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

CHRISTOPHER R BOWEN, Complainant

STROH DIE CASTING CO INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200301568, EEOC Case No. 26GA302057


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 agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modification:

In paragraph 11 of the administrative law judge's FINDINGS OF FACT the date "May 21, 2003" is deleted and the date "May 21, 2002" is substituted therefor.

DECISION

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

Dated and mailed June 30, 2005
bowench . rsd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The complainant's brief in support of his petition for commission review contains numerous arguments in favor of reversal. The commission will address as many of those arguments as is practicable in the order in which they are raised.

The complainant argues that the respondent's decision maker, Mr. Kaufman, knew of the complainant's protected status and that his testimony to the contrary is not credible. The complainant also argues that the real question is whether Mr. Kaufman had any reason to believe the complainant was perceived as gay. These arguments fail. Mr. Kaufman testified that he believed the complainant was heterosexual and that he based this belief on the fact that the complainant had been married and had a child, as well as on the fact that, when discussing the "Honk If You're Gay" sticker with the complainant, the complainant specifically told Mr. Kaufman he was not gay. (Although in the complainant's brief his attorney argues, without citation to the record, that the complainant "flatly denies" having told Mr. Kaufman he was not gay, at the hearing the complainant acknowledged having told Mr. Kaufman that he was not a homosexual. (TR, at 239.)) Given the foregoing, the commission sees absolutely no reason to doubt Mr. Kaufman's testimony that he believed the complainant was heterosexual. With regard to the complainant's argument that the real question is whether Mr. Kaufman had a reason to believe the complainant was perceived as gay, the record contains nothing to indicate that, assuming other Worker's perceived the complainant as being gay, these perceptions were shared with Mr. Kaufman. The mere fact that the complainant told Mr. Kaufman about finding a "Honk If You're Gay" sticker on his toolbox is not sufficient to warrant a conclusion that Mr. Kaufman formed the belief that other Worker's perceived the complainant as being gay. Further, and most importantly, there is simply no evidence to suggest that Mr. Kaufman took any action based upon beliefs or perceptions about the complainant's sexual orientation, regardless of what those perceptions or beliefs may have been.

Next, the complainant argues that the record contains direct evidence of the hostile and retaliatory animus of the respondent's owner, Mr. Stroh. Specifically, the complainant references the May 9, 2002, memo written by Mr. Stroh with regard to a conversation with the complainant, which the complainant's attorney characterizes as evincing a clear belief that Mr. Bowen should not complain about the harassment, but accommodate himself to it or quit. The complainant's attorney further asserts that it is "simply anti-gay to expect a gay person to endure constant harassment as a condition of employment." These arguments rely on facts that are not in the record and mischaracterize those that are. While the complainant did identify himself to Mr. Stroh as a "fag," he did not testify that he told Mr. Stroh he had been sexually harassed, nor does Mr. Stroh's memo indicate this was the case. What Mr. Stroh's memo does indicate is that the complainant approached him in an angry manner and, using profanity, repeatedly advised him that he was being harassed and was going to file a lawsuit against Mr. Stroh and the company. The memo also indicates that, following this encounter, Mr. Stroh followed up with the human resources department to determine whether the complainant had filed a complaint, and concluded that the only written complaint on record, which did not concern sexual harassment, had been dealt with appropriately. Nothing about Mr. Stroh's actions suggests hostile or retaliatory animus on his part. Moreover, there is no reason to believe that Mr. Stroh was involved in the decision to discharge the complainant or in any other decision affecting the complainant's employment.

The complainant's next argument is that the respondent's work rules in effect in May of 2002 require that a Type B violation be accompanied by suspension. The complainant contends that it is "highly telling" that his discharge was not preceded by a suspension and that this departure from an established practice may evince discriminatory intent. He further maintains that by "soft-peddling" the violation and giving no harsh penalty the respondent was able to persuade the complainant not to grieve the ambiguous action in his file. This argument is wholly without merit. The record indicates that the complainant was, in fact, given a three-day suspension, albeit with pay, and was referred for counseling as a result of his first Rule B violation. Even had he been given no suspension, however, this would not have been considered a departure from established practice where the work rules specifically provide for deviation from the normal penalties where mitigating factors exist. Moreover, a failure by the respondent to strictly adhere to its disciplinary procedures, had this been established, would not be indicative of unlawful discrimination in the absence of any other reason to doubt the respondent's legitimate non-discriminatory explanation for its decision to discharge the complainant. Finally, to the extent the complainant is arguing that he was somehow treated less favorably by being given a paid suspension, rather than a suspension without pay, and that this was done in order to lull him into a false sense of complacency so that he would not file a grievance, the commission must reject this argument as being both far-fetched and without support in the record.

