MELINDA J RHINEHART, Complainant
A & M PLUMBING & PUMP SERVICES LLC, Respondent
An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:
1. The respondent, A&M Plumbing and Pump Services, LLC (hereinafter "respondent"), is a plumbing business. The business is owned by Adam Thompson.
2. The complainant, Melinda Rhinehart (hereinafter "complainant"), a female, began working for the respondent in April of 2008 as the office manager.
3. During the relevant time period Thompson was divorced, but lived with his girlfriend, Lynette Zieler. The complainant was married with two school-aged children.
4. Prior to the complainant's employment with the respondent the office manager position was held by an individual named Catherine Georgeson. When the complainant was hired Ms. Georgeson stayed on for about two weeks to train her. Thereafter, Georgeson would occasionally come into the office to assist if requested to do so. Another individual, Victoria Erickson, also helped out in the office on occasion.
5. After her two-week training period ended the complainant kept in frequent telephone contact with Catherine Georgeson. At first the complainant would call with questions about the computer or projects in the office, but two or three weeks into their conversations the complainant started reporting to Georgeson that the respondent's owner, Adam Thompson, was flirting with her. The complainant told Georgeson that Thompson would sit across from her and stare at her all day, that he would tell her how beautiful her eyes were, and that he would give her piggyback rides. Georgeson repeatedly offered to intervene and talk to Thompson, but the complainant insisted she not do so, stating that she was fine and that it did not bother her. The complainant also reported that Thompson's girlfriend was jealous of her.
6. The complainant also frequently telephoned Veronica Erickson to discuss both personal and work matters. On one occasion the complainant told Erickson that Thompson had slapped her on the bottom. Erickson suggested the complainant write something up, but the complainant indicated she did not want to do that. The complainant also told Erickson that she was having problems getting along with Zieler and felt threatened by her.
7. Sometime in May or June of 2008, the complainant complained of a headache and Thompson offered to rub her neck. The complainant lay down on the couch and Thompson began rubbing her neck and back. When he began moving down to her buttocks, the complainant sat up and returned to work.
8. In June of 2008 Thompson found a business card on the windshield of his vehicle with a cartoon depicting a mouse with a large penis and the words "I hope you don't fuck like you park/You'll never get it in!" Thompson brought the card into the office and showed it to the complainant.
9. In June of 2008 a customer came into the office with several large hickeys on her neck. The complainant told Thompson she thought they were disgusting and that she does not allow that, as she bruises easily. Thompson later came up behind the complainant and began sucking on her neck. The complainant shrugged and asked what he was doing. Thompson laughed and responded, "You're right, you do bruise easy."
10. After work that day the complainant stopped by her parents' house before going home. The complainant's mother noticed a mark on the complainant's neck and asked her how she got it. The complainant responded that Thompson gave it to her because he liked the smell of her perfume. The complainant's mother suggested that the complainant either file a complaint or quit the job.
11. In June of 2008 the complainant informed Thompson that he had forgotten Secretary's Day and did not get her anything. Thompson then ordered flowers for the complainant. However, the complainant had the date wrong and it was not actually Secretary's Day. Thompson's girlfriend, Lynette Zieler, was aware that it was not Secretary's Day, and reacted with suspicion when she saw the flowers.
12. The complainant had frequent personal telephone conversations with her husband from the workplace. She would often argue with her husband over the phone, and there would be screaming and swearing. The complainant discussed her personal problems involving her husband with Thompson.
13. In July of 2008 the complainant was fighting with her husband and screaming at him on her cell phone, after which she told Thompson, "I don't give a shit if he ever has any sex for the next month or two." Later that day Thompson was at a pharmacy when he saw KY warming lotion and decided to purchase it for the complainant. Thompson gave it to the complainant and suggested that she and her husband try it the next time they were intimate. The next day Thompson asked the complainant if she had used the KY, and the complainant responded, "Fuck no, he can fuck himself."
14. The complainant also had frequent arguments with Thompson. On more than one occasion the complainant became so angry that she stormed out of the office and did not return.
15. On August 4, 2008, the complainant called Thompson in the evening on his cell phone to remind him to study for his master plumber's exam scheduled for the next day. Thompson had not requested a reminder from the complainant. Zieler was unhappy that the complainant had called the respondent at home on a personal matter and sent the complainant an e-mail sarcastically thanking her for the after-hours phone call and telling her to take care of her own family.
