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

NICOLE M ZERZANEK, Complainant

CITY OF KENOSHA, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200401281, EEOC Case No. 26GA401032


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 modifications:

1. The second sentence in paragraph 4 of the administrative law judge's FINDINGS OF FACT is deleted and the following sentences are substituted therefor:

"The complainant's evaluation noted that she was thus far physically able to complete the tasks assigned to her, and that she demonstrated good preparation and cognitive abilities. However, the complainant was rated as having an attitude incompatible with firefighting in that she would replace performance with excuses, interrupt her instructors, and interject opinions after an action plan was in place."

2. Paragraphs 8 through 18 of the administrative law judge's FINDINGS OF FACT are deleted, and the following paragraphs are substituted therefor:

8. The complainant's trainers had a number of discussions with her involving her performance, during which she was advised that her areas of weakness included an inability to focus and carry out tasks at times of high exertion and stress and that she needed to resist the urge to make excuses while facing stressful conditions. During these meetings the complainant was routinely asked whether she had any issues with the way she was being treated. The complainant always expressed complete satisfaction with her treatment.

9. On September 15, 2003, the complainant met with Battalion Chief Poltrock on Silva and Haerter's recommendation. Poltrock noted the need for unconditional compliance with orders and stated that the complainant's performance was coming close to the point where they would need to make a decision as to whether she would make an appropriate employee for the fire department. The complainant stated she would comply with the advice she had been given.

10. Later the same day an incident occurred in which the complainant had trouble with her air pack and offered excuses for the problem rather than simply correcting it as directed. The complainant's trainers concluded that, in spite of her conversation with Chief Poltrock, the complainant still did not "get it." Silva and Haerter submitted a recommendation that the complainant be dismissed from the training program.

11. The complainant was not made aware of the recommendation, and only learned of it at the hearing.

12. On September 16, 2003, Haerter and Silva had the complainant meet with Chief Kiser and Deputy Chief Santelli. The complainant was told that if she was not able to meet basic recruit training goals by September 23, she would be dismissed from the basic recruit class. The complainant cried and explained that she was disappointed in her performance and that the training was harder than she anticipated. The complainant stated that she was aware of her inability to stay focused and on task during stressful or fatigue situations and that she was trying to improve. The complainant was asked whether she felt she was being treated fairly by her instructors and indicated she was.

13. On September 17, 2003, the complainant took part in a rooftop training exercise that involved stressful conditions and required her to operate a high-powered chain saw. At some point the complainant became tired and began operating the saw with only one hand. The complainant's instructors began yelling at her to get both hands on the saw. However, rather than comply with this directive, the complainant tried to explain why she was using only one hand. After the exercise the complainant was counseled for failing to act in a safe manner and was told that her actions would endanger lives. She was also counseled about her failure to maintain her composure.

14. On September 18, 2003, the complainant participated in a search exercise along with another recruit, Timothy Lewis. Once she entered the maze, the complainant, who was in the lead position, lost speed, began to falter and become disoriented. The exercise was completed unsuccessfully. Afterwards, the complainant was told that her errors were the kind of mistakes that compromise the respondent's mission and place the company in mortal danger. She and Lewis were both told that they would need to repeat the exercise because their performance was abysmal.

15. After the exercise Silva and Haerter found the complainant in tears. The complainant stated that she was afraid she was going to kill herself or someone else because she fails when under stress. Her instructors asked her if she thought she would be ready for a tower exercise scheduled for next Thursday in which firefighters are exposed to deadly atmospheres. The complainant stated she would not be ready. The complainant, Silva, and Haerter, discussed her future as a firefighter. The complainant went off on her own to think and, shortly thereafter, told Silva and Haerter she was done.

16. Haerter and Silva notified Deputy Chief Santelli of the situation, and Santelli called the complainant in for a conference. Santelli stated he had heard the complainant intended to resign. The complainant confirmed this was the case. Santelli stated that he believed the complainant had the potential to become a good firefighter someday and did not want her to feel like a failure. Santelli told the complainant that the trainers said she is educated and smart and has a very nice personality, but that when exhausted she loses her ability to focus and make the right choices, which is a dangerous thing. Santelli asked the complainant if she felt she had been treated fairly, and the complainant indicated she had. Santelli told the complainant to go home and think about her decision. He stated that if she changed her mind and wanted to continue through Tuesday, at which point she could be re-evaluated after another training exercise, she could do so. The complainant said she would return the next day to submit resignation papers.

