Wis.LIRC ER Decision: Flood - August 31, 1998 - Sex discrimination - harassment; Procedure - dismissal at close of complainant's case; Procedure - Discovery

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

DAWN FLOOD, Complainant

vs.

COUNTY OF ROCK SHERIFF'S DEPARTMENT;
JOSEPH BLACK, SHERIFF;
JEFFREY TELLEFSON, COMMANDER;
MICHAEL ASH, CHIEF DEPUTY;
JAMES DILLEY, SERGEANT;
DAVID VIERCK, SERGEANT;
JACK DOBSON, SERGEANT, Respondents

FAIR EMPLOYMENT DECISION
ERD Case No. 199403531, EEOC Case No. 26G942183

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, except that it makes the following modifications:

1. The second sentence in paragraph 10 of the FINDINGS OF FACT is deleted and the following is inserted therefor:

"On August 17, 1993, Deputy Flood received a reprimand signed by Lieutenant Dobson and Commander Tellefson for having made traffic stops on two occasions on August 10, 1993, when she had been dispatched to investigate complaints of suspicious activity. Sergeant Dilley, who was away from the sheriff's office at the time of these incidents and therefore had not initially been involved in this matter, became involved when contacted by one of the dispatchers who expressed concern that Deputy Flood was reluctant to handle the complaints. After investigating the matter, Sergeant Dilley recommended that Deputy Flood receive a reprimand."

2. The third sentence in paragraph 15 of the FINDINGS OF FACT is deleted and the following sentence is substituted therefor:

"Sgt. Dilley gave her two commendations during the training period and did not treat her differently from male deputies because of her sex."

DECISION

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

Dated and mailed: August 31, 1998
floodda.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Dawn Flood, a female employed by the Rock County Sheriff's Department, alleged in a complaint filed with the Equal Rights Division in September 1994, that the respondent, Sergeant James Dilley, discriminated against her on the basis of her sex by creating a hostile working environment and by adversely affecting her terms and conditions of employment. Further, she alleged that the remaining named respondents violated the Wisconsin Fair Employment Act by discriminating against her with respect to her terms and conditions of employment on the basis of her sex and in retaliation for opposing discriminatory practices and having filed previous complaints of discrimination under the Act. In order of their rank at the relevant time herein, the remaining respondents are: Sheriff Joseph Black; Chief Deputy Michael Ash; Commander Jeffrey Tellefson; Lieutenant Jack Dobson and Sergeant David Vierck.

An initial determination was issued on October 4, 1995, finding probable cause to believe that the complainant was discriminated against in her terms or conditions of employment because of her sex, because she opposed a discriminatory practice under the Act and because she had made a complaint under the Act.

Subsequently, the parties engaged in discovery. Discovery was conducted by written interrogatory, by request for production of documents and by oral depositions. Oral depositions were taken of 12 individuals over the course of 10 days. During the period discovery was taking place the parties filed motions for protective orders, motions in limine, a motion to compel and a motion to quash a subpoena. As a result of the various motions the ALJ held several telephone conferences with the parties and issued a number of written orders with respect to discovery.

One written order issued by the ALJ concerned the complainant's request that Lieutenant LeFeber bring to his deposition "Investigatory files of any complaints by anyone against any of the named respondents during the years 1990, 1991, 1992, 1993 and 1994 up to and including September 1994." The Sheriff's Department requested that the ALJ limit the scope of discovery, asserting that the requested documents did not appear relevant to the claims which Deputy Flood had made and that discovery should be limited to avoid unnecessary expense. In his written order on the matter, the ALJ allowed the complainant discovery regarding internal investigations of complaints made by deputies or dispatchers against any of the respondents from January 1990 until September 1994, but only allowed the complainant to obtain discovery regarding complaints filed by anyone else against the respondents during this time period if the complaints involved allegations of sexual discrimination.

