ELOISA L GUERRERO, Complainant
UNIVERSITY OF WISCONSIN HOSPITAL & CLINICS, 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:
In numbered paragraph 1. of the FINDINGS OF FACT section, the name "Elise" is changed to "Eloisa."
The first sentence in numbered paragraph 6. of the FINDINGS OF FACT section is deleted.
Numbered paragraph 2. in the CONCLUSIONS OF LAW section is modified to state as follows:
2. There is no probable cause to believe that the respondent engaged in or permitted the sexual harassment of the complainant.
Numbered paragraph 3. in the CONCLUSIONS OF LAW section is modified to state as follows:
3. There is no probable cause to believe that the respondent terminated the complainant in retaliation for engaging in a protected fair employment activity.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed June 4, 2010
guerrel . rmd : 115 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Sexual harassment
The complainant alleges that she was sexually harassed by a coworker when he engaged in unwelcome physical contact of a sexual nature at the work site on July 21, 2006. The complainant did not report this contact to the respondent until August 18, 2006, two days after she returned from an unauthorized leave.
Upon receiving the complainant's report of sexual harassment, the respondent immediately took the complainant's statement, summoned police, initiated an investigation, and placed the alleged harasser on leave.
The complainant admitted to the respondent that she and the alleged harasser were friendly, and she had helped him find an apartment in the complex in which she lived. The complainant also admitted to the respondent that, after the alleged contact on July 21, the alleged harasser came to her apartment after work and she let him in.
The police investigator informed the complainant that charges were not going to be filed against the alleged harasser because the circumstances did not merit it.
According to the complainant, the respondent, after completing its investigation, informed her that the alleged harasser had been given a 15-day disciplinary suspension.
The Wisconsin Fair Employment Act (hereinafter WFEA), in Wis. Stat. § 111.36(1)(b), prohibits an employer, in pertinent part, from:
Engaging in sexual harassment; or implicitly or explicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment; or making or permitting acquiescence in, submission to or rejection of sexual harassment the basis or any part of the basis for any employment decision affecting an employee, other than an employment decision that is disciplinary action against an employee for engaging in sexual harassment in violation of this paragraph; or permitting sexual harassment to have the purpose or effect of substantially interfering with an employee's work performance or of creating an intimidating, hostile or offensive work environment. . . . (emphasis added).
This provision sets forth three separate categories of prohibited conduct. The third category, embodied in the language set forth in italics, addresses sexual harassment engaged in by co-workers, who cannot be treated as agents of the employer. This category obliges the employer to take steps to prevent or terminate sexual harassment in the work place, even if the employer is itself not engaging in the sexual harassment, if the harassment engaged in by other employees is enough that it interferes with work or creates a hostile, intimidating environment. See, Rusniak v. Fagan Chevrolet-Cadillac, ERD Case No. CR200000027 (LIRC May 23, 2002).
A respondent is liable for the harassing acts of a complainant's co-worker only if it knew or should have known about the harassment but failed to take adequate measures to prevent or eradicate it. See, Krienke v. Ramada Inn Conference Center, ERD Case No. CR200002246 (LIRC Oct. 29, 2002). A respondent has fairly wide latitude to address allegations of sexual harassment as it sees fit, provided its actions are reasonably calculated to remedy the situation and prevent future harassment. See, Flanagan v. Wisconsin Bistros/Larson Management, ERD Case No. CR200202638 (LIRC Nov. 4, 2004).
Here, the respondent immediately investigated the complainant's allegation of unwelcome physical contact of a sexual nature, contacted the police, placed the alleged harasser on leave, and took what it considered reasonable disciplinary action against him based upon the results of its investigation.
The complainant, who has the burden of proof, did not show that the process the respondent followed in responding to her complaint was inadequate. The steps followed by the respondent appear to have been reasonably crafted and implemented. In addition, the record does not show that the results of the respondent's investigation, and the actions the respondent took based on those results, were not reasonably justified based upon the available information.
The complainant points to her assignment to work with the alleged harasser on September 4, 2006, as evidence that the respondent's measures to address her complaint of harassment were inadequate. However, the record does not show that the complainant requested or even suggested separation from the alleged harasser. Moreover, her present assertion that she had reason to fear him on September 4, and the respondent should have been attuned to this, is belied by the fact that, as the respondent was aware at the time, the complainant had invited him into her apartment immediately after the alleged sexual contact at the work site on July 21. Finally, the complainant concedes that, on September 4, it was apparent that the individual making the work assignments was unaware of her complaint of sexual harassment and, when she refused the assignment, she did not explain her refusal to him.
The complainant failed to sustain her burden to prove a violation of the sexual harassment prohibition set forth in Wis. Stat. § 111.36(1)(b).
Fair employment retaliation
The complainant alleges that she was terminated because she filed the complaint of sexual harassment.
However, the record shows that the complainant did not obtain permission, or even request permission, before absenting herself from work for more than three weeks, and did not contact the respondent during her absence. The record also shows that, after she returned, the complainant did not attend certain of the meetings scheduled to discuss her absence and, in those she did attend, she refused to participate.
These egregious acts by the complainant, which she does not deny, reasonably justified her termination. Although the complainant filed a complaint of sexual harassment upon her return from her absence, the credible evidence of record does not establish or even suggest that the filing of this complaint played any part in the termination decision.
In her appeal to the commission, the complainant takes issue with the failure of her treating physicians to provide requested medical information relating to her workers compensation claim. This alleged failure, however, is irrelevant to the issues before the commission in this equal rights proceeding.
In her appeal, the complainant also objects to the "omission" from the record of testimony from the alleged harasser as well as the UW police department. However, the record indicates that the complainant did not offer the testimony of these individuals at hearing.
cc: Attorney Ellen S. Hughes
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uploaded 2010/06/09