MELISSA L ABEL, Complainant
DUNN COUNTY HEALTH CARE CENTER, 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. In paragraph 7 of the FINDINGS OF FACT, the month "May" is deleted and the month "March" is substituted therefor.
2. In paragraph 4 of the CONCLUSIONS OF LAW, after the word "discrimination" insert the language "or made a complaint of discrimination".
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed April 21, 2009
abelme . rmd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
Ann L. Crump, Commissioner
The respondent has a written sexual harassment policy. The policy provides examples of conduct that constitutes prohibited sexual harassment, states that the respondent does not tolerate sexual harassment in any form, provides examples of how to prevent sexual harassment and states what an individual should do if sexually harassed. Specifically, with respect to reporting sexual harassment, the policy states that "Any acts committed by employees or agents acting on behalf of the County which may constitute sexual harassment should be reported (in writing) to your supervisor who will in turn notify the County Administrative Coordinator or Human Resource Specialist."
The respondent's sexual harassment policy is reviewed with employees during orientation, after which the employee signs the copy of the policy and it is placed in the employee's personnel file.
Melissa Abel, a female, became a regular employee of the respondent on October 26, 2005. The respondent's sexual harassment policy was reviewed with Abel during her orientation. The respondent employed Abel as a certified nursing assistant (CNA). Prior to October 26 Abel had been assigned to work at the respondent as a CNA on September 5, 2005, when she was employed by a staffing agency.
Abel alleges that she was sexually harassed by Benjamin Keraro, a male co-worker who was also a CNA. She asserts that on March 23, 2006, the following occurred: That Keraro put his hands on her arms and kissed her on the cheek in a resident's room and that when leaving the room she partially placed a $5 bill she had dropped back in her pocket, but Keraro took it and told her to come and get it when she asked for it back; that Keraro held the door while they were in the soiled utility room, "playing this little back-and-forth game" by jiggling the doorknob back and forth; and that at the end of the shift Keraro jumped out of the men's bathroom, grabbed her arms so she could not move and only let go when another worker called Keraro's name.
Abel testified that she told a charge nurse, Pat Whitcam, about the first three incidents cited above and that he just laughed it off and said that she was overreacting. Abel testified that after the fourth incident she telephoned Kathy Behling, the person who does the scheduling, and reported what happened and was informed that Behling would schedule them separately and report it to Sharon Miller, the Director of Nursing and Linda Welle, the Assistant Director of Nursing.
Welle testified that Behling told her that Abel had approached her and asked not to be scheduled with Keraro because Abel did not feel comfortable working with him so she (Welle) directed Behling to schedule Abel and Keraro separately, if at all possible.
On March 31, Abel was inadvertently scheduled to work with Keraro. Abel testified that after seeing the schedule she told a charge nurse that she was assured she would be scheduled apart from Keraro but the charge nurse did not have time to take care of it. Abel testified that she then went to Whitcam. Abel testified that Whitcam questioned if she was sure "this was going on," told her that if something happened he would approach Keraro and pointed for her to go to work.
Abel testified that later during the morning on March 31, 2006, Keraro came up behind her and started rubbing her back, after which she reported everything to a third charge nurse, Paula Olson. Abel testified that Olson moved her to another wing and stated she was going to find out why Welle "hadn't said anything".
Abel was then called down to speak to Welle. Abel reported what happened to Welle. In Abel's written statement regarding her conversation with Welle on March 31 she states that after telling Welle her story "I then told her I didn't want a huge deal of it..." Exh. C-3, p. 4. (Emphasis in original.) Abel testified that Welle told her to "reconfront [Keraro] and let him know that if he touches you again, that you are calling the police." Welle testified that she felt it was appropriate for Abel to go talk to Keraro because she was following the respondent's sexual harassment policy and because Abel was saying that she didn't want to cause trouble, she just did not want to work with Keraro. Under the respondent's sexual harassment policy, listed as the first step for an employee to take who believed he or she had been the subject of sexual harassment was to: "Firmly state to the person who is doing the harassing how you feel about his or her actions and request that the person cease such behavior immediately."
Welle instructed Abel to report back to her after she confronted Keraro. Abel did not confront Keraro, but instead complained to her union representative, who apparently then contacted Welle. Abel was then called back to Welle's office and Welle asked Abel to make a written complaint. That same morning Welle questioned Keraro about Abel's allegations and obtained a written statement from him, and then obtained written statements from other employees. Keraro denied the claims made by Abel.
Abel testified that after making a written complaint of sexual harassment to Welle on March 31 a co-worker told her that Keraro was "very, very upset". Abel testified that when she left work that day, looking in the rear-view mirror of her car while in the parking lot she saw Keraro standing on the sidewalk behind her car.
