STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

WILLIAM MATTHEWS, Complainant

BASSETT BEDDING, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8902772, EEOC Case No. 26G900309


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on September 2, 1992. The ALJ concluded that the complainant failed to prove by a preponderance of the evidence that the respondent had discriminated against him on the basis of sex in regard to sexual harassment, but that complainant had proven by a preponderance of the evidence that the respondent unlawfully retaliated against him when it discharged him on December 1, 1989.

The respondent subsequently filed a timely petition for commission review of the ALJ I s decision finding that complainant was retaliatorily discharged. No appeal was filed with respect to the claim of sexual harassment. Both parties submitted written argument to the commission.

Based upon a review of the record in its entirety, and after consultation with the administrative law judge regarding her assessment of the credibility and demeanor of the witnesses, the Labor and Industry Review Commission hereby issues the following:

ORDER

The decision of the administrative law judge (copy attached) is modified as follows:

1. Paragraph 11 of the FINDINGS OF FACT is deleted.

2. The first sentence in paragraph 12 of the FINDINGS OF FACT is deleted.

3. In paragraph 16 of the FINDINGS OF FACT, the last sentence is deleted and the following sentences are substituted therefor:

"Lenz told Matthews that he was needed in production. Matthews did not make any mention of Waligora or of being harassed about having sex with animals."

4. In paragraph 22 of the FINDINGS OF FACT, the following is added as the last sentence:

"Matthews' letter contained no allegation that the harassment was sexual in nature."

5. Paragraph 25 of the FINDINGS OF FACT is deleted and the following paragraph substituted therefor:

"The investigation of Matthews' complaint was conducted by both Dinan and Lenz. Their investigation began by talking to Waligora. Waligora was asked ' point blank' if there was any harassment of employes, and he responded, 'no, he didn't understand what (Matthews is) talking about.' Dinan then proceeded to question some of the employes about whether or not they had observed any harassment in the plant. John Knull was questioned because his shipping and receiving duties had allowed him to get around in the plant. However, Knull stated he had never observed any harassment. Next, Allen Skoglund was questioned because he worked closer to Matthews, but Skoglund, too, said that he was unaware of any harassment. On the basis of their discussions with Waligora, Knull and Skoglund, and because Dinan and Lenz both spent a considerable amount of time on the plant floor and would have been in a position to observe harassment if it were occurring, Dinan and Lenz concluded that there was no substance to the hotline message and therefore saw no need to interview Matthews before determining that there was no basis in fact for his claim that employes were being harassed. Lenz additionally believed that there was nothing further to investigate because the respondent had a 'very open door policy I and believed complainant would have said something to himself or Dinan. Lenz concluded that Matthews' use of the hot line was just a continuation of his inappropriate behavior such as that which had occurred in October when the management officials had toured the plant."

6. Paragraph 26 of the FINDINGS OF FACT is deleted and the following paragraph substituted therefor:

"During the latter part of November Dinan and Lenz concluded that it was necessary to discharge Matthews. The reason for this decision was due to Matthews' attitude, the fact that he was totally unhappy and dissatisfied with his job, and because his dissatisfaction was affecting the morale of other employes. After October 4, 1989, Matthews had continued to express his discontent with his job, his opinion that he had no possibility of advancement, and that he was looking for other employment. Dinan had personally heard Matthews' comment to another employe about the lack of advancement possibilities at respondent near the end of October, and it was brought to Dinan' s attention by Lenz and others that Matthews had continued to make such statements. Lenz learned through other employes during the month of November that complainant was still making comments about looking for other employment. Lenz had also observed at this time that Matthews was eating his lunch outside in his car instead of with his co- Worker's as he usually did."

7. The following is added as paragraph 26a of the FINDINGS OF FACT:

"On December 1, 1989, Dinan and Lenz called Matthews into the office and told him that he was being discharged. Dinan told Matthews that although he had been with the company for a number of years and was a good worker, he seemed totally unhappy and dissatisfied with his current job, that his attitude was starting to affect the morale of other employes and that it was to both Matthews I and the company's benefit that their relationship be severed. Faced with discharge, Matthews conceded that his attitude had been bad, but then went on to explain that his bad attitude was caused mainly by having been harassed by Waligora and other employes through their teasing him about having sex with cows. This was the first Lenz had heard any complaint about such harassment. Dinan had heard Matthews' remark about being harassed about having sex with cows earlier but believed him to be only kidding. Dinan was not convinced that the decision which had been made to discharge complainant should be suspended pending an investigation since he and Lenz had already investigated Matthews I claim of harassment and found no evidence of any harassment of him."

