DELLA L COOPER, Complainant
OPTIONS FOR COMMUNITY GROWTH INC, 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, except that it makes the following modifications:
1. In the fifth sentence of paragraph 14 of the ALJ's FINDINGS OF FACT, delete the words "started to clean cups and chairs right after Cooper used them" and replace it with "once cleaned a coffee cup with bleach after Cooper had used it, and sprayed and wiped down a couch after she had sat on it".
2. In the ninth sentence of paragraph 20 of the ALJ's FINDINGS OF FACT, change the phrase "Adams had called her" to "Adams had called herself".
3. Delete paragraph 24 of the ALJ's FINDINGS OF FACT, and replace it with the following:
In the meeting of January 23, 2009 Hitchler and Williams treated Adams and Cooper as equally to blame for not getting along better, and glossed over the main purpose of the meeting, which was to address Cooper's complaints that Adams was making offensive and derogatory comments about Cooper's sexual orientation.
4. Insert the following paragraph immediately after paragraph 24 of the FINDINGS OF FACT:
Within a week after the meeting of January 23, 2009, Adams began calling Cooper a dyke again, began calling her a "pussy eater," and said to her "you like them fur burgers." Cooper called Williams in late January 2009 and told her nothing had changed with respect to Adams' derogatory name-calling based on her sexual orientation. Williams' response was that she and Adams had to get along.
5. Add the following as a second sentence to paragraph 27 of the ALJ's FINDINGS OF FACT:
As a result of Williams' failure to discuss or take action on Cooper's complaint that Adams' conduct continued after the January 23, 2009 meeting, Cooper had to endure offensive remarks from Adams relating to Cooper's sexual orientation until the end of Cooper's employment.
6. Immediately after the last sentence of paragraph 35 of the ALJ's FINDINGS OF FACT, add the following:
For each of these shifts, Cooper put her initials on the same medication sheet where she had failed to put her initials on Monday morning, April 20, 2009, in boxes adjacent to the box that she had missed. At some point during her shift that began the evening of April 20 or April 21, Cooper put her initials in the box for the morning of April 20th that Adams had circled. She also circled several of her initials elsewhere for the mornings of April 21 and 22.
7. In paragraph 2 of the ALJ's CONCLUSIONS OF LAW, conclude the sentence with the following phrase:
"from approximately November 2008 to the end of her employment."
8. In paragraph 1 of the ALJ's ORDER, delete the words "complaints regarding sexual orientation harassment after January 23, 2009 and all".
9. After paragraph 3 of the ALJ's ORDER, insert the following:
That the respondent shall pay to the complainant reasonable attorney's fees associated with her petition for commission review, in the amount of $500. A check in that amount shall be made payable jointly to the complainant and Attorney Sandra Graf Radtke and delivered to Attorney Radtke.
10. Delete paragraph 4 of the ALJ's ORDER.
11. Delete paragraph 5 of the ALJ's ORDER, and replace it with the following:
Within 30 days of the date on which this decision becomes final, the respondent shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. The respondent's Compliance Report should be sent to:
Labor & Industry Review Commission
Compliance
P.O. Box 8126, Madison, WI 53708
or faxed to (608) 267-4409
or emailed to lirc @ dwd.wisconsin.gov
The respondent shall mail a copy of the Compliance Report to the complainant at the same time that it is sent to the commission. Within 10 days from the date the copy of the Compliance Report is mailed to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report.
Notwithstanding any other actions a respondent may take in compliance with this Order, a failure to timely submit the Compliance Report required by this paragraph is a separate and distinct violation of this Order.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
July 29, 2013
coopede_rmd . doc : 107 :
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
The ERD investigator in this case found probable cause to believe that the respondent discriminated against the complainant in terms and conditions of employment because of her sexual orientation, lesbian, and terminated the complainant's employment because of both sexual orientation and her opposition to a discriminatory practice. After a hearing on the merits, the ALJ found discrimination on the terms-and-conditions claim (up until the January 23, 2009 meeting with her supervisors), but not on the termination claims. As a result, the remedy was limited to a cease and desist order, an order that the respondent's staff undergo a training on sexual orientation harassment, and attorney's fees. Both parties petitioned for commission review-the respondent appealed the terms-and-conditions holding, and the complainant appealed the holding that the termination did not violate the WFEA, and the finding that the terms-and-conditions discrimination ended as of the meeting with the complainant's supervisors.
