JAMES R BRAUNSCHWEIG, Complainant
SSG CORPORATION, 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 conclusions in that decision as its own, except that it makes the following modifications in order to more accurately reflect the case file and the evidence of record:
The sentence in the first paragraph of the decision stating, "A transcript of the proceedings has not been prepared." is deleted.
The second sentence of numbered paragraph 3. of the FINDINGS OF FACT section is modified to read as follows:
Throughout the term of his employment with SSG, Braunschweig received annual raises and favorable evaluations.
In the first sentence of numbered paragraph 4. of the FINDINGS OF FACT section, a comma is inserted between "Erica Wahlquist" and "Helen Tshida."
Numbered paragraph 7. of the FINDINGS OF FACT section is modified to read as follows:
At least three of the women in the accounting department, Ms. Wahlquist, Ms. Kujala, and Nancy Meyer, made complaints that they were uncomfortable with Braunschweig's behavior toward them. The behavior complained of, in regard to Wahlquist and Kujala, consisted of his peering over the walls of their cubicles, following them around, and staring at them; and, in regard to Meyer, to entering and closing the door of her work space, and coming to sit very close to her. On at least one occasion, the physical layout of the accounting department was rearranged in response to these complaints. Ms. Wahlquist resigned her employment in 2001, Ms. Kujala in 2002, and Ms. Meyer requested and received a transfer to another unit in 2003. These resignations/transfers were precipitated in part because of the behavior of Braunschweig about which these three women had complained.
The last sentence of numbered paragraph 9. of the FINDINGS OF FACT section is deleted from that paragraph and added to numbered paragraph 8.
The word "early" is deleted from the first sentence of numbered paragraph 10. of the FINDINGS OF FACT section.
The following is added to the CONCLUSIONS OF LAW section as numbered paragraph 7.:
There is no probable cause to believe that Braunschweig was subject to sexual harassment as alleged.
The first paragraph of the MEMORANDUM OPINION section is deleted.
The words "younger and" are deleted from the first sentence of the fifth paragraph of the MEMORANDUM OPINION section.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed August 31, 2006
braunja . rmd : 115 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
In his decision, the administrative law judge states that an allegation of sexual harassment was not set forth in the complainant's charge or noticed for hearing and, as a result, the parties' arguments in this regard would not be considered.
However, it is apparent from an ERD "Employment Discrimination" complaint form transmitted to the department on January 27, 2004, by counsel for the complainant, on which, as a part of section 5., the "Sexual harassment" and "Harassment based on other protected category" boxes are checked; an intake form completed by ERD staff on February 19, 2004, which includes "harassment" as one of the terms and conditions included within the sex discrimination allegation; and the Initial Determination's analysis of the sexual harassment allegation, that the issue of sexual harassment was charged by the complainant and investigated by ERD.
The issues noticed for hearing include the issue of sex discrimination in regard to the terms and conditions of the complainant's employment. The Wisconsin Fair Employment Act's (WFEA) statutory framework includes sexual harassment as a form of sex discrimination. Wis. Stat. § 111.36(1). As a result, the issue of sexual harassment would reasonably be subsumed under the more general sex discrimination issue noticed for hearing.
As a result, the issue of sexual harassment was properly charged and noticed for hearing.
The complainant also asserts that the administrative law judge improperly excluded from the hearing record relevant evidence relating to the issue of sexual harassment.
The administrative law judge ruled, however, that acts occurring prior to the actionable 300-day filing period, although not actionable, could be relevant, and admitted evidence relating to such acts into the hearing record as a result. Although this ruling fails to take into account the continuing violation theory, particularly as it relates to hostile work environment allegations (1), the complainant has failed to show that any relevant and material evidence relating to his sexual harassment allegations was excluded from the hearing record.
The complainant's allegations of sexual harassment include the following:
1. Kristi Lundeen-Miller stated that "he was going to suffer a slow and painful death."
2. Lundeen-Miller stated that "I don't get mad, I get even."
3. Jody Mulholland raised her voice in communicating with the complainant, and, speaking to another employee of the accounting department, stated, "Don't help him, let him sink."
4. On October 31, 2002, the complainant observed a life-sized cardboard cutout of Mia Hamm in her soccer uniform, advertising Gatorade, with a sign around the cutout's neck with Scott McKinnon's name on it.
5. On April 3, 2003, during a meeting with the complainant and Dahlstrom to discuss her work performance, Mulholland became angry and upset and called the complainant "a woman."
6. On May 1, 2003, when told that the complainant was going to the YMCA to work out, Dahlstrom stated, "Why, are you weak?"
