GINGER K BOND, Complainant

CUSTOM CONSTRUCTION REMODELING INC, Respondent A

JEFFREY CROOKS, Respondent B

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT

1. Respondent A, Custom Construction Remodeling, Inc., (hereinafter "respondent") is a Wisconsin corporation engaged in the business of construction and remodeling. Respondent B, Jeffrey Crooks (hereinafter "Mr. Crooks"), is the president, chief executive officer, and sole proprietor of the respondent. Mr. Crooks' office is located in Madison, Wisconsin. Mr. Crooks also owns and manages several residential rental properties.

2. In February of 1996, Mr. Crooks ran a newspaper advertisement for one of his rental properties, a house located in Monroe, Wisconsin. The complainant, Ginger Bond (hereinafter "complainant") and her husband, Orrin Bond (hereinafter "Mr. Bond"), were shown the property and entered into a lease to rent it. They moved into the house on March 1, 1996. Mr. Crooks had never met the Bonds prior to their entering into the rental agreement with him. The Bonds were shown the property by Heather Williams (now Heather Zimmerman), who was a friend of the complainant's, and who was authorized to enter into a lease on Mr. Crooks' behalf.

3. About a month after moving into the house, the complainant contacted Mr. Crooks about a plumbing problem. This was her first direct contact with Mr. Crooks. Mr. Crooks came out to the house to make the repair, during which time he talked about opening his own construction business. Until this point Mr. Crooks had been employed as an assistant manager at a Wal-Mart store. Several months later Mr. Crooks again spoke with the complainant about opening his own business. Thereafter, the complainant's husband, who had construction experience, began working with Mr. Crooks to develop his business proposals.

4. Mr. Crooks ultimately did start his own construction business and hired Mr. Bond as the foreman. In addition, Mr. Bond performed manual labor for the respondent and assisted with several roofing jobs. He was paid a percentage of the profits for his services, rather than an hourly wage.

5. Mr. Bond suggested that Mr. Crooks hire the complainant as a laborer because she knew how to paint and hang drywall, and because he believed she could be hired more cheaply than a man. Prior to this, the complainant had been working at a convenience store, making $5.75 an hour. In October of 1996 the complainant quit her job at the convenience store and started working for the respondent as a laborer, at a pay rate of $6.00 an hour.

6. Mr. Crooks stored his tools at the complainant's home, which soon became a meeting place for the respondent's employees. Workers would congregate at the Bonds' home in the morning for coffee before leaving for the job site.

7. When Mr. Crooks started up his business he hired Heather Williams as a secretary. In November of 1996, Mr. Crooks discharged Ms. Williams for writing unauthorized checks. The complainant then stepped in and offered to help out with the books. Mr. Crooks agreed and, at the complainant's suggestion, moved all of his office equipment into the complainant's home. Shortly after the complainant started working as a secretary, Mr. Crooks raised her pay to $8.25 an hour.

8. The complainant and her husband frequently invited Mr. Crooks to their home for dinner. In addition, Mr. Crooks would usually come to the Bonds' residence on Sunday evenings to watch television and drink beer. The complainant's children were present during these visits. The complainant and Mr. Bond also fixed Mr. Crooks up on a date with Mr. Bond's niece.

9. On or about December 24, 1996, Mr. Crooks told Mr. Bond that his accountant needed his social security number in order to prepare year-end tax forms. Mr. Crooks had previously asked Mr. Bond for his social security number, but Mr. Bond had not provided it. This time Mr. Crooks informed Mr. Bond that he could not work for him if he refused to provide his social security number, to which Mr. Bond responded, "Okay, I'm not going to work for you anymore." The employment relationship between Mr. Bond and the respondent was thereby severed.

10. On or about January 6, 1997, Mr. Bond telephoned Mr. Crooks and left a message on his answering machine notifying him that the complainant was no longer going to be working for him and that he should come pick up his stuff. That evening Mr. Crooks came to the Bonds' house to retrieve his office equipment. Two days later the Bonds abandoned their lease and moved out of the house.

11. The evidence does not permit a conclusion that Mr. Crooks subjected the complainant to unwanted sexual harassment during her employment for the respondent or that her quitting was precipitated by unlawful sexual harassment.

Based upon the FINDINGS OF FACT made above, the commission makes the following:

1. That the respondents did not discriminate against the complainant on the basis of sex, within the meaning of the Wisconsin Fair Employment Act.

Based upon the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:

That the complaint in this matter is dismissed.

