JAMES T KRUSCHEK, Complainant
TRANE CO, 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.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed December 23, 2010
kruscja . rsd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
In a discrimination complaint filed against the respondent with the Equal Rights Division on March 13, 2006, James Kruschek alleged that the respondent discriminated or took action against him because he opposed discrimination in the workplace. Kruschek's complaint, which was jointly filed with his girlfriend, Odessa Whitehead, alleged that after truthfully informing management in January/February 2003 of a manager's sexual harassment of Whitehead they suffered various incidents of retaliation by co-workers and management. The alleged retaliation included sabotaging of their work/equipment by co-workers, Whitehead being stalked by supervisor Thomas Boots beginning in May 2005, human resources manager, Jon Netzer, placing employees who were on layoff on the weekend shift when Kruschek had submitted for a weekend shift bump, and Netzer harassing and abusing Kruschek on February 28, 2006, when Kruschek inquired about his attendance record. The ERD issued an Initial Determination which found no probable cause to believe that the respondent had discriminated against Kruschek as alleged by Kruschek and dismissed the complaint. Kruschek did not file an appeal, so this determination became final.
The instant matter before the commission involves a subsequent complaint Kruschek filed against the respondent with the ERD on October 20, 2006, in which Kruschek alleged that the respondent discriminated or took action against him because he filed a previous complaint of discrimination with the ERD and because he opposed discrimination in the workplace. A no probable cause determination was issued on this complaint, which Kruschek did appeal. After conducting a probable cause hearing on Kruschek's complaint the ALJ issued a decision and Memorandum Opinion finding no probable cause to believe the respondent had discriminated against Kruschek on the basis of his having made a complaint under the WFEA or having opposed a discriminatory practice.
Kruschek has been employed by the respondent since January 1998.
The respondent is located in La Crosse, Wisconsin and manufactures large industrial heating and air conditioning units weighing from 300 to 3500 tons. The units are assembled in plant 7, which covers approximately one city block.
In plant 7 most of the welding, brazing and assembly of the heating and air conditioning units occurs at the north end of the plant. Other functions such as wiring, hydro, run-in, paint, insulate, check-out, wrap and shipping are performed at the "back end" or, south end of the plant.
During the time period relevant herein Kruschek worked in plant 7 on the weekend-one shift, which ran from 5:45 a.m. to 6:00 p.m. on Friday, Saturday and Sunday. Kruschek primarily performed work as a brazer (a position in which the worker uses a torch to seal copper tubing) on the north end of the plant, but he sometimes also worked on the south end of the plant performing the functions of hydro (filling the units with water to test for leaks) and insulating (applying rubber insulation to units to reduce sound and keep the temperature down).
Also, during the relevant time herein Kathy Collins (n/k/a Kathy Kowalski) oversaw the assembly functions at the north end of the plant, while Boots oversaw the functions at the south end of the plant. Netzer had responsibility over a group of employees that included Kruschek.
The ERD sent notice of Kruschek's initial March 13, 2006 complaint to the respondent by letter dated March 17, 2006. Netzer received the complaint in March and at some point forwarded it to respondent's corporate counsel in New Jersey. Netzer also thinks he sent the complaint to John Lombard, the manager of the area where Kruschek worked.
Kruschek indicated at the hearing that his claim is that the respondent retaliated against him for filing the March 13, 2006 complaint beginning in March 2006 and ending on May 10, 2006, and that such retaliation mostly involved Boots, but also Netzer.
Kruschek testified that Boots engaged in intimidating behavior towards him by staring at him. Kruschek testified that while Boots had watched him prior to his March 2006 complaint, it was not anywhere near the extent that Boots did after the filing of this complaint. Kruschek testified that Boots would put his foot on a guardrail and look at him, sometimes for 5-7 minutes, and just shake his head.
Kruschek and Whitehead testified that Boots would stare at Kruschek 15 to 20 times a day.
Kruschek also testified, however, that he was able to continue to do his job well after March 13, 2006, that Boots was never critical of his work product, that Boots thought he was a good worker and that Kruschek understood Boots wanted to work with him.
Collins, who was generally Kruschek's supervisor, testified that she thought Kruschek was an excellent employee. Collins testified that she noticed a change in Boots' attitude towards Kruschek in 2006; that a lot of times Boots would be staring at Kruschek while leaning on a guardrail. Collins testified that Kruschek told her he thought Boots was staring at him in retaliation for filing a complaint. Collins testified that when Boots was staring at Kruschek, this would require Boots to leave his workplace and come to the department she supervised and that Boots did not belong there. Collins testified that definitely once a shift Boots would be somewhere around where Kruschek was working; that sometimes a couple of times a shift she'd see Boots hovering in places he customarily shouldn't be. Collins testified that she thought Boots was trying to find things wrong with Kruschek's work. Collins testified that when she couldn't cover overtime work, because she didn't want Kruschek to be confronted by Boots, she gave Kruschek her home phone number and told him to contact her and that she would be there right away. Collins testified that Kruschek never called her.
