facts number 40 and 41, p. 14); (2) that management's first knowledge of Complainant's allegations of sexual harassment by Janeck .came on August 27, the last day Complainant was at work (Finding of Fact 37, p. 13; Mem. Op. p. 25); and that (3) the evidence in this case clearly showed that there was absolutely no valid reason for the Complainant's failure to invoke the grievance procedure or to otherwise make known to the employer her claim of sexual harassment. (Mem. Op., p. 26)

Based upon all of the foregoing, the Commission rejects Complainant's motion for reconsideration request that the Commission amend its decision to find that the employer has engaged in sexual harassment of the Complainant.

Attorney's Fees

In Complainant's petition for attorney's fees and costs, Complainant requests attorney's fees of $19,354.36, plus costs of $2,673.76 for a grand total of $22,028.12. The attorney's fee award request was comprised in the following manner: First, counsel (Attorney Daphne Webb) determined that 170.2 hours x $150 per hour was a reasonable amount of time and rate for her services; that 46.9 hours x $75 per hour was reasonable for an the associate's services; that 5.1 hours x $35 per hour was reasonable for the services of a legal assistant; and that 2.5 hours x $40 per hour was reasonable for the services of a law clerk. (Complainant's counsel states that she exercised "billing judgment" in arriving at the above-listed hours expended by eliminating certain charges as. her original time record shows that she had spent 208.5 hours on the case, the associate had spent 85.9 hours, the legal assistant 9.6 hours, and the law clerk 4.3 hours.) A calculation of the hourly rates times the hours expended (after billing judgment reduction) totals $29,936.60 for attorney's fees. Secondly, to arrive at the final fee award of $19,354.36, counsel concluded that a reduction of the fee award by 33% (6)   appeared to be a reasonable percentage to apply to account for Complainant's failure to prevail on all issues. In arriving at this percentage, counsel states that the six days of hearing totaled approximately 1089 paces of transcript, that 367 pages were of testimony devoted to the discharge issue, and that measured by trial time, 367 pages, or 33% of the total time, were devoted to the discharge issue on which Complainant did not prevail.

In her affidavit in support of the petition for attorney's fees Complainant's counsel includes, among other things, the following information: that she graduated from the University of Wisconsin Law School, with honors, in 1973; that she has been a partner with the law firm of Stafford, Rosenbaum, Rieser and Hanson since 1986; that from 1983 until 1986, 50% of her law practice had been in employment discrimination law, but since 1986 employment discrimination law has been limited to about 20% of her practice, the other 80 % consisting of family law practice for which she bills a minimum of $130 per hour. Counsel also states that she believes employment discrimination litigation requires greater skill and experience and involves greater risk of non-payment than does family law. Finally, Complainant's counsel includes the affidavit of Attorney Jeff Scott Olson, a member of the Julian, Olson and Lasker law firm. Olson states, among other things, that in his opinion, Attorney Webb's skill, reputation and experience are of the highest order in the community and that in his opinion the prevailing rate charged by attorneys of skills, reputation and experience comparable to that of Attorney Webb in this community is at least: $175 per hour.

The Respondents object to the Complainant's request for two-thirds of her total attorney's fees, stating that this is improper as she only prevailed on one-sixth of her claims, and that the hourly rate requested is excessive because it is higher than her normal rate for these types of cases, and therefore tantamount to a multiplier which is not warranted under the facts of this case. The Respondents "do not contest the Commission's decision to award complainant fees on the one claim on which she prevailed, nor do they dispute the reasonableness of the time spent on this litigation by complainant's counsel."

The Commission concludes that an attorney fee award of $6,480.51, plus costs .of $1,012.79, for a grand total of $7,493.30, is appropriate in this case. The calculation would be as follows:

Webb       170.2 hrs. x   $130   =   $22,126.00   x 25%   =   $5531.50
Hinds         46.9 hrs.  x   $  75   =   $  3,517.50   x 25%   =   $  879.38
Schultz         5.1 hrs.  x   $  35   =   $     178.50   x 25%   =   $    44.63
Law Clerk   2.5 hrs.  x   $  40   =   $      100.00   x 25%   =   $    25.00

First, no rate reduction has been made for the associate, legal assistant or law clerk since their listed rates are stated to be the firm's rate regularly charged to clients. However, with respect to Attorney Webb's hourly rate, $130 per hour would appear to be appropriate since counsel herself concedes that her current hourly rate (minimum) in the area of family law which consists of 80% of her law practice is $130 per hour, and, moreover, counsel further concedes that the $130 per hour rate is the rate she received. in her most recent fee award in an employment discrimination case before the ERD on February 11, 1993. The Commission would also note that its calculation utilizes the $130 per hour rate for all time claimed beginning back on January. 19, 1989, when counsel had her initial consultation with the Complainant.