17. On September 23, 2003, the complainant returned her equipment and submitted her written resignation. At that point the complainant stated, for the first time, that she felt she had been mistreated and was not given a fair chance to complete basic training. Santelli replied that he was confused, since they had discussed her training in detail last week and the complainant did not indicate any concerns. The complainant responded that, after telling Santelli everything was okay, she had changed her mind.

DECISION

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

Dated and mailed April 27, 2006
zerzani . rmd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In her petition for commission review the complainant argues that the administrative law judge's decision should be reversed because she adduced significant evidence of gender discrimination. The complainant states that out of 147 fire department employees, (1)  only five are female, that Deputy Chief Santelli acknowledged there are current charges of sexual harassment pending filed by one or more of these females, and that Santelli himself implicitly referenced the department's dubious background with regard to gender discrimination during his exit interview with the complaint when he said, in relevant part:

"Things may have been different in the past at this department, but right now the way the Chief and I want this department run is we want it to be run that way and that is I don't care if white or black green or yellow, male or female, we want you to have every opportunity to be successful and that we are not going to allow anyone to get in the way to make that happen." (Ex. G) (emphasis supplied in complainant's brief).

The complainant further maintains that she was the only female recruit in her training class and that fourteen of the fifteen instructors were male. She states that she was virtually isolated from other females during her training.

The complainant also contends that the department showed favoritism to males. For example, the complainant was injured but never missed a drill, unlike Ryan Anderson, who was allowed to sit out the better part of a month. She further contends that Anderson's evaluations were horrible, yet he was ultimately passed with flying colors. The complainant also argues that Timothy Lewis made the exact same mistake she did when she went the wrong way during a rescue operation, but was not reprimanded.

The complainant also takes issue with the respondent's criticisms of her performance. The complainant maintains that she was labeled from day one as having major attitude problems by her instructors, but that their criticism was shown to be "transparent" as evidenced by a statement made by Deputy Chief Santelli at the exit interview that the complainant knew her stuff, was physically able, and had all the things the department wanted and expected from a good firefighter. The complainant asserts that it is telling that the witnesses to her perceived performance deficiencies, Silva and Haerter, were never called to testify by the respondent and argues that the administrative law judge was obligated to draw an adverse inference that they would not have held up under cross-examination.

Finally, the complainant argues that she was constructively discharged. She maintains that she was subjected to constant screaming and yelling, and constant pressure and criticism. The complainant states that her instructors broke her emotionally and deliberately set about convincing her that to continue in the program would jeopardize everyone's safety.

The commission has considered the complainant's arguments, but finds them unpersuasive. Regarding the allegations of institutionalized sexism, the fact that the respondent may have had a past history of discrimination -- and the record contains no evidence on this point -- does not mean that the complainant was discriminated against. To the contrary, Santelli's statement clearly indicates an intent to chart a new course under the current chief, and to treat all applicants and employees fairly without regard to race or gender. Santelli testified that the department had been undergoing a "cultural change" and, further, that the respondent was actively encouraging applications from females. While there were few females in the department, this fact alone does not warrant an inference that the complainant was subjected to a discriminatory work environment. Contrary to her assertions, there is nothing to suggest that the respondent made a deliberate attempt to isolate the complainant from other females, nor can it be assumed that the complainant's training would have been more successful had she worked with or been trained by females rather than males. Finally, contrary to the complainant's assertion in her brief, Santelli testified that he was not aware of any pending sexual harassment charges, (Syn. at 18), and even if there were such charges, no conclusions about the complainant's treatment can be drawn from the mere existence of a harassment charge filed by another worker.

Turning to the complainant's arguments of disparate treatment, the complainant's own testimony reveals these to be unfounded. While a male recruit may have been allowed to sit out for nearly a month because of an injury, the complainant specifically testified that she never asked to be excused from any training exercises and would "never do that." (Syn. at 14). The complainant further testified that the male recruits were counseled and/or reprimanded for various performance deficiencies during their training, and that one of the male recruits made the same mistake she did during a search exercise and was reprimanded. (Syn. at 8). With regard to recruit Ryan Anderson, who ultimately completed the program in spite of poor initial evaluations, the record contains nothing to support the complainant's assertion that the department showed favoritism to him because he was male. The respondent initially believed that Anderson was unlikely to make it through the training because of his injuries. However, Anderson's physical condition and performance improved and, more importantly, Anderson stuck with the program and did not quit. Although the complainant's trainers had recommended her dismissal, she was not discharged and could have made an attempt to complete her training as Anderson did.