Collins also testified that it was on May 11, 2006, when she learned that Kruschek had filed a complaint; that on that date Lombard informed her and Boots of Kruschek's complaint. Collins testified that she was contacted by in-house counsel on May 12, 2006. Collins testified that prior to May 11 Kruschek had not told her that he had filed a complaint. Collins testified that she did not remember Boots observing Kruschek so much before May 11.
However, Kruschek testified that a lot of people, including Collins, came to talk to him right away after he filed his complaint in March 2006. Kruschek testified that Collins did not have her months straight. Kruschek appears to be correct. For example, at the hearing Collins identified Complainant's Exhibit 15 as a document containing her own personal notes of things she saw, heard and did. Collins indicates in this document that in mid-March 2006 that she observed Boots watching Kruschek and Whitehead.
On cross-examination, Collins admitted that in September 2003 she was disciplined for inappropriate conduct towards another supervisor, that in 2004 she was suspended for engaging in inappropriate conduct towards an hourly employee, that it was fair to say that she did not have the fondest feelings for the company and that towards the latter part of her employment she didn't have the fondest feelings towards Boots. (1)
Collins also acknowledged on cross-examination that if Boots chose to see the progress of the units on the assembly line that that would not necessarily be inappropriate. However, on redirect Collins further testified that Boots would stand and watch Kruschek work in the copper cell where it was not possible for Boots to be checking progress of units because there are no units in the copper cell.
Tim Helming and Ying Xiong, co-workers of Kruschek, testified that they too had observed Boots staring at Kruschek. Helming also indicated, however, that while Boots mostly stared at Kruschek, that Boots stared at him, too. Also, Xiong testified that Boots had "spied" on him in 2004, when Boots became a supervisor. Xiong also testified that he had not filed a discrimination complaint against the respondent, and nothing in Helming's testimony indicates that he had ever filed a complaint of discrimination against the respondent.
Boots testified that he was not aware in March or April 2006 that Kruschek had filed a complaint; that he first found out around the end of May or beginning of June 2006.
Kruschek had no personal knowledge as to when Boots learned of his complaint.
Netzer testified that he did not believe he discussed Kruschek's discrimination complaint with Boots or that he made any mention of it to Boots.
Boots testified that he was responsible for meeting shipping deadlines and making sure that units were ready for customer inspection, which is when customers pay to come to plant 7 to witness their unit running. Boots testified that the way he kept track of the assembly process was by walking around and memorizing at what part of the process units are in; that he would go to the north end of the plant to see what's coming and that a lot of coordination is involved.
Boots denies going to the area where Kruschek was working 15 to 20 times a day and staring at Kruschek. Boots testified that he did not have the time for that in his job. Boots denied intentionally staring at Kruschek between March and May 2006.
Kruschek's claim that Boots retaliated against him by staring at him does not appear in his complaint. On direct examination Kruschek explained that he was attempting to summarize examples of Boots' behavior. On cross-examination, Kruschek stated that "I don't know why the staring allegations weren't in [the October 2006 complaint]. I didn't put everything in there." Kruschek's diary does contain notes about Boots watching him and John Reynolds 11 or 12 times on April 1, 2006, and 12 times on April 2, 2006.
The incidents discussed below are listed in Kruschek's complaint as alleged retaliatory actions that were taken against him.
Kruschek testified that when he informed Boots that Boots had miscalculated his overtime, Boots responded, " 'Oh, I was just writing you up' in a real smart (aleck) tone." Kruschek testified that he took offense to this remark, given the way Boots was watching and staring at him. In his complaint, Kruschek characterizes Boots' response as that of "ridicule" and states that the date of this incident was March 26, 2006.
Boots testified that he really couldn't state whether or not he made that comment; that he did not recall saying that.
Kruschek testified that Boots would come by and say, "Jim, you could be a Wal-Mart greeter." Kruschek testified that he took this as a threat to his job under the circumstances; that the way he took it was that he could be working at Wal-Mart instead of working for the respondent. In his complaint, Kruschek characterizes this incident as an example of being humiliated by Boots because the comment was made in the presence of his co-workers. The complaint indicates that this was a one-time incident since it states that the date of this incident was March 31, 2006.
Whitehead testified that she heard Boots' comment to Kruschek that he could be a Wal-Mart greeter.
Boots denied ever indicating to Kruschek that he could end up being a Wal-Mart greeter. Boots testified that he might have mentioned Wal-Mart in a discussion with Kruschek and others, though, by stating "If we don't get the product down the line, we'll all be working at Wal-Mart."
