ROBIN A GODFREY, Complainant
TK OSHKOSH, LLC, 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 makes the following:
1. The respondent, TK Oshkosh, LLC (hereinafter "respondent") is a limited liability company, the principal owner of which is Bruce Gerondale (hereinafter "Gerondale"). The respondent purchased a franchise in 2008, permitting it to operate a restaurant in Oshkosh, Wisconsin, going by the name Tilted Kilt. It hired a workforce in 2009 to staff the restaurant. At the time period relevant to this matter, the general manager of the respondent was Frank Guarascio (hereinafter, "Guarascio"); the general manager of the restaurant was Bruce Williams (hereinafter "Williams"); the manager of the dining area of the restaurant was Abigail Sanford (hereinafter "Sanford"); and the manager of the kitchen area of the restaurant was Jose Ebaugaro (hereinafter "Ebaugaro").
2. Under Ebaugaro's supervision was a line cook by the name of Floyd Haynes (hereinafter "Haynes"). Haynes had some hiring authority on behalf of the respondent, and in February 2010 he hired the complainant, Robin Godfrey (hereinafter "Godfrey"), a female. Initially, Godfrey's job was to wash dishes; after a while, Haynes assigned food preparation work to her.
3. Godfrey's scheduled work hours were from 9 a.m. to 3 p.m. Her daily work assignments were given to her by Haynes. Sometimes Godfrey would be told to stop working prior to 3 p.m. because business was slow. Haynes was usually the one who told Godfrey to leave work early. Godfrey seldom saw, and seldom took direction from, Ebaugaro.
4. Godfrey commuted to and from work on a city bus. In March 2010 the bus she normally took to work was delayed due to road construction. If she had taken an earlier bus she would have arrived at work up to an hour before the restaurant opened. She asked Haynes if he would mind if she came to work five to ten minutes late because of this and he told her it would be no problem.
5. Haynes directed the daily assignments of one other employee in addition to Godfrey, an employee named Carmen, who had the same job that Godfrey had.
6. Haynes spent the majority of his time at work cooking, not supervising. He did not participate in the respondent's management meetings.
7. Several times per week, Haynes made sexual comments to Godfrey. For example, he told her she had "sexy lips" and "a big ass." He told her to wear her black jeans because they were tight. He invited her to have sex together with him and his girlfriend. He bragged to her that he had sex with other employees, including the manager of the dining area, Sanford.
8. Godfrey did not welcome Haynes' sexual comments, and in fact was offended by them. She reacted to them by either ignoring them and walking away, or, on four or five occasions, asking him to stop. Haynes continued making unwelcome sexual comments to Godfrey despite her objections to them.
9. Haynes' continued, frequent sexual comments to Godfrey about her appearance, his requests for sexual relations with her, and his sexual comments to her about others, substantially interfered with Godfrey's work performance or created an intimidating, hostile and offensive work environment.
10. In April 2010, about one week before the termination of her employment, Godfrey complained to Williams, the restaurant manager, that Haynes was sexually harassing her. This complaint was an expression to the respondent of opposition to a discriminatory practice, sexual harassment, occurring at work.
11. Shortly after Godfrey complained to Williams, Williams and Haynes met in Williams' office for about 20 minutes. Haynes continued to work along with Godfrey after that meeting as before, and no one from management reported to Godfrey that the respondent had taken any steps to prevent Haynes from sexually harassing Godfrey. For only a couple of days after the meeting between Haynes and Williams, Haynes did not make sexual comments to Godfrey.
12. On or about April14, 2010, Godfrey was assigned to do fry-cooking, which was part of a food prep worker's duties. That day Ebaugaro was at the restaurant. He approached Godfrey at one point, carrying a plate of fish. He told Godfrey that the fish was cold, and could not be served that way. Ebaugaro ended Godfrey's shift early that day, telling her that business was slow.