Respondent's petition
1. The claim of harassment constituting a hostile environment was made.
The respondent's first argument is that the ALJ made an error of law by addressing and deciding the issue of whether the complainant was subjected to a hostile work environment on the basis of sexual orientation, because neither the complaint nor any amendment to the complaint specifically alleged such a claim, and because the Department's initial determination did not list harassment - hostile work environment as one of the grounds for finding probable cause.
It is true that the complaint does not use the phrase hostile environment or hostile work environment. Nevertheless, specific examples are recounted in the complaint of derogatory name-calling by co-employee Sheila Adams relating to the complainant's sexual orientation, and the conduct is referred to as harassment directed at the complainant. In addition, the investigator considered the allegations to be in the nature of harassment (see Finding of Fact B: "The Complainant alleged that she was harassed by a co-worker and was ultimately terminated because of her sexual orientation which is Lesbian." See also Findings of Fact D, F and G). The question raised in the complaint - whether there was harassment because of sexual orientation - is certainly closely related to the question of whether that alleged harassment created a hostile work environment. The test of determining what issues are alleged in an employment discrimination complaint is to give it a fair reading, not a narrow one. Bowen v. LIRC, 2007 WI App 45, § 14, 299 Wis.2d 800, 812, 730 N.W.2d 164; Hiegel v. LIRC, 121 Wis.2d 205, 359 N.W.2d 405 (Ct. App. 1984). In this case, it was clearly intended by the complainant, and should have been recognized by the respondent from the time the complaint was served, that the complaint encompassed the question of whether the complainant was subjected to harassment constituting a hostile work environment because of her sexual orientation.
2. Harassment was severe and pervasive enough to be a hostile environment. (1)
The ALJ's conclusion of liability for harassment was based on the finding that Adams made derogatory comments about the complainant's sexual orientation that subjected her to a hostile working environment, and the finding that the respondent knew or should have known about the harassment but failed to take effective remedial action.
For harassment by co-workers to be actionable, the conduct must be sufficiently severe and pervasive to have altered the conditions of the complainant's employment or created an abusive or hostile working environment. Thompson v. Ashley Furniture Industries, Inc., ERD Case No. 199993292 (LIRC July 16, 2003). It is not necessary for the complainant to establish that the harassing conduct seriously affected her psychological well-being (Baker v. Dadco Diversified, ERD Case No. 9303737 (LIRC Jan. 18, 1996)), but it is necessary to establish that the conduct was severe enough to have substantially interfered with the complainant's ability to perform her work or to have created a hostile working environment, and was severe enough to have created a hostile working environment or to have interfered with the work performance of a reasonable person in the complainant's position. Roden v. Federal Express, ERD Case Nos. 8802134, 8802863 & 8900131 (LIRC June 30, 1993). When considering whether a working environment is hostile or abusive, all circumstances must be considered, which may include: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with the employee's work performance." Kannenberg v. LIRC, 213 Wis.2d 373, 388, 571 N.W.2d 165 (Ct. App. 1997), quoting Harris Forklift Sys., Inc., 510 U.S. 17, 22 (1993).
The complainant testified that her co-employee, Sheila Adams, referred to her and to her partner as dyke bitches on a regular basis from November 2008 through the end of her employment in April 2009. She testified that around November and December 2008, Adams asked her why she did not like men, and compared herself to the complainant by saying she was "strictly dickly, and that you dyke bitches can't do anything for me;" and that she was happy none of the women in her family acted like the complainant. She testified that Adams challenged the complainant's sexual orientation by posting a picture of a man and woman holding hands, and telling her that is what God intended. She testified that Adams cleaned out the complainant's coffee cup with bleach and sprayed a couch after the complainant sat on it in order to show her disgust with the complainant's sexual orientation. She testified that after a meeting was held on January 23, 2009 in which Adams told her supervisors she would get along better with the complainant, Adams continued to call the complainant a dyke, began referring to her as a "pussy eater," and told her "you like them fur burgers."
The complainant's testimony about these incidents was unchallenged by any first-hand testimony. The respondent itself provided some evidence corroborating the occurrence of the harassing remarks. Manager Darlene Williams testified that Adams admitted in the meeting on January 23, 2009 that she called the complainant a dyke, and did not deny stating that she was strictly dickly, and was happy that none of the women in her family acted like the complainant. Human resources director Heather Hitchler corroborated at least one instance of Adams referring to the complainant as a dyke.