16. The complainant discussed her personal financial problems with Thompson, and at one point requested a personal loan. Thompson agreed to the loan and, in August of 2008, he lent the complainant $5,262 to help pay her mortgage.
17. During the summer of August of 2008 the complainant assisted the respondent to establish an employee policy and procedure manual. Among other things, the manual provides that personal business should be conducted on the employee's own time, and that employees who wish to review their own files should contact their supervisor and, with advance notice, may review the file in the presence of the supervisor. The manual also provides for corrective action for absenteeism and for unauthorized use of telephones or company owned equipment. With respect to unlawful harassment in the workplace, the manual states that if an employee believes she or she has been the victim of harassment he or she should report it immediately.
18. In August of 2008, the respondent held a customer appreciation party to which office staff was invited. The complainant attended with her husband. During the party the complainant openly flirted with a male employee, Gordon Moll, and hung on his arm.
19. During the summer and fall of 2008 there were a few occasions when Thompson brought beer to the office and offered one to the complainant at the end of the day. On other occasions Thompson and some of his employees, including the complainant, would go to the bar next door for a drink after work.
20. During the course of her employment the complainant had a habit of blocking the doorway as a joke so that people could not get past her and would have to put their hands on her shoulders or sides to get around her. On one or more occasions, the complainant smoked in the doorway and when asked to move by a male employee, would turn her back, shake her behind and say, "Move me."
21. On one occasion in August or September of 2008 Thompson was walking behind the shop and the complainant jumped on his back and asked for a piggyback ride.
22. On September 24, 2008, the complainant was at a bar with a female friend, when the friend used the complainant's cell phone to call Thompson at home and make sexual comments to him. The complainant's friend also invited Thompson to join them at the bar. Thompson and Zieler were asleep when the call came in at about midnight, and Zieler was very upset about it.
23. Around Halloween of 2008 the complainant showed some of her male co-workers pictures on her personal cell phone of skeletons engaged in sexual acts.
24. On December 4, 2008, the complainant received a package in the mail addressed to her at the respondent's office. The package contained a pair of women's underwear with a message written on them, "So you're the new A&M Plumbing HO Ass Kissing cunt." Upon receiving the package the complainant became very upset. She telephoned Thompson, who advised her to settle down and call the police and file a report. The complainant did so. She told the police that she suspected Thompson's girlfriend was responsible for the package. However, the police were unable to determine who sent the package.
25. On December 10, 2008, the complainant sent two personal text messages to her co-worker, Gordon Moll. One message said: "I saw something gorgeous in the store window today. I was going to get it for you for Christmas, but then I realized it was my reflection." The other said, "You're driving down the road, a song comes on the radio and you think of me. . . What song is playing?" Moll had previously received similar messages from the complainant.
26. In late December of 2008 or early January of 2009 the complainant met with Thompson to request a raise. Thompson told the complainant he could not afford to raise her salary, but that her attendance was not the greatest, and maybe if she came to work 40 hours she would have a better paycheck. (1) Thompson also told the complainant that he would not allow her to call in anymore because he knew her husband was unemployed and that he could stay home with the kids, which was the complainant's main reason for missing work. Thompson further told the complainant that if she was not happy she could look for another job, but that he would appreciate two weeks' notice.
27. On January 12, 2009, the complainant's husband called Thompson and reported that the complainant was very sick and could not come into work. The complainant and her husband then drove to La Crosse to see an attorney. On the way back home the complainant called Thompson from her car. She told Thompson that she felt he was trying to squeeze her out of the job and that she had seen an attorney. The complainant indicated that she was considering filing a complaint with the state, but did not specify that she intended to a file with the Equal Rights Division and did not mention sexual harassment. Thompson told the complainant he was not trying to squeeze her out, and that she just needed to come to work. He reiterated that if she was unhappy and wanted to look for another job she should give him two weeks' notice.
28. The next day, January 13, 2009, Thompson held a brief meeting with other staff members to notify them of what was happening. Thompson explained that the complainant had informed him she was in contact with her attorney and the State of Wisconsin and it seemed she was planning legal action. Later that day Thompson called Catherine Georgeson and told her that the complainant had informed him she was going to file a lawsuit against him, although he was not yet aware what the allegations would be.