Kruschek testified that while doing some brazing on Boots' end of the plant, that Boots was hanging around, being real smart and said, "Jim, if Kevin doesn't get this unit done, I want you to finish [the wiring]." Kruschek testified that when he responded that he was not qualified to do this Boots replied, "Not qualified. Not qualified. You're not even qualified to take a fucking shit." The complaint states that the date of this incident was April 15, 2006.
Boots denied saying this to Kruschek. Boots testified that he would not have asked Kruschek to do a wiring job because Kruschek was not qualified to do it; that assigning a job to an employee that the employee was not qualified to do would be grounds for a grievance.
Kruschek testified that on another occasion Boots kept taunting him by saying, "You know, you could be coming down here to hydro by me" and that when a co-worker intervened saying, "Why don't you leave him alone?", Boots "became irate, turned red and stuck his finger out and said, be careful what you wish for in a very nasty ... he just exploded, repeated it and stamped off." The complaint states that the date of this incident was also April 15, 2006. Whitehead also testified that she heard and saw this incident.
Boots admitted making the comment be careful what you wish for, but testified that it was in the context of production sales orders not coming in and the company talking about moving people to different jobs. Boots indicated that Kruschek wanted to braze but wanted to be on the weekend shift, however, Kruschek would have had to be moved to first shift during the week, but Kruschek didn't want first shift or to go to hydro, so he said "Be careful what you wish for". Boots testified that he did not say this in a mean way.
Kruschek testified that he had requested from Collins and others a printout of his "Ding sheets" (attendance issues) to check and see if his absences had been excused, because after 6 dings you get written up and after 9 you could be terminated, and that everyone would say that he had no dings but the printout would not show his name and clock number.
Kruschek testified that on February 28, 2006, when he asked Netzer about his dings and why his name and clock number did not appear on a printout to show this, that "Netzer just screamed at me and said I didn't have any and to write this down, 'Jon Netzer says you have no dings.' "
In his complaint, Kruschek alleged that since filing his first complaint the respondent, through his supervisor, had been discriminating against him by refusing to give him access to a printout of his attendance record which is provided to all other workers. The complaint states that the date of this was "On-going."
With respect to Kruschek's assertion about what occurred on February 28, 2006, Netzer testified that: "[Kruschek] called me at my office ... he told me to check his dings for him, and I told him he didn't have any dings. He had zero. He told me I was wrong and that he had multiple dings, and the foreman had showed him he had multiple dings, and then I ... checked both screens, I checked the attendance processor on jeT ... I told him he had no dings. Then I went to the all attendance information, which is an access file, and I told him he had no dings. ... I told him I would give him a sheet of paper from a human resources supervisor and sign it saying he had no dings. None of this seemed to get through."
Netzer denied yelling at Kruschek in this conversation. Netzer testified that he was frustrated; that he couldn't get through to Kruschek that he had no dings.
With respect to what Collins' might have been looking at on the computer which showed an unexcused absence, Netzer testified that on the jeT screen there's the attendance editor and the timecard punches; that you have to punch a button and there's a red book and white book on that screen. Netzer testified that you have to punch the white book and this shows the attendance editor. Netzer testified that his guess was that Collins was looking at the wrong screen because numerous supervisors would say to him, "This person had an excuse. Why wasn't it excused?"
Finally, Kruschek testified that when the respondent filed its response to his first complaint on May 19, 2006, he became aware of an e-mail with a directive that he could not use the company's hotline. Employees could call a telephone number provided by the respondent to report a legal or ethical violation or concern. The e-mail (Complainant's Exhibit 4) is dated March 8, 2006, and reads: "This case has been investigated and is closed. Furthermore, Mr. Kruschek's continued use of the hotline in this matter is now considered abuse and will result in disciplinary action."
In his complaint, Kruschek alleges that "As a result of filing my original complaint with the DWD, I received an e-mail from representatives of Trane banning me from the use of the hotline with a threat that my 'continued use of the hotline in this matter is now considered abuse and will result in disciplinary action.' "
DISCUSSION
As recently noted by the commission in Gunty v. City of Waukesha (LIRC, 03/31/10):
A claim of retaliation, like other discrimination claims, may be proven using either the direct or the indirect method of proof. Under the direct method of proof in a retaliation claim a complainant must show that he or she: (1) engaged in statutorily protected activity; (2) suffered an adverse action taken by the employer; and (3) a causal connection exists between the two. See, e.g., Tomanovich v. City of Indianapolis et al., 457 F.3d 656 (7th Cir. 2006), citing Moser v. Ind. Dep't. of Corr., 406 F.3d 895, 903 (7th Cir. 2005); Sitar v. Ind. Dep't. of Transp., 344 F.3d 720 (7th Cir. 2003), citing Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002). Under the direct method, there are two types of permissible evidence: (1) direct evidence, i.e., evidence that does not require drawing an inference from evidence to the proposition that it is offered to establish; and (2) circumstantial evidence, i.e., evidence which does require drawing inferences. See, e.g., Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900 (7th Cir. 2006); Rogers v. City of Chicago, 320 F.3d 748 (7th Cir. 2003). Under the first type of direct evidence, the evidence "essentially requires an admission by the decisionmaker that his actions were based upon the prohibited animus." Rogers (quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000)). The second type of direct evidence, circumstantial evidence, "consists of ambiguous statements, suspicious timing, discrimination against other employees, and other pieces of evidence none conclusive in itself but together composing a convincing mosaic of discrimination against the plaintiff." Sylvester, supra (quoting Troupe v. May Dep't. Stores Co., 20 F.3d 734, 737 (7th Cir. 1994)).