8. In paragraph 27 of the FINDINGS OF FACT, the last sentence is deleted.

9. Paragraphs 28 through 32 of the FINDINGS OF FACT are deleted.

10. Paragraph 3 under the CONCLUSIONS OF LAW is deleted and the following paragraph substituted therefor:

"The complainant has failed to prove by the preponderance of the evidence that the respondent retaliated against him in violation of the WFEA when it terminated his employment on December 1, 1989."

11. Paragraphs 2-6 under the ALJ's Order are deleted. The following is substituted as paragraph 2 under the Order:

"That the portion of the complaint in this matter alleging retaliatory discharge is dismissed."

As modified, the decision of the administrative law judge finding unlawful retaliation is reversed. Such reversal shall stand as the FINAL ORDER herein.

Dated and mailed October 27, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The complaint in this case alleged that the complainant, a male, had been sexually harassed and then discharged in retaliation for opposing such harassment. The ALJ decided that the complainant failed to prove his claim of sexual harassment but did prove his claim of retaliatory discharge. Pursuant to the respondent's petition, the commission reverses the ALJ's finding that complainant had been retaliatorily discharged.

A claim of retaliation, like other cases of alleged discrimination, follows the same burden shifting framework that was initially determined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973). First, the complainant must establish by a preponderance of the evidence a prima facie case of retaliation. Secondly, if the complainant succeeds in proving the prima facie case, the burden then shifts to the respondent to articulate a legitimate, nondiscriminatory reason for its conduct. Third, should the respondent carry this burden, the complainant must then have an opportunity to prove by a preponderance of the evidence that the reasons offered by the respondent for its conduct were a mere pretext for retaliation.

The complainant may establish a prima facie case of retaliation by showing that: (1) he or she engaged in statutorily protected expression (i.e., he or she either opposed an employment practice made unlawful under the Act or made a complaint, testified or assisted in a proceeding under the Act); (2) he or she suffered an adverse action by the employer; and (3) that there is a causal link between the protected expression and the adverse action.

Beginning with the first element of the prima facie case (whether complainant engaged in statutorily protected activity), the ALJ concludes that on at least two occasions prior to the hotline message complainant had informed Lenz that he felt harassed by Waligora's teasing him about having sex with cows. (1)    However, the commission is not persuaded that this indeed was the case. The evidence indicates, as testified to by Lenz, that complainant had not informed Lenz that he was being teased about having sex with cows and that Lenz first learned about it on December 1, 1989. There are two primary factors which support Lenz' s testimony. First, Lenz's denial of having been told about the sex with animals teasing before December 1 is consistent with the uncontroverted fact that on the two occasions when complainant made his dissatisfaction with his job publicly known, first to the visiting executives on October 4, 1989, and second, in his hotline message, complainant had made no mention that he was being "sexually" harassed. Secondly, on December 1 in the conference with both Lenz and Dinan present, complainant reminded Dinan that he had earlier complained to Dinan of the sex with animals teasing, but complainant did not "remind" Lenz, or inform Dinan, that he had also made the same complaints earlier to Lenz. The above factors, particularly complainant's failure to state that he had complained to Lenz about the sex with animals teasing on December 1, when he had supposedly told Lenz twice earlier about this matter, leads the commission to conclude that complainant had not informed Lenz about the sex with animals teasing.

The only evidence, outside of the complainant' s uncorroborated testimony, that complainant made mention to respondent's management of the sex with animals teasing was the testimony of Patrick Dinan, the regional operations manager. Dinan testified that one occasion in the early fall of 1989, while he was working on the bagging line in the plant, complainant, who was returning from lunch, made a comment as he passed Dinan saying he was getting sick of the sex with animals jokes. Dinan, thinking that complainant was joking, laughed. However, to violate the prohibition against retaliation, the respondent must have had a belief that the complainant was raising a claim of sex discrimination. As stated by the commission in the case of Cangelosi v. Robert E. Larson and Associates. Inc. (LIRC, 11/9/90):

"In order to violate the prohibition against retaliation, an employer must have a belief that the person retaliated against is raising some kind of claim that discrimination is occurring. If an employer does not have such a belief, it obviously cannot be motivated by such a belief in conduct it undertakes. Thus, it is an essential element of a claim of retaliation that the complainant prove that the employer was aware that the complainant engaged in protected activities. (citing) Acharya v. University of Wisconsin (LIRC, January 19, 1982), Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318 (D. Mass. aff' d. 545 F.2d 222 (1st Cir. 1976). . . ."