29. That day the complainant reported for work two hours late because her children started school late. When the complainant arrived at work Thompson told her that her attendance was inexcusable. Thompson reiterated that, since the complainant's husband was unemployed, he could take care of the kids. He also told the complainant not to make personal cell phone calls while at work. The complainant immediately took out her cell phone and made a personal call. Later that day Thompson wrote a Corrective Action Report "verbal reprimand" indicating that the complainant should discontinue excessive personal cell phone use.
30. On January 14, 2009, Thompson gave the complainant the Corrective Action Report and asked her to sign it. The complainant initially stated, "I'm not going to sign any goddamn thing," but ultimately did sign it and wrote, "I do not agree with the contents of this corrective action." Thompson told the complainant that it was not to happen again and that if there were additional rule violations she would be written up.
31. The complainant did not report for work on January 15, 2009.
32. The following day, January 16, 2009, Thompson's father, who worked for the respondent part-time as a general laborer, presented the complainant with three more Corrective Action Reports from Thompson, who was away from the office. One corrective action report was for absenteeism and tardiness, one was for failing to take breaks according to the work schedule, and one was for personal use of the computer. After receiving the documents, the complainant made a telephone call to her lawyer. She then retrieved paperwork from the respondent's file cabinet and made copies on the respondent's copier.
33. Later that day the complainant contacted Gordon Moll and asked to meet with him. The complainant told Moll that she had a lot going in her life at that time and was concerned that she was being pushed out of her job. She stated, "The employee handbook that I worked so hard to get enforced is biting me in the ass now." The complainant told Moll she was going to get an attorney, but did not say anything about sexual harassment.
34. The next day, January 17, 2009, Thompson's father reported to Thompson that immediately after he gave the complainant the corrective action notices she started copying documents, and then got on the telephone with a family member on company time. Based on that information, Thompson wrote up two more Corrective Action Reports. One was entitled "written final reprimand" for personal cell phone use and the other was a "written reprimand with 3-day suspension" for photocopying personnel records and taking them home. He presented the complainant with those documents on Monday, January 19, 2009.
35. On the same day, the complainant gave Thompson a letter stating, in part:
"Due to the hostility I feel that is infringing on me personally and professionally since I informed you January 12, 2009 of my conversation with my attorney and the consequential complaint I filed I am requesting to you that I be or you be accompanied by a neutral person at any time we are to be alone together. I do not feel comfortable or safe around you. As the owner of A&M Plumbing and Pump Service, LLC. and as my employer it is your duty, responsibility and should be your priority to provide a safe harassment free, hostile free work environment. Your demeanor is making it difficult for me to focus on my job, my productivity and efficiency. At this time I am informing you that because of the nature of this matter I will be recording my work days and conversations therein for my safety and well being."
36. Upon receiving the complainant's letter Thompson contacted his attorney, Ray Feldman, and scheduled a meeting for January 23, 2009, the day on which the complainant was to return to work from her three-day suspension. When the complainant arrived at work on January 23, Feldman was present, along with Thompson and a female business acquaintance whom Thompson had asked to be present as a neutral witness. Feldman told the complainant that it would be a financial burden for the respondent to hire someone to be present whenever the complainant and Thompson were in the office together and that, as an alternative, the respondent had decided to install security cameras, one in the office and one outside the back door.2(2) Thompson then discussed the rules about smoking, lunch breaks, attendance and copying business documents.
37. After the meeting concluded the complainant returned to work. She worked until 11:00 a.m., at which time she left for a medical appointment with a physician's assistant by the name of Catherine Kidd. The complainant told Kidd, whom she had not met previously, that her boss was sexually harassing her. Kidd put the complainant on medication for anxiety.3(3) Later that day Thompson received a fax signed by Kidd stating that the complainant had been seen at the clinic and would be unable to return to work through February 20, 2009.
38. The respondent held the complainant's position open during her medical leave of absence, but hired Veronica Erickson as a temporary replacement.
39. The complainant filed a discrimination complaint on January 26, 2009, in which she alleged that Thompson had engaged in sexual harassment, created a hostile work environment, and retaliated against her for threatening to file a complaint.