Following the close of discovery, there were six days of hearings before the ALJ. During the complainant's case, included as evidence was testimony regarding sexual comments or jokes about females that were heard during briefing sessions, and other comments regarding the appropriateness of women as patrol officers. For instance, the complainant testified that she heard the remark, "Third shift is going to be cunt-free," and that she heard Sergeant Vierck remark, "Don't trust anyone who bleeds for five days and lives." When cross-examined the complainant initially asserted that a third shift supervisor, Lieutenant Call, had made the "cunt-free" remark but later admitted that she was not sure if it was him. When asked about Vierck's remark, she stated that Vierck was repeating what he had heard another officer state about his wife around the time the officer's wife was pregnant. The complainant also stated that she heard fellow officers commenting that Deputy Daria Hoerler was "well endowed" and that at least one officer, referring to Hoerler's breasts, said that he "would like to snuggle in and would like to nurse." This testimony was not disputed. Deputy Sheila Schindler-Osborn testified that she heard Sergeant Dilley state that "It's not a woman's profession; it's a man's profession" when referencing patrol duty. She also testified that other officers made comments in the presence of Dilley such as, "Women should stay home, be barefoot and pregnant", (1 ) "They can't do the job out on the road" and that "It's almost a cunt-free shift." On cross-examination, however, Deputy Schindler-Osborn, who was on second-shift patrol during October and November of 1993, also testified that she received two commendations for her patrol work from Sergeant Dilley, and, she conceded that Dilley did not treat her any differently than the male officers on second shift. Further, she testified that Sergeant Dilley was helpful and fair to her while she was on second shift patrol and that he never referred to her as "girl." Deputy Henry Sautin, a witness called by the complainant, admitted on cross-examination that jokes were made about male and female officers. No testimony was presented that Lieutenant Dobson, Commander Tellefson, Chief Deputy Ash or Sheriff Black had made any derogatory or inappropriate comments or jokes about women.

On the fourth day of hearing after the close of the complainant's case-in-chief, the respondents moved for a dismissal of the complainant's complaint. The ALJ postponed a ruling on this motion pending a review of the evidence presented in the complainant's case-in-chief. Subsequently, between the fifth and final day of hearing, the ALJ granted the Sheriff's Department's motion with respect to Deputy Flood's claim that a hostile work environment was imposed upon her because of her sex, and that the terms and conditions of her employment were adversely affected because of her sex while under the supervision of Sergeant Dilley. The ALJ denied the motion with respect to Flood's remaining claims of retaliation and sex discrimination with respect to her terms or conditions of employment after complaining to management about Sergeant Dilley. However, in his decision after the close of the evidentiary record, the ALJ determined that Deputy Flood had also failed to prove this claim by a preponderance of the evidence and dismissed her complaint.

On appeal, the complainant argues that discovery was improperly limited by the ALJ, that part of her complaint was improperly dismissed at the close of her case and that she was discriminated against based on her sex and retaliation.

WAS DISCOVERY IMPROPERLY LIMITED BY THE ADMINISTRATIVE LAW JUDGE?

The complainant argues that discovery was improperly limited by the ALJ. The scope of discovery, the methods of discovery and the use of discovery at the hearing in this case are the same as set forth in ch. 804, Stats. Wis. Admin. Code � ILHR 218.14(3) (July, 1995) Under ch. 804, parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, and it is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Wis. Stat. � 804.01(2)(a) (1995-96). However, upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may order, among other things, that the scope of the discovery be limited to certain matters. Wis. Stat. � 804.01(3)(a)4.

As noted by the complainant, Wisconsin's liberal discovery procedures are analogous to those found in the Federal Rules of Civil Procedure, with objectives which include, formulating, defining and narrowing the issues to be tried, increasing the chances for settlement, and giving each party opportunity to be fully informed of the facts of the case and the evidence which may come out at trial. Albert v. Waelti, 133 Wis. 2d 142, 147- 148, 394 N.W.2d 752 (Ct. App.), citing, State ex rel. Dudek v. Circuit Court, 34 Wis. 2d 559, 575, 150 N.W.2d 387 (1967).

The complainant argues that the issue of Sergeant Dilley's temper and violence, as well as his attitude toward female officers, were relevant to the proceedings before the ALJ. She argues that even if the discovery sought failed to reveal any admissible evidence from the information available at the time of the decision, the inquiry had a relevance to the proceeding and a likelihood of resulting in admissible evidence. The complainant asserts that a critical issue in both the hearings and which was argued in the briefs to the ALJ was the question of whether Dilley posed a threat to her: "(Were) her fears so justified that given her belief and her information about Dilley's violent behavior, his threats to other women and his comments to outside law enforcement, the Sheriff should have investigated Dilley?" The complainant asserts that she was never allowed to discover what the Sheriff's Department knew about those behaviors or how extensive his violence was to introduce evidence which would support the reasons and credibility of her concern for her safety. Further, the complainant asserts that this discovery was also relevant to any question of whether other employes might fear reprisals which would influence their testimony. She has asserted that in addition to the tremendous pressure that exists on all employes not to testify against their employer, there is a particularly strong taboo against law enforcement officers testifying against each other.