The WFEA provides as follows, as relevant here, in Wisconsin Statutes § 111.36(1):
(1) Employment discrimination because of sex includes, but is not limited to, any of the following actions by any employer,...:
(a) Discriminating against any individual in promotion, compensation paid for equal or substantially similar work, or in terms, conditions or privileges of employment or licensing on the basis of sex where sex is not a bona fide occupational qualification.
(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.
The WFEA defines "sexual harassment" in Wis. Stat. § 111.32(13) 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.
None of the conduct alleged here satisfies the definition of sexual harassment because none of the alleged conduct was sexual in nature. Although referring to a man as "a woman" may reasonably be perceived as offensive, the content of this reference is not sexual in nature within the meaning of Wis. Stat. § 111.32(13). In addition, although the complainant refers to the cardboard figure of Mia Hamm as a "girlie cutout," the display of a fully clothed woman in a neutral pose in a soccer uniform advertising a sports drink would not qualify as sexually graphic material or otherwise be sexual in nature.
The next question then is whether any of the conduct included as part of the complainant's sexual harassment allegation would come within the ambit of the language of Wis. Stat. § 111.36(1)(br). The first requirement is that the conduct be directed at the individual claiming harassment. The evidence of record shows that Lundeen-Miller's "slow and painful death" and "I get even" statements were directed in jest to Tom Reeck and had nothing to do with the complainant; Mulholland's "let him sink" comment referred to the complainant but was not directed at him; and McKinnon himself put the label with his name on it around the neck of the Mia Hamm cutout as a humorous reference to McKinnon's failure to attend the office Halloween party. A reasonable person similarly situated to the complainant would not consider this labeled cutout to be offensive.
The next question is whether the remaining conduct was directed at the complainant because of his gender. The record shows that Mulholland raised her voice and was antagonistic to males and females alike. As a result, the comments she loudly directed to the complainant, and the "let him sink" comment she made about him, were not shown to be related to his gender.
What is left are the "weak" question by Dahlstrom and the "woman" statement by Mulholland. Although it is at least arguable that these were directed at the complainant because of his gender, they do not come close, even taking into account the lesser probable cause standard under consideration here, to the level of severity or pervasiveness required for the creation of an intimidating, hostile or offensive work environment within the meaning of Wis. Stat. § 111.36(3)(br).
The commission also notes in this regard that Dahlstrom took immediate action to address Mulholland's "woman" comment by apologizing to the complainant on behalf of the respondent, and that it was not practicable for the respondent to address the matter with Mulholland because of her abrupt resignation. The commission further notes that the complainant did not offer any objection to Dahlstrom in regard to either her "weak" comment or Mulholland's "woman" comment or indicate in any other way that he found these comments offensive and unwelcome.
Finally, the complainant contends generally that the female staff in the accounting office treated him with hostility. The complainant defines "hostile" for this purpose as "not nice." However, the record shows that this failure of "nice" treatment was present in certain relationships between these female employees as well as in the relationships of certain of these employees with the complainant. Moreover, the evidence of record shows that this "hostility" was a product of the perception of these employees that complainant was not an effective manager or a knowledgeable professional, not his gender. It should also be noted that, as their supervisor, it was the complainant's responsibility, and within his delegated discretion, to address any hostility or other unacceptable conduct directly or by specific recommendation to his supervisor, but the evidence of record shows that the complainant failed to take such action.
Discrimination and retaliation allegations--standard of proof
The complainant, relying upon Gentilli v. LIRC, Case No. 89 CV 2004 (Wis. Cir. Ct. Dane Co. March 30, 1990), argues that, at the probable cause stage, the very most a complainant should be required to do is set forth "that which would be required to make out a prima facie case."
It should first be noted in this regard that the circuit court's analysis of the probable cause standard in Gentilli does not establish binding precedent or authority for the commission, but instead may be cited or relied upon for whatever persuasiveness may be found in its reasoning and logic. Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991), aff'd, 166 Wis. 2d 623, 480 N.W.2d 494 (1992).
"Probable cause," for purposes of the WFEA, is "a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the [WFEA] has been or is being committed." Wis. Adm. Code § DWD 218.02(8).
The concept of probable cause set out in this administrative code provision focuses on probabilities, not possibilities (Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992)), and lies somewhere between preponderance of the evidence and suspicion (Hintz v. Flambeau Medical Center, ERD Case No. 8710429 (LIRC Aug. 9, 1989)). The concept of the
prima facie case, however, focuses on inference and presumption, which are more closely akin to possibility and suspicion than to probability. As a result, the complainant is required to establish more than a
prima facie case in order to sustain his burden to show probable cause to believe that discrimination has occurred as alleged.