Dated and mailed February 26, 2002 
bondgi . rrr : 164 : 9 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

Under the Wisconsin Fair Employment Act the complainant has the burden of demonstrating by a preponderance of the evidence that she was subjected to unlawful sexual harassment. After carefully reviewing the entire record in this matter and talking to the administrative law judge about the credibility of the witnesses, the commission concludes that the complainant has not met her burden in this case. The commission's reasons for arriving at this conclusion are set forth below.

The complainant engaged in conduct which calls into question her testimony that she was subjected to systematic sexual harassment by Mr. Crooks. First, she offered to start working as the respondent's secretary after allegedly having observed Mr. Crooks attempt to sexually assault his last secretary, and after he had purportedly begun to behave towards her in a manner she considered to be inappropriate. While the complainant was already working for the respondent as a laborer at this point, the competent evidence in the record indicates that Mr. Crooks was not frequently at the job site and that the complainant's husband was generally present. If the complainant felt that Mr. Crooks had a penchant to act inappropriately, her decision to work for him in a more private setting makes little sense. In addition, the record indicates that the complainant set up Mr. Crooks on a date with her husband's niece and invited him into her home outside of work hours to watch television and eat dinners with her family. The complainant did these things, all the while maintaining that Mr. Crooks was engaging in behavior which she considered sexually suggestive in front of her husband and children. Although the complainant's testimony that she could not quit her job because she was in danger of losing her children, who were under a CHIPS petition, might explain her decision to continue working for the respondent in spite of sexual harassment, it does not explain why she welcomed Mr. Crooks into her family life. That the complainant willingly brought herself and her family into closer contact with an individual whom she contends was sexually harassing her leads the commission to doubt the veracity of her allegations.

The commission has similar qualms about the testimony of the complainant's husband, who was the chief witness on her behalf. Mr. Bond's testimony indicates that he observed Mr. Crooks sexually harassing his wife, at times in front of their children, and that he tolerated it for some period of time before deciding he could no longer live with the situation. Like the complainant, Mr. Bond explained that he did so because he needed employment and housing. However, the commission is not satisfied with that explanation. Mr. Bond allowed Mr. Crooks to hang around his home outside of working hours, with his children present, and encouraged him to date his niece, actions which went far beyond what was necessary to maintain an employment relationship. Further, although Mr. Bond contends that he subsequently stopped working for the respondent because of Mr. Crooks' advances towards his wife, he continued to associate with him socially, voluntarily attending the respondent's Christmas party, at which Mr. Crooks was present. The commission finds Mr. Bond's actions to be inexplicable if, in fact, his wife was being sexually harassed by Mr. Crooks. The commission additionally notes that it questions Mr. Bonds' testimony that, at the Christmas party, Mr. Crooks engaged in further sexual harassment of the complainant, after which she pushed him against the wall and hit him. While Mr. Bond stated that two witnesses observed the incident and remarked to him that the complainant had "quite a fist on her," only one of the two individuals in question appeared at the hearing, and that witness did not support Mr. Bond's version of events. Indeed, not one of the four different witnesses at the hearing who attended the party saw the incident occur, in spite of the fact that all were in close proximity of one another for most of the evening.

In addition to the inconsistencies contained in Mr. Bond's testimony about Mr. Crooks' alleged harassment of the complainant, the commission also has reservations about the general reliability of Mr. Bond's testimony. Mr. Bond testified that he was totally disabled and receiving social security disability income, and stated that he was unable to perform any physical labor for the respondent. In fact, Mr. Bond asserted that the respondent never actually paid him a salary and that the money he received from the respondent was by way of a reimbursement for some work that had been done on the property he was renting from Mr. Crooks. However, the more persuasive evidence in the record indicates that Mr. Bond was able to work, and did in fact perform a fair amount of physical labor for the respondent, for which he received compensation. It appears that Mr. Bond may have misrepresented his ability to perform work based on a concern that his work and receipt of wages from the respondent would jeopardize his disability income, and the commission believes that Mr. Bond's lack of credibility in this area casts an uncertain light upon his testimony as a whole.

