KATHLEEN WILDER, Complainant

GOODWILL INDUSTRIES OF SOUTHEASTERN WISCONSIN 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 first sentence of paragraph 49 of the ALJ's FINDINGS OF FACT, delete the words "it when" and replace them with "that".

2. Delete the second sentence of paragraph 59 of the ALJ's FINDINGS OF FACT, and replace it with: "Shortly after the meeting, Montgomery prepared a report summarizing what was said during the meeting."

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

Dated and mailed January 30, 2014
wildeka_rmd . doc : 107 : 127.3

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

In this case, the complaint alleges sexual harassment by Mitzie Wendelborn, a female co-worker. The ALJ found that Wendelborn's alleged sexual conduct amounted to hugging the complainant almost once a day for over a year, and frequently kissing her on the cheek. The ALJ was satisfied that the complainant did not welcome this conduct. The ALJ went on to find, however, that during the entire time of the alleged harassment the complainant never said anything to Wendelborn indicating that she did not like the conduct or that she wanted her to stop; and that it took a year for her to complain about the conduct to management, even though the complainant had a very outgoing and boisterous personality that suggested she would not maintain such a long silence about conduct that bothered her. The ALJ reasoned that these facts made it unlikely that the conduct was severe enough to have created an intimidating, hostile or offensive work environment for the complainant.

In her consideration of whether the co-worker's conduct was severe enough to establish a hostile work environment, the ALJ did not credit the complainant's testimony that the co-worker touched her behind on two occasions. As to the first of the alleged incidents, the complainant offered no details whatsoever. As to the second, the complainant sought corroboration from a witness whom she subpoenaed, Debra Roy-Crawford, but the witness could not recall such an incident. The complainant offered some detail about when and where this second incident took place (approximately October 2008 near the clock-in station), but did not provide detailed testimony about the nature of the touching so as to allow for an evaluation of whether it was purposeful or inadvertent, or if purposeful how egregious it was; nor did she provide detail about how the incident affected her.

In addition to the lack of detail in the complainant's testimony about being touched on the behind, the timing of the complainant's report of that conduct to management casts doubt on whether it happened. Although the complainant alleged that in October 2008 she complained to Vernetter Montgomery, a human resources representative, about being touched by Wendelborn on the behind, the ALJ did not credit this testimony in light of: 1) Montgomery's adamant denial that the complainant made such a statement in October 2008; 2) Montgomery's testimony that the complainant said nothing about being touched on the behind in her complaint of sexual harassment made on January 15, 2009; and 3) Montgomery's testimony that the complainant mentioned it for the first time on January 20, 2009, at a point when Montgomery suspected the complainant of trying to tarnish Wendelborn's reputation because she saw Wendelborn as a competitor in her efforts to get a promotion. Montgomery's contemporaneous notes of the January 20, 2009 meeting with the complainant support her testimony that the complainant's allegation about being touched on the behind was not made until that date, and even then was not part of her initial statement at the meeting.

The commission accepts the ALJ's determination that Wendelborn's unwelcome conduct did not include touching the complainant's behind. Furthermore, even if the complainant's allegations about this were accepted, the commission finds that the vague and incomplete testimony about the touching and the delay in reporting it to management precluded the complainant from proving that the alleged conduct was severe enough to have created a hostile work environment for the complainant.

The ALJ also correctly questioned whether the complainant met what is known as the reasonable person standard in co-worker sexual harassment cases. Under Wis. Stat. § 111.36(1)(b):

...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.

Accepting the ALJ's conclusions as to the nature and extent of Wendelborn's conduct, the commission agrees that it was not severe enough to support a finding that a reasonable person in the complainant's position would consider it to meet the above standard. As noted by the ALJ: "...there was testimony from a number of other employees who were subjected to the same conduct from Wendelborn...(i.e. hugs and kisses on the cheek), and they all felt the Wendelborn's conduct was intended as a friendly gesture and was not sexual in nature."

Finally, the commission accepts the ALJ's conclusion that the respondent did not have reason to recognize any of the complainant's communications about Wendelborn to be a complaint of sexual harassment until she made her complaint on January 15, 2009. Prior to that time, not only did the complainant fail to allege any touching of her behind, she also failed to tell management that she considered Wendelborn's hugging and kissing to be sexual harassment, or even to be sexual in nature, and she failed to request that management investigate or remedy the situation. In fact, the undisputed evidence is that she told her supervisor she did not want any action taken by management concerning Wendelborn. At hearing, the complainant testified that a few times Wendelborn blocked her path before hugging her, and that that amounted to sexual harassment, but there is no evidence that she ever complained to management about that specific conduct, even on or after January 15, 2009. Prior to January 15, 2009, management reasonably perceived the complainant's communications about Wendelborn to express an uncomfortableness with Wendelborn's friendly, non-sexual hugging and kissing that she bestowed liberally on a number of employees, and management's repeated suggestion to the complainant to simply ask Wendelborn to stop was a reasonable response to that complaint. A respondent is liable for the harassing acts of a complainant's co-worker only if it knew or should have known about the harassment but failed to take adequate measures to prevent or eradicate it. Kreinke v. Ramada Inn conference Center, ERD Case No. CR200002246 (LIRC Oct. 29, 2002). The respondent here did not know, nor should it have known, prior to January 15, 2009, that the complainant considered Wendelborn's conduct to be sexual harassment. Furthermore, the record shows that the respondent fulfilled its responsibility by acting swiftly, by January 20, 2009, to investigate the complaint and take appropriate action, in this case, advising Wendelborn to stop hugging and kissing the complainant. It is undisputed that Wendelborn no longer hugged or kissed the complainant after January 20, 2009.

Finally, in her petition for commission review, the complainant challenged the testimony of three witnesses whom she called in her case-in-chief (Tarshara Hines, Debra Roy-Crawford and Shelby Eichenbaum), and suggested that they collaborated on their testimony prior to the hearing and during the hearing in order to assist the respondent. The complainant did not confront these witnesses on the record concerning her suspicions about their collaboration, so there is no evidence to support those suspicions. The record does show, on the other hand, that the witnesses were sequestered so they did not hear each other's testimony, and that after each one testified, the ALJ instructed the witness not to discuss her testimony with anyone who had not yet testified, and each one agreed not to do so. Based on this record, the idea that the witnesses coordinated their testimony in order to assist the respondent is nothing more than speculation.

cc: Attorney Jason A. Kunschke

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