GRACE SKILLING-VUKICH, Complainant
SWIFT TRANSPORTATION, 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 January 31, 2006
skillgr . rsd : 115 : 9
James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The Wisconsin Fair Employment Act (WFEA), in Wis. Stat. § 111.32(13), defines sexual harassment as follows:
(13) "Sexual harassment" means unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. "Sexual harassment" includes conduct directed by a person at another person of the same or opposite gender. "Unwelcome verbal or physical conduct of a sexual nature" includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employee's work performance or to create an intimidating, hostile or offensive work environment.
The WFEA prohibits sexual harassment in employment in the following language of Wis. Stat. § 111.36, as relevant here:
(1) Employment discrimination because of sex includes, but is not limited to, any of the following actions by any employer...
(b) Engaging in sexual harassment; or implicitly or explicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment; or making or permitting acquiescence in, submission to or rejection of sexual harassment the basis or any part of the basis for any employment decision affecting an employee, other than an employment decision that is disciplinary action against an employee for engaging in sexual harassment in violation of this paragraph; or permitting sexual harassment to have the purpose or effect of substantially interfering with an employee's work performance or of creating an intimidating, hostile or offensive work environment. Under this paragraph, substantial interference with an employee's work performance or creation of an intimidating, hostile or offensive work environment is established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct sufficiently severe or pervasive to interfere substantially with the person's work performance or to create an intimidating, hostile or offensive work environment.
(br) Engaging in harassment that consists of unwelcome verbal or physical conduct directed at another individual because of that individual's gender, other than the conduct described in par. (b), and that has the purpose or effect of creating an intimidating, hostile or offensive work environment or has the purpose or effect of substantially interfering with that individual's work performance. Under this paragraph, substantial interference with an employee's work performance or creation of an intimidating, hostile or offensive work environment is established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct sufficiently severe or pervasive to interfere substantially with the person's work performance or to create an intimidating, hostile or offensive work environment....
(3) For purposes of sexual harassment claims under sub. (1)(b), an employer...is presumed liable for an act of sexual harassment by that employer,...or by any of its employees or members, if the act occurs while the complaining employee is at his or her place of employment or is performing duties relating to his or her employment, if the complaining employee informs the employer...of the act, and if the employer...fails to take appropriate action within a reasonable time.
Here, the record supports a finding that Losch, the complainant's trainer/mentor, called her "girl" during the first three days of their training session until she asked him to stop; touched her arm/shoulder forcefully to get her attention on more than one occasion; and was clothed only in his underwear on one occasion in the sleeping compartment of the truck.
Although the complainant alleges that Losch engaged in other unwelcome acts, e.g., masturbating in the sleeping compartment while she was driving, the commission agrees with the administrative law judge (ALJ) that the version of events to which the complainant testified is less credible than that offered by the respondent. Not only are complainant's additional allegations in direct conflict with the Qual-Com message she sent to her supervisor on November 19, but certain inconsistencies in her testimony render her less credible in general.(1)
The unwelcome acts established in the record, even if they had the sexual connotation required by Wis. Stat. § 111.36(1)(b), or were directed at the complainant because of her sex in violation of Wis. Stat. § 111.36(1)(br), were not sufficiently severe or pervasive to have created an intimidating, hostile or offensive work environment for the complainant or to have interfered substantially with her work performance. The complainant, as a result, did not prove her allegation of sexual harassment.
However, even if the complainant had succeeded in establishing that the acts engaged in by Losch constituted prohibited sexual harassment within the meaning of the WFEA, she failed to prove that the respondent is liable for them.
Losch was the complainant's co-worker, not her supervisor. The complainant and Losch testified that they understood that Spoehr was her supervisor. Although Losch had the authority to guide and monitor the complainant's training regimen, he had no authority to effectively recommend her hire, promotion, transfer, discipline or discharge. The record does not show that Losch had any responsibility for the evaluation of complainant's performance as a trainee, any role in resolving issues relating to the complainant's training other than by relaying these issues to Spoehr, or played any part in administering or grading the qualifying driving test. See, Sanderson v. Handi Gadgets Corp. ERD Case Nos. CR200201194, CR200202089 (LIRC March 31, 2005).