Turning now to the complainant's remaining two witnesses -- friends of the complainant's who offered testimony that they, too, were sexually harassed by Mr. Crooks -- the commission does not believe that this testimony added to the overall strength of the complainant's case. With respect to Heather Williams (as of the time of the hearing, "Heather Zimmerman"), who claims to have been sexually harassed and assaulted by Mr. Crooks during her employment for the respondent, the commission rejects her testimony as generally unreliable. In the first place, Ms. Zimmerman testified that Mr. Crooks behaved in a sexually inappropriate manner towards her when they worked together at Wal-Mart, but that she nonetheless accepted an offer of employment from him because he offered her $8.00 an hour, whereas at Wal-Mart she had been paid only $4.75. However, it was brought out on cross-examination that, in between her job for Wal-Mart and her employment for the respondent, Ms. Zimmerman worked at a shoe store for the same pay rate, $8.00 an hour. When presented with this information, Ms. Zimmerman acknowledged that the pay was the same, but stated that she took the job with the respondent because it was easier work. It does indeed appear that Ms. Zimmerman' who had no secretarial skills, basically did no work at all for the respondent, but mostly sat around and listened to music. However, this fact only lends credence to Mr. Crooks' testimony that he hired Ms. Zimmerman because she was his girlfriend. Based on all the facts and circumstances, and considering that Ms. Zimmerman was involved with Mr. Crooks prior to his establishment of his own business -- having shown the complainant and her husband Mr. Crooks' rental property and entered into a lease with them on his behalf back in February of 1996 (1) -- the commission is inclined to credit Mr. Crooks' testimony that he and Ms. Zimmerman were romantically involved and that he hired her for that reason. Mr. Crooks' job offer to Ms. Zimmerman makes little sense otherwise, nor does her decision to accept it.

Equally incredible is Ms. Zimmerman's testimony that after enduring daily, unwelcome sexual harassment on the part of Mr. Crooks, she ultimately consented to a sexual relationship with him in order to "get him off her back" and to keep her job. The job, which paid no more than her most recent employment, hardly seems so desirable as to explain her actions in engaging in an unwanted sexual relationship in order to maintain it and, as indicated above, the commission finds it more likely that the sexual relationship between Ms. Zimmerman and Mr. Crooks was a consensual one. Indeed, it should be noted that Mr. Crooks was actually living with Ms. Zimmerman and her daughter at the time the relevant incidents occurred. While Ms. Zimmerman explained that she permitted Mr. Crooks to live rent free with her and her boyfriend and their child, and that Mr. Crooks sexually harassed her in her home in front of her boyfriend, this story strains credulity, and the commission finds Mr. Crooks' version of events to be more plausible. The commission also notes that other witnesses testified Ms. Zimmerman and Mr. Crooks were physically affectionate in public, and that this appeared to be consensual. All of these facts and circumstances lead the commission to conclude that Ms. Zimmerman's allegations of unwelcome sexual harassment on the part of Mr. Crooks were unfounded.

Finally, while there is no inherent reason to question the overall credibility of the complainant's third witness, Nicolette Hayes, who was allegedly sexually harassed by Mr. Crooks at the same Christmas party at which he also sexually harassed the complainant, the commission notes that Ms. Hayes' version of events was contradicted by four separate witnesses for the respondent, none of whom recognized the witness or saw anything untoward occur. While the fact that these witnesses may not have seen something take place in a crowded bar does not necessarily exonerate the respondent, it seems likely that at least one of the four people in question would have noticed the witness' presence at the party, even if they did not see the respondent grab her or kiss her, as she claimed. This is particularly true where the evidence indicates that the respondent's Christmas party was attended by a relatively small group of people who stayed in close proximity of one another.

For the reasons set forth above, the commission simply finds too many problems with the testimony of the complainant and her witnesses to warrant a finding in the complainant's favor. The finding of discrimination made by the administrative law judge is, therefore, reversed.

NOTE: The commission conferred with the administrative law judge regarding her impressions of the credibility and demeanor of the witnesses in this case. The administrative law judge indicated that, while she was troubled by some of the inconsistencies in the testimony of the complainant and her witnesses, she nonetheless found their testimony to be credible overall. The administrative law judge further indicated that she did not find Mr. Crooks to be credible and believed that he was frequently untruthful. However, for the reasons set forth in detail above, the commission is simply unable to credit the story told by the complainant and her witnesses. While the commission did not form a particularly favorable impression of the overall credibility of Mr. Crooks' testimony, it is the complainant who has the burden of proof in this matter. In light of the many doubts about the complainant's version of events, the commission is unable to conclude that a violation of the law was established.

cc: Attorney Jason A. Greller

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(1)( Back ) Interestingly, Ms. Zimmerman testified that she did not meet the complainant until after the complainant and her husband started renting the house from Mr. Crooks. However, the complainant testified that she and Ms. Zimmerman were friends prior to her renting the house from Mr. Crooks, and it is clear from the record that it was Ms. Zimmerman who leased the house to the Bonds on Mr. Crooks' behalf.

uploaded 2002/03/05