It should also be noted that the complainant was repeatedly asked by her instructors whether she was having any problems with them and whether she felt there were issues with the way she was treated, but consistently said "no" and always expressed complete satisfaction with her treatment. While at the hearing the complainant contended that she felt scared and intimidated by her trainers, and believed they were not genuinely concerned, the complainant's subjective belief that her trainers did not really want to know how she felt is unsupported by any evidence in the record. Moreover, even if the complainant felt intimidated by Silva and Haerter, there was no reason she could not have told Deputy Chief Santelli her true feelings during their meeting on September 18. The complainant testified that she had known Santelli for years and that he was instrumental in the department's decision to hire her in the first place. Moreover, since the sole purpose of meeting with Santelli was to discuss her future with the fire department after she had already indicated an intention to resign, the complainant would have had nothing to lose by being forthright. Given all the circumstances, the commission doubts the complainant's after-the-fact characterization of her treatment by the respondent as being unfair or discriminatory and considers it more likely that the complainant was given the same opportunity as the two male recruits in her class, as she repeatedly stated was the case when asked during the course of her employment.

With respect to the complainant's arguments that the respondent's criticisms of her performance were untrue, and her suggestion that they were part of a deliberate plan to discriminate against her, there is simply nothing in the record to support such assertions. While the complainant maintains that a negative inference should be drawn from the respondent's failure to bring Silva and Haerter to the hearing and that it should be assumed they would not have held up under cross-examination, there is absolutely no reason to believe that Silva and Haerter did not really find the complainant's performance to be deficient in the ways they noted on her evaluations and reported to Santelli. Further, and more importantly, it is the complainant who has the burden of proof, and if the complainant believed that Silva's and Haerter's testimony would help her case it fell to her to bring them.

In her brief the complainant also contends that Haerter and Silva's opinions about her attitude were contradicted by Santelli, who made positive statements about her knowledge and physical abilities, and who stated that she had all the things the respondent would want from a good firefighter. However, Santelli went on to say that the complainant lost her concentration when exhausted or in stressful situations, and testified that his own observations showed that much of what the complainant's instructors said was accurate. Santelli testified that he personally observed the complainant engaging in some of the unsafe behavior her instructors were concerned about and, further, that he shared their view that the complainant tended to become unfocused and lose control in stressful situations. Santelli additionally testified that during his conversations with the complainant she would be in tears and emotionally distressed.

The commission similarly finds no merit in the complainant's argument that she was constructively discharged. As the complainant noted in her brief, a constructive discharge occurs if working conditions are so difficult or unpleasant, for a discriminatory reason, that a reasonable person would feel compelled to resign. While the complainant was indeed yelled at and criticized in a manner that might be considered unacceptable for an ordinary worker, the complainant was not an ordinary worker, but a firefighter trainee going through "boot camp." It is clear from the record that yelling at recruits and placing them in stressful situations is part of the training process. None of the conduct to which the complainant objects was shown to be related to her sex, nor did she establish that the male recruits were treated more favorably. While the complainant may have been justified in deciding to quit rather than tough it out any further, there is no constructive discharge under these facts.

In conclusion, it is clear from the record that the respondent believed the complainant lacked the emotional maturity and clear-headedness needed to be a good firefighter and, prior to the time she submitted her written resignation, the complainant never disagreed. The complainant was given numerous opportunities to tell the respondent that she felt she was not being treated fairly or was being treated differently than her male co-workers, but consistently expressed satisfaction with her treatment and stated that she was treated completely fairly. Under all the facts and circumstances, the commission agrees with the administrative law judge that there is no probable cause to believe discrimination occurred. The commission has modified the administrative law judge's decision to more completely and accurately set forth the relevant facts. However, these factual modifications notwithstanding, the dismissal of the complaint is affirmed.

cc:
Attorney Robert K. Weber
Attorney Patrick J. Sheehan



[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) The record indicates that there are 144 firefighters in the department. (Syn. at 22).

 


uploaded 2006/05/01