See, Stichmann v. Valley Health Care Center, ERD Case No. 200104418 (LIRC June 14, 2005).
Josellis v. Pace Industries, Inc., ERD Case No. CR199900264 (LIRC Aug. 31, 2004);
Empereur v. DOA, ERD Case No. CR200303269 (LIRC Sept. 23, 2005),
aff'd sub nom., Empereur v. LIRC and DOA, Case No. 05CV411 (Wis. Cir. Ct. Columbia Co., June 21, 2006).
Sex discrimination-terms and conditions
The complainant alleges that he was discriminated against based on his sex in regard to certain terms and conditions of his employment. These include:
1. The reassignment, in June of 2003, of his supervisory responsibilities to Carrie Monnot.
2. His exclusion from certain meetings in 2002 and 2003.
The respondent argues that the reassignment, since it did not result in a change in either the complainant's or Monnot's job title or compensation, did not constitute a cognizable adverse employment action. However, the fact that this reassignment removed a significant component of the complainant's authority as a unit manager renders it an adverse employment action for purposes of the WFEA.
It will be assumed for purposes of analysis that the complainant has demonstrated a prima facie case of sex discrimination in regard to the subject reassignment of supervisory duties. See, U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 31 FEP Cases 609 (1983)(the question of whether the complainant has made out a prima facie case is no longer relevant once the respondent responds to the complainant's proof by offering evidence of the reasons for the action taken).
The respondent has articulated a legitimate, non-discriminatory reason for the reassignment, i.e., that the complainant had been unsuccessful in resolving conflicts among his subordinate staff which were interfering with the ability of the unit to issue timely payments for vendors, and Monnot was more familiar with, and had been more diligent in learning, the new accounting system software.
The burden would then shift to the complainant to show that this reason was a pretext for discrimination. See, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The complainant asserts that Dahlstrom's statement that the supervisory duties were reassigned to Monnot because she was female demonstrates that the proffered reason for the reassignment was pretextual. However, the administrative law judge did not credit the complainant's testimony that Dahlstrom made such a statement and the commission has found no persuasive reason in the record for overturning this credibility determination.
Instead, the record shows, consistent with the reason articulated by the respondent, that, because of conflicts between White and Tshida, checks for payments to vendors were not being efficiently processed, and the complainant was unwilling and unable to resolve these conflicts; Monnot had successfully supervised staff in her previous position as a store manager and in her current position as Automation and Information Coordinator; and Monnot had taken the initiative to familiarize herself with the new accounting system software to a significantly greater extent than the complainant had, and would, as a result, be a more effective resource for White and Tshida in this regard.
Pretext has not been shown in regard to the reassignment of supervisory duties.
In regard to the alleged exclusion of the complainant from certain meetings, the complainant failed to establish a
prima facie case of sex discrimination since he failed to show that he was in fact excluded from such meetings. As the administrative law judge found, the evidence of record does not show that the complainant was directed not to attend, or in some other way discouraged from attending, these meetings; or that information as to the date, time, or location of these meetings was withheld from him. In fact, the complainant failed to rebut Dahlstrom's testimony that he was copied on all relevant meeting emails. It appears that the complainant unreasonably expected an individual invitation even though Dahlstrom had told him he could attend, and logistical details relating to the meetings were made available to him. In addition, the fact that McKinnon, a male, attended such meetings militates against a conclusion that the complainant's absence from such meetings was related to his sex.
The respondent articulated legitimate, non-discriminatory reasons for its discharge of the complainant, i.e., the complainant's stated reluctance to perform accounting duties, the primary need of the accounting unit at that time; his failure to take the initiative to familiarize himself with the new accounting system software; his unwillingness and inability to resolve conflicts between accounting staff members which were interfering with the efficiency and effectiveness of the unit; and the elimination/reduction of certain of the controller positions' duties and responsibilities due to downsizing and to efficiencies achieved through technology and outsourcing.
The burden would then shift to the complainant to demonstrate pretext.
The commission first notes that Dahlstrom, the individual who made the discharge decision and the alleged discriminator, hired the complainant in 1998, knowing that he was male and 46 years old at the time, and retained him in 2001 despite recommendations from two of her subordinate managers, one male and one in the protected age category, that he was not an effective controller. These circumstances do not lend support for the complainant's contention that Dahlstrom was motivated by a discriminatory animus when she decided to eliminate his controller position in 2003.