13. At some time that day, Gerondale reviewed Godfrey's employment file, and paid particular attention to her attendance record. Godfrey's attendance record showed that she consistently clocked in for work after 9 a.m. from about March 26, 2010 until April 14, 2010. At times, Godfrey was only five to ten minutes late, but on nine occasions in March and April 2010 she was late by 20 minutes or more, and four of those occasions were within the two weeks immediately preceding April 14th.
14. Gerondale met with Ebaugaro, Williams and Guarascio on April 14th, at which time Ebaugaro told Gerondale that Godfrey had undercooked a fish order that day. Gerondale and the managers then decided to terminate Godfrey's employment, and later that afternoon the respondent informed Godfrey that her employment was terminated.
15. The respondent permitted sexual harassment of Godfrey by failing to take appropriate action within a reasonable time after it knew or should have known about Haynes' sexual conduct toward Godfrey. Otherwise, Godfrey's sex was not a factor in Godfrey's terms or conditions of employment, or in the termination of her employment.
16. Godfrey's opposition to being subjected to sexual harassment by Haynes did not cause the respondent to discharge Godfrey or otherwise discriminate against her.
Based on the above FINDINGS OF FACT the commission hereby makes the following:
1. That the complainant established by a preponderance of the evidence that the respondent discriminated against her on the basis of sex by permitting sexual harassment to have the purpose or effect of substantially interfering with the complainant's work performance or of creating an intimidating, hostile or offensive work environment, in violation of the Wisconsin Fair Employment Act.
2. That the complainant has not established by a preponderance of the evidence that the respondent violated the Wisconsin Fair Employment Act by terminating her employment because of sex, or by discriminating against her on the basis of sex in ways other than permitting sexual harassment.
3. That the complainant has not established by a preponderance of the evidence that the respondent violated the Wisconsin Fair Employment Act by discharging or otherwise discriminating against her because she opposed a discriminatory practice under the Wisconsin Fair Employment Act.
1. Time within which respondent must comply with Order. The respondent shall comply with all of the terms of this Order within 30 days of the date on which this decision becomes final. This decision will become final if it is not timely appealed, or, if it is timely appealed, it will become final if it is affirmed by a reviewing court and the decision of that court is not timely appealed.
2. Forfeiture for failure to comply with Final Order. The statutes provide that every day during which an employer fails to observe and comply with any Final Order of the commission shall constitute a separate and distinct violation of the Order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12).
3. Cease and desist. The respondent shall cease and desist from discriminating against the complainant because of sex by permitting sexual harassment.
4. Attorney's fees and costs. The respondent shall pay to the complainant reasonable attorney's fees and costs for services before the Equal Rights Division and the commission, that are associated with the claim on which the complainant has prevailed, in the total amount of $9,189.48 ($9,144.00 of which are attorney's fees and $45.48 of which are costs). A check in the total amount, $9,189.48, shall be made payable to the complainant and delivered to the trust account of Attorney Brett A. Balinsky.
5. Other claims. The complainant's claims of discrimination on the basis of sex other than sexual harassment, termination because of sex, and discharge or discrimination for opposing a discriminatory practice, are dismissed.
