RICHARD DENT, Complainant
RJ WOOD INDUSTRIES INC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision finding probable cause on one issue in this matter, and no probable cause on the remaining issues. The issue for which probable cause was found proceeded to a hearing on the merits, and another ALJ issued a decision on the merits. 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 ALJs. Based on its review, the commission agrees with the decisions of the ALJs, and it adopts the findings and conclusion in those decisions as its own.
The decisions of the administrative law judges (copies attached) are affirmed.
Dated and mailed March 28, 2014
dentric_rsd . doc : 107 :
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
On appeal, an ALJ found probable cause with respect to one of the complainant's claims -- that the respondent discriminated against him by subjecting him to verbal harassment because of age. The ALJ dismissed the remainder of the complainant's claims of age discrimination. A hearing on the merits was held before a different ALJ on the issue of verbal harassment because of age, and the ALJ dismissed the claim. Although the ALJ found several instances of inappropriate age-related comments made by the respondent's owner, he concluded that they were not sufficiently severe or pervasive enough to have created a hostile or abusive working environment because of age.
In his petition for commission review, the complainant, through his attorney, requested a review only of the second decision, dated March 15, 2013, and argued that the ALJ came to the wrong legal conclusion that the age-related comments by the respondent's owner did not amount to discrimination.
In reply, the respondent argued that the ALJ came to the correct legal conclusion. Although the respondent did not concede that the owner made the age-related comments found by the ALJ, it did not argue that the ALJ's findings were against the weight of the evidence. The commission accepts the ALJ's findings that the respondent's owner made five age-related comments to the complainant, the first one in May 2008 and the last one in October 2009.
Harassment (1) based on a protected category under the Wisconsin Fair Employment Act is made unlawful through the Act's prohibition against discrimination in terms, conditions and privileges of employment. Wis. Stat. § 111.322(1). This interpretation is drawn from federal case law under Title VII, where the same phrase-terms, conditions and privileges of employment-has been applied to protect employees from hostile environment harassment. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The commission has also adopted federal case law standards concerning what constitutes unlawful harassment. Harassment must be sufficiently severe or pervasive so as to have altered the employee's conditions of employment, and to have created an abusive working environment. Meritor Savings Bank, supra, at 67. It must be determined by looking at the totality of the circumstances, including the frequency of the 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. To constitute a hostile environment a workplace must be both subjectively and objectively offensive. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Ezell v. Potter, 400 F.3d 1041, 1047. See, e.g., Thompson v. Ashley Furniture Industries, Inc., ERD Case No. CR199903292 (LIRC July 16, 2003); See Mroczkowski v. Belmark, Inc., ERD Case No. 200301289 (LIRC Apr. 28, 2005); Schultz v. CNH Capital Corporation, ERD Case No. 200300915 (LIRC May 8, 2006); Wodack v. The Evangelical Lutheran Good Samaritan Society, ERD Case No. CR200204449 (LIRC Aug. 5, 2005).
Applying those standards, the commission concludes that the ALJ was correct in concluding that the comments at issue in this case did not create a hostile work environment for the complainant.
The first age-related comment by the owner occurred in May 2008. According to the complainant's notes in evidence, after a 20-minute discussion between the complainant and the owner in which the owner criticized the complainant's work, the owner commented that the complainant was too old for the group. The complainant did not consider the comment to have interfered with his ability to perform his job, or alter the conditions of his employment. According to the complainant's notes, things became much better at work that summer. The second age-related comment did not occur until June 2009, over one year after the first comment. Considering this, it is not found that the May 2008 comment contributed to a hostile work environment.
In June 2009, according to the complainant's notes, the owner approached the complainant and asked him if he was learning anything, then commented that the complainant's eyes, ears and back were not what they used to be, and that was why he was having a hard time, since this was a much younger group. The owner then walked away. The complainant testified that the comment did not interfere with his ability to perform his job, and that he brushed off the comment.