Secondly, while Complainant's award for fees and costs is based on the view that she prevailed upon two-thirds of her claims filed, she did not prevail on two-thirds of her claims. Complainant filed three separate complaints of discrimination, each containing two distinct allegations of discrimination. Case number ERD 8802134 involved claims of sexual harassment and retaliation for opposing discriminatory practices under the Act; Case number ERD 8802863 involved claims of discrimination because of sex and because of having made a complaint under the Act with respect to terms and conditions of employment and discharge; and finally, case number ERD 8900131 involved claims of discrimination with respect to compensation because of sex and because Complainant had made a complaint under the Act. The Commission's decision finds discrimination only in case number ERD 8802134, and then only with respect to the claim of retaliation for having opposed practices made discriminatory under the Act.

Under the Fair Employment Act, an award of reasonable attorney's fees may be made to a prevailing complainant. Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984). A complainant may be considered a prevailing complainant for attorney's fees purposes if she or he succeeds on any significant issue in the litigation which achieves some of the benefit sought in bringing the suit. Hensley v. Eckerhart, 461 U.S. 424, 31 FEP Cases 1169 (1983). A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole. Id. ". . . (T) he extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees . . . Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who was won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained." Id.

It is clear that Complainant's unsuccessful claims of discrimination because of sex and because of retaliation with respect to compensation and discharge (ERD case numbers 8802863 and 8900131) are fairly distinct from her successful claim of retaliation with respect to terms and conditions of employment for having opposed discriminatory practices under the Act in ERD case number 8802134. Moreover, since the Commission's decision holds that Complainant did not prevail on what would have to be considered the most significant aspect of her claim--sexual harassment--it cannot be properly found that she has obtained significant success. Complainant cites the commission's requirement that Janeck attend a sexual harassment seminar and certify that he has read and fully understands Respondent's policy against sexual harassment as "relief on a significant issue for complainant." Granted, this might constitute some "relief" for complainant. However, under the circumstances presented in this case, it cannot be considered anything other than limited success. Complainant completely ignores the fact that she failed to establish that a violation of the Act had occurred in connection with her claim of sexual harassment since the employer had a policy against and an effective procedure to deal with claims of sexual harassment--a procedure that would have likely obviated the need for the filing of the Complainant's complaints in the first instance--but Complainant failed to use this procedure or notify the employer of the harassment.

Finally, the Commission notes that Complainant's attorney fee award represents 25% of the fee award and costs that she has requested, as opposed to an award of only 17 % (1 = 6 = .1666) , because her successful claim of retaliation for having opposed discriminatory practices under the Act cannot be entirely separated from her sexual harassment claim. For example, an individual must have opposed conduct reasonably believed to be discriminatory in order to establish a claim for retaliation for opposition to practices made discriminatory under the law. Berg v. LaCrosse Cooler Co., 612 F.2d 1041, 21 FEP Cases 1012 (7th Cir. 1980).

125


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Footnotes:

(1)( Back ) Complainant expressed dismay at the hearing because it had been her intent to keep her August 31 call to Jones confidential. Complainant had not divulged her name to Jones in that conversation. Apparently, Complainant's intent was never expressly made clear to Jones. In any case, Jones had no doubt by this time been apprised of the Complainant's allegations against Janeck and needed to contact Complainant regarding the alleged sexual harassment as part of her duties as personnel rep.

(2)( Back ) It would appear that the quid pro quo issue would fall under that portion of the Notice of Hearing which includes as an issue whether the Respondents had discriminated against Complainant in her terms and conditions of employment "because of failure to acquiesce to sexual advances."

(3)( Back ) Although the ALJ concludes that Janeck and Federal Express did discriminate against Complainant "in conditions and terms of employment because she opposed any discriminatory practice under the Act and/or because of failure to acquiesce to sexual advances," (Conclusion of Law numbers 5 and 6) (emphasis added), the ALJ failed to make a single finding about any discriminatory treatment in Complainant's terms and conditions of employment because of her failure to acquiesce to sexual advances (i.e., quid pro quo sexual harassment), and has omitted any discussion about such theory of sexual harassment in her memorandum opinion.

(4)( Back ) The evidence is not clear on whether Page contacted Comparetto about Complainant's May 31, return to work release in November. Page states that he "believed" he did. In any case, whether he did or did not is not really pertinent. All that Page could have possibly learned from Comparetto was that Complainant had said that Rolnick wrote down the wrong date. Page already had Written communication from Rolnick expressly stating that he had not authorized an extension of Complainant's return to work date beyond 5/31/88.

(5)( Back ) It was not known whether the female employe's supervisor had made any sexual advances toward her at all, whether they were unwelcome, whether they were sufficiently pervasive to constitute a condition of employment, or whether they were "so pervasive and so long continuing . . . that the employer must have become conscious of (them)." Vinson, 477 U.S. at 72.

(6)( Back ) Counsel's request for costs of $2,673.76 also represents a reduction by 33%.

 


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