6. Compliance Report. 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.
Dated and mailed January 16, 2014
godfrro_rrr . doc : 107 : 127.3
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Sexual Harassment
1. Employer-imposed vs. Co-worker-imposed Harassment
The first issue for the commission to decide is whether this is a case alleging employer-imposed sexual harassment or co-worker imposed sexual harassment. See Flanagan v. Wisconsin Bistros/Larson Management, ERD Case No. CR200202638 (LIRC Nov. 4, 2004). If a complainant alleges employer-imposed sexual harassment, then the employer is liable for sexual harassment if the complainant proves that the alleged harasser engaged in sexual conduct or made sexual comments that were unwelcome to the complainant. If the alleged harasser is a co-worker, the complainant must show two additional elements in order to hold the employer liable: first, that the harassment was severe enough to have interfered with work or to have created a hostile, intimidating environment (Guerrero v. University of Wisconsin Hospital & Clinics, ERD Case No. 200702599 (LIRC June 4, 2010)); and second, that management knew or should have known about the harassment but failed to take appropriate action within a reasonable time to prevent further harassment. Wis. Stat. § 111.36(3). This is explained in the commission decision Monroe v. Birds Eye Foods, Inc., ERD Case No. CR200304303 (LIRC Mar. 31, 2010):
In the absence of quid pro quo harassment, which is not alleged here, the Wisconsin Fair Employment Act (WFEA) recognizes two ways in which an employer may be liable for sexual harassment. The first is where the harassment is perpetrated by an owner or an agent of the employer who is in a position of responsibility such that it is appropriate to apply the rule of
respondeat superior and treat the actions of the agent as the actions of the employer. The other category applies to the actions of co-workers who are not considered to be agents of the employer. See,
Anderson v. MRM Elgin Corp., ERD Case No. 199804070 (LIRC, Jan. 28, 2004);
Sanderson v. Handi Gadgets Corp., ERD Case Nos. CR200201194, CR200202089 (LIRC March 31, 2005).
...
Where the alleged sexual harasser is a co-worker, the co-worker's actions can only be imputed to the employer if the employer permitted the sexual harassment to occur. That is, a respondent is liable for the sexually related acts engaged in by a co-worker only if the individual informs the respondent of the harassment and the respondent fails to take appropriate action within a reasonable time. See,
Skilling-Vukich v. Swift Transportation, ERD Case No. CR200400213 (LIRC 01/31/06), citing
Krienke v. Ramada Inn Conf. Center, ERD Case No. CR200002246 (LIRC 10/29/02);
Abel v. Dunn Co. Health Care Center, ERD Case No. CR200601394 (LIRC April 21, 2009).
There is a multi-factor test for determining whether an alleged harasser is an employer/agent of the employer, or a co-worker. The commission has adopted the test set forth in City Firefighters Union Local No. 311 v. City of Madison, 48 Wis.2d 262, 270-71, 179 N.W.2d 800 (1970), and repeated in Crear v. LIRC, 114 Wis.2d 537, 541-42 (Ct App. 1983). See Sanderson v. Handi Gadgets Corp., ERD Case No. CR200201194 (LIRC Mar. 31, 2005). The factors in that test are:
1. The authority to effectively recommend the hiring, promotion, transfer, discipline or discharge of employees;
2. The authority to direct and assign the work force;
3. The number of employees supervised and the number of other persons exercising greater, similar or lesser authority over the same employees;
4. The level of pay, including an evaluation of whether the supervisor is paid for his skill or for his supervision of employees;
5. Whether the supervisor is primarily supervising an activity or is primarily supervising employees;
6. Whether the supervisor is a working supervisor or whether he spends a substantial majority of his time supervising employees; and
7. The amount of independent judgment and discretion exercised in the supervision of employees.
Crear, supra, 114 Wis. 2d 537, 541-42. The factors are not to be considered in the disjunctive such that any one factor is determinative. Rather, the totality of the criteria must be considered. Id.
In this case the alleged harasser, a cook named Haynes, had some attributes of an employer. He had some hiring power, having hired Godfrey; he had authority to direct Godfrey's work; and it seems he had the apparent authority to grant Godfrey permission to deviate somewhat from her normal working hours, having granted her permission to arrive a little late to work because of road construction. (1) On the other hand, there was no evidence that he had hiring or supervisory duties over anyone other than Godfrey and one other co-worker, and no evidence that he had authority to set wages or promote anyone. His primary duty appears to have been to cook, not to supervise, and there was no evidence that he was paid for any supervisory duties. He did not participate in management meetings, and was under the direction of a kitchen manager, a general manager, and the owners of the restaurant. Considering the totality of the circumstances, Haynes did not qualify as an agent of the employer for purposes of making the employer liable for his acts under the theory of respondeat superior. (2)
For Godfrey to prevail on a claim of sexual harassment, then, she had to prove that the severity of the harassment created a hostile, offensive or intimidating work environment, and that management knew or should have known about it but failed to take adequate steps to remedy it.