The standard of review of a discovery order is whether the trial court abused its discretion. Van Straten v. Milwaukee Journal, 151 Wis. 2d 905, 919, 447 N.W.2d 105 (Ct. App.); Earl v. Gulf & Western Mfg. Co., 123 Wis. 2d 200, 366 N.W.2d 160 (Ct. App. 1985); Vincent & Vincent, Inc. v. Spacek, 102 Wis. 2d 266, 270, 306 N.W.2d 85 (Ct. App. 1981). The appellant has the burden of showing that the trial court abused its discretion, and the trial court will not be reversed unless such abuse is clearly shown. Burnett v. Alt, 215 Wis. 2d 203, 215, N.W.2d (Ct. App. 1997); Swan Sales Corp. v. Joseph Schlitz Brewing Co., 126 Wis. 2d 16, 28, 374 N.W.2d 640 (Ct. App. 1985); Fanshaw v. Medical Protective Asso., 52 Wis. 2d 234, 240, 190 N.W.2d 155 (1971). See also, cases arising under federal law. District courts have broad discretion in matters relating to discovery and a court's rulings are reviewed only for an abuse of discretion. Sattar v. Motorola, Inc., et al., 138 F.3d 1164 (7th Cir. 1998); Weeks v. Samsung Heavy Industries Co. LTD, et al., 126 F.3d 926 (7th Cir. 1997); Bull v. Lante Corp., 119 F.3d 1266 (7th Cir. 1997); Mikis v. Howard, 106 F.3d 754 (7th Cir. 1997). Moreover, a district court's decision will not be reversed absent a clear showing that the denial of discovery results in actual and substantial prejudice to the complaining litigant. Weeks; Mikis, supra.

The record fails to show that there was a clear abuse of discretion on the part of the ALJ in only allowing the complainant to obtain discovery regarding complaints filed by someone other than department deputies or dispatchers during the period from 1990 until September 1994 where the complaints involved allegations of sexual discrimination. The complainant appears to offer two reasons as to why the ALJ erred in limiting the scope of discovery in this manner. First, she apparently argues that this discovery might have allowed her to introduce evidence which would support the reasons and credibility of her concerns for her safety such that the sheriff should have investigated Dilley. Secondly, she apparently argues that this discovery was relevant because there is a taboo against officers testifying against each other and because employes might fear reprisals which would influence their testimony.

The record clearly shows that the Sheriff's Department did investigate Sergeant Dilley. In fact, the record shows that Deputy Flood's announcement to Commander Tellefson that she was in fear of her safety from Dilley on November 22, 1993, was what prompted Tellefson to conclude that it was necessary to conduct an investigation into Flood's allegations against Dilley. Further, during discovery the Sheriff's Department had provided the complainant with a copy of its internal investigative report on the complainant's allegations against Dilley. This report included a written summary of the department's interview of every officer and dispatcher on second shift. The investigative report shows that each individual was asked if there was anything which would lead him or her to believe that the complainant should be in fear for her safety from Dilley. Not a single person interviewed could offer any reason to believe that the complainant should be in fear for her safety from Dilley. Deputy Sautin, who the record shows did not like Dilley, came the closest to suggesting reason for the complainant to fear Dilley when he stated that Sergeant Dilley was always trying to get into a physical confrontation. This, however, was a reference to Sautin's belief that Sergeant Dilley showed up at all calls where there was a high potential for violence. Sautin could not substantiate that Dilley had acted out of line on any call. More importantly though, even Deputy Sautin, one of the individuals the complainant had suggested that Commander Tellefson and Lieutenant Dobson interview, admitted that the complainant had never mentioned to him that she was in fear for her safety from Sergeant Dilley.

Secondly, as for a fear of reprisal influencing officers' testimony and there being a taboo against officers testifying against each other, the investigative report furnished to the complainant during discovery shows that the officers were specifically questioned if they considered themselves to be a friend of either Deputy Flood or Sergeant Dilley and whether or not they could be candid and answer questions as truthfully as they could. Some officers felt they were friends of Flood, some felt they were friends of Dilley, some felt they were friends of both Flood and Dilley, and some considered them as just coworkers. All of the officers indicated that they could be candid in answering the questions. In fact, many of the officers offered a somewhat unfavorable report of Sergeant Dilley. Among those types of statements given by the officers was that Dilley "could be intimidating to the newer officers," that they had been "chewed out" by Dilley, that Dilley "is quick to chew you out," that Dilley "can be overbearing," that Dilley can be a "hard ass," that Dilley "treated everybody like shit," and that Dilley "can get mad."