The commission thus concludes that complainant had not made known to either Lenz or Dinan that he was raising a claim of alleged sexual harassment.

Next, the ALJ equates the hotline message with notice of a complaint of sexual harassment. She does this by concluding that although the complainant did not use the word "sexual" in the hotline message, the managers at the Walworth plant (i.e., Lenz and Dinan) knew, or should have known, that the alleged harassment was of a sexual nature, based on the complainant's prior complaints about the sex-related teasing. (ALJ Mem. Op. p. 15) This conclusion can only be reached, however, by accepting the complainant's testimony that he had twice told Lenz about the sex with animals teasing. The commission is not persuaded by the complainant's testimony for the reasons previously stated. The ALJ concedes that Dinan was reasonable in assuming that complainant was only kidding when he mentioned the teasing about sex with animals to Dinan in light of the off-handed way in which complainant had made his remarks and in light of the common nature of sexual banter in the work place. However, the ALJ goes on to criticize the adequacy of the investigation of complainant's hotline complaint, stating that had complainant been asked to explain the basis of his hotline message, respondent would have learned that the harassment was sexual in nature. But this view ignores the fact that the complainant's hotline message did not complain of harassment directed at complainant alone, but of harassment directed at all employes under Waligora. Dinan reasonably assumed he could cut directly to the truth of the complainant's hotline message by interviewing two employes under Waligora's supervision, who were in a position to observe whether Waligora was harassing employes under his supervision, and by interviewing Waligora. Further, upon failing to obtain verification of any harassment, and given Dinan' s knowledge of the complainant' s inappropriate behavior in the fall of 1989, Dinan could have reasonably assumed that complainant was using the hotline for inappropriate purposes -- i.e., to vent his frustration at his supervisor for assigning duties complainant coveted to Hall. Under the circumstances presented, the respondent's investigation into the matter clearly cannot be deemed to have been inadequate.

A review of the ALJ' s decision indicates that she ultimately resolves the issue of notice to the employer by finding that Dinan and Lenz were advised of the "sexual nature of the complainant's complaint of harassment on December 1, when Dinan and Lenz called him into their offices with the intention of terminating him.... " (Mem. Op. p. 15) and" right before he was terminated" (Mem. Op. En. 4, p. 16). In Finding of Fact #28 the ALJ states that "before executing their decision to terminate Matthews, both Dinan and Lenz knew that Matthews believed that Waligora's harassment was of a sexual nature." These conclusions by the ALJ do not appear to be supported by the record. In fact, the testimony indicates that complainant was told of his discharge before he brought up the harassment of a "sexual" nature. For example, Lenz gave the following testimony when asked to describe what transpired on December 1, 1989:

". . . Pat did most of the talking on it. And we told Bill, you know, that we were discharging him. And at that time Bill brought up the fact of the harassment and the sexual harassment... " (emphasis added) (TR 210)

Also, see the complainant's own testimony at pp. 43-45. Complainant's testimony there suggests that he was first given the reasons for his discharge (he had an attitude problem and respondent didn't want his attitude to spread through the whole factory) to which he responded by telling Dinan (and Lenz) "Why his attitude changed, about the harassment, not only from Lyle Waligora, but from the other employes, too."

However, even assuming that Dinan and Lenz had learned of the sex with cows teasing of the complainant on December 1 prior to complainant's discharge, the commission is not convinced that the respondent's decision to proceed with the complainant's discharge indicates that respondent was motivated by a belief that complainant was raising a claim of sexual harassment discrimination. First, Dinan and Lenz had already investigated the complainant's claim of harassment and found no evidence of any harassment. Second, there is nothing which suggests that Dinan and Lenz recognized that complainant was raising a claim of unlawful sexual discrimination on December 1. Finally, the decision to discharge complainant had already been made during the prior month of November.