Welle first learned about the alleged incident in the parking lot at about 4:00 p.m. on March 31 when Welle received a call from Abel's boyfriend/fianc‚, who, among other things, asked what the respondent was going to do about the situation. After receiving this call, Welle contacted the H.R. Department and was directed to notify Keraro that he was placed on paid leave until the investigation was completed. During the evening on March 31, 2006, Welle notified Keraro that he was placed on paid administrative leave pending completion of the respondent's investigation. Keraro resided in the Twin Cities area at the time. The respondent's health care facility is located in Menomonie, Wisconsin.
Anthony Manzella, respondent's administrator, testified that in a meeting with Abel and her boyfriend/fianc‚, he told Abel that Keraro had been placed on administrative leave pending the completion of the investigation but Abel did not want to work until the investigation was completed and, at her request, was granted a leave of absence.
The respondent continued its investigation into the matter after March 31, obtaining written statements from other employees, but did not obtain evidence to substantiate Abel's claims.
In April 2006, the respondent turned the matter over to Attorney Victoria Seltun of the Weld, Riley, Prenn & Ricci law firm to conduct an investigation of Abel's sexual harassment claims. This law firm serves as outside counsel for the respondent. Seltun interviewed a total of 13 individuals, including management staff, Abel's co-workers, Keraro and Abel.
Abel did not return to work while Seltun was conducting an investigation. Abel applied for an extended leave of absence.
Seltun prepared an investigatory report in which she concluded that Abel's sexual harassment claims could not be substantiated, given the lack of eye witnesses and inconsistencies in Abel's allegations.
Manzella testified that Seltun's report confirmed his initial thought that the respondent did not have sufficient evidence to take a stronger action against Keraro. The respondent began having discussions about how to bring Abel and Keraro back to work in a way that would make Abel feel comfortable and avoid further conflicts with Keraro. Manzella decided to draft a checklist of items for both Abel and Keraro to follow to ensure that the situation was workable.
On May 4, 2006, respondent management officials met with Abel to discuss her return to work and the remedial measures taken by the respondent as a result of her sexual harassment complaint. Abel was advised that every possible effort would be made to minimize her contact with Keraro through scheduling; that Keraro had been informed that general contact with her would be minimized and that unnecessary physical contact with her was not welcomed; that Keraro had been instructed that retaliation was prohibited; and that she was to immediately notify her supervisor if she believed that Keraro was inappropriately attempting to have contact with her or engaging in retaliatory conduct. Abel was not satisfied with the measures taken and walked out of the meeting.
By letter dated May 9, 2006, Manzella notified Abel that she was scheduled to return to work on May 15, 2006, and that her failure to report as scheduled would be considered abandonment of her job. Abel returned to work on May 15 and was presented with a document outlining the steps the respondent had taken to minimize her contact with Keraro. The respondent had presented Keraro with a document outlining the directives he was to follow on May 5. In addition to advising Keraro that the respondent would do all it could to schedule him and Abel on different shifts, different floors and/or different units and that if accidently scheduled on the same unit to immediately seek the assistance of the nursing supervisor to trade work assignments, the respondent directed Keraro to refrain from unnecessarily touching female workers, to avoid unnecessary contact with Abel and not to retaliate against Abel. The respondent also informed Keraro that any violation of these directives could result in disciplinary action. Also, although Abel's sexual harassment claim had not been substantiated, the respondent issued a written warning to Keraro which advised him to not touch female co-workers, seek retaliation against Abel or resume contact with her, and to read and be familiar with the respondent's sexual harassment policy.
On or about May 16, 2006, Abel presented the respondent with a doctor's report excusing her from work until May 30.
On June 1, 2006, Abel had a telephone conversation with Manzella, who reminded her that she was due back from her leave on May 30. During their conversation Abel told Manzella that she was not satisfied with the respondent's response to her complaint and was not comfortable working in the same facility as Keraro. Manzella informed Abel that the respondent had acted appropriately. Abel then stated she was resigning and subsequently provided the respondent with a written letter of resignation.
Abel alleges that the respondent violated the WFEA by engaging in or permitting sexual harassment, by retaliating against her for opposing discrimination and making a complaint under the Act, and by constructively discharging her.
The WFEA defines sexual harassment, in relevant part, 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.... '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...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." Wis. Stat. § 111.32(13).