The commission also notes that Dahlstrom successfully supervised several male managers and several managers in the protected age category, and that male managers significantly outnumbered female managers at SSG Corporation.
The commission finally notes that an independent consultant retained to conduct an organizational assessment of SSG agreed with Dahlstrom's business decision to eliminate the controller position.
The complainant argues that pretext is demonstrated by the fact that the complainant's controller duties were assigned to female employees after his discharge. However, the record shows that the few controller duties remaining after downsizing, increased automation, and outsourcing, were assumed without difficulty by existing staff, male and female, some in the protected age category, without the need for the creation of another position. In fact, the only person hired into the accounting unit after the complainant's discharge was hired as a data entry operator, duties which the complainant had never been assigned to perform. This circumstance lends credence to the respondent's assertion that the controller position was no longer needed.
The complainant also asserts that pretext is demonstrated by the fact that the respondent treated male and female employees differently.
The complainant offers first in this regard the allegedly different treatment he was accorded than Mulholland. The complainant argues that Mulholland engaged in inappropriate conduct and was never disciplined, but he was discharged. First, the complainant was not discharged for engaging in the type of inappropriate conduct attributed to Mulholland, i.e., initiating conflicts with coworkers and vendors, and he and Mulholland, as a result, were not similarly situated for purposes of comparison. In addition, Mulholland's inappropriate conduct was in fact addressed by Dahlstrom when she denied Mulholland a pay increase. In addition, it is worth noting in this regard that the complainant himself, as Mulholland's supervisor, was responsible for monitoring her conduct, providing feedback, and, if appropriate, imposing or recommending discipline or other consequences, which he failed to do.
In this same vein, the complainant asserts that female accounting unit employees made errors and were not disciplined for them, but he was discharged. However, the complainant was not discharged for making calculation or coding or other such errors in his work, or for errors made by his subordinates, and his circumstance, as a result, is not comparable to theirs. Moreover, as their supervisor, it was the complainant's responsibility to impose or recommend discipline or other consequences for deficiencies in his subordinates' work performance, which he failed to do.
The complainant next points to the allegedly different treatment accorded White and Matt Kurki, an employee of one of the respondent's convenience stores who was discovered to have stolen lottery tickets and discharged as a result. There are several important distinctions between the relevant circumstances in regard to these two employees. First and foremost, Dahlstrom, the alleged discriminator here, played no part in the investigation or discharge of Kurki. Moreover, the record shows that the complainant, White's supervisor at the time, failed to investigate his suspicion that White had ordered Lexmark printer cartridges for her personal use beyond writing her a note on the related invoice and receiving her explanation that she did not remember, and had been unable to discover anything about, the order. The record, in fact, shows that White did not even own a printer at the time. The commission does not credit the complainant's testimony that he told Dahlstrom at the time that there was a strong possibility that White had ordered the cartridges for her personal use and that, in response, Dahlstrom told him to drop it. In contrast, Kurki was observed on a store video taking the lottery tickets without paying for them and, when confronted, admitted that he had done so. These two situations do not demonstrate unequal treatment of similarly situated employees.
Finally, the complainant appears to be arguing that his female subordinates in the accounting department intentionally performed their duties unsatisfactorily in order to undermine and discredit him and to jeopardize his continued employment, and that they did this based on his sex. However, it is simply not plausible, for example, that Mulholland initiated conflicts with coworkers and vendors, jeopardizing her job by doing so, for the sole purpose of undermining the complainant because he is male.
In this same vein, the complainant appears to be arguing that Dahlstrom, based on the complainant's sex, intentionally failed to address the performance deficiencies of his subordinates so that the resulting failures of the accounting unit could be relied upon to discharge him. However, it was the complainant's responsibility, as the immediate supervisor of these employees, to monitor their work performance and behavior, to provide feedback to them, and, if appropriate, to impose or recommend discipline or other consequences for any deficiencies. The record does not show that he ever imposed or recommended such discipline. Moreover, as discussed above, Dahlstrom successfully supervised and retained other male managers and other managers in the protected age category, and had hired the complainant and had previously retained him even in the face of recommendations from two of her managers that he be discharged.
The complainant failed to demonstrate pretext in regard to his discharge.
The complainant offers a September 2002 statement allegedly made by Donna Kujala to Dahlstrom to the effect that the complainant was too old to do the job of controller, as direct evidence of age discrimination. However, this statement was made by one of the complainant's subordinates, not by a manager or decision-maker. In addition, it was not shown to have influenced Dahlstrom's treatment of the complainant in any way. In fact, the record shows that Dahlstrom performed her assessments of the complainant's abilities and contributions very independently and actually rejected the recommendations of two of her subordinate managers that the complainant be discharged.