To prove a claim of retaliation under the indirect method, the complainant must establish a prima facie case of retaliation by showing that he or she: (1) engaged in statutorily protected activity; (2) met the employer's legitimate expectations; (3) suffered an adverse employment action; and (4) was treated less favorably than a similarly situated employee who did not engage in statutorily protected activity. Tomanovich, supra (citing Moser, supra). A similarly situated employee is one who is "directly comparable to [the complainant] in all material respects." (Rogers, supra)(quoting Grayson v. Oneill, 308 F.3d 808, 819 (7th Cir. 2002)). "The prima facie case, and particularly its fourth prong, are meant to identify situations where the 'actions taken by the employer *** if unexplained, are more likely than not based on considerations of impermissible factors.' " Karim v. H & M Int'l. Transp., Inc., 2009 U.S. Dis. LEXIS 91179 (quoting Humphries v. CBOCS West, Inc., 474 F.3d 387 (7th Cir. 2007). If the complainant establishes a prima facie case, the burden of production shifts to the employer to present evidence of a non-discriminatory reason for its employment action. Tomanovich, supra. If the employer meets its burden, the burden shifts back to the complainant to demonstrate that the employer's reason is pretextual. Id.
The above formulation about how an individual goes about proving retaliation under the indirect method represents a new rule in the Seventh Circuit. Rogers, citing Stone v. City of Indianapolis Public Utilities Division, et al., 281 F.3d 640 (7th Cir. 2002). In Stone, the court stated that the cases which adopted the McDonnell Douglas burden-shifting method which says that a plaintiff can establish a prima facie case of retaliation by showing that he or she engaged in protected expression, suffered an adverse employment action and causal connection between the protected expression and adverse action and that the defendant can defeat the plaintiff's prima facie case by producing evidence that the motive for the adverse employment action was not retaliatory unless the plaintiff can come back and show that the alleged nonretaliatory motive was actually pretextual "is McDonnell Douglas-speak, all right, but is out of place." 281 F.3d 642-643.
Explaining why, the court stated "If the plaintiff has produced evidence that he was fired because of his protected expression, he has gone beyond McDonnell Douglas by producing actual evidence of unlawful conduct -- evidence that the firing was in fact retaliation for his complaining about discrimination. ...McDonnell Douglas is designed to give the plaintiff a boost when he has no actual evidence of discrimination (or retaliation) but just some suspicious circumstances. If he can prove that his protected expression caused him to be fired, he doesn't need McDonnell Douglas and it gives him nothing. Id. at 643.
One of the issues the parties raised before the ALJ was whether or not in a claim under the WFEA a complainant is required to show that he or she suffered a "materially adverse employment action".
The ALJ addressed this issue in the Memorandum Opinion attached to his decision stating as follows:
The Respondent contends essentially that the Complainant is required to show that he suffered a materially adverse action. LIRC has previously rejected this approach and, notwithstanding the Respondent's arguments otherwise, this Administrative Law Judge finds that LIRC's statement in footnote 1 in Froh v. Briggs & Stratton Corp. (LIRC, 9/29/04) that follows is applicable to cases under the WFEA:
Although respondent argues, consistent with certain Title VII decisions issued by the Seventh Circuit Court of Appeals, that an action, in order to satisfy the second element of a prima facie case, must have a materially adverse impact on a complainant's employment status such as that effected, for example, by a termination, demotion evidence by a decrease in wage, a material loss of benefits, or significantly diminished responsibilities ... the commission has not adopted this approach. See, Post v. Mauston School District, ERD Case No. 199801898 (LIRC, Aug. 28, 2002). (Bold text in original.)
