FAYMARIE A PLUSKOTA, Complainant
ALVERNO COLLEGE, Respondent
An administrative law judge (ALJ) for the Equal Rights Division (ERD) 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, except that it makes the following modifications:
The following sentence is added to numbered paragraph 4. of the FINDINGS OF FACT:
Alverno did not sponsor Pluskota's membership in the Association of Fundraising Professionals (AFP) because it instead sponsored her membership in the Association for Professional Researchers for Advancement (APRA), an organization whose activities were more directly related to her work responsibilities.
The following sentence is added to numbered paragraph 39. of the FINDINGS OF FACT:
Hourly employees, but not salaried employees like Pluskota, are required to be paid overtime in order to participate in work activities during their lunch break.
The following sentence is added to numbered paragraph 41. of the FINDINGS OF FACT:
Pluskota never filed a written discrimination complaint with Alverno.
The first reference to "Simons" in the first sentence of numbered paragraph 53. of the FINDINGS OF FACT is changed to "Pluskota."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed October 21, 2005
pluskfa . rmd : 115 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The complainant alleges the following as acts of alleged marital status harassment:
(a) In December of 2000, during a staff meeting, Simons complimented Swadish, the Director of Annual Programs, in what the complainant considered an exaggerated manner, for volunteering to assume responsibility for one of complainant's projects, even though the complainant had done the bulk of the work on the project.
(b) In August of 2001, Swadish and Simons left to have lunch together while the complainant was at the library, and left a note that the complainant should join them. The complainant believed that they should have invited her to lunch before she left for the library or waited to go to lunch until she returned.
(c) In September of 2001, during their weekly one-on-one meeting, Simons criticized the complainant, in what complainant considered an angry and impatient manner, for asking whether a prospect could be placed in more than one category.
(d) Simons allegedly invited other co-workers out to lunch more frequently than she invited complainant.
(e) On December 5, 2002, during a staff retreat, Simons interrupted complainant while she was speaking and did not initiate conversation with her at lunch.
(f) At a reception on December 20, 2002, Simons did not initiate contact with the complainant.
This series of perceived slights, even if linked to the complainant's marital status, does not come close to the level of severity or pervasiveness necessary to establish harassment.
See, Bowen v. Stroh Die Casting Co., Inc., ERD Case No. 200301568 (LIRC June 30, 2005);
Wodack v. The Evangelical Lutheran Good Samaritan Society, ERD Case No. CR2002304449 (LIRC Aug. 5, 2005).
Adverse terms and conditions of employment
The complainant also alleges the following adverse terms and conditions of employment:
(g) During the course of her employment, Simons' weekly one-on-one meetings with her were of shorter duration than Simons' meetings with certain other members of the department's professional staff.
However, as the ALJ found (Finding of Fact 22.), and the record shows, Simons' meetings with other staff lasted longer because Simons discussed personal matters with them, which complainant chose not to do, and the complainant's discussions with Simons during these meetings, as they pertained to work-related matters, were complete.
(h) Simons denied complainant's request to take vacation on December 5, 2002.
However, as the ALJ found (Finding of Fact 34.), and the record shows, this request was denied because it had not been made until November 19, 2002, and December 5 was the only day that it was possible to schedule the department retreat. The record also shows that Simons granted the complainant's request to take vacation on December 9, 10, 11, 13, 16, 17, and 18, 2002.
(i) Simons became upset with the complainant for expressing in a January 7, 2003, email her preference for continuing to hold the coordinators' meetings at 10 a.m. rather than moving them to 12 noon, and referred the complainant to the human resources unit as a result.
However, as the ALJ found (Findings of Fact 43-48), and the record shows, it was not the expression of the preference to which Simons objected, but instead to the complainant's subsequent January 8 email complaining that her opinion was not taken into account, and to the complainant's ensuing lengthy and emotional argument with Simons about it. The complainant's comparison of her situation to that of an hourly employee, who had previously objected to moving a meeting to the lunch period, was not apt since an hourly employee was required to be paid overtime to participate in a lunch meeting but a salaried employee, like the complainant, was not. Moreover, the record shows that Simons' referral of complainant to the human resources unit was reasonable given that complainant's angry and emotional reaction to Simons' decision was out of proportion to the significance of the decision.