The analysis of the age discrimination allegation parallels that of the sex discrimination allegation set forth above where appropriate.
It is noted in addition that the fact that Zappa, a member of the protected age category, attended the meetings from which the complainant alleges he was improperly excluded, militates against a conclusion that the complainant's absence from such meetings was related to his age.
In his appeal to the commission, the complainant asserts that the administrative law judge excluded all evidence relating to his allegation of fair employment retaliation. However, although the administrative law judge did not discuss this allegation in the memorandum opinion section of his decision, he did make related findings as well as a conclusion of law. In addition, a review of the record in this matter does not reveal that any relevant and material evidence related to this allegation was improperly excluded.
As germane here, in order to violate the prohibition against retaliation, the alleged retaliator must have a belief that the complainant is raising a claim that discrimination is occurring. If the alleged retaliator does not have such a belief, he or she obviously cannot be motivated by it. Thus, it is an essential element of a claim of retaliation that the complainant prove that the alleged retaliator was aware that the complainant engaged in a protected activity. See, Cangelosi v. Robert E. Larson & Associates, Inc., ERD Case No. 8821554 (LIRC Nov. 9, 1990); Weier v. Heiden, Inc., ERD Case No. 199601631 (LIRC Feb. 5, 1998); Moller v. Metavante, ERD Case No. 200103621 (LIRC Nov. 13, 2003); Stichmann v. Valley Health Care Center, ERD Case No. 200104418 (LIRC June 14, 2005).
Here, the complainant contends that he told Jerilyn Mulcahy of Wipfli that he had been the victim of gender bias at SSG, and Mulcahy conveyed this message to Dahlstrom. However, the record shows that the only relevant communications by Wipfli to Dahlstrom relating to concerns expressed by the complainant regarding his work environment were a statement made by Earl Benning to Dahlstrom, and a statement made by Mulcahy to Dahlstrom that the complainant believed that certain of the individuals he was working with were incompetent.
The complainant contends that the record supports a finding that Benning, in the context of explaining that the complainant had relayed concerns about his work environment to Mulcahy, stated to Dahlstrom that "there are too many women in your office."
It is not apparent how such a statement could reasonably lead Dahlstrom to believe that the complainant was raising a claim that discrimination was occurring. This is not, as the complainant appears to be asserting, a statement expressing, or even implying, that the complainant had been the victim of gender bias. In fact, it could reasonably be interpreted as a statement expressing gender bias on the part of the declarant, whether it was in fact Benning or the complainant.
The commission could find no persuasive basis in the record for overturning the administrative law judge's finding that the complainant did not mention to Mulcahy any concern about gender or age discrimination in any of their conversations. The commission credits Mulcahy's testimony that, during her conversations with the complainant, he simply disclosed that certain of the individuals he was working with were incompetent and he worried their performance would reflect upon him, and Dahlstrom's testimony that she understood when Mulcahy relayed this to her that the complainant was referring to two Business Microvar independent contractors whose alleged incompetence the complainant had previously brought to her attention.
The evidence of record does not establish that the complainant ever made a cognizable protected fair employment disclosure. Even if he had, the record shows that Dahlstrom had begun considering the elimination of the controller position as early as April of 2003, six months before the complainant's conversations with Mulcahy, and seven months before the complainant's discharge.
Prior to the submission of post-hearing briefs, counsel for complainant supervised the preparation of a written transcript utilizing the audio tapes of the hearing. Complainant transmitted a copy of this transcript to respondent on or around May 4, 2005. Respondent did not voice any objection to its use to the administrative law judge, who it is assumed relied upon it in preparing his decision. After the complainant appealed the administrative law judge's decision, the commission proposed to the parties that the written transcript be utilized rather than a hearing synopsis not yet prepared by ERD. In correspondence dated May 16, 2006, counsel for respondent stated a general objection to the use of the written transcript, but provided no specific basis for its objection. The commission, in the interest of administrative efficiency and in the absence of articulation of specific concerns by the respondent, did not request the preparation of a hearing synopsis by ERD but instead reviewed the hearing tape and the written transcript in deciding this matter, consistent with Wis. Adm. Code LIRC 1.04(2).
cc: Attorney Peter M. Reinhardt
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(1)( Back ) See, AMTRAK v. Morgan, 536 U.S. 101, 122 S.Ct. 2061 (2002); Kanter v. Ariens Co., ERD Case No. 200205229 (LIRC Sept. 23, 2005).