The issue in Post involved a claim of discrimination on the basis of age with respect to the complainant's terms and conditions of employment. In Post, the commission held the complainant failed to prove that her reassignment from her 5th grade teaching position to a 7th and 8th grade teaching position was due to her age, and in divergent concurring opinions discussed whether, like cases arising under Title VII, a complainant must show a material adverse employment action in order to establish a prima facie case under the WFEA. (2)
The ALJ rejected the respondent's contention that because Kruschek was not fired, was not demoted, did not lose pay and was not denied a promotion or bump up that he had not established a violation of the WFEA, citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367 (1993) and Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399 (1986), as evidence that it was well settled in discriminatory harassment cases that a violation may be shown even if there is no tangible job benefit that has been lost or denied. The Harris and Vinson cases were sexual harassment cases brought under Title VII.
Quoting portions of the language from the Harris case, in which the Court reaffirmed its holding in Vinson, the ALJ indicated, among other things, the following: 1) That the language of Title VII making it unlawful to "discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment" was "not limited to 'economic' or 'tangible' discrimination"; 2) that Title VII was violated "When the workplace is permeated with 'discriminatory intimidation, ridicule and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment.' "; 3) However, the " 'mere utterance of an ... epithet which engenders offensive feelings in a employee,' does not sufficiently affect the conditions of employment to implicate Title VII"; 4) "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview"; and 5) "But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect an employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers."
Relying on the Harris and Vinson cases, the ALJ concludes: "...while [Kruschek's] case is not a sexual harassment case, it is a case that it would be reasonable to view as a retaliation harassment case; i.e., the issue to be addressed is whether or not the Respondent retaliated against the Complainant by engaging in actions such that the workplace was '...permeated with discriminatory intimidation, ridicule and insult' that was 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.' " ALJ Memorandum Opinion, p. 9.
Although accepting the view that Kruschek was not required to prove that he suffered a materially adverse action and concluding that this case should be analyzed by determining whether the workplace is permeated with discriminatory behavior that is sufficiently severe or pervasive to create a discriminatory hostile or abusive working environment, the commission notes that with respect to Kruschek's claims regarding Boots' remarks about "writing him up", calling him a "Wal-Mart greeter", saying he was "not even qualified to take a fucking shit", telling him to "be careful what he wished for", and about the alleged difficulty Kruschek had obtaining a printed copy of his attendance records, what the ALJ actually concludes is that probable cause was not established to believe that retaliation is what motivated Boots' conduct. The ALJ stated as follows:
"The evidence does not support probable cause to believe that the alleged remarks made by Boots ... and the alleged difficulty ... obtaining a printed copy of his attendance records were motivated by either 'opposition' or 'participation' retaliation." ALJ Mem. Op. p. 10. (Emphasis added.)
It is only when addressing Kruschek's claim about Boots' staring at him that the ALJ actually made a determination about whether the workplace was "permeated with discriminatory behavior that is sufficiently severe or pervasive to create a discriminatory hostile or abusive working environment." What the ALJ finds regarding this claim by Kruschek is that "the evidence in this case does not support that any heightened scrutiny-to the extent that there was any-rose to the level that it could be concluded that-in relation to the alleged retaliatory actions of the Respondent-there is probable cause to believe that the workplace was 'permeated with discriminatory intimidation, ridicule and insult ... sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.' " ALJ Mem. Op. p. 11.
On appeal, apparently assuming that the ALJ has analogized his entire retaliation claim to the federal hostile environment standard necessary to establish a sexual harassment claim, Kruschek argues that if sexual harassment law is to be used by analogy, the ALJ's holding cannot stand; that in sexual harassment claim a complainant does not need to establish acts sufficient to constitute a hostile work environment if the acts complained of are engaged in by a supervisor.
Kruschek argues:
... if the ALJ's analysis were to stand an employer would be free to engage in prohibited and uncontroverted retaliation as long as the employer only did so on an infrequent and occasional basis, i.e., on a basis which would not result in a hostile work environment. This is clearly not the intent and purpose of Wis. Stat. § 111.322(3) which states, in applicable part:
..., it is an act of employment discrimination to do any of the following:
...
(3) To discharge or otherwise discriminate against an individual because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified or assisted in any proceeding under this subchapter.
The statute does not state it is an act of discrimination only if an employer discriminates, i.e., retaliates, "a lot". Any adverse action is discrimination and complainant has established adverse action on the part of Tom Boots. ...
Further, Kruschek argues that:
As ... acknowledged by the ALJ, the WFEA does NOT require an adverse action to be substantial in order to be actionable. See Pluskota v. Alverno College [(LIRC, 10/21/05)] and Post v. Mauston School District, ERD Case No. 199891898 [(LIRC, 08/28/02)]. However, the ALJ's analysis backdoors into a substantial requirement by finding that ... there must be a severe and pervasive hostile work environment in order for retaliation to be actionable. While there may be some merit in limiting an employer's liability for the acts of fellow employees unless a hostile work environment is established, i.e., where the employer had either actual or constructive notice of retaliatory acts, there is no reason for limiting an employer's liability when it is the employer itself which has engaged in retaliation.