In his brief the complainant also makes the argument that the conduct upon which the respondent predicated the discharge was itself protected by the Wisconsin Fair Employment Act (Act). Specifically, he contends that his co-worker's comments to him about not "screwing around" or "hiding behind a skirt" constituted anti-gay slurs, and that the retaliation provisions of the Act apply to an employee's "self-help" efforts to alleviate discrimination. This argument fails. Notwithstanding the complainant's attorney's attempt to read anti-homosexual bias into the co-worker's remark, the comment, "If you want to screw around, we can do that outside of work on neutral ground where you can't hide behind someone's skirts," would be ambiguous at best under any circumstances, and does not suggest anti-gay bias given the context in which it was made and where the record failed to establish that the co-worker in question held homophobic attitudes. Further, while the law may permit an employee to protest acts of discrimination, it does not sanction grabbing the offender's arm and turning him around, the conduct for which the complainant was discharged in this case. Unwarranted physical contact does not constitute statutorily protected opposition. Finally, where the complainant failed to make the respondent aware that his unsatisfactory conduct was intended to be in protest of acts of discrimination, there is no basis to conclude that its decision to discharge him for that conduct amounted to unlawful retaliation.

Next, the complainant makes the argument that the respondent's legitimate nondiscriminatory reason for the discharge is unconvincing. He maintains that his conduct was not worthy of two Type B violations and that his account of the final incident was more credible than his co-worker's. The commission disagrees. The evidence indicates that the complainant engaged in two instances of misconduct within a twelve-month period, which demonstrated a propensity to become angry or threatening in response to mild provocation and to engage in disputes with other Worker's. While the complainant's version of the final incident differed from his co-worker's, the respondent was justified in believing the co-worker's version of events, particularly where it was supported by the statements of two other employees who were present at the time. Moreover, as stated above, where the respondent was neither aware that the complainant was homosexual or that the complainant was attempting to engage in protected activity under the statute, there is simply no reason to believe that the decision to discharge him was a pretext for discrimination.

The complainant's next arguments address his contention that he was subjected to hostile environment sexual harassment. These arguments also fail. The evidence in the record demonstrates that, during the time period at issue, a co-worker offered the complainant the only pink donut in a box of assorted donuts. The complainant further testified that on one occasion, the word "queer" or "queen" was written on his locker and on another occasion a picture of Liberace was placed on his locker, but failed to demonstrate when these incidents took place. (1)   Assuming without deciding that the "pink donut" incident was in reference to the complainant's sexual orientation and that the other two incidents were timely, the commission would remain unpersuaded that the complainant's evidence was sufficient to warrant a conclusion that he was subjected to harassing conduct which was sufficiently severe or pervasive as to create an intimidating, hostile or offensive work environment. Moreover, where the record failed to demonstrate that the complainant notified the respondent he was being sexually harassed or that the respondent had reason to believe this was the case, there is no basis for a finding that it permitted sexual harassment to occur.

Finally, the complainant contends that the administrative law judge erred in refusing to allow him to present evidence that would support a continuing violation theory and that, if the commission does not reverse the matter outright, it should remand for further proceedings to allow the improperly excluded evidence to be received. However, the commission believes that the administrative law judge's decision to disallow the evidence in question was appropriate. In his complaint, the complainant alleged that he was subjected to daily sexual harassment over a five-month period, from January through May of 2002. This alleged daily sexual harassment occurred prior to the limitations period and, evidently, ended when the complainant was moved to a different shift. The complainant did not allege further instances of harassment thereafter, with the exception of one discrete episode, the pink donut incident, which took place in January of 2003. While ongoing harassment beginning prior to and extending into the limitations period may be considered a continuing violation, in this case there was no allegation that the January through May incidents were part of a continuing course of conduct. Further, the sole instance of harassment which is claimed to have occurred within 300 days of the filing of the complaint -- the offering of a pink donut to the complainant -- was a matter so subtle and ambiguous that the commission cannot be certain it was based on the complainant's sexual orientation. Under all the circumstances, the commission agrees with the administrative law judge that the complainant's allegations do not state a continuing violation of the law and that evidence of incidents occurring outside of the limitations period was properly precluded as untimely.

The commission has considered the remaining arguments raised by the complainant in his brief to the commission, but finds them similarly unpersuasive. Based upon its independent review of the evidence in this case, the commission agrees with the administrative law judge that the complainant failed to demonstrate that he was discriminated against in the manner alleged. The dismissal of the complaint is, therefore, affirmed.

cc:
Attorney Gary Grass
Attorney Mary Pat Ninneman



Appealed to Circuit Court.  Remanded for new hearing, March 14, 2006.  Appealed to the Court of Appeals. Circuit Court remand order affirmed, sub nom. Bowen v. LIRC and Stroh Die Casting, 2007 WI App 45, 299 Wis. 2d 800, 730 N.W.2d 164

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Footnotes:

(1)( Back ) At the hearing the complainant also alleged, for the first time, that beginning in June of 2002, and continuing over a three or fourth month period, he was subjected to name calling and crude hand gestures based upon his sexual orientation. However, this allegation was not raised in the complaint, which specified that the complainant was subjected to five months of daily sexual harassment, from January through May of 2002, with no instance of harassment referenced thereafter except for the January 2003 "pink donut" incident. In the amended complaint, the complainant added the allegations about the picture of Liberace and the word "queer" or "queen" on his locker, but made no mention of name calling or crude hand gestures. The commission further notes that, in addition to having failed to raise these allegations prior to the hearing, the complainant has not contended that he notified the respondent of the problem.

 


uploaded 2005/07/01