2. The Severity of the Harassment
Godfrey had a clear path to put on evidence of the nature of the harassment, since neither of the respondent's witnesses was competent to dispute her testimony. (3) She testified that Haynes made sexual comments to her several times per week, and gave the following examples:
He would say things like you got sexy lips. You got a big ass. Where are those black jeans you had on last - yesterday, wear those again, those are tight.
He would say like, you should come over tonight and have a threesome with me and girlfriend, Carmen.
He would say things like see that waiter right there? I fucked her last night.
He told me that he fucked Abby and that him and Abby used to do cocaine together and that she got a breast implant and just things like that.
In addition, Godfrey testified that she heard Haynes make sexual comments to others, including the manager of the wait-staff, Abigail Sanford. Sanford, a witness at the hearing, lent some support to Godfrey's characterization of Haynes by acknowledging that Haynes had made sexual advances and comments to her (Sanford).
Godfrey testified that she felt Haynes' comments were inappropriate, and that her reactions to the comments were either to ignore them and walk away or to ask him to stop, which she said she did four or five times. As will be discussed below, Godfrey also complained to Bruce Williams, the general manager, about Haynes' comments. The commission concludes from Godfrey's testimony that Haynes' comments were unwelcome to her. The question of the unwelcomeness has to do with the effect of sexual conduct on a complainant's state of mind. Anderson v. MRM Elgin, ERD Case No. 199804070 (LIRC Jan. 28, 2004).
For employer liability to attach, however, it must be found not only that the sexual conduct was unwelcome to the complainant, but also that the employer permitted sexual harassment "to have the purpose or effect of substantially interfering with an employee's work performance or of creating an intimidating, hostile or offensive work environment." Wis. Stat. § 111.36(1)(b). The statute provides the following guidance:
Under this paragraph, substantial interference with an employee's work performance or creation of an intimidating, hostile or offensive work environment is established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct sufficiently severe or pervasive to interfere substantially with the person's work performance or to create an intimidating, hostile or offensive work environment.
So, not only does the complainant have to feel that the sexual conduct is unwelcome, it also must be found that a reasonable person in her circumstances would consider the conduct to reach a certain level of severity. The undisputed testimony here, that Haynes repeatedly commented on Godfrey's appearance in a sexually suggestive way, and repeatedly solicited her to have sex with him, showed that his conduct was sufficiently offensive to meet the reasonable person standard.
3. Respondent's Knowledge of the Harassment
Godfrey did not testify that any managers with authority over Haynes overheard any of his sexual comments directed at her, but she did testify that in April 2010, about one week before she was fired, she complained to the manager of the restaurant, Williams. Williams was not present at the hearing to contest this. The commission therefore finds that Godfrey notified the respondent that she was being sexually harassed by Haynes.
4. Whether the Respondent Took Prompt Remedial Action
Godfrey testified that shortly after she complained, Williams took Haynes into his office for 20 minutes, and for the next couple of days Haynes did not make any sexual comments to her. The implication of this testimony is that Haynes began to make sexual comments again after a couple of days. Haynes continued to work with Godfrey after his meeting with Williams, and no one from management reported to Godfrey that the respondent had taken any steps in response to Godfrey's complaint to Williams.
The respondent was the party with the knowledge about what, if anything, it said to Haynes in order to investigate Godfrey's complaint of sexual harassment, and what if anything it did to remedy any harassment that it discovered. The respondent, however, put nothing into the evidentiary record describing any steps it took along those lines. In the absence of such evidence the commission concludes that the respondent permitted sexual harassment of Godfrey to occur.