40. On February 9, 2009, the complainant went to see a therapist by the name of Rhonda Madsen. The complainant, who had not seen Ms. Madsen previously, told Madsen that she worked in a stressful work environment, and that sexual harassment was occurring by more than one person. Based upon her visit with the complainant Madsen wrote the following memo:
"Ms. Rhinehart is under great duress at this time because of the stress occurring at her job. This amount of stress has brought on severe and frequent panic attacks that include dizziness, heart pounding, sweating, trembling and shaking, shortness of breath, a choking sensation, chest, arm and neck pain, nausea, stomach/abdominal pain and aches, shaky legs, feeling numb, feeling of unreality/being detached, fear that she is dying, chills and hot flashes and feeling claustrophobic. These panic attacks have become debilitating, and at this time are interfering with her being able to function normally day to day. It is not conceivable that the situation at work will improve and if she were to continue working there it would likely become even more problematic. It is not in her best interest to continue working at this job and, in fact, would worsen her condition. . ."
41. On February 23, 2009, after the complainant's leave of absence had ended, the respondent received a letter from the complainant, dated February 19, 2009, in which she stated she was resigning. In her letter the complainant stated that her doctor diagnosed her as having panic attacks and that:
". . . Based on your continuing pattern and escalation of harassment and abuse, I believe that my working conditions at A&M are not likely to improve. My doctor has advised me not to return to work at A&M, as your continued harassment and abuse would be likely to severely aggravate my injury and prolong my recovery.
"No reasonable person would continue in this position given the hostile working environment you have created. Your behavior and the injury it has caused me force me to permanently leave your employ, effective as of the date of this letter."
42. On February 25, 2009, the complainant filed an addendum to her discrimination complaint in which she alleged that she was constructively discharged.
43. The respondent did not subject the complainant to sexual harassment. Any verbal or physical conduct of a sexual nature that Thompson directed to the complainant was not unwelcome.
44. The complainant did not engage in any protected activity prior to quitting. Although she told Thompson that she had hired a lawyer and was considering filing a complaint with the state, she did not complain of any discriminatory conduct.
45. The respondent did not subject the complainant to working conditions so intolerable that she had no choice but to quit.
Based on the foregoing FINDINGS OF FACT the commission hereby makes the following:
1. That the complainant failed to establish that the respondent engaged in sexual harassment, within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act").
2. That the complainant failed to establish that the respondent discriminated against her in the terms, conditions or privileges of employment because she opposed a discriminatory practice under the Act.
3. That the complainant failed to establish that the respondent constructively terminated her employment, in violation of the Act.
Based on the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW the commission hereby issues the following:
1. That the complaint in this matter is dismissed with prejudice.
Dated and mailed
June 7, 2013
rhineha . rrr : 164 : 5
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ Robert Glaser, Commissioner
/s/ C. William Jordahl, Commissioner
Sexual harassment
Sexual harassment is prohibited under the Wisconsin Fair Employment Act and is defined in pertinent part, as follows:
Wis. Stat. § 111.32 (13).
(13) "Sexual harassment" means unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. . . "Unwelcome verbal or physical conduct of a sexual nature" includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employe's work performance or to create an intimidating, hostile or offensive work environment.
As can be seen from the language above, sexual conduct by an employer towards an employee is not a "strict liability" offense. Rather, it is explicit in the applicable statutory prohibitions that the conduct must be "unwelcome" to be considered unlawful. Wis. Stat. § § 111.32(13), 111.36(1)(br); Lass v. Sawyer, ERD Case No. 199603900 (LIRC Dec. 28, 1998). Conduct is considered unwelcome where the employee did not solicit or invite it, and regards it as undesirable or offensive. Fluhr v. Magestro DDS, ERD Case No. 199552715 (LIRC April 1, 1999), citing Henson v. City of Dundee, 682 F.2d 897, 903, 29 FEP Cases 787, 792 (11th Cir. 1982). Whether conduct is "unwelcome" presents a question as to the subjective state of mind of the person to whom the conduct is directed. All of the circumstances of a relationship must be considered in determining whether an employee's toleration and acceptance of sexual overtures from the employer reflects the fact that the employee feels coerced into accepting them in order to retain the benefits to which her employment relationship entitles her. Lass v. Sawyer, supra.
