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

ANDREA MUNIZ, Complainant

MARCUS RESTAURANTS INC, Respondent A

JAMES LIVESEY, Respondent B
MARCUS RESTAURANTS INC
D/B/A KENTUCKY FRIED CHICKEN

FAIR EMPLOYMENT DECISION
ERD Case No. 199802681, EEOC Case No. 26G981781


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

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:

1. In the fourth line of paragraph 17 of the FINDINGS OF FACT, delete the word "her."

2. In the first line of paragraph 19 of the FINDINGS OF FACT, delete the words "to Livesey regarding" and substitute the word "memorializing."

3. Delete the third sentence of paragraph 25 of the FINDINGS OF FACT and substitute the following sentence therefor:

"On or about May 25 Rodriguez did call Schattschneider and tell him that Muniz was having trouble with Livesey."

4. In the third line of paragraph 2 of the CONCLUSIONS OF LAW, the word "factor" is deleted.

DECISION

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

Dated and mailed April 23, 2002
munizan . rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The respondent operates a number of Kentucky Fried Chicken restaurants. The complainant, who worked as an assistant manager for the respondent, alleges that she was harassed (sexually and because she was pregnant) by James Livesey, a manager, and that she involuntarily terminated her employment because of such harassment.

The complainant has the burden of proving her allegations of sexual harassment and harassment because of her pregnancy. The complainant has not met that burden.

Livesey denied the complainant's allegations of sexual harassment. He denied that he intentionally brushed against her, denied that he made comments about chicken breasts while looking at her shirt, denied stating that she brought out the pervert in him, and he denied that he asked the complainant whether they could still work together and be friends if they had sex. However, assuming for purposes of argument that Livesey had engaged in the conduct alleged by the complainant, the evidence nonetheless fails to establish that there was a violation of the Fair Employment Act. First, there is considerable question whether the complainant found this conduct unwelcome. For instance, the complainant did not dispute Livesey's testimony that she had asked him about his sexual orientation and involvement with other women, did not dispute Livesey's testimony that she had invited him to go out with her and her friends to a bar, and, in fact, she admitted to willingly rubbing Livesey's shoulder's while at work. Moreover, the complainant's allegation that Livesey said she brought out the pervert in him strongly suggests that Livesey was responding to behavior by the complainant. Second, assuming the complainant did find the conduct she alleges that Livesey engaged in to be unwelcome, she failed to utilize the respondent's clearly communicated policies and procedures designed to deal with such conduct. The complainant was well aware of the fact that the respondent had a policy against sexual harassment, including specific procedures to address complaints of sexual harassment. The complainant was also well aware of the respondent's Open Door Policy, which set forth a procedure for employees to discuss problems and complaints with successive levels of management personnel. The complainant, however, unreasonably failed to take advantage of these policies and procedures to prevent or correct any conduct by Livesey that she found objectionable.

With respect to her claim that she was harassed because of her pregnancy, the complainant alleges that Livesey commented that she "should have kept [her] knees closed if [she] did not want to get pregnant," that Livesey said that being pregnant she would not be able to go out and party, and that he said she was going to get big and slow and not be able to do her job as well. Assuming Livesey did comment that the complainant would get big and slow and not be able to do her job as well, there is no evidence that his comment was made to ridicule or speak about her condition disparagingly. Livesey admits telling the complainant that she would not be able to go out and party due to her pregnancy. However, Livesey stated that he did this out of concern for the health of the baby because he knew the complainant smoked and drank. Assuming for purposes of argument that Livesey made the remark about the complainant "keeping her legs closed" if she did not want to get pregnant, this was an insensitive comment, but also an isolated insensitive remark about her pregnancy. Moreover, once again, any complaint the complainant had about this comment could have been addressed under the respondent's Sexual Harassment or Open Door Policy.

Finally, with respect to her termination of employment, the complainant has the burden of showing that a reasonable person in her position would have felt compelled to quit because of intolerable discriminatory working conditions. The complainant has not met that burden. This is particularly true here where the respondent had in force policies and procedures that she could have utilized to resolve any complaint or problem that she was having with Livesey.

cc: Attorney E. Vanessa Jones


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uploaded 2002/04/24