Retaliatory Discharge
To show unlawful retaliation, a complainant must show that she engaged in protected opposition to a perceived discriminatory practice, that she was subject to some adverse employment action, and that there was a causal connection between the two. If the respondent has articulated a legitimate non-discriminatory reason for its action, the complainant may prevail in a retaliation claim by showing the proffered reason to be a pretext. Kannenberg v. LIRC, 213 Wis.2d 373, 571N.W.2d 165 (Ct. App. 1997).
1. Opposition and adverse employment action
To qualify as protected opposition to perceived sexual harassment, a complainant's complaint has to be sufficiently clear to be understood by the respondent as a complaint of sexual harassment. Matthews v. Bassett Bedding, ERD Case No. 8902772 (LIRC Oct. 27, 1993). As noted above, Godfrey testified without dispute that she complained to general manager Williams that she was being sexually harassed by Haynes. (4) That is a sufficient showing of opposition. The second element, that the complainant suffered an adverse employment action, is clear, the respondent having fired Godfrey.
2. Causal connection
That leaves the question of a causal connection. The strongest evidence of a causal connection is the proximity in time between Godfrey's complaint of sexual harassment and the termination of her employment. The employee was fired approximately one week after complaining to Williams. Closeness in time between the protected action and alleged retaliation can create a presumption of retaliation that may be rebutted by the respondent's articulation of a legitimate, non-retaliatory reason for its actions. The complainant would then have the burden to establish that the proffered reason for the action was pretextual in order to prevail. Wulf v. New Richmond Police Department, ERD Case No. CR200803766 (LIRC July 22, 2013); Potts v. Magna Publications, ERD Case No. 199701821 (LIRC Feb. 27, 2001). A period of one week between opposition and alleged retaliation easily meets the test of being proximate in time. See Frierson v. Ashea Industrial Systems, ERD Case No. 8752356 (LIRC Apr. 6, 1990) (period of several months considered proximate); Horton v. Hopkins Chemical Company, ERD Case No. 8822828 (LIRC June 8, 1992), aff'd, Dane Co Cir. Ct. April 28, 1993) (period of less than three months considered proximate).
3. Respondent's nondiscriminatory reason/question of pretext
The respondent offered two reasons for discharging Godfrey-first, that she was arriving to work late, and second, that on the day she was discharged she had undercooked a fish order.
Once a legitimate nondiscriminatory reason is articulated, the burden of proof reverts to the complainant to show that this reason is a pretext for discrimination. Naill v. Western Wisconsin Technical College, ERD Case Nos. 199404088, 199600370 (LIRC Feb. 12 1999), citing Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172 (Ct. App. 1985). A complainant may show that the respondent's asserted reason for an adverse action is pretextual by showing that the reason: 1) had no basis in fact; 2) was insufficient to motivate the adverse employment action; or 3) did not actually motivate the adverse employment action. Sult v. Jerry's Enterprises, ERD Case No. CR200402634 (LIRC Feb. 8, 2008).
The respondent's reasons have a basis in fact. Godfrey readily admitted that she had been getting to work after her scheduled starting time (but with Haynes' permission). With respect to the order of fish, Godfrey admitted that Ebaugaro showed the fish order to her and told her that it was unacceptable because it was cold. Godfrey did not believe she was responsible, but could only speculate about why the fish was cold.
The question of whether the reasons offered by the respondent were sufficient to motivate the adverse action (as opposed to whether they were the actual reasons) involves a weighing of whether the reasons on their face would credibly cause a respondent to take the adverse action. Godfrey's tardiness was substantial, and certainly could be sufficient to motivate a discharge. According to time records in evidence, Godfrey consistently clocked in after 9 a.m. from about March 26, 2010 until her employment ended in mid-April 2010. The commission, however, finds the undercooked/cold fish to be an insufficient motivation for discharge. First, cooking fish was relatively new to Godfrey, and was not her primary job. Second, there was no evidence that Godfrey experienced any more than the single occasion on April 14th of having a customer return food that she had prepared. It is not credible that restaurant employees would be fired the first time a plate of food they prepared was returned to the kitchen. Gerondale acknowledged that dishes got returned by customers "maybe once a week."