Examining the second and third elements of a prima facie case of retaliation (the adverse employment action, complainant's termination, and whether there was a causal link between the hotline complaint and complainant's termination), the ALJ states that the strongest evidence of a causal link is the timing of the termination decision. A causal connection between oppositional activity and an adverse employment action may be inferred from the proximity in time between the protected activity and the alleged retaliation. Frierson v. ASHEA Industrial Systems (LIRC, 4/6/90). Here, the ALJ cites the fact that the respondent had received the complainant's hotline complaint on or about November 17, 1989 and that complainant was discharged only two weeks later on December 1. However, the causal connection drawn by the ALJ here, assumes that the hotline message by complainant made it known to the respondent that his complaint was one of sexual harassment. The evidence does not support such an assumption.

The ALJ cites Lenz's testimony that he believed that sending the hotline message to company headquarters was inappropriate conduct on the part of complainant and that it evidenced a bad attitude, as additional evidence of a causal link between the hotline complaint and the termination decision. However, Lenz's testimony indicates that he viewed the hotline message as inappropriate not because he viewed it as a complaint of sexual harassment, but because he did not believe there was any substance to the complainant's hotline complaint, and that such complaint therefore merely indicated a continuation of the bad attitude complainant had displayed before the upper management executives on October 4 and in his continued comments about looking for other employment and wanting to leave the respondent' s employ.

Finally, the ALJ concludes that the respondent's articulated reasons for the complainant's termination are a mere pretext for retaliation. First, the ALJ dismisses the respondent's explanation that the complainant's outburst before the corporate executives on October 4 was a reason for complainant's discharge because the respondent did not mete out any discipline whatsoever to complainant on October 4. She also concludes that if the respondent had decided to discharge for the remarks complainant had made on October 4, it wouldn't have waited until over two months later on December 1. The ALJ's conclusions here misconstrue the respondent's explanation for the actions it took. The ALJ appears to conclude that the respondent's sole basis for the complainant's discharge was his outburst on October 4. This was not the case. The respondent's explanation for complainant's discharge included the fact that after October 4, the complainant exhibited continued unhappiness about his employment with respondent, the fact that he made his discontent about his employment and intention to find other employment known to his co-Worker's, and the fact that complainant's attitude was starting to adversely affect the morale of other employes. Further, it is not particularly surprising that the respondent meted out no discipline to the complainant on October 4 in view of the fact that he was considered to be a good worker and had not been previously disciplined. Additionally, Lenz testified that on October 4 complainant had told him, as part of his apology for his outburst, that the matter had been resolved and that he (Lenz) thoroughly believed the matter had been resolved. (TR 198)

Secondly, with respect to complainant's bad attitude exhibited after October 4 as reason for complainant's discharge, the ALJ concedes that complainant had also made numerous remarks to co-Worker's indicating he was unhappy with his job and believed that he had no hope for advancement, and that it was certainly understandable the respondent was concerned that his remarks were starting to hurt morale. However, she nevertheless concludes that complainant's bad attitude was a pretext for his termination, stating that complainant had been making such comments for several months prior to his termination, yet he was not terminated until December 1, 1989, shortly after he sent in his hotline message. Further, she concludes that even if complainant' s October 4 outburst and his bad attitude were contributing factors in the decision to discharge complainant, the close proximity in time between the hotline message and the date of complainant's termination indicates that the hotline message was the major precipitating factor in the decision to discharge the complainant December 1. However, both of these conclusions reached by the ALJ rest on the underlying premise that the complainant' s hotline message (by itself or in conjunction with complainant's alleged prior complaints to Lenz about sexual related teasing) sufficiently apprised the respondent that complainant believed he was being unlawfully sexually harassed. As noted above, the commission finds that the complainant' s hotline message failed to make known to the respondent that he was raising a claim of sexual harassment. The commission thus concludes that the complainant failed to establish by a preponderance of the evidence that the reasons given by respondent for his discharge were a mere pretext for retaliation.

NOTE: The commission has reversed the finding of retaliatory discharge largely because it was not persuaded by Matthews' testimony that he had informed Lenz prior to December 1, 1989, that he felt harassed by Waligora's teasing him about having sex with cows. The commission's credibility consultation with the ALJ revealed nothing regarding the demeanor of Matthews or Lenz which led her to conclude that the testimony of one was any more or less credible than that of the other.

125



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Footnotes:

(1)( Back ) The ALJ finds the complainant to have engaged in statutorily protected activity based on the alleged complaints to Lenz regarding the teasing about having sex with cows.

 


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