In this case, while the record supports a conclusion that Thompson engaged in some verbal or physical conduct of a sexual nature towards the complainant, the evidence does not establish that the conduct was unwelcome. To begin with, the evidence indicates that the complainant tolerated the conduct at issue without complaint or comment. For instance, the complainant's reaction to Thompson sucking on her neck and giving her a hickey was one of complete nonchalance. Rather than pushing Thompson away and telling him to stop, the complainant, by her own testimony, merely shrugged her shoulders and asked him what he was doing. Later that day the complainant went to her parents' house, but said nothing about the incident until her mother asked about the mark on her neck, at which point the complainant responded that Thompson gave it to her because he liked her perfume. While the complainant's mother testified that the complainant was very upset, the complainant's actions suggest otherwise. Similarly, the complainant's reaction to receiving a tube of KY jelly from Thompson was not one of disgust or dismay. Rather, she accepted the KY jelly and, when later asked whether she and her husband had used it, responded, "Fuck no, he can fuck himself." The complainant also apparently said nothing and made no objection when shown the cartoon about the mouse. The only time the complainant contends she spoke up was when Thompson began massaging her buttocks, at which point the complainant alleges she stated, "This cannot happen," then got up and returned to work. Assuming this occurred, it constituted a mild protest, at best.
The complainant testified that the reason she did not confront Thompson about his conduct was because of his demeanor, and because she had so much to deal with between him and his girlfriend that it was getting to be overwhelming. However, the record does not paint the picture of the complainant as an employee too intimidated or overwhelmed to confront an employer who is subjecting her to unwelcome harassment. The complainant frequently talked to Thompson about her personal problems and frustrations. Further, she often argued with Thompson, and on more than one occasion stormed out of the office because she was angry. One of her male co-workers, Gordon Moll, testified that the complainant was very assertive and able to stand up for herself to Thompson and elaborated that she seemed never to be the least bit shy or cautious about telling him what she thought. Under all the circumstances, the commission is unpersuaded that the complainant would have silently tolerated unwelcome sexual harassment, and it believes that her acquiescence in the conduct was not a result of coercion, but was because she was a willing participant in the relationship.
That the complainant did not find the respondent's conduct objectionable is further supported by the testimony of Catherine Georgeson that the complainant told her Thompson was flirting with her, but rejected suggestions for dealing with the conduct and stated it did not bother her. This appears to be the true reason for the complainant's failure to confront Thompson--his conduct did not bother her.
Indeed, it appears that the complainant not only did not object to Thompson's conduct, but that she was a willing participant in much of what she now contends constituted unlawful sexual harassment. The complainant permitted Thompson to give her back rubs. She deliberately blocked the doorway so that he, and other male co-workers, would have to put their hands on her to pass through. She showed her male co-workers a sexually explicit cartoon of the sort that she now claims to find offensive. Although the complainant told Georgeson that Thompson would give her piggyback rides, the evidence indicates that it was the complainant who jumped on Thompson's back and asked for a piggyback ride. The complainant went out for drinks with Thompson after work and called him after hours on his cell phone for reasons not related to work. She discussed her personal relationship with her husband with Thompson and, while it is not clear from the record whether this included an overt discussion of their sex lives, it appears that she made at least some reference to those matters, inspiring Thompson to buy her a tube of KY jelly.
Overall, the record suggests that the complainant enjoyed and encouraged a sexually charged relationship with Thompson and that their flirtation only became a problem after the complainant began to worry that her job was in jeopardy. It was only after the late December/early January meeting, when the complainant asked for a raise and was told that she should show up at work more often and, further, that if she was not happy she could look for a different job, that Thompson's behavior became problematic. Given all the circumstances, the commission does not believe the evidence supports a conclusion that the complainant was subjected to any conduct that could be characterized as unlawful sexual harassment.
Retaliation
The Wisconsin Fair Employment Act provides that it is an act of employment discrimination to engage in the following:
Wis. Stat. § 111.322(3).
(3) "To discharge or otherwise discriminate against any 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."
In order to establish a case of retaliation, the complainant must first establish that she engaged in some conduct that was protected under the statute. See, Seeman v. Universal Foods Corporation, ERD Case No. 9000807 (LIRC Sept. 22, 1994). The commission does not believe the complainant has met this burden.
The complainant does not contend that she actually filed a complaint under the Fair Employment Act until January 26, 2009, at which point she was on a leave of absence from her employment. However, the complainant maintains that on January 12, 2009, she told Thompson she had seen an attorney and was going to be filing a harassment claim with the Equal Rights Division "because of the behavior at work, with the sexual advances, the hostile work environment, just kind of went through it all," conduct which, if it occurred, would constitute opposition to a discriminatory practice under the statute. At the hearing Thompson disputed this contention and testified that the complainant said she felt he was trying to squeeze her out of the job and that she had seen an attorney, but did not say anything about equal rights or sexual harassment.