Where the alleged sexual harasser is a co-worker, the co-worker's actions can only be imputed to the employer if the employer permitted the sexual harassment to occur. That is, a respondent is liable for the sexually related acts engaged in by a co-worker only if the individual informs the respondent of the harassment and the respondent fails to take appropriate action within a reasonable time. Skilling-Vukich v. Swift Transportation (LIRC 01/31/06), citing, Krienke v. Ramada Inn Conf. Center (LIRC 10/29/02).
The evidence fails to support a showing of probable cause to believe that the respondent engaged in or permitted sexual harassment within the meaning of the WFEA. At no time prior to March 31, 2006, did Abel make any complaints of sexual harassment to Welle, nor was Welle aware of any complaints of sexual harassment made by Abel to any management personnel. The first line of supervision under Welle is three nursing supervisors. Abel offered no testimony that she apprised her supervisor or any member of respondent's management personnel of any sexual harassment before March 31, 2006. When a member of respondent's management personnel (Welle) did learn of Abel's allegations, Abel stated she did not want to make "a huge deal of it"; she didn't want to cause trouble, she just did not want to work with Keraro. Given this, and that the first step listed under the respondent's sexual harassment policy is for an employee who believed he or she was subjected to harassment to make it known to the person doing the harassing how he or she felt about those actions, Welle instructed Abel to speak to Keraro about his actions. Later that morning, after Welle learned that Abel had instead complained to a union representative, Welle promptly began conducting an investigation into Abel's allegations against Keraro and took steps to ensure that no harassment could occur during the pendency of its investigation. Upon completion of its investigation, despite the fact that Abel's claim of sexual harassment had not been substantiated, the respondent issued a written warning to Keraro which advised him to not touch female co-workers, seek retaliation against Abel or resume contact with her, and to read and be familiar with the respondent's sexual harassment policy.
The evidence also fails to support a showing of probable cause to believe the respondent retaliated against Abel because she opposed a discriminatory practice and made a complaint under the Act. To show unlawful retaliation under the WFEA, the employee must show that she engaged in protected activity, was subjected to an adverse employment decision and that there was a causal connection between the two facts. If the employee makes this showing, the employer may rebut the claim of retaliation by articulating a legitimate, non-discriminatory reason for its action. If the employer meets that burden, the complainant may prevail by presenting evidence that the proffered reason was a pretext. Schultz v. Community Living Arrangements, (LIRC, 08/28/03), citing, Kannenberg v. LIRC, 213 Wis. 2d 373, 571 N.W.2d 165 (Ct. App. 1997). First of all, Abel failed to establish that the respondent took any adverse action against her. She alleges that the respondent retaliated against her for making a complaint of harassment by failing to "render a comfortable working environment" because it did not fire Keraro or eliminate all potential contact with him. However, this was not a reasonable request, nor was it necessary. The respondent was responsive to Abel's complaint and took appropriate remedial steps necessary to ensure that no harassment would occur in the future. Second, the respondent not only did not dissuade Abel from making or supporting further charges of discrimination, the respondent encouraged her to do so; the respondent directed her to immediately report if Keraro at any time should approach her in an unwelcome manner.
Finally, the evidence fails to support a showing of probable cause to believe that Abel 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. Skilling-Vukich, supra.; Riley v. American Family Mutual Insurance (LIRC, 03/30/92); Waedekin v. Marquette University (LIRC, March 5, 1991). Once the investigation of Abel's sexual harassment claim was completed, Abel reported to work on May 15, 2006, but thereafter refused to return to work and take advantage of the preventative and corrective measures set up for her by the respondent. Abel testified that she terminated her employment because she felt the respondent was not willing to compromise and accept her demands that she and Keraro be permanently assigned to different spots in the building and that she be allowed to enter the facility through the front door. Abel further testified that she didn't believe that she said that she wanted Keraro terminated, but she also testified that she did not know if she would come back "if he was not terminated." Abel made it clear in her letter of resignation that she thought Keraro should have been fired. Abel was not constructively discharged. The respondent took adequate remedial steps to ensure Abel's return to work would be free of sexual harassment by warning Keraro to avoid any touching of female co-workers, by providing Abel and Keraro with a checklist of directives to follow to ensure that their return to work would be workable and by advising Abel (and Keraro) that their work would be scheduled in such a manner so as to minimize any possible contact.
Furthermore, a remedial action is not inadequate simply because it does not accord with the complainant's expectations or desires. Flanagan v. Wisconsin Bistros (LIRC, 11/04/04). An employer is not required to discharge every worker accused of sexual harassment in order to avoid liability in the event that that individual should ever engage in further acts of harassment. Rusniak v. Fagan Chevrolet-Cadillac (LIRC, 05/23/02).
cc:
Attorney Thomas S. Burke
Attorney Mindy K. Dale
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