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



ERD Case No. CR200002629


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

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


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

Dated and mailed January 28, 2003
haeckal . rsd : 115 : aty  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


In his petition for commission review ("petition"), the complainant objects to several aspects of the ALJ's decision, as detailed below. It should first be noted, however, that most of these objections relate to disputes the ALJ resolved through his assessment of the credibility of witnesses. The commission has conducted a thorough and independent review of the record here, and finds no reason to disturb the ALJ's credibility determinations.

In his charge, the complainant alleges discrimination on the basis of his sex (male) and sexual orientation (homosexual), and retaliation for engaging in a protected fair employment activity (refusing the sexual advances of a supervisor), in regard both to his terms and conditions of employment (harassment) and to his termination. (1)

Complainant argues in his petition, in regard to his harassment allegations, that the ALJ erred when he concluded that the complainant had failed to prove that respondent, through certain of its supervisors, was aware of the harassing comments made by complainant's co-workers. A review of the citations to the record offered by complainant in this regard confirms the ALJ's conclusion that the relevant testimony was not sufficiently specific as to time, situation, or place. For example, Brady, complainant's friend and co-worker, testified that he heard comments referring to complainant's sexual orientation, "once in a while" over a two-way radio, and once over a pubic address system. Complainant testified that he heard such comments "a couple of times" over a two-way radio. The record does not show that the other comments to which Brady testified were directed to or even overheard by complainant. Not only does this record fail to provide sufficient specificity to permit respondent to craft a defense, but it also does not show that the alleged harassment was sufficiently pervasive to satisfy the definition of actionable harassment.

Complainant further argues in regard to his harassment allegations, that, even though he didn't report his objection to the alleged harassment to respondent, he was prevented from doing so by his dyslexia, i.e., he was unable to read or understand respondent's sexual harassment reporting policy. However, the record shows that it was a typical practice for respondent, in orienting new employees, to direct them to read the policy, to then discuss the policy with them, and to ask them if they had any questions about the policy; and shows that, during the new employee orientation session which complainant attended in September of 1999, he failed to ask any questions about respondent's harassment policy or indicate that he was unable to read or understand it. Under these circumstances, it is concluded that the complainant unreasonably failed to take advantage of the preventive or corrective opportunities provided by respondent to address workplace harassment issues.

Complainant also offers several arguments in relation to his disparate treatment claim. He first argues that the ALJ was required to but failed to address his argument that he was treated less favorably in regard to his discipline/discharge than Aleff, a similarly situated heterosexual co-worker. First of all, it should be noted that an ALJ is not required to address every argument offered by a party. Second, the commission concludes that the record shows that Aleff was not similarly situated to complainant, i.e., although the triggering incident may have been similar, Aleff's subsequent response to management's attempts to address and correct his conduct was not similar to complainant's. The record shows that Aleff was cooperative and receptive to management's suggestions during the relevant post- incident meetings with them, but that, as the ALJ found, complainant was belligerent and defiant, and that it was this belligerence and defiance that formed the basis for complainant's termination. The record shows that a three-day disciplinary suspension was imposed on Aleff; and, as the ALJ found, Human Resources Supervisor Grangood intended to impose a three-day disciplinary suspension on complainant until he exhibited belligerence and defiance in his meeting with her.

Complainant argues further that it is appropriate to apply the analysis adopted by the Seventh Circuit Court of Appeals in Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990) to this case. In Shager, the court articulated the "cat's paw" analysis that allows the finder of fact to impute a discriminatory motive to the unbiased decision maker who is decisively influenced by an employee who is prejudiced against the complainant. Complainant contends that, even though Grangood, who made the termination decision, was unaware of complainant's sexual orientation, she relied exclusively or primarily on information and recommendations provided by supervisors Ziegler (Conroy) and Lache, both of whom were prejudiced against complainant because of his sexual orientation, in reaching the termination decision. However, the ALJ found credible Grangood's version of events, i.e., the ALJ found that Grangood had not decided to accept Lache's termination recommendation prior to her meeting with complainant (Finding 26), and that it was complainant's belligerent and defiant conduct at that meeting that led Grangood to terminate complainant (Findings 27, 28). The ALJ also found that neither Ziegler (Conroy) nor Lache based their characterization of complainant's conduct or their recommendations regarding an appropriate response to this conduct on complainant's sexual orientation, but instead on complainant's inappropriate belligerence and defiance (Findings 16-19, 22-23). Finally, the ALJ found that Lache, who had recommended to Grangood that complainant be terminated, hired complainant even though he was aware that complainant was homosexual (finding 4), and had tried to protect complainant from discipline by recommending that he go back to work on April 1, 2002, rather than going home before the end of his shift (Finding 21). These are not the actions of a prejudiced supervisor. Complainant has failed to satisfy two elements of the Shager analysis, i.e., that decision maker Grangood relied exclusively or primarily on the information she received from Ziegler (Conroy) and Lache in reaching the termination decision, and that the record shows that Ziegler (Conroy) or Lache were prejudiced against complainant because of his sexual orientation.

Finally, complainant argues that respondent's lack of consistency in explaining the basis for its decision to terminate complainant demonstrates that its stated termination rationale is pretextual within the analytical framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This argument relies on complainant's contention that, although the respondent now contends that the discharge decision was made by Grangood as a result of her April 5 meeting with complainant, respondent had previously stated that the termination decision was based entirely upon complainant's actions on March 18 (triggering incident) and April 1, 2000 (meeting with Ziegler (Conroy). However, the ALJ found credible Grangood's testimony that she decided to terminate complainant's employment during her meeting with him on April 5, 2002, because of his behavior at that meeting (Finding 28), and the commission, as noted generally above, finds no reason to disturb this credibility determination.

Attorney Brenda Lewison
Attorney Kevin J. Kinney

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(1)( Back ) Complainant does not mention his retaliation allegations in either his petition or the accompanying briefs. As a result, the commission concludes that complainant is not contesting that part of the ALJ's decision relating to his charges of retaliation.


uploaded 2003/02/10