JEANETTE MARIE GUSTAVUS, Complainant

STATE OF WISCONSIN
DEPARTMENT OF CORRECTIONS, 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.

Exhibits 10, 14, 45, 46, and 56 are received into the hearing record. The decision of the administrative law judge (copy attached), is affirmed.

Dated and mailed May 8, 2008
gustaje . rmd : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

In 1994, the complainant began a homosexual relationship with Ann Boyle (Boyle) which continued through the time period at issue. During this time period, Boyle was also employed as a Captain at TCI.

The complainant alleges that, based on her sex and sexual orientation, she was discriminated against in regard to her schedule and her training, and was constructively discharged. 
 

Exclusion of evidence-request for remand

The complainant argues that the ALJ excluded certain relevant evidence, and this matter should be remanded to permit further hearing as a result

It was difficult to glean from the complainant's arguments exactly what was being argued here.

At first, due to her reliance on Bowen v. LIRC et al., 2007 WI App 45, 299 Wis.2d 800, 730 N.W.2d 164 (Ct. App. 2007), and her reference to certain acts which would qualify as acts of alleged harassment rather than discrete employment actions, it appeared as though she was arguing that the ALJ had improperly excluded evidence which was part of a continuing violation. However, as the complainant clarified in her reply brief to the commission, a "hostile environment analysis is irrelevant to the case at bar, because Gustavus's claims for liability and damages are based on disparate [treatment] and illegal termination, not sex-based or sexual orientation-based harassment."

The remaining evidence alluded to by the complainant as improperly excluded consists of the following:

(1) exhibits and testimony regarding an earlier discipline for failing to fill out a timesheet properly-Tr. 386, 446; Exs 10, 45 and 46.

(2) an exhibit and testimony regarding Gustavus's performance as a correctional officer and supervisor prior to arriving at TCI-Ex. 14.

(3) an exhibit and testimony regarding two incidents when Warden Deppisch allegedly berated and belittled Gustavus-Tr. 1255; Ex. 56.

The complainant argues that this evidence is part of her proof that she was constructively discharged.

In regard to (1), an offer of proof was made by complainant only as to excluded exhibits. These exhibits consist of #10, a copy of respondent's timesheet policy; #45, a July 28, 2002, email from the complainant to Security Director Schwandt (Schwandt) pointing out that there were 11 timesheets returned to Officers due to errors, and 22 Officers who had failed to turn in a timesheet during the prior pay period; and #46, an August 11, 2002, email from the complainant to Schwandt that 7 Officers had errors on their timesheets, and 25 Officers failed to turn in timesheets. As the commission has consistently held, and as the Bowen court has reiterated, evidence of acts occurring outside the actionable 300-day period are admissible if they are relevant to acts of alleged discrimination occurring within this period, i.e., admissible evidence includes testimony and documents as to an actionable allegation as well as testimony and documents relevant to an actionable allegation. Since these exhibits are at least arguably relevant to a subsequent supervisory direction which is one of the actionable allegations here, the commission has received these exhibits into the hearing record.

The complainant's offer of proof in regard to (2) consists of exhibit #14, a performance evaluation prepared by complainant's supervisor on June 23, 2000, for the period of September 1999 through May 2000 when complainant was a Lieutenant (Security Supervisor 1) at Dodge Correctional Institution (DCI). This evaluation shows that complainant had ratings of satisfactory or satisfactory/excellent in the three evaluation categories. This could be relevant to complainant's allegation that, during the time period at issue, she was discriminated against when she received negative performance evaluations from Kathleen Nagle (Nagle), the Security Director at DCI when complainant was a Lieutenant there, and from Schwandt. Even though, as discussed below, this evidence will not affect the outcome here, the commission has received exhibit #14 into the hearing record.

Finally, the complainant's offer of proof in regard to (3) consists of exhibit #56. Although this exhibit references an "incident" with Jodine Deppisch, the warden at TCI, it provides no specifics as to anything that could be considered "berating" or "belittling." It should be noted that such an incident would be considered an act of harassment, not a discrete employment action and, as discussed above, the complainant has clearly indicated to the commission that harassment based on sex or sexual orientation is not an issue here.