The record fails to show that the ALJ committed error in limiting the scope of discovery. The record shows that the Sheriff's Department did investigate Sergeant Dilley because of the complainant's asserted concerns for her safety. It also shows that the officers had no difficulty, either because of a taboo against testifying against each other or out of a fear of reprisal, in presenting their knowledge about Dilley's behavior.

WERE THE COMPLAINANT'S CLAIMS THAT SERGEANT DILLEY IMPOSED A HOSTILE WORK ENVIRONMENT UPON HER AND THAT THE TERMS AND CONDITIONS OF HER EMPLOYMENT WERE ADVERSELY AFFECTED BECAUSE OF HER SEX IMPROPERLY DISMISSED AT THE CLOSE OF THE COMPLAINANT'S CASE?

In McDonnell Douglas v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973), the Supreme Court set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its action. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981), citing McDonnell Douglas. (2 )

In dismissing the complainant's claims against Sergeant Dilley, the ALJ stated as follows:

"It is well settled in federal case law that a dismissal at the close of a complainant's case is allowable if during the course of the case in chief the respondent's purported nondiscriminatory reasons for its actions are articulated, and the complainant had a full and fair opportunity to rebut the proffered nondiscriminatory reasons, but failed to do so persuasively. (Citing Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985), Ekanem v. Health and Hospital Corporation of Marion County, 724 F.2d 563 (7th Cir. 1983) and Browder v. Best Foods (LIRC, 1/9/87).)

The Respondents in this case articulated reasons for their actions during the course of Ms. Flood's case in chief. As stated in the Complainant's brief (p. 29), `(d)uring Ms. Flood's case in chief, the respondents conducted extensive cross examination of both Ms. Flood and her witnesses, utilizing this opportunity to put forth reasons for the adverse actions they took.' With respect to the alleged sexual harassment imposed upon Ms. Flood prior to November 1993, it came out before the close of the Complainant's case that the respondents' position was that Sgt. Dilley did not single out women for harsher treatment, that Ms. Flood really did have some performance problems, and that the sexual talk that existed among the deputies was not excessive or hostile. Ms. Flood had the opportunity during her case in chief to rebut the proffered reasons."

(ALJ decision at pp. 10-11).

The complainant argues that the dismissal granted by Judge Brown was wrongful and premature in that it denied her an opportunity to rebut evidence submitted by the respondents. She argues that Judge Brown's dismissal in mid-case denied her the opportunity to establish the pretextual nature of the respondents' articulated reasons. The complainant also argues that the ALJ's statement assumes the respondents articulated nondiscriminatory reasons for the actions taken, but most importantly it assumes she had a full and fair opportunity to rebut the proffered reasons articulated by the respondents and that such is not the case. Apparently as reason for her claim that she did not have a full and fair opportunity for rebuttal, the complainant argues that the information the respondents elicited on cross-examination was not a clear advancement of the reasons for their actions and that the respondents argued positions which they later changed, withdrew or modified so that the question of pretext could not be rebutted until the employer advanced "their current theory of their motivation." Further, the complainant argues that the ALJ's decision to dismiss was not made in isolation and should be evaluated in context. On this point counsel for the complainant asserts in part as follows:

"This had been a particularly contentious proceeding where there had been several protective orders, motions to compel and motions in limine. Once the hearing started the level of contention did not decrease. While a certain aggressive representation of clients is and should be expected from the attorneys, this hearing was the most (contentious) that I have ever participated in. Respondent's attorney did cross-exam well beyond the scope of direct, raised improper issues, changed theories during the cross, attempted to testify and advance impermissible arguments. By the time the ALJ got to the motion to dismiss, he had already been through three and a half days of hearing, multiple objections to the relevance of questions, the propriety of the behavior of counsel, the scope of cross and the tone and badgering nature of questions..."

The complainant's arguments fail. First, as stated by the court in Diehl v. Tele-Solutions, Inc., 57 F.3d 482, 68 FEP Cases 86 (6th Cir. 1995):

"Nothing in this (the McDonnell Douglas) methodology prevents an employer from presenting a race-neutral (or sex-neutral as in the instant case) reason for a contested action during the plaintiff's case. We reject, as have a number of other circuits, a reading of McDonnell Douglas and Burdine that imposes a `rigid, three-step proof process in Title VII cases.' (Citing Dance v. Ripley, 776 F.2d 370, 373, 39 FEP Cases 466 (1st Cir. 1985), Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 174, 59 FEP Cases 74 (8th Cir. 1992) and Mitchell v. Office of Los Angeles County Superintendent of Schs., 805 F.2d 844, 846, 42 FEP Cases 695 (9th Cir. 1986), cert. denied, 484 U.S. 858, 59 FEP Cases 1690 (1987).