(j) On June 12, 2002, the complainant was excluded from a meeting at which Simons, Swadish, and Callaghan, the Senior Proposal Writer, were present.
However, the record shows that this was an informal meeting to discuss certain proposals, none of which related to the complainant's assignments.
(k) Alverno paid for Callaghan's membership in AFP (Association of Fundraising Professionals), but not for the complainant's.
The record shows that, although Alverno did not provide an AFP membership to the complainant, they did provide her a membership in APRA, an organization more directly related to her job duties.
(l) On January 13, 2003, Simons removed the complainant's proposal-writing responsibilities and informed the complainant that, as a result, it would no longer be necessary for her to attend coordinators' meetings.
However, the record shows that this refocus of complainant's duties on those she had been hired to perform, and removal of those minor duties which required closer cooperation with her co-workers, was a reasonable reaction by Simons to the complainant's exaggerated and emotional responses to ordinary workplace issues and perceived slights, and the complainant's failure to acknowledge the role she continued to play in disrupting workplace harmony.
The complainant failed to prove that she was treated less favorably in regard to these terms and conditions of employment than similarly situated married employees.
The record supports a conclusion that Simons' decision to terminate the
complainant was based upon, and reasonably justified by, the manner in which the
complainant had conducted herself in the work place, not on her marital status.
Although complainant points to married co-workers who were retained by the
respondent, she failed to show that any of these married employees had engaged
in conduct similar to hers, i.e., disruptive and emotional overreactions to
ordinary workplace events, speaking to a supervisor in a snide and sarcastic
manner and mimicking her, or resisting efforts to conform employee attitude and
conduct to the respondent's standards. Moreover, the record shows that Simons
had a positive and productive work relationship with Val Brown, a single
employee, whom Simons promoted during Brown's tenure with the development
department. As a result, even though the replacement of complainant with a
married person creates an inference of marital status discrimination sufficient
to support a prima facie case, the record does not support a conclusion that the
reasons offered by the respondent for the complainant's discharge were
The complainant alleges that she was retaliated against for engaging in a protected fair employment activity,
i.e., reporting her concerns about marital status discrimination to Reading, Alverno's human resources manager. However, the record shows that Simons, the alleged retaliator, had no reason to be aware of the complainant's interactions with Reading in this regard.
See, Froh v. Briggs & Stratton Corp., ERD Case No. 200101453 (LIRC Sept. 29, 2004)(in order to prove retaliation, it must be shown that the alleged retaliator was aware, or had reason to be aware, of the complainant's protected fair employment activity).
Timeliness/Adverse employment action
The respondent argues that the complainant's charge was untimely filed as it relates to any actions of alleged discrimination/retaliation occurring prior to the 300-day filing period, i.e., prior to May 18, 2002. However, the acts of alleged harassment which occurred prior to that date would be rendered timely as part of a continuing violation. Kanter v. Ariens Co., ERD Case No. 200205229 (LIRC Sept. 23, 2005). Moreover, none of the remaining adverse terms and conditions of employment occurred prior to May 18, 2002.
The respondent also argues that many of the subject terms and conditions of employment did not rise to the level of cognizable adverse actions. However, the commission has not specified a minimum level of significance, other than an implicit de minimus level, that an action is required to meet in order to be cognizable under the WFEA. See, Post v. Mauston School District, ERD Case No. 199801898 (LIRC Aug. 28, 2002).
In her petition for commission review, the complainant, who had been represented by counsel at the hearing stage of these proceedings, but apparently is currently unrepresented, cites numerous facts which are not supported by evidence in the record. The commission may only consider those facts which are of record in reaching its decision here. In addition, the complainant challenges certain of the ALJ's findings. However, in reaching these findings, the ALJ obviously drew certain conclusions regarding the relative credibility of witness testimony, and the commission finds no persuasive basis in the record for overturning these credibility determinations.
Finally, the commission notes that the summary of proceedings prepared by ERD was inaccurate and incomplete, and, as a result, the commission conducted an independent review of the entire record in reaching its decision here.
cc: Attorney Ely A. Leichtling
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(1)( Back ) See, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973).