Based upon all the evidence in the record, the commission finds Thompson's version of events more credible. Thompson held a meeting with staff the day after his conversation with the complainant during which he told people in the office what was going on. Gordon Moll testified that during that meeting Thompson informed everyone that the complainant had told him she was in contact with her attorney and the State of Wisconsin and it seemed she was planning legal action. Moll testified that Thompson did not mention sexual harassment and that there was a lot of speculation about what it could be. Similarly, Catherine Georgeson testified that Thompson told her on the same day that the complainant had informed him she was going to file a lawsuit against him, although he was not yet aware what the allegations would be. Four days later, on January 16, 2009, the complainant went to lunch with Moll and told him that she was concerned she was being pushed out of her job and that she was going to get an attorney. Sexual harassment never came up during that conversation. The respondent's attorney, Ray Feldman, testified that a day or two prior to the January 23, 2009 meeting, Thompson contacted him to discuss issues involving the complainant, but made no mention of an equal rights claim or of sexual harassment. Consistent with Thompson's testimony and that of Catherine Georgeson and Gordy Moll, Feldman stated that all Thompson told him was that the complainant had threatened to get an attorney and take legal action.
It is an essential element of a retaliation case that an employer be shown to have been aware of the protected activity the employee engaged in and that it understood the activity as being related to alleged discrimination. See Hanson v. Wis. DOT, ERD Case Nos. 200303172 (LIRC June 14, 2005), and cases cited therein. As the commission explained in Cangelosi v. Robert Larson & Associates, Inc., ERD Case No. 8821554 (LIRC Nov. 9, 1990):
Retaliation, like most other forms of discrimination proscribed by the Fair Employment Act, is conduct which the statute condemns solely because of the motivation which underlies it. In the case of retaliation, the motive in question is anger or resentment against a person because the person has opposed a practice which they claimed to have been discriminatory under the Fair Employment Act. In order to violate the prohibition against retaliation, an employer must have a belief that the person retaliated against is raising some kind of claim that discrimination is occurring. If an employer does not have such a belief, it obviously cannot be motivated by such a belief in conduct it undertakes. Thus, it is an essential element of a claim of retaliation that the complainant prove that the employer was aware that the complainant engaged in protected activities. (emphasis added).
In this case, the record establishes that the respondent knew the complainant had hired an attorney and was considering filing a lawsuit or complaint against him. However, the commission has doubts about the credibility of the complainant's testimony that she told Thompson the matter involved sexual harassment, particularly given Thompson's contemporaneous statements to Moll and Georgeson that the complainant was contemplating some type of legal action but he did not know what the matter was about, and considering that the complainant talked to Moll about the matter without mentioning sexual harassment. Further, the fact that Thompson did not tell his attorney that the threatened legal action involved sexual harassment lends credence to his assertion that the complainant did not make any mention of this.
While Thompson may not have been happy that the complainant had hired a lawyer and intended to take legal action against him--and there is some evidence to suggest that this may have influenced his treatment of the complainant thereafter--the commission sees no basis to conclude that any actions Thompson took were motivated by a belief the complainant was complaining about discrimination under the Fair Employment Act. Consequently, the commission concludes that Thompson did not engage in unlawful retaliation.
Constructive discharge
To prove a constructive discharge the complainant must show that, for a discriminatory reason, working conditions are rendered so intolerable that a reasonable person would feel compelled to resign. See, Toborg v. Shopko, ERD Case No. CR200102517 (LIRC March 30, 2005), and cases cited therein. The commission need not decide whether the complainant was subjected to any working conditions so intolerable that a reasonable person would have felt compelled to resign since, having concluded that the complainant failed to establish she was subjected to either sexual harassment or unlawful retaliation, there is no basis on which to find a constructive discharge within the meaning of the Wisconsin Fair Employment Act.
NOTE: The commission conferred with the administrative law judge who held the hearing about his impressions of witness credibility and demeanor. The administrative law judge had no demeanor impressions to impart and indicated that his credibility determinations were not based upon the demeanor of the witnesses.
cc:
Attorney Sarah Fortune
Attorney Thomas Kieffer
Attorney Gary Antoniewicz
Appealed to Circuit Court. Affirmed, December 13, 2013.
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