Diehl appears to confuse the McDonnell Douglas production- shifting paradigm with the order of proof in a trial. Since the ultimate burden of persuasion remains with the plaintiff, a defendant is not required to put on its case at the close of the plaintiff's case in chief if the defendant has already met its evidentiary burden by producing evidence of a non-discriminatory reason for its conduct through the cross-examination of the plaintiff's witnesses."

Second, the record shows that through questioning of the complainant and her witnesses, the respondents produced evidence of nondiscriminatory reasons for the conduct on the part of Sergeant Dilley. Specifically, evidence was elicited that Dilley was a hard taskmaster who required that things be done perfectly, who "chewed out" males and females alike for performance problems, and that Deputy Flood had encountered a number of performance problems, including problems in handling and responding to complaints. Further, while the record does show that Sergeant Dilley referred to Deputy Flood as "girl" (3 ) at least once when addressing her performance problems, and that there were derogatory jokes or comments made about women, evidence elicited on cross-examination of the complainant and her witnesses demonstrates that the complainant falls short of a showing that a sexually hostile environment was imposed upon her. For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the complainant's employment and create an abusive working environment. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67, 40 FEP Cases 1822 (1986). Determination of the existence of a sexual hostile environment must be made upon the record as a whole and the totality of the circumstances. Id. at 69. The record shows that male and female officers alike were made the butt of jokes. Other than the occasion or occasions that Sergeant Dilley inappropriately referred to the complainant as "girl" when discussing her performance problems, there was actually no evidence of name calling, offensive language or sexual innuendo by Dilley. Additionally, while Dilley was stated to have said that patrol duty was not a woman's but a man's profession, there was testimony by female patrol officer Sheila Schindler-Osborn that she received two commendations from Dilley and that he treated her fairly. Furthermore, the evidence shows that the complainant had not included any reference to derogatory jokes or comments being made about females on second shift when she submitted her November 26, 1993 report to Commander Tellefson, or when subsequently interviewed by Tellefson and Lieutenant LeFeber during the internal investigation. Finally, the record shows that the Sheriff's Department had a policy against sexual harassment, that it set forth a procedure which allowed the individual to report alleged harassment to any management official all the way up to the sheriff and that no one had complained about alleged sexual harassment on second shift.

Additionally, while the complainant contends that the other officers did not want anything to do with her, did not want to back her up and said that she was "sue happy," thereby adversely affecting her terms and conditions of employment, again, the respondents elicited testimony indicating that this had nothing to do with the complainant's sex. For example, testimony was elicited by the respondents which indicated that comments by male officers about not wanting to back up the complainant related to their expressing concerns that the complainant did not back them up promptly. Testimony was also elicited that the complainant had filed several complaints of discrimination against the Sheriff's Department, a notice of claim pursuant to section 893.80, Wis. Stats., against the Sheriff's Department and other individuals in the department, and that she had told several fellow male officers that she had been in contact with an attorney in Madison. It was also evident from several of the summaries of the interviews with the second shift personnel that it was the things the complainant did and said that caused other officers not to want to have anything to do with her.

Third, contrary to argument by the complainant, the record fails to disclose that she did not have a full and fair opportunity to rebut the respondents' proffered reasons to her hostile environment and adverse terms and working conditions claims, or that there was not a clear advancement of the respondents' reasons for their actions because those reasons were later changed, withdrawn or modified.

Finally, while one can appreciate the complexities and at times the contentiousness which may arise in cases under the Fair Employment Law, there is nothing in the record of this case which shows that the ALJ failed to properly conduct the hearing in this matter, or which indicates that the complainant did not receive either a fair hearing or a full opportunity to rebut the proffered reasons the respondents articulated for its actions.

The complainant failed to establish by a preponderance of the evidence that Sergeant Dilley imposed a hostile work environment upon her or that her terms and conditions of employment were adversely affected because of her sex.

WAS THE COMPLAINANT RETALIATED AGAINST OR DISCRIMINATED AGAINST ON THE BASIS OF HER SEX AFTER COMPLAINING ABOUT SERGEANT DILLEY?