Giving credit to the complainant's testimony, and considering the totality of the circumstances and the likely effect of the alleged harassment on a reasonable person, the commission agrees with the ALJ that the complainant was subjected to a hostile working environment because of her sexual orientation. Adams' use of the epithet "dyke bitches" was so frequent that it became, as the complainant testified, her second name. Adams' treatment of the complainant as if her sexual orientation were a disease, by making a scene of washing her coffee cup and spraying the couch she sat on, almost brought the complainant to tears. Adams' quizzing her about her sexual life and challenging her sexual orientation with lectures about how sexual relations were "meant to be" were intrusive and offensive. The harassment was severe enough to cause the complainant to ask several times for a transfer to a different group home. Adams' relentless harassment had the effect of creating an intimidating, hostile and offensive work environment.
3. Respondent failed to take effective remedial action.
Harassment by a co-worker can lead to employer liability only when the employer knew or should have known about the harassing conduct (Crear v. LIRC, 114 Wis.2d 537, 339 N.W.2d 350 (Ct. App. 1983)), but failed to take adequate measures to prevent or eradicate it. Adams v. WB Bottle Supply Co., Inc., ERD Case No. 200600646 (LIRC May 30, 2008), citing Krienke v. Ramada Inn Conference Center, ERD Case No. 200002246 (LIRC Oct. 29, 2002).
The complainant testified that she complained to her immediate supervisor, Aten, that Adams had begun calling her and her partner dyke bitches, and that Aten chuckled and replied that that didn't sound like Adams, she goes to church. He ended the conversation by telling her she could always file a lawsuit. She got no other response from Aten, and after about three weeks, called Aten's supervisor, Williams. She testified that she told Williams that Adams was calling her names and that she was showing her religious pictures and telling her God intended what the pictures showed (heterosexuality). Williams' response, according to the complainant, was that she needed to deal with Aten about it. The ALJ found that the complainant clearly put Aten on notice that she felt harassed by Adams because of her sexual orientation, and that she tried to notify Williams but Williams cut her off.
Williams testified for the respondent. She denied that the complainant had complained to her prior to January 23, 2009. The ALJ found the complainant's testimony more credible than Williams' testimony on this point. (Finding of Fact No. 16). The respondent argued that based on the ALJ's own assessment that the complainant was less credible than the respondent's witnesses (see ALJ's Memorandum, p. 14), it should have been concluded that Williams' testimony was correct. The commission, however, reads the ALJ's comment about the complainant's being less credible to relate to the discharge issue, not to the complaints of harassment. The commission, seeing no reason in the record to question the ALJ's finding that the complainant complained to Williams but Williams refused to listen to her, defers to the ALJ's judgment on this issue. As to the complainant's having complained to Aten, the respondent presented no evidence to dispute this. Aten did not testify.
Only when the complainant complained to Drury, who was Williams' supervisor, did the respondent take any action to address the situation. A meeting was set for January 23, 2009, and was attended by Williams, Hitchler, Adams and the complainant. About four weeks had gone by since the complainant's complaint to Aten, during which the complainant continued to be subjected to Adams' name-calling and other conduct showing her antipathy toward the complainant because of her sexual orientation. The ALJ found that the respondent's action on January 23rd succeeded in preventing further harassment, but was not an adequate response under the law because it was not timely, due to Aten's and Williams' negligence.
A respondent's obligation, upon receiving a complaint of harassment, is to take action reasonably calculated to remedy the situation and prevent further harassment. Guerrero v. UW Hospital & Clinics, ERD Case No. 200702599 (LIRC June 4, 2010). The timeliness of the respondent's actions is a factor in determining its adequacy. Corrective action should be taken within a reasonable time. Abel v. Dunn County Health Care Center, ERD Case No. 200601394 (LIRC April 21, 2009); Skilling-Vukich v. Swift Transportation, ERD Case No. 200400213 (Jan. 31, 2006). Given the supportable findings that the complainant complained to Aten and Williams, that the respondent did nothing for three to four weeks, and that Adams' harassing conduct continued, the commission agrees with the ALJ's conclusion that the action taken by the respondent was not timely enough to be adequate. (2) The commission therefore has affirmed the ALJ's decision that the employer was liable for permitting the complainant to suffer adverse terms and conditions of employment, in the form of a hostile working environment, because of her sexual orientation.
Complainant's petition
1. Adam's offensive conduct continued after the January 2009 meeting.
The ALJ found that after the January 23, 2009 meeting the complainant did not have any further problems with Adams making derogatory comments about her sexual orientation. The complainant appealed this finding, and the commission agrees with the complainant that the hostile work environment continued after the January 23rd meeting.