As far as sexual harassment law under the WFEA is concerned, it is true that the conduct of an employer or its agent need not be severe or pervasive in order to create a hostile work environment. As the commission noted in Τоllіvеr v. Milwaukee City Center (LIRC, 02/26/10), where the sexual harassment is engaged in by the employer itself:
The commission has specifically held, and the court of appeals has affirmed, that ... employment discrimination based on sex occurs if the employer -- meaning the owner or an agent in a position of responsibility such that it is appropriate to apply the rule of respondeat superior and treat the actions of the agent as being the actions of the employer -- engages in conduct that meets the definition of sexual harassment, whether or not that conduct creates a hostile work environment. Tobias v. Jim Walter Color Separations (LIRC, Aug. 13, 1997); aff'd. Jim Walter Color Separations v. LIRC and Marcy Ann Tobias, 226 Wis. 2d 334, 595 N.W.2d 68 (Ct. App. 1999). Thus, where the employer or an agent of the employer is perpetrating the sexual harassment, a violation of the law may be established even if the harassment would not be considered sufficiently severe or pervasive as to create a hostile work environment. Harper v. Menard Inc. (LIRC, Sept. 18, 2009).
The respondent argues that no discrete adverse action was taken against Kruschek in the traditional sense. He was not fired, not demoted, did not lose any pay and was not denied a promotion. The respondent argues that nothing of significance has happened to Kruschek; rather, he bases his retaliation claim solely on a limited collection of alleged petty insults and supervisor's supposed propensity to watch him while he was working.
The respondent states that a question squarely presented by this case is what minimal threshold must an employer's conduct clear before that conduct can support a finding of liability under the WFEA. The respondent asks, "Can a supervisor's failure to say "hello" in the hallway in the morning serve as the foundation for a retaliation claim? A lack [of] conversation at the copy machine? A failure to laugh at an employee's joke? Or, must the conduct at issue exceed some baseline of materiality to the employment relationship before the WFEA's prohibitions come into play?"
The respondent argues that Kruschek's position that "regardless of how petty, trivial, or insignificant the slight, if it springs from retaliatory animus, 'strict liability' will follow' " is untenable.
The respondent argues that Kruschek was not discharged and that LIRC's authority on what constitutes "discrimination" is unclear. The respondent submits that LIRC has noted in dicta that a complainant need not have suffered an employment action with a "materially adverse impact on a complainant's employment status" to maintain a WFEA claim, citing Froh, supra and Schoenhofen v. Waupaca Cnty. (LIRC, 09/29/04), both of which cite only to Post, supra. The respondent argues, however, that Post did not decide the question of whether a material adverse employment action must be shown to support a retaliation claim; rather, the discussion of the material adverse action requirement appears only in two concurring opinions, which set forth polar opposite views. Further, the respondent asserts that other LIRC authority has imposed a material adverse action requirement, citing Vick v. Marshfield Door System (LIRC, 01/31/07), (3) that various decisions by the Wisconsin Personnel Commission have and that this requirement is consistent with Seventh Circuit authority, e.g., Smart v. Ball State Univ., 89 F.3d 437 (7th Cir. 1996) (Not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.).
Further, the respondent notes that none of LIRC's decisions have addressed the more recent holding in Burlington Northern & Santa Fe Railway Company v. Sheila White, 548 U.S. 53, 126 S. Ct. 2405 (2006). The White case involved a claim of retaliation. In White, the United States Supreme Court held that Title VII's anti-retaliation provision: 1) does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace; and 2) (agreeing with the formulation set forth by the Seventh and the District of Columbia Circuits) "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, 'which in this context means it well might have "dissuaded a reasonable worker from making or supporting a charge of discrimination." ' Rochon [v. Gonzales, 370 U.S. App. D.C. 74, 438 F.3d 1211 (CADC 2006)], 438 F.3d at 1219 (quoting Washington [v. Ill. Dep't of Revenue, 420 F.3d 658 (CA7 2005)], 420 F.3d at 662)." 548 U.S. at 68.
The Supreme Court then went on to state, in part, as follows:
We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth "a general civility code for the American workplace." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998); see Faragher [v. City of Boca Raton] 524 U.S.[775], at 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (judicial standards for sexual harassment must "filter out complaints attacking 'the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing' "). An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. ...
We refer to reactions of a reasonable employee because we believe that the provision's standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings. ...
We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon particular circumstances. Context matters. "The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." Oncale [v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S. Ct. 998 (1998)] ... at 81-82... A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. Cf., e.g., Washington, supra, at 662 (finding flex-time schedule critical to employee with disabled child). A supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination. ...