The complainant argues that immediately following her complaint about Sergeant Dilley, the Sheriff's Department took several adverse actions against her. She argues that the time frame alone in which these adverse actions occurred gives rise to the presumption that the respondents retaliated, and that respondents' articulated reasons for their actions fail as pretextual in nature.

The first adverse action the complainant claims the Sheriff's Department took in response to her complaint about Sergeant Dilley was to remove her from a patrol assignment and reassign her to Court Services. The complainant argues that the respondents' assertion that this transfer was done in compliance with her request to be away from Sergeant Dilley ignores the fact that she never asked to be moved to Court Services and that she had made a very specific request in writing to be moved either to first shift patrol, or if this was impossible, to be given a leave of absence. She asserts that instead of having her request granted, she was transferred to a position that she and others considered a "whipping post" for "flunkies." The record shows, however, that the complainant was not moved to first shift patrol because there were not any patrol position openings on first shift, and because the complainant did not have the requisite seniority to go to first shift patrol. Additionally, while the complainant did initially reference a leave of absence as an alternative means to be away from Sergeant Dilley, in her very next written request to Commander Tellefson three days later, she asserted that moving her to first shift patrol was the best solution, and did not request the alternative of taking a leave of absence. The complainant also failed to object to being moved to Court Services after returning from vacation when her transfer actually occurred. Further, there was no evidence that the Sheriff's Department management responsible for the complainant's transfer to Court Services considered that position as a whipping post or position for flunkies.

The complainant's further claim that she could have been moved to a first shift patrol position despite her lack of seniority based on Commander Tellefson's testimony that the sheriff had management rights to assign deputy sheriffs to any shift he deemed necessary also fails. Sheriff Black testified that during his 13-year tenure he never recalled allowing a deputy to be temporarily placed on first shift patrol who did not have the requisite seniority. Tellefson testified that over his 22 years with the department he could not recall a time where a deputy without sufficient seniority was allowed to be assigned to first shift patrol. Also, Eric Runaas, president of the union since 1991, testified that over his 23 years with the Sheriff's Department no one got to first shift patrol other than by seniority.

Finally, the complainant argues that this transfer was a demotion as there was a difference in pay and hours between Court Services and Patrol. There was a difference in pay in that the complainant no longer received the 1% shift differential that she had received for working on the second shift; however, this was governed by the collective bargaining agreement and applied equally to all officers working on the first shift. Similarly, per the collective bargaining agreement, everyone in Court Services gets paid the same based upon years of service and is paid for 79.55 hours every two weeks. Sheriff Department management did not view Court Services work as a demotion. Sheriff Black viewed Court Services as one of the most high profiled positions in the department as it was a position where an officer was generally seen in the newspaper or on TV transporting prisoners back and forth to court.

The complainant conceded that she did not believe that her sex was a factor in her failure to be transferred to first shift patrol duty.

The second adverse action the complainant claims was taken against her was being moved from Court Services to working in the jail. The complainant argues that this move is the result of the early interviews of her asking her to support her allegations against Sergeant Dilley. The complainant argues that she rightfully regarded this move as a demotion. Further, she apparently argues that the respondents' justification for this action was that it was necessary to give the department time to investigate her complaint, but it was only she who was demoted while the department took no actions against Dilley. These arguments fail. The record shows that the complainant's transfer to work in the jail occurred for no reason other than the fact that it was the Sheriff's Department's standard procedure of having individuals work in the jail while awaiting a fitness for duty evaluation. During the internal investigation of Deputy Flood's complaint against Sergeant Dilley, Commander Tellefson and Lieutenant LeFeber concluded on December 7, 1993, that Flood had lied to them on several occasions about recording conversations. As a result of this and because of her expressed fears for her safety from Sergeant Dilley, Sheriff Black determined that Flood should undergo a fitness for duty evaluation and transferred her to work in the jail. Sheriff Black did not want Flood working in Court Services, where the officers carried weapons and might have to react to a potentially dangerous situation, while awaiting her fitness for duty evaluation.

The complainant argues that a third adverse action taken against her was the manner in which the investigation of her complaint was done. She argues that from the beginning, the investigation was an investigation of her and her performance rather than an investigation of her complaint against Sergeant Dilley. She argues that her interview by Commander Tellefson and Lieutenant LeFeber turned almost immediately to questions regarding the transcription of a conversation with Sergeant Dilley, and that rather than conducting the investigation in a manner that would uncover or lay to rest her accusations, she was instead interrogated about her own actions in documenting her complaint. Further, with respect to her taping of conversations with officers, the complainant argues that she had not deliberately lied about not having taped others besides Dilley, that "Given the stress of the situation and the meaninglessness of the other recorded material, it is understandable that she did not recall the rest of the noise on the tape as conversations." The complainant apparently also argues that she did not violate the department's policy against tape recording department business because she had not taped "roll call, briefings or department meetings and gatherings."