The complainant argues, however, that, as related to her constructive discharge claim, this evidence was relevant to Deppisch's "intent" or "state of mind" within the meaning of Bowen, supra.; and Abbyland Processing v. LIRC, 206 Wis.2d 309, 557 N.W.2d 419 (Ct. App. 1996). Since Deppisch's interaction with complainant at a Security Supervisors' meeting in February of 2003 is one of the actions complainant cites as a basis for her constructive discharge claim, the commission has received Exhibit #56 into the hearing record.

In regard to (1), (2), and (3), it appears from the record that the complainant failed to make an offer of proof as to any related testimony. Due to this failure, and because the complainant was represented by counsel at hearing, the commission has not remanded this case to the Equal Rights Division to permit further hearing to receive additional testimony as to (1), (2), or (3). 
 

ALJ bias

The complainant alleges that ALJ DeLaO demonstrated bias against the complainant during the course of the hearing. Specifically, the complainant alleges that the ALJ was "disrespectful and dismissive" to the complainant when, during her testimony, the ALJ told the complainant to "stop being clever" and not to "be cute."

A review of the record as a whole shows that the ALJ was abrupt and impatient with both parties. For example, she chastised counsel for respondent for requesting routine breaks even after counsel indicated she needed these breaks due to a health condition.

In regard to the specific example cited by the complainant, the record shows that, during this period of her testimony, the complainant was being evasive and unresponsive. Although the ALJ could have utilized less casual language in reminding the complainant of the requirement that she respond directly to the questions put to her, such a reminder was appropriate given the circumstances and does not demonstrate bias. 
 

Merits

Sexual orientation discrimination-identity of partner

The record shows that the allegedly discriminatory actions at issue here were primarily attributable to Security Director Schwandt.

Schwandt is female, and, according to the complainant, has an alternative sexual orientation, either homosexual or bisexual. As a result, it is unlikely that Schwandt would be motivated by the complainant's sex or sexual orientation in her interactions with her.

The complainant's theory here appears to be, however, that Schwandt was not motivated by the complainant's sex or sexual orientation per se, but instead by the fact that Schwandt was jealous of the complainant's relationship with Boyle, i.e., that Schwandt's treatment of her was not based upon her status as a female or a homosexual but instead by the identity of the individual with whom she had a homosexual relationship.

A parallel issue has arisen in marital status discrimination matters where an adverse employment action is alleged to have been taken not because of a complainant's status as a married person, but instead because of the identity of the complainant's spouse.

The Wisconsin Court of Appeals, however, in Bammert v. LIRC et al., 2000 WI App 28; 232 Wis.2d 365; 606 N.W.2d 620 (Ct. App. 1999), held that the WFEA should be interpreted to protect the status of being married in general rather than the status of being married to a particular person.

The same rationale would apply here. The WFEA would protect the complainant from discrimination based upon her status as a homosexual individual but not based upon her homosexual relationship with a particular individual.  

McDonnell Douglas analysis

Wisconsin courts, in the absence of the Fair Employment Act's (WFEA) establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, such as that advanced here, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985); Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003).

As stated by the court in Puetz:

McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).

In general, to establish a prima facie case of discrimination, a complainant must show that she was a member of the protected group, and that the relevant circumstances create an inference of discrimination, i.e., generally, that others not in the protected group were treated more favorably.

The complainant appears to be arguing in this regard that the ALJ erred in placing the burden on the complainant to prove that she was treated less favorably than similarly situated males or heterosexuals after she had successfully established a prima facie case of sex and sexual orientation discrimination; and that the respondent failed to articulate, i.e., to identify with sufficient specificity, the reasons for certain of its actions.

However, as stated above, establishing that others not in the protected class were treated more favorably is generally required in order for a complainant to establish a prima facie case of discrimination in the first place.

In addition, the burden of proof remains at all times with the complainant in a WFEA case. Burdine, supra., (ultimate burden of persuading trier of fact that the respondent intentionally discriminated against him is retained by the complainant at all times). Although the McDonnell Douglas methodology provides a useful framework for analyzing a disparate treatment case, it does not transfer any part of the burden of proof to the respondent, but requires only that the respondent "articulate" a legitimate, non-discriminatory reason for its actions.