548 U.S. at 68-69. (Italicization text emphasis in original.) (4)
The respondent notes that the retaliatory harassment did not deter Kruschek from making an internal (Hotline) complaint since he refrained from doing so only on the advice of his attorney, or from filing a second complaint against the respondent, i.e., the instant complaint which he filed in October 2006.
The materially adverse employment requirement
The commission has not adopted the view that a complainant under the WFEA is required to prove that an employment action be "material" in order to be actionable.
The imposition of a requirement that alleged discriminatory employment conduct be "material" is a judicially created requirement under Title VII law, as the statutory language of Title VII does not impose this requirement. Nor does the statutory language of the WFEA impose this requirement.
The commission understands that the rationale behind the courts' limiting actionable claims to those involving "material" employment actions in order to "separate significant from trivial harms" is to avoid opening up the floodgates to countless, meritless claims. This is evident based on cases such as Smart v. Ball State Univ., 89 F.3d 437 (7th Cir. 1996)(Not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.); Williams v. Bristol-Meyer Squibb Co. 85 F.3d 270 (7th Cir. 1996) (If plaintiffs could challenge transfers not involving loss of compensation or significant changes in working conditions, then "every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit."). See also, Taylor v. FDIC, 132 F.3d 753 (D.C. Cir. 1997)("the federal courts cannot be wheeled into action for every workplace slight, even one that was possibly based on protected conduct."
While the commission and the state courts of Wisconsin have considered federal law for guidance in considering discrimination claims under the WFEA, they are not bound to do so. See for example, Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 586-587, 476 N.W.2d 707 (Ct. App. 1991). See also, Goodyear Tire & Rubber v. DILHR, 87 Wis. 2d 56, 65, 273 N.W.2d 786 (1978)("Wisconsin courts must construe Wisconsin statutes as it is believed the Wisconsin legislature intended, regardless of how Congress may have intended comparable statutes.").
"The purpose of the WFEA is to deter and to remedy discriminatory conduct of employers which infringes employes' civil rights. The legislature has directed that the WFEA is to be liberally construed for the accomplishment of this purpose. Wis. Stat. § 111.31(3)" Byers v. LIRC, 208 Wis. 2d 388, 398, 561 N.W.2d 678 (1997).
The commission agrees that perhaps at some level, alleged employer discriminatory conduct may, in fact, be simply too de minimus to warrant the attention of the limited resources of the quasi-judicial system under the WFEA. The respondent's example of a supervisor's failure to laugh at an employee's joke certainly comes to mind as an example of such conduct.
However, the commission believes that to impose a requirement that discriminatory conduct be "material" simply in an effort to separate "significant" from "trivial" claim harms, is inconsistent with the legislature's direction that the WFEA be liberally construed to deter and remedy discriminatory conduct which infringes employee's civil rights.
Furthermore, the commission believes that what is "material" in an employment relationship may be quite subtle. For instance, Theresa M. Beiner notes that "reindeer games", a term referring to the holiday song, "Rudolf the Red-Nosed Reindeer", but which she refers to as outside activities that give employees exposure to persons with power at their place of employment, often gives effect to what are non-job-related criteria. Beiner states:
An example of a reindeer game in the employment context would be golfing with the boss or having lunch with a supervisor. While many might view these sorts of reindeer games as trivial, for those, like Rudolf, who are left out, the career ramifications can be quite palpable. ... Two aspects of reindeer games cause problems for employees who are non-participants. First, these outside activities generally give the participating employee a "leg up" from increased exposure to the boss or others in power. Second, even if a non-participating employee is given an opportunity to participate, he or she may have no interest in the particular activity involved. This may lead the boss to think the employee is "not a team player," and result in adverse employment decisions with respect to that employee.
Theresa M. Beiner, Do Reindeer Games Count as Terms, Conditions or Privileges of Employment Under Title VII?, 37 B.C.L. Rev. 643, 645 (1996).
In addition, the commission notes that in White, citing as an example of how the circumstances involved in an employment action might be considered significant versus trivial and may or may not dissuade a reasonable employee from making or supporting a charge of discrimination", the Court states that "A schedule change in an employee's work schedule may make little difference to many workers, but matter enormously to a young mother with school age children. (Citation omitted) A supervisor's refusal to invite an employee to lunch is normally trivial, nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination. ..."
But why wouldn't a single person with no dependents, who is given a work schedule change, say, from first shift to third shift, after protesting what he or she reasonably believed was employer discrimination, be dissuaded from opposing discrimination or making a complaint of discrimination? As for a supervisor refusing to ask an employee to lunch after protesting what he or she reasonably believed was employer discrimination, why wouldn't an employer's weekly exclusion of an employee from lunch, even one that did not contribute significantly to the employee's professional advancement, dissuade a reasonable employee from opposing discrimination or making a complaint of discrimination? Moreover, it is not hard to imagine how an employer's weekly exclusion of an employee from lunch would not carry over into other aspects of the employment relationship and end in the employee either being discharged or quitting-all because an employer had taken offense to the employee's complaining about discrimination.