The complainant testified without dispute that within a week of the meeting Adams was calling her a dyke again, began calling her a pussy eater, and commented "you like them fur burgers." The complainant testified that she called Williams in late January and told her that nothing had changed, but that Williams only responded that she and Adams had to get along.
There is good reason to credit the complainant's testimony that Adams' offensive conduct continued after January 23rd. Adams received no formal discipline for her admission that she called the complainant a dyke bitch. Although the respondent has a fairly wide latitude to address allegations of harassment by co-employees (Krienke v. Ramada Inn Conference Center, ERD Case No. 200002246 (LIRC Oct. 9, 2002), the commission recognized that disciplining the offending employee can be part of a reasonable action to remedy harassment in certain circumstances, and quoted the following passage from Larson, Employment Discrimination, Second Edition 1995, Vol. 3, § 46.07 [5][b][ii], p. 46-118:
The employer's remedial response will likely entail disciplining the offender to end the harassment and prevent a recurrence of the harassment. The discipline should reflect the severity of the harassment; it need not be drastic if some lesser measure will end the harassment. By the same token, something more than a slap on the wrist will be required when the conduct is severe or entrenched. Title VII does not require discipline per se; it requires that the employer rid its work force of harassing conditions. Disciplining the offender serves the dual purpose of sending a message to both the offender and the whole work force that sexual harassment will not be tolerated.
Krienke, supra. A reasonable employer should have anticipated that disciplining Adams would have been a significant preventive measure. In addition to giving Adams no formal discipline, the respondent gave no discipline to Aten upon discovering that Aten did nothing to address the complainant's complaint to him in late November or early December; nor did it investigate the complainant's report that she had complained to Williams about Adams, but Williams took no action. The lack of discipline for Adams and Aten, and the lack of an investigation of Williams, indicate that the respondent minimized the significance of Adams' conduct toward the complainant. The respondent's favorable treatment of Adams in its handling of the complainant's complaints against Adams contributed to the continuation of Adams' offensive conduct toward the complainant after January 23rd.
The commission therefore has amended the ALJ's decision to find that the hostile work environment based on sexual orientation continued beyond January 23, 2009.
2. Complainant did not prove termination due to either sexual orientation or opposition to discrimination.
The respondent articulated a nondiscriminatory reason for discharging the complainant, namely, that she falsified a medical record concerning whether she administered a medication to a resident. Once a nondiscriminatory reason has been articulated, the case proceeds to the question of whether the complainant can prove that the articulated reason was a pretext for discrimination. Stern v. RF Technologies, ERD Case No. 200200780 (LIRC Feb. 6, 2004). Pretext can be demonstrated by showing that the articulated reason had no basis in fact, did not actually motivate the employer to discharge the complainant, or was insufficient to motivate the discharge. Sult v. Jerry's Enterprises, ERD Case No. 200402634 (LIRC Feb. 8, 2008). The complainant here does not argue that falsification of medical records would have been an insufficient reason to discharge the complainant. She argues that it had no basis in fact, and was not the employer's actual motivation.
The question of whether falsification actually occurred is not really the issue-the issue is whether the respondent sincerely believed that the complainant falsified the record. If it did, then the respondent's reliance on that reason to discharge the complainant is not a pretext for discrimination. Ebner v. Dura Tech, ERD Case No. 200504645 (LIRC April 23, 2009) ("The focus of a pretext inquiry is whether the respondent's stated reason was honest, not whether it was accurate, wise or well-considered. We do not sit as a superpersonnel department that reexamines an entity's business decision and reviews the propriety of the decision. Our only concern is whether the legitimate reason provided by the employer is in fact the true one." (quoting from Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000)).
The sequence of critical events appears to be:
1) The complainant administered a medication to a resident on April 20, 2009, but failed to indicate in the records (by placing her initials in a box on the resident's medication calendar) that she had done so, and left work at 7 a.m. on April 20th without having discovered her mistake.
2) When Adams arrived for work in the morning on April 20th, she noticed the complainant's error, and called Aten. Aten was ill and could not go to work that day. He told Adams to draw a circle around the empty box on the calendar and complete the top portion of a medication documentation error report. Adams did so. (Ex. 3, p. 2, 4, 22).
3) On April 20th, Adams showed the calendar to a co-worker, Karla LaVake, to verify that the complainant had failed to initial the box.
4) The complainant worked the next shift, April 20-21. She initialed the box on the resident's calendar for April 21st, so in all likelihood at that time saw the adjacent empty box for April 20th with a circle around it.