The requirement of "articulation" is not onerous. The respondent need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision at issue had not been motivated by discriminatory animus. Kovalic v. DEC International, Inc., 161 Wis.2d 863, 469 N.W.2d 224 (Ct. App. 1991); Currie v. DILHR, 210 Wis.2d 380, 565 N.W.2d 253 (Ct. App. 1997).

Contrary to complainant's contention, the respondent's reasons for taking the actions at issue are plainly apparent from the evidence of record.

Denial of same off day schedule as Boyle

The complainant's primary allegation in her charge is that she was denied the same off day schedule as Boyle and this resulted in the deterioration of their relationship.

It should first be noted that it is not an employer's responsibility to ensure the health of an employee's personal relationship.

More importantly, however, the complainant testified that, although she told deputy warden Pollard and Schwandt that her off day schedule was the scheduling issue which mattered most to her, she (see page 345 of transcript) "didn't tell anybody specifically that I wanted to have the same days off as Ms. Boyle."

Schwandt credibly testified that, once Richard Schneiters, who was conducting a security audit of TCI during 2003, suggested that complainant and Boyle be given the same off day schedule in order to address the numerous complaints he had received from other Security Supervisors about their use of sick leave, Schwandt drafted a schedule for the upcoming year which accomplished this. This schedule was never implemented because the complainant resigned from TCI in December of 2003.

In order to sustain her burden to prove discrimination, the complainant is required to establish that the allegedly discriminatory action actually occurred. Here, she was never "denied" the same off day schedule as Boyle because she never requested it. The complainant appears to imply in her argument that the respondent should have anticipated this for her as it did for male security supervisors Sprangers and Johns.

However, the respondent is not required to be a mind reader. Simply because the complainant and Boyle lived together as homosexual partners does not necessarily translate into a joint request for the same off day rotation. If that is what they wanted, it was their responsibility to affirmatively request it, and the respondent's failure to anticipate this from the fact of their relationship does not establish or imply a discriminatory animus.

In addition, complainant is required to prove, as a preliminary matter, that she was treated less favorably in this regard than similarly situated males or heterosexuals. She offers Sprangers and Johns for this purpose. The record does not show, however, that the respondent anticipated that Sprangers and Johns desired such a schedule and established it for them as a result, or that the respondent granted Sprangers' or Johns' specific requests for the same shift or off day schedule as their spouses. Furthermore, the record shows that Sprangers' and Johns' spouses were Officers, not Security Supervisors, with different schedule rotations and less complex scheduling considerations. The record does not support a finding that respondent changed the shift schedule or off day schedule of Sprangers or Johns or their spouses to accommodate their relationships.

Finally, as discussed above, scheduling decisions during the operative period, including off day rotations, were primarily made by Schwandt, who would have been unlikely to have been motivated by complainant's sex or sexual orientation.

Denial of additional days off in December 2003

On or around November 20, 2003, Schwandt provided notice to the Security Supervisors that no requests for additional days off in December had been granted, and the use of compensatory time in December would not be approved if it would result in overtime.

The record shows that only two exceptions were granted. The first resulted from the release of two holiday leave opportunities, Christmas and Christmas Eve, upon the retirement of Captain Loomans. Holiday leave was scheduled as a separate leave category. These two holiday leave days were granted to Captain Sprangers, the most senior Security Supervisor who applied for them, as a result of a request he presented to Schwandt on October 29, 2003.

The other day off request was granted to Harper to use to attend search and rescue training in Michigan. This training, although not directly related to his duties as a Security Supervisor, was directly related to a law enforcement volunteer activity in which he was routinely engaged, and was only offered on certain limited dates.

The complainant failed to show that she was similarly situated to either Sprangers or Harper in regard to her request for leave in December 2003.

Sprangers was granted the holiday leave, days the complainant had not requested, because he was the most senior Security Supervisor to make such a request.

Harper was granted the leave because he could only participate in the training activity on a limited number of particular days. The complainant failed to show that she had a particular need, such as Harper's, for any of the days she had requested to be off in December 2003.