In August 2009, the complainant's notes indicate that "out of the blue" the owner said to the complainant that he was the oldest person the owner had ever hired and the last. The complainant asked him what he meant by the comment, but the owner did not respond. There is not enough context in evidence for the commission to draw a solid conclusion about whether the comment was intended to harass the complainant. The complainant testified that he was angered by the comment, but in his deposition testimony he stated that it did not interfere with his ability to perform his job.
In September 2009, again "out of the blue" according to the complainant's notes, the owner asked the complainant how it felt to be almost 50 and no one respected him. It is not clear whether this comment reflected a negative attitude about the complainant's age-it is plausible that it was meant only to criticize the complainant for not having the respect of other employees that he expected him to have. The suggestion that the owner expected younger employees to respect an older employee does not reveal age-animus on the part of the owner.
In October 2009, according to the complainant's notes, the owner and the complainant got into a heated discussion about the complainant's work performance, during which the owner told the complainant that he was too old and did not get along with the younger generation. The complainant testified that he responded by objecting to the owner's using the complainant's age against him.
There was no evidence of any lasting effect any of the owner's comments had on the complainant. The owner did not subject the complainant to any public ridicule. There was no evidence that the owner spread age-animus to other employees.
In totality, the owner's age-related comments, while inappropriate, were not shown to be threatening or humiliating, objectively or subjectively, did not interfere with the employee's ability to do his job, and were not shown to have altered the employee's conditions of employment. They were not severe enough or pervasive enough to have created a hostile work environment, which has been described in Meritor Savings Bank, supra at 66, as an environment "heavily charged" with discrimination. The commission therefore affirms the decision of the ALJ that the respondent did not discriminate against the complainant in terms and conditions of employment by subjecting him to harassment because of age.
In briefing, the complainant asserted that the first ALJ decision was incorrect in its conclusion that there was no probable cause to believe the complainant was terminated because of age, but the complainant provided no arguments in support of that assertion. Thus, the commission has no specific indication why the complainant believes he should prevail on this issue. The commission has reviewed the ALJ's findings and conclusions on this issue, and finds that they are supported.
Finally, the complainant raised an issue in his brief that was never identified by the ERD as an issue at any time in the administrative process-the issue of whether the respondent discharged the employee in retaliation for his opposition to a discriminatory practice. The commission has no authority to reach the merits of a retaliation claim. There has been no initial determination on that issue, no identification of that issue prior to hearing, at best an incomplete evidentiary record on that issue, and no determination by an ALJ of that issue. Similarly, the ALJs did not have authority to conduct a hearing on the issue. Yarie v. The Pumphouse, ERD Case No. 8901753 (LIRC Sep. 14, 1990); Greco v. Snap-On Tools Corp., ERD Case No. 200200350 (LIRC May 27, 2004).
The commission is aware that some evidence was presented at hearing that would have supported such a claim, and that early filings by the complainant in the ERD indicated an intent to claim retaliation. The fact remains, however, that retaliation was never identified on the complaint as a separate claim, and at no time did the complainant ever ask to amend his complaint to add it. Wisconsin Administrative Code § DWD 218.03(6) allows an ALJ to entertain a motion to amend a complaint under certain conditions. Amendments are allowed without a showing of good cause prior to 45 days before a hearing. If a request to amend comes within 45 days of hearing, the ALJ cannot grant an amendment unless good cause is shown for the failure to amend prior to that time. There is no provision for amending a complaint after the hearing has been held. It is clear that the complainant had no good cause for failing to amend prior to hearing in this case. The complainant and his attorneys were repeatedly put on notice as to the issues in the case (when the Initial Determination was issued, when the notices of hearing were issued, and at the beginning of each hearing), and so were clearly aware that retaliatory discharge was not included. At two separate hearings, the ALJs recited the issues for hearing. On neither occasion did the ALJ mention retaliation. On both occasions the attorney for the complainant agreed with the statement of issues.
Under these circumstances, it was the complainant's responsibility to move to amend the complaint prior to the close of the evidentiary record. The complainant's failure to do so amounted to a waiver of his right to now assert a retaliatory discharge claim.
cc:
Attorney Robert E. Nailen
Attorney Ronald