As to whether Godfrey's attendance was the actual reason for her dismissal, the commission concludes that Godfrey, who had the burden of proof to show pretext, did not put on sufficient evidence to prove that her attendance was not the actual reason for her dismissal, and therefore failed to prove pretext. As noted above, Godfrey's tardiness was substantial. At times she was only 5 to 10 minutes late, but on nine occasions in March and April she was late by 20 minutes or more, and four of those were within the last two weeks of her employment. Godfrey's primary argument was that she had Haynes' permission to come in late, but she characterized that as permission to come in no more than five to 10 minutes late. Godfrey also did not show that the individuals who decided to discharge her were aware that Haynes had given her any permission to come to work late. On this record, it is plausible that the respondent discharged Godfrey because of her tardiness.
Credibility
The ALJ, in his memorandum opinion, provided a lengthy explanation as to why he doubted the complainant's testimony, citing a number of allegations that he found to be incredible. For instance, he found the claims that Haynes was having sex with other employees, particularly Sanford (the manager of the wait-staff), outlandish. That, however, does not reflect on the complainant's credibility; she was not vouching for Haynes' claims, just repeating them. The ALJ, however, even doubted that Haynes would make the claims that the complainant attributed to him. For instance, the ALJ believed Sanford never would have allowed Haynes to make sexual remarks about her or to her, therefore Haynes must not have made those remarks. But Sanford herself testified that Haynes made sexual advances to her and to others. The commission finds the complainant's testimony about Haynes' sexual comments to be credible, and to be corroborated by other evidence. The respondent offered no competent evidence that the comments were not made. The commission also finds the complainant's testimony that she complained to Williams about Haynes' conduct to be credible on its face, and it, too, was not rebutted by the respondent.
The complainant, in her brief to the commission, attacked the credibility of Gerondale, the owner, particularly on the issue of whether he was aware of any complaints of sexual harassment by the complainant prior to deciding to discharge her. The complainant argued that after a long pause Gerondale unconvincingly answered that he did not recall. The complainant argued that Gerondale's answer was not believable, and was a cover for basing his discharge decision on the fact that the complainant had expressed opposition to sexual harassment by Haynes. Given that the hearing took place almost two years after the events took place, the commission finds it plausible that Gerondale in fact could not remember whether he became aware of Godfrey's complaints about sexual harassment before or after he decided to discharge her.
The commission requested demeanor impressions from the ALJ. He reported having specific memories only about the demeanor of the employer's witness Sanford:
...The prime demeanor evidence I considered was of Abigail Sanford, who came across as a tough, ambitious woman who I could not see doing what Ms. Godfrey claimed. During the hearing her actions and body language showed very strongly that she was there as Mr. Gerondale's assistant, that she knew he would listen to her, that she worked for him and wanted him satisfied with her performance, and that she would not do anything that jeopardized her job. Claims that she would let subordinates insult or harass her, that she would not let Mr. Gerondale know about things she did not like, or that she would engage in or permit staff to talk about things that could get her fired were not believable after observing her. My conclusions about Mr. Gerondale and Ms. Godfrey followed that assessment.
This impression has not played a role in the commission's analysis. The commission does not find Sanford's demonstration of loyalty to Gerondale to be a reason to credit her testimony, but even if Sanford's testimony is credited, it fails to impeach Godfrey's testimony because it deals with matters that were peripheral to Godfrey's allegations.
Attorney's Fees
The complainant's attorney submitted a petition for attorney's fees supported by an itemized statement of services and an affidavit swearing to the portion of his services attributable to the issue of sexual harassment. The respondent has not filed any opposition to the petition. The commission has no basis to question the petition, and therefore approves it.
cc:
Attorney Brett A. Balinsky
Mr. Bruce Gerondale
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