The complainant also failed to show that there were instances other than these two concerning Sprangers and Harper in which males or heterosexual Security Supervisors were granted requests for days off in December 2003 in addition to prescheduled vacation and holidays.

Finally, it should be noted, as discussed above, that these decisions were made by Schwandt, who would have been unlikely to have been motivated by complainant's sex or sexual orientation.

Request for light duty

In December of 2003, the complainant, who had been off work due to a non-work-related injury/illness, was released to return to work 8.5 hours a day and, later, 10 hours a day.

The record shows, through the consistent testimony of Joy Hughes, TCI human resources director; Jodine Dampish, TCI warden; and Schwandt, that a change had been implemented in respondent's light duty policy in or around June 2003 to the effect that light duty would no longer be provided for non-work-related injury/illness. The request made by complainant fit within these parameters because the precipitating factor was a non-work-related injury/illness, and because light duty was implicated since Security Supervisors were routinely required to work 16 consecutive hours as the result of forced overtime. Based on this, Hughes recommended that the complainant's request be denied.

In addition to Hughes' recommendation based upon respondent's new light duty policy, Deppisch and Schwandt considered the possibility that, due to staff shortages and resentments based upon past forced overtime, no one would be available or willing to work overtime to prevent the complainant from working more than 8.5 or 10 hours straight.

Complainant's request was denied as a result.

The complainant appears to argue that, because she had not been made aware of the change in policy, it must not have been effected. However, simply because the complainant was not aware of it does not mean the change did not occur. In addition, the record shows that the complainant was present at the TCI union/management meeting in May 2003 when this change was announced.

As discussed above, the record shows that a recommendation to deny the request was made by Hughes. The record does not show, however, that Hughes was aware, or had reason to be aware, of the complainant's sexual orientation. Without knowledge of a protected status, it is not possible to form an intent to discriminate on the basis of that status. Moreover, due to Hughes' sex, it is unlikely that she would have discriminated against the complainant on that basis.

The record also shows that Schwandt contributed to, and agreed with, the decision to deny the request. As discussed above, considering her sex, and the alternative sexual orientation attributed to her by the complainant, it is unlikely Schwandt would have discriminated against the complainant on these bases.

Finally, Deppisch was the same sex as the complainant and unlikely to discriminate against her on that basis. Furthermore, Deppisch's concerns that circumstances might require that the complainant exceed her medical restrictions if she were returned to work, or that TCI would have to engage in extraordinary measures to prevent it, were legitimate, and do not demonstrate that Deppisch was motivated by a discriminatory animus.

Supervisory direction resulting from gatehouse incident

The complainant was issued a supervisory direction by Schwandt when an investigation showed that the complainant was following a different practice for releasing Officers at the end of a shift than other Security Supervisors, and had alienated subordinate Officers by failing to effectively communicate with them about this practice.

The complainant first attempts to characterize this supervisory direction as discipline. However, the record shows that it was not disciplinary, but instead a counseling or job instruction.

In addition, the record shows that this direction was a reasonable one given the results of Schwandt's investigation.

Finally, again, this decision was made by Schwandt who, given her sex and the sexual orientation attributed to her by complainant, was unlikely to discriminate against the complainant on those bases.

Constructive discharge

Finally, the complainant claims that she was constructively discharged. 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); Empereur v. State of Wisconsin DOA, ERD Case No. CR200303269 (LIRC Sept. 23, 2005), aff'd sub nom. Empereur v. LIRC, Case No. 05CV411 (Wis. Cir. Ct. Columbia Co. June 21, 2006).

In her arguments to the commission, the complainant cites the following as the incidents which rendered the workplace intolerable for her:

(a) denial of same off day schedule as Boyle;

(b) statement to her by Schwandt that she would never get the same off day schedule as Boyle;

(c) denial of request for days off in December 2003;

(d) denial of request for light duty;

(e) disciplined for gatehouse incident;

(f) being considered for additional discipline in December 2003;

(g) denial of baton instructor training by Schwandt;

(h) negative employment references by Schwandt and Nagle;

(i) Deppisch's hostile treatment of her during a Security Supervisor meeting;

(j) respondent's failure to take action to curtail criticism of complainant's sick leave usage by other Security Supervisors.