Furthermore, in a close case, the imposition of a requirement that the alleged adverse employment action be "material" is likely to only cause the trier of fact to import his or her own subjective belief as to what is or is not a material adverse action.
In view of the above-stated reasons, and having considered the U.S. Supreme Court's decision in White, the commission concludes that in a claim of retaliation under the WFEA, a complainant must show that a reasonable individual would have found the challenged action adverse, that is, it well might have dissuaded a reasonable individual from opposing any discriminatory practice under the Act or from making a complaint, testifying or assisting in any proceeding under the Act, and that context matters.
There is no bright-line rule. Whether alleged discriminatory conduct is sufficiently adverse can only be determined upon careful examination of the facts and circumstances presented in each case.
Regardless of the level of adversity utilized to evaluate Kruschek's retaliation claim, however, the commission finds that Kruschek's retaliation claim fails under either the direct or indirect method of proving unlawful discrimination. Kruschek has not presented evidence which essentially amounts to an admission by the respondent that its actions were based upon a retaliatory animus. Nor has he presented circumstantial evidence consisting of ambiguous statements, suspicious timing, discrimination against other employees, and other pieces of evidence none conclusive in itself but together which composes a convincing mosaic of retaliatory discrimination.
Some of Kruschek's claims, for instance his claims that on February 28, 2006, Netzer "screamed at him and said he didn't have any dings" and that a March 8, 2006 e-mail banned him from use of the hotline and threatened him with discipline if he continued use of the hotline, could not possibly have been caused by Kruschek's filing of a complaint because those claims involve incidents that occurred before Kruschek filed his complaint on March 13, 2006.
Also, with respect to Kruschek's claims about Boots staring at him, about Boots remarking that he was "just writing [Kruschek] up", that Kruschek could be a Wal-Mart greeter, that Kruschek was "not even qualified to take a fucking shit" and that Kruschek should be careful what he wished for, Kruschek has not established that Boots had knowledge of Kruschek's March 2006 complaint before mid- to late-May. Mid- to late-May 2006, was after the time period of the alleged conduct engaged in by Boots.5(5)
Kruschek suggests, however, based upon testimony by fellow employees including Tim Helming and Whitehead, that Boots was aware of the March 2006 complaint because employees were talking about the March 2006 complaint in April and the spring of 2006 and thus the filing of the complaint was common knowledge in the plant. However, as noted by the respondent, the evidence shows that the supposedly common knowledge was common only to hourly, bargaining unit workers. The evidence does not establish that Kruschek's complaint was common knowledge among management staff.
The ALJ indicates that the respondent's contention that Boots lacked awareness of Kruschek's complaint until sometime in May 2006 was arguably a defense to the participation claim but not a defense to the opposition claim since the evidence suggested Boots' awareness of some previous opposition by Kruschek. The ALJ has not identified the evidence which suggests Boots' awareness of previous opposition by Kruschek. Perhaps what the ALJ has in mind is Kruschek's May and June 2005 diary notes about Boots staring at Whitehead, staring at him and making a smart aleck remark after informing management in January/February 2003 of the sexual harassment of Whitehead by a manager. However, regardless of what the ALJ believes establishes evidence of Boot's awareness that Kruschek had previously opposed a discriminatory practice, the period of time between Kruschek's opposition to sexual harassment in January/February 2003 and Boots' alleged conduct in March to early May 2006 is too great a period of time to permit an inference that a retaliatory motive is what accounted for the alleged conduct by Boots between March and early May 2006.
Moreover, Kruschek's testimony that he was able to do his job well after March 13, 2006, that Boots was never critical of his work product, that Boots thought he was a good worker and that Kruschek understood that Boots wanted to work with him, plus the fact that the evidence also indicates that Boots stared at other employees who had not filed a complaint against the respondent, undercuts evidence of a convincing mosaic of retaliatory discrimination against Kruschek.
Kruschek's claim of retaliation under the indirect method of proof fails for the same reasons his claim fails under the direct method of proof.
NOTE: In affirming the decision of the administrative law judge, as indicated above, rather than viewing Kruschek's claim as a retaliation harassment case and requiring a showing that an employer engaged in actions sufficient to constitute a hostile work environment, the commission concludes that a complainant must show that a reasonable individual would have found the challenged action adverse, that is, it well might have dissuaded a reasonable individual from opposing any discriminatory practice under the Act or from making a complaint, testifying or assisting in any proceeding under the Act, and that context matters.
cc:
Attorney Carol S. Dittmar
Attorney Amy Schmidt Jones
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