LONNY LEE KOENE, Complainant
CHER-MAKE SAUSAGE COMPANY, 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:
1. Where the respondent's name appears in the decision as "Cher Make" or "Cher make", those names are deleted and the name "Cher-Make" is substituted therefor.
2. In paragraph 2 of the FINDINGS OF FACT, the words "and performed" are inserted before the word "other".
3. In the fourth line of paragraph 3 of the FINDINGS OF FACT, the word "and" is deleted.
4. In the second-to-the-last line of paragraph 5 of the FINDINGS OF FACT, the word "and" is deleted.
5. In the second line of paragraph 6 of the FINDINGS OF FACT, the word "and" that appears second is deleted.
6. In the second line of paragraph 7 of the FINDINGS OF FACT, the word "other" is deleted and the word "over" is substituted therefor. Also, in the fourth line of this paragraph the word "and" is deleted.
7. The second sentence in paragraph 8 of the FINDINGS OF FACT is deleted and the following sentence is substituted therefor: "Koene was aware that his actions in accessing his supervisor's desk drawer and demonstrating how to do so to others was in violation of Cher-Make's rules."
8. In the first line of paragraph 9 of the FINDINGS OF FACT, the word "and" is inserted before the name "Fred". Also, the third sentence in this paragraph is deleted and the following sentence is substituted therefor: "Bertschy also told Koene that while he did not think Koene's actions constituted a fireable offense, he would be demoted and was to serve a three-day layoff."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed September 27, 2007
koenelo . rmd : 125 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Lonny Koene petitions for commission review of the ALJ's decision which, following a hearing on the issue of probable cause, dismissed his complaint claims that the respondent violated the WFEA by engaging in or permitting sexual harassment and terminating his employment on the basis of sex.
Koene argues that he feels this case was not taken seriously because he is a male claiming sexual harassment. However, he has not pointed to anything specific as to the basis for this "feeling", and a review of the record fails to indicate any reason to believe that this is true.
Koene further argues that he feels the ALJ had his mind made up before the hearing got started. As reason, Koene asserts that he was "not allowed to present my evidence. I had to go from memory and was not allowed to ask defendants questions." Koene's assertion about not being allowed to present his evidence apparently relates to the respondent's objection to his use of documents when testifying. However, this was a valid objection, and the ALJ simply requested that he testify without referring to any documents. Also, the record shows that after the respondent's counsel completed her questioning of Koene, the ALJ asked Koene: "Anything else from you? You have no other witnesses, right?", and that Koene responded, "No."
Further, Koene argues that "it does not have to be complained about to be sexual harassment." However, the Wisconsin Fair Employment Act defines sexual harassment to mean "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." Wis. Stat. § 111.32(13). (Emphasis added.) Assuming for purposes of argument that the incidents of which Koene complain could be considered to have involved sexual advances, physical contact of a sexual nature or verbal or physical conduct of a sexual nature (1), Koene never made it known to the individuals involved that their conduct was unwelcome as he never objected to their conduct, and, despite the respondent's policy against sexual harassment and complaint procedure to address any complaint he may have had, he never made any complaint about any alleged sexual harassment. Koene contends that he never complained about any of the incidents because there were other incidents where people complained (apparently to management personnel) and there was nothing done. However, Koene admits that these "other incidents" did not involve alleged sexual harassment. Moreover, Koene could have taken any complaint he may have had directly to the company president, as he admits that he knew the company president, Tom Chermak, and that he "was on a first-name basis" with Mr. Chermak.
Accordingly, the commission has affirmed the administrative law judge's dismissal of Koene's complaint in this matter.
cc: Attorney Amy Schmidt Jones
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