5) The complainant worked the next shift, April 21-22. She initialed the box on the resident's calendar for April 22nd. At some point during her April 20-21 shift or April 21-22 shift, the complainant put her initials in the circled April 20th box. She also circled several of her own initials on calendars for April 21 and 22.
6) At some point during the evening of April 22nd, Aten went to work and looked at the calendar. He saw that the complainant had initialed April 20th and had put circles around her initials in several other boxes.
7) The complainant worked the next shift, April 22-23. When she arrived for work on the evening of April 22nd she realized that Aten had left a message for the complainant to sign the medication documentation error report. Later that evening, the complainant had a telephone conversation with Aten, in which the complainant denied having forgotten to initial the calendar on April 20th. Aten told the complainant that she had forgotten to initial the calendar that day, and asked the complainant to sign the error document. Early in the morning on April 23rd, the complainant signed the document and slid it under Aten's door.
8) In the morning on April 23rd, Aten called LaVake and confirmed with her that she saw that the calendar was blank on April 20th after the end of the complainant's shift. LaVake provided a written statement saying this. (Ex. 23).
9) Aten reported to Williams and Drury that he believed the complainant had falsified medical records. (Ex. 22).
10) Later that day, Hitchler met with the complainant. According to Hitchler, the complainant maintained that she initialed the box on the calendar for April 20th with a pen that left a very light mark, then went back and re-initialed it later. Hitchler told her that two employees had seen that the box was blank. Hitchler asked the complainant why there were now other boxes that had both her initials and a circle around them, and she answered that that was how she initialed things. The calendar did not show that she had circled her initials in the past. (Ex. 24). According to the complainant, she told Hitchler that initially she thought that she had signed in light ink, and told Aten that, but later she saw that the box was blank, so she put her initials in the circle (which she thought was the appropriate thing to do) and signed the error form.
From the respondent's perspective, it was reasonable to draw the conclusion that the complainant had falsified the medical record, and had been dishonest when questioned about it. She would have known, prior to her telephone conversation with Aten on the evening of April 22nd, that she had not initialed the box for April 20th-she would have seen it early on the morning of April 21st and 22nd when she administered medications-but she nevertheless maintained to Aten that she had initialed the box on April 20th. She also would have known, before talking to either Aten or Hitchler, that she had not initialed the box in light ink on April 20th-but she nevertheless maintained to one or both of them that she did.
The complainant asks: why, if she intended to falsify the medical record, would she have signed the error form on April 23rd, admitting that she had failed to initial the box? The short answer is that Aten told her to sign the error form the evening of April 22nd. It is not necessary to figure out the exact workings of her mind at that point; by the time she signed the error form she had already acted dishonestly. At a minimum, the evidence is sufficient to infer that the employer sincerely believed that the complainant had falsified the record.
The commission therefore affirms the ALJ's decision that the complainant failed to prove that her discharge was retaliatory or was based on her sexual orientation.
3. Remedy
The commission has deleted the ALJ's order requiring training, considering the cease and desist order to be sufficient to carry out the purpose of the WFEA in this case.
The file shows that Attorney Radtke filed a petition for attorney's fees on February 6, 2012 asking for $19,896.25 in fees and $55.00 in costs. Then on February 20, 2012 Attorney Moodie filed a letter stating: "Please be advised that the attorneys, Attorney Sandra Radtke and myself, have reached an agreement with respect to the attorney fees and costs in the above-described matter. My client has agreed to pay $14,000.00 in fees, along with $55.00 in costs for a total of $14,055.00." It appears, then, that there was a negotiation over fees, and some concession by Attorney Radtke, resulting in an agreement. Since the adversaries came to an agreement on a reasonable fee, the commission sees no reason to question it.
Attorney Radtke submitted a petition for fees in connection with the complainant's petition for commission review, in the amount of $2,131.25. Since the ALJ's decision has been only slightly modified, finding that discrimination in terms and conditions of employment continued after the January 2009 meeting, the complainant's success on appeal was not substantial. Considering how much space Attorney Radtke devoted to that issue in her brief (about 6 pages in a 25-page brief), the commission has awarded a reduced fee reflecting that-from $2,131.25 to $500.
Attorney Radtke filed no request for fees in connection with successfully fending off the respondent's petition for review, so no fees can be awarded for her reply brief to the respondent's brief.
cc:
Attorney Sandra G Radtke, Gillick Wicht Gillick & Graf
Attorney Ronald E English III, Hippenmeyer Reilly Moodie & Blum SC
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