MARY CHRISTINE NELSON, Complainant
WESTBY COOPERATIVE CREAMERY, 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, except that it makes the following modifications:
The reference to "September 22nd" in the second full paragraph of the MEMORANDUM section is changed to "September 28th."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed April 11, 2008
nelsoma . rmd : 115 : 9
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
On September 29, 2005, ALJ Lawent issued a decision finding probable cause to believe that the complainant had been terminated in retaliation for engaging in a protected fair employment activity; and no probable cause to believe that the complainant had been retaliated against for engaging in a protected fair employment activity in regard to the terms and conditions of her employment prior to her termination, and no probable cause to believe that the complainant had been sexually harassed. The notice accompanying this decision stated as follows, as relevant here:
The no probable cause finding may be appealed to the Labor and Industry Review Commission, but only after the Equal Rights Division has issued a final decision on the entire case. You will be sent a notice of appeal rights when a final decision on the entire complaint is issued.
On November 17, 2006, ALJ Brown issued a decision finding that the complainant had failed to sustain her burden to prove that she had been terminated in retaliation for engaging in a protected fair employment activity. The notice accompanying this decision stated as follows, as relevant here:
Any party who is dissatisfied with the attached Decision and Order of the Administrative Law Judge or with earlier nonfinal decisions, may file a written petition for review by the Labor and Industry Review Commission.
In correspondence dated December 8, 2006, counsel for complainant requested a briefing schedule and stated as follows:
We received a[n] adverse decision from the Administrative Law Judge. We wish to appeal that decision.
Although this language would suggest that complainant was only appealing ALJ Brown's decision, the commission, in correspondence dated and mailed to counsel for complainant on March 24, 2008, stated as follows:
Given the wording of this statement, it appears that your intent was to appeal the decision issued by ALJ John L. Brown on November 17, 2006, and not the decision issued by ALJ Lawent on September 29, 2005.
The commission intends to process your appeal in this manner unless advised to the contrary on or before Friday, April 4, 2008.
No reply was received from counsel for complainant prior to April 4. As a result, the only issue before the commission is the fair employment retaliation issue heard and decided by ALJ Brown on November 17, 2006.
Retaliation issue
A claim of retaliation, like other cases of alleged discrimination, follows the same burden shifting framework that was initially set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973). First, the complainant must establish by a preponderance of the evidence a prima facie case of retaliation. Second, if the complainant succeeds in proving the prima facie case, the burden shifts to the respondent to articulate a legitimate, nondiscriminatory reason for its action. Third, should the respondent carry this burden, the complainant then has an opportunity to prove that the reason offered by the respondent for its action was a mere pretext for retaliation. See, Matthews v. Bassett Bedding, ERD Case No. 8902772 (LIRC Oct. 27, 1993).
To establish a prima facie case of retaliation, a complainant must initially prove that (1) she engaged in statutorily protected activity, (2) the respondent took an adverse action against her, and (3) a causal connection exists between the protected activity and the adverse action. Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989).
The complainant did establish that she engaged in a protected fair employment activity. Although the competent evidence of record does not show that Gronemus actually uttered the subject remark, (1) or that this remark, if uttered, would constitute sexual harassment, (2) it does show that the complainant reported the remark specifically to respondent's board in June 2003, and generally to Burlingame on September 19, 2003, and characterized it in these reports as sexually harassing.
The complainant subsequently suffered an adverse employment action when she was terminated, and the proximity in time between her report to Burlingame and her termination is sufficient to establish an inference that a causal connection could exist.
The burden then shifts to the respondent to articulate a legitimate, non-retaliatory reason for the termination, which it sustained by explaining that the complainant was terminated for failing to complete tests and other tasks necessary for the respondent to maintain its state certification.
The complainant next has the burden to prove that the reason offered by the respondent was pretextual.
The complainant first argues in this regard that the proximity in time between her report to Burlingame that Gronemus had made a sexually harassing remark to her and her termination demonstrates pretext. However, although proximity in time may create an inference of a causal connection, it does not establish such a connection. Kannenberg v. LIRC, 213 Wis. 2d 373, 396, 571 N.W.2d 165 (1997) (timing does not in itself establish retaliation).
The complainant next asserts that pretext is demonstrated by the fact that she was not trained to do certain of the tests upon which Burlingame based the termination decision.
However, the complainant admits she knew how to perform, and had performed, thermometer calibrations, pipette calibrations, and vitamin testing, three of the tasks she failed to perform. In addition, a list of mandated tasks and the frequency with which they were required to be performed was stated in the Lab Activities Listing (exhibit R-3), which the complainant was aware of and had actually helped to prepare; and, if the complainant did not know how to perform any of the listed tasks, it was her responsibility to alert Burlingame, which she did not do.
Finally, it is unlikely that Burlingame would be motivated by the complaint about Gronemus's remark. Burlingame was aware that the claimed remark had not been made during her tenure as general manager, and had already been reported to and handled by the board. In fact, according to the complainant's testimony, she told Burlingame that the board had already punished Gronemus for it by removing him as general manager.
It is much more likely that Burlingame, as respondent's general manager, would be motivated by actions of her subordinate lab technician which placed the respondent's state certification, and its ability to remain in business, in jeopardy, in deciding to terminate the complainant's employment.
cc:
Attorney Ross A. Seymour
Attorney Ellen M. Frantz
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