STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DAVID GARNER, Complainant

MANPOWER TEMPORARY SERVICES, Respondent A

XEROX BUSINESS SERVICES, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199555151, EEOC Case No. 26G960287

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.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed: August 11, 1998
garneda.rsd : 105 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission fully agrees with the administrative law judge there is no probable cause to believe that either respondent violated the Wisconsin Fair Employment Act by discriminating against the complainant, either with regard to conditions of employment or by termination, because of the complainant's race, sex, or sexual orientation. First, Respondent B could not have terminated the complainant's employment, since the complainant did not work for Respondent B. The complainant's theory apparently was that Respondent B improperly influenced Respondent A, by whom the complainant was employed, with regard to the complainant's separation from employment with Respondent A. There is no evidence in the record to indicate, though, that Respondent B did anything improper in this regard. The complainant left his assignment at Respondent B with virtually no advance notice, and the record indicates only that Respondent B indicated to Respondent A that the complainant had left his assignment at Respondent B with no advance notice or warning to the latter. As for the complainant's separation from employment with Respondent A, again there is no evidence indicating that that separation was due to discriminatory motives on Respondent A's part. Rather, the record indicates only that the separation occurred because of the lack of notice the complainant gave to Respondent B when he left that assignment. Of course it is not discrimination to discharge someone for leaving an assignment virtually without notice to either the client or the employer.

The complainant did bring evidence concerning improper remarks by employes of Respondent B with whom the complainant worked but, for the following reasons, those remarks are insufficient to establish liability on Respondent B's part. First, for the remarks to be actionable, they must have been so severe or pervasive as to have altered the conditions of the complainant's employment and created an abusive working environment. On the other hand, occasional or sporadic instances of harassment generally do not rise to the level of actionable harassment. Occasional and sporadic are the adjectives which best describe the comments the complainant challenges, however. Further, as the administrative law judge noted, the lead worker's remark to the effect that the work all of them were performing (both men and women, black and white) could be done by monkeys, cannot be said to have been directed at the complainant or to have been otherwise racially motivated.

In addition to the requirement that the harassment be severe and pervasive, it also must be subjectively offensive, that is, the victim in fact must have perceived the environment to have been hostile and abusive. In the present case, though, the complainant did not make this showing. Not only did the complainant not take advantage of grievance procedures he knew were in existence, he also did not even indicate to the individuals making the remarks that they were offensive to him. Indeed, he remained friends with the lead worker who occasionally would indicate that the work they were all doing could be done by monkeys. The complainant also conceded that he had been "amused" by another co-worker's remark to the effect that she was going to convert the complainant from being homosexual to being heterosexual. Further, it is clear that the complainant's actual motivation for the termination was Respondent B's failure to have acceded to his wage demands when Respondent B offered employment to the complainant. Given these factors, it cannot be found that the complainant in fact perceived the environment to be sufficiently hostile or abusive to be actionable on grounds of race or sexual orientation. And as indicated above, there is no evidence to suggest that Respondent A's treatment of the complainant had anything at all to do with his race or sexual orientation.

As for the complainant's sex, finally, there is no evidence indicating that the complainant was discriminated against by either respondent on that ground. For these reasons, and those stated in the administrative law judge's decision, the commission has affirmed that decision.

cc:
Attorney Brenda Lewison
Attorney Neil L. Wojtal
Attorney Mark A. Johnson

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