In view of Losch's status as a co-worker, the respondent would be liable, if Losch had sexually harassed the complainant, only if the complainant had informed the respondent of the harassment and the respondent had failed to take appropriate action within a reasonable time. See, Krienke v. Ramada Inn Conference Center, ERD Case No. CR200002246 (LIRC Oct. 29, 2002).
Although the complainant asserts that she left numerous messages for Spoehr before November 24, 2003, the commission agrees with the ALJ that this assertion is not credible. The record shows that respondent, once it received the communication from the complainant on November 24, acted immediately to separate the complainant and Losch, to return the complainant to Wisconsin, and to investigate the complainant's allegations. Upon completion of its investigation, the respondent reprimanded Losch, required him to undergo additional sexual harassment training, and removed his eligibility to train female drivers. This response by the respondent was immediate and reasonably appropriate.
The complainant has failed to sustain her burden to prove that she was sexually harassed by the respondent in violation of the WFEA.
To prove a constructive discharge, the complainant must show that, for a discriminatory reason, working conditions are rendered so intolerable that a reasonable person would feel compelled to resign. See, Waedekin v. Marquette University (LIRC, March 5, 1991), citing Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 22 FEP Cases 1191 (5th Cir. 1980); Dingeldein v. Village of Cecil, ERD Case No. 199503536 (LIRC May 8, 1997), citing Bartman v. Allis Chalmers Corporation, 799 F.2d 311 (7th Cir. 1986); Froh v. Briggs and Stratton Corp., ERD Case No. 200101453 (LIRC Sept. 29, 2004); Adams v. Boston Store, ERD Case No. CR200204190 (LIRC Aug. 31, 2005). However, as concluded above, the complainant failed to prove that she was subjected to sexual harassment in violation of the WFEA as alleged. Moreover, even if the complainant had proved that she was sexually harassed in violation of the WFEA on and before November 24, 2003, she failed to prove that such harassment continued until the time of her resignation, i.e., the record supports a conclusion that the respondent took immediate and reasonable steps to address and remedy the complainant's working conditions once it first received notice on November 24 of her concern that she was being sexually harassed by Losch. See, Adams, supra. (no constructive discharge where respondent reasonably addressed complainant's concerns about her training, and working conditions in last period of her employment were supportive and tolerant). Here, the respondent removed the complainant from Losch's mentorship, returned her to Wisconsin, assigned her to a female mentor in order to complete her training, and, when the complainant expressed concern about this assignment, took the extraordinary step of waiving the last four days of her training. Such circumstances do not qualify as intolerable, and the complainant has failed to prove that she was constructively discharged.
Complainant's theory of retaliation is not clear. It appears that she is arguing that she was not permitted to complete her training once she reported to respondent her concerns that Losch was sexually harassing her. However, the complainant declined the opportunity to finish her training with a female mentor in Tennessee, as well as the opportunity to have her last four days of training waived so that she could take her qualifying driving test. These opportunities represented a reasonable effort by the respondent to assist the complainant in completing her training. The complainant has failed to demonstrate that any of the actions taken by the respondent after the complainant first provided notice of the alleged sexual harassment constituted adverse employment actions, and her claim of retaliation fails as a result. See, Sarazin v. W & G Transport, ERD Case No. 199601006 (LIRC March 9, 1999).
Appeal to the commission
It should first be noted in this regard that, in her appeal to the commission, the complainant relies upon certain facts not of record. In reaching its decision, the commission may only rely upon evidence which has become part of the hearing record. Since the complainant had full and fair opportunity to present her case at hearing, where she was represented by counsel, further hearing to give her the opportunity to offer additional evidence is not merited.
In her appeal, the complainant also asserts that Losch was not available for deposition and implies that this compromised her ability to present her case at hearing. However, the complainant was represented by counsel throughout the prehearing and hearing stages of these proceedings, and there is no indication in the case history that a deposition of Losch was noticed, that Losch failed to participate in the discovery process, or that a motion to compel discovery was filed in response to this failure.
cc: Attorney Lori M. Lubinsky
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(1)( Back ) For example, the complainant testified both that she did not have time to read the respondent's driver's manual because she was driving ten hours each day, and that Losch had reduced her driving hours to five a day and then to three and then to zero.