JON A BESSOLO, Complainant
STOCK LUMBER COMPNENTS, Respondent
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 July 30, 2003
bessojo . rsd : 125 : 9
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
Jon Bessolo, a white male, asserts that two Hispanic coworkers, but particularly one Hispanic coworker named Lopez, would walk by and make the comment "you and your team fucking suck." Bessolo states that Lopez, who most often made this comment, began doing this in January 2000 when Bessolo was wearing a hat with a logo of the San Francisco 49ers football team. Bessolo was employed at the respondent's business, which is located in Green Bay, Wisconsin, home of the Green Bay Packers.
Bessolo testified that in roughly May 2000, but at no other time, he reported the comments being made by his coworkers to Todd Leidel, the company's production manager. (On cross-examination, however, Bessolo acknowledged that in his discrimination complaint filed against the respondent he asserted that he had notified his foreman, Barry Wolf, of the comments, not the production manager.) Apparently Bessolo did not identify who had made these comments, if he indeed did report that these comments were being made.
Bessolo testified that Lopez might have last made the comment "you and your team fucking suck" to him in May 2001. In August 2001, Bessolo terminated his employment with the respondent.
Bessolo alleges that because of the comment made by the two Hispanic workers, he was discriminated against in his terms and conditions of employment on the basis of race. However, the circumstances under which the comment "you and your team fucking suck" arose, do not indicate that this was a racially based comment. Moreover, even if the coworkers had intended it as such, there is no basis to find the employer liable for permitting a racially hostile work environment. First, assuming Bessolo reported the comments, he only did so once. (1) Second, the respondent had no reason to suspect racial discrimination because he never identified the individuals making the comments.
Bessolo's allegations of retaliation because he opposed a discriminatory practice under the Act apparently relate to alleged conduct by his coworkers after reporting their conduct. Bessolo's allegations of coworker retaliation, which are not alleged to have been directed or encouraged by the respondent, cannot support a finding of unlawful retaliation on the part of the respondent. Rodrian v. Olsonite Corp. (LIRC, 07/20/01).
Finally, Bessolo's allegation with respect to his termination of employment apparently is that he was constructively discharged due to being racially harassed.
This argument also fails. Assuming for purposes of argument that his coworkers' comments were racially based, the only time that Bessolo had ever reported his coworkers' comments to management was in May 2000, but he failed to give the respondent any reason to suspect that racial harassment was occurring. Further, the last comment occurred in May 2001, and he did not quit until August 2001, some three months after the last comment. In short, not only has Bessolo failed to show that the respondent's conduct allowed his working conditions to become so difficult or unpleasant that a reasonable person in his position would have felt compelled to resign, the timing of his quitting after the last comment fails to indicate that the conduct of his coworkers caused his quitting.
Caryn P. Helmandollar
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(1)( Back ) In his petition for commission review Bessolo contends that he reported the conduct of his coworkers to three management personnel and that he made "numerous reports of what was going on." However, the commission cannot consider these assertions because the commission's review is limited to the testimony and evidence presented at the hearing. Wis. Admin. Code § LIRC 1.04. Moreover, Bessolo's petition assertions are in direct contradiction to his testimony at the hearing.