As discussed above, the record does not show that (a), (c), (d), or (e) resulted from sex or sexual orientation discrimination.

In regard to (b) the record does not show that Schwandt made the statement attributed to her by the complainant. First, Schwandt credibly testified that, once it became clear to her for the first time that the complainant wanted the same off day schedule as Boyle, Schwandt began preparing a 2004 schedule which would accomplish this. Although the complainant testified that she was told by Schwandt that certain of her superiors in the TCI administration had indicated this would never happen, this is not credible. First, Schwandt would not have bothered to begin preparing a 2004 schedule in which the complainant and Boyle had the same off day schedule if she had been told by her superiors not to do so. In addition, the complainant's testimony was rendered less credible in general due to her tendency to be evasive and unresponsive, as discussed above.

It is not clear what additional discipline the complainant is referencing in (f). It could refer to the fact that, because she failed to complete required firearms training, she was directed to do so on December 16 but had a medical appointment that day. However, the record shows that the complainant indicated that she could complete the training on December 16 in addition to attending her appointment, and would, as a result, have had no reason to fear discipline. The complainant resigned on December 15, the day before the scheduled training.

The basis stated in (f) could also refer to complainant's refusal to change an inmate conduct decision, as directed by Pollard. The record shows, however, that, when Boyle engaged in essentially identical conduct, she was not disciplined by Pollard but instead reminded of respondent's expectations in this regard. As a result, the complainant could not reasonably have been fearing "discipline" for her action as she alleges.

The complainant points in (g) to the denial of baton instructor training by Schwandt in December of 2002. The record shows, however, that, in December 2002, when Schwandt learned first that Boyle had requested but not been scheduled for this training, she gave up her own spot to Boyle. When Schwandt subsequently learned that the complainant had also not been scheduled, she had no other spots to give. Since Boyle, as well as Schwandt, are the same sex, and, according to the complainant, the same sexual orientation, as the complainant, the record does not show that this action occurred because of the complainant's sex or sexual orientation. Notably, the complainant testified (page 491 of transcript) that she was not alleging that Schwandt discriminated against her based on her sex or sexual orientation in failing to arrange baton instructor training for her or in denying her request for baton instructor training.

The employment references in (h) refers to the ones discussed above provided by Nagle, the Security Director at DCI, and Schwandt. The complainant testified, however, (pages 509 and 510 of transcript) that she did not believe that either Nagle or Schwandt discriminated against her based on sex or sexual orientation in providing these references.

The bases stated in (i) and (j) are surprising since they allege acts of harassment, and the complainant, as discussed above, has indicated that her claims for liability and damages are based on disparate [treatment] and illegal termination, not sex-based or sexual orientation-based harassment.

In regard to (i), the record shows that Deppisch reasonably believed that the complainant was intentionally ignoring her presentation and asked her a question to get her attention. In addition, the complainant testified (page 492 of transcript) that she did not believe that Deppisch's conduct at this meeting was based upon her sex or her sexual orientation.

In regard to (j), the record shows that resentment toward the complainant resulted from the many instances of forced overtime imposed upon other Security Supervisors when she called in sick, and from other Security Supervisors learning that she had been observed playing in a softball tournament and present in a tavern while she was out on sick leave. The record also shows that, although Schwandt appropriately investigated and responded to each complaint she received that other Security Supervisors were commenting upon the legitimacy of the complainant's use of sick leave, she was not at liberty to share information with the other Security Supervisors relating to the complainant's medical condition or restrictions while on leave, or to share with the complainant the nature of the specific actions she took to address the comments or other actions of the other Security Supervisors.

The complainant has failed to sustain her burden to show that any of the actions she alleges as the bases for her constructive discharge were taken because of her sex or her sexual orientation, and, as a result, has failed to establish a required element of proof of a constructive discharge claim.

cc:
Attorney Brenda Lewison
Attorney Dolores A. Kester

Appealed to Circuit Court.  Affirmed March 29, 2009.

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