These arguments by the complainant also fail. A review of the department's written summaries of the interviews with the second shift deputies and dispatchers refutes the complainant's claim that the investigation was an investigation of her rather than an investigation of her complaint against Sergeant Dilley. Interviews were conducted of all the deputies and dispatchers. They were asked if they had seen anything that would lead them to believe that the complainant was being harassed by Dilley or anyone else, if they had seen anything that would lead them to believe that the complainant or anyone else should be in fear of their personal safety from Dilley, and they were asked about Dilley's supervisory style. The record shows that it was because the first 13 pages of the documentation that the complainant submitted to support her claim against Dilley appeared to be a tape recorded transcription that questioning turned to her having tape recorded conversations. Commander Tellefson conceded that the investigation focused on the complainant at the point during her interview that it was determined she was not being truthful. Sheriff Black testified that it was the department's normal practice that whenever the department became aware of a work policy violation, especially such as lying, that this would be dealt with immediately. With respect to whether or not the complainant deliberately lied about taping conversations of others besides Dilley, Commander Tellefson's written report states that the complainant initially tried to explain that it was an inadvertent recording that may have resulted from the voice activated feature of the recorder, but when confronted with the tape recording of Sergeant Vierck and the recording of the telephone calls made by her, she admitted to having lied about tape recording conversations during the December 6 morning interview, at the December 6, 1 p.m. interview and again during the reinterview on December 7. Also, Eric Runaas testified that the complainant admitted that she had lied about the taping after she was suspended for taping in violation of department policy. The ALJ addressed the question of the complainant's recall about tape recording conversations and found her not to be a credible witness. The ALJ stated at page 11 of his decision as follows:

At one point Ms. Flood maintained during the hearing that her recording of conversations in addition to the one with Sgt. Dilley on November 16 was inadvertent (Transcript, pp. 199-200), and at another point she seemed to concede that a couple of them may have been intentional (Transcript, pp. 207-208) but they were unimportant. A review of the tape recording leads to the conclusion that at least two additional conversations were intentionally taped.

Given that conclusion, Ms. Flood's testimony that she forgot about these instances when questioned about three weeks afterwards by Cdr. Tellefson, Lt. LeFeber and Chief Deputy Ash is not credible. In addition, Ms. Flood's testimony that the November 16th conversation with Sgt. Dilley was the only one she taped with him (Transcript, p. 208), is not credible, in view of the lengthy, transcript-like notes she wrote regarding other conversations with Sgt. Dilley (especially pp. 53-55 of C. Exhibit 1)."

The complainant's argument that she did not tape in violation of department policy is without merit. She admitted at the hearing that she was aware of the policy against taping and that she went ahead and taped Sergeant Dilley in violation of that policy. Tr. p. 163 (4 )

Next, the complainant argues that her receipt of a five-day suspension, a reprimand for untruthfulness and a psychiatric fitness for duty examination far outweighed her infraction and was out of line with the discipline given other individuals. She argues that the closest comparison exists between herself and one male, identified as "M-2." (5 ) The complainant argues that her infraction was that "she simply forgot taping two insignificant conversations" while "M-2" discharged his weapon, an act that endangers others, deliberately lied to a superior and conducted himself in a manner deemed unbecoming an officer. The complainant argues that her five-day suspension is clearly either an overreaction or a discriminatory and retaliatory action. "M-2" received a five-day suspension for failing to give notice of having discharged his duty weapon during a SWAT Team incident, for lying about it to a ranking officer and for conduct unbecoming an officer. The evidence does not support the complainant's claims that her discipline was an overreaction, discriminatory or retaliation. Deputy Flood and "M-2" both received a five-day suspension and were cited for violating general rules of conduct. Sheriff Black testified that it was his recall that "M-2" had not repeatedly lied as the complainant had done but just did not answer when asked if a round was fired during the incident. Further, there is substantial record evidence that the complainant's claim that she had simply forgotten having taped conversations is not credible. The complainant also attempts to cast suspicion on Sheriff Black's motivation for her suspension, asserting that she had in the past filed several complaints against Black, and that these documents show up in the investigatory file. The record shows, however, that it had been Chief Deputy Ash's recommendation that the complainant's employment be terminated for repeatedly lying but Sheriff Black decided instead to only suspend the complainant.

The final argument on appeal that the complainant claims was an adverse action taken in retaliation against her was sending her to a psychiatrist to undergo a fitness for duty examination. The complainant argues that a different standard was used in determining to send her for psychiatric evaluation compared to other males that were sent for evaluation. She asserts that in each case where a male employe was sent for examination, he had either committed a crime or presented a serious threat to public safety. The complainant argues that she exhibited none of the characteristics of the male employes sent for examination but she still had to undergo the same evaluation. However, Sheriff Black testified that officers carrying weapons must respond to situations requiring good judgment and make spur-of-the-moment decisions. Sheriff Black testified that because officers have an obligation to the public and fellow officers alike, if he determined that an employe had done something and was not living up to standards, or had some type of problem where it was felt the officer could be either dangerous to himself, someone else or the public, he was going to have that individual evaluated. Sheriff Black determined that because Deputy Flood had expressed that she was fearful for her life from Sergeant Dilley and because she was in a position that required carrying a weapon and meeting the public, she should undergo a fitness for duty examination.

Finally, the complainant argues that the respondents assert that she was sent for a psychiatric evaluation "due to her unfounded concerns over her safety from Sergeant Dilley." Further, she argues that the department rendered its decision to send her for the evaluation prior to the completion of the investigation and without ever reviewing Dilley's records. The complainant argues that this can lead to only two conclusions: That the investigation conducted into her complaint was merely pretextual and the outcome was decided well before the investigation ended; or that the department simply did not care about her complaint. Further, she argues that the Sheriff's Department was faced with an accusation that one of its sergeants presented a threat to someone's safety and apparently assumed that it was she who presented the problem because no actions before, during or after the investigation involved Dilley. The complainant also asks why Sergeant Dilley was not sent for an evaluation when "(s)o many deputies reported in their interviews about Dilley's temper and how it affected his job performance," and when Deputy Sautin complained about Dilley's treatment of a citizen with unusual violence.

The record fails to support these arguments by the complainant. Sheriff Black did not determine to send the complainant for evaluation because he believed her concerns of safety from Sergeant Dilley were "unfounded." Sheriff Black sent the complainant for evaluation because it was determined that she had lied on three occasions plus the fact that she was fearful for her life because of a supervisor. Sheriff Black was concerned about her emotional stability, the fact that she carried a weapon and about her safety and the safety of her coworkers. The decision to send the complainant for an evaluation occurred in conjunction with the department's determination that she had violated the work policy on truthfulness. It was standard procedure for the department to deal with work policy violations immediately. Further, the record shows that the Sheriff's Department had interviewed Lieutenant Dobson and nearly a dozen other officers about Sergeant Dilley's actions at the time the decision was made to send the complainant for an evaluation, and that the department continued to interview many more officers for several days thereafter. Finally, the interviews of the officers revealed that Sergeant Dilley did have a temper, but this was just his nature as a very intense individual, a perfectionist and someone who just wanted to have everyone do a good job. Deputy Sautin was unable to substantiate that Sergeant Dilley had treated any citizen improperly.

The complainant failed to establish that she was retaliated against or discriminated against on the basis of her sex after she complained about Sergeant Dilley.

For all of the above-stated reasons, the commission has affirmed the ALJ's dismissal of the complainant's complaint.

cc:
Helen Marks Dicks
Charmian Klyve

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Footnotes:

(1)( Back ) Deputy Flood testified that this comment was made on occasion when an officer's wife was pregnant.

(2)( Back ) Due to the similarity between the Wisconsin Fair Employment Act and Title VII, federal decisions may provide guidance in applying the state fair employment law. Currie v. DILHR, 210 Wis. 2d 381, 565 N.W.2d 253 (Ct. App. 1997), citing Puetz Motor Sales, Inc., v. LIRC, 126 Wis. 2d 172, 276 N.W.2d (Ct. App. 1985).

(3)( Back ) On appeal the complainant has argued that Sergeant Dilley also referred to her as "bitch" but the record fails to support this argument.

(4)( Back ) The complainant also conceded in her testimony at this point that she had taped others but had told the investigating officers on December 6, 1993, that she had not taped others "in error."

(5)( Back ) For reasons of confidentiality, individuals who had been disciplined were identified by the letter "M" or "F" to indicate their sex, followed by a numerical number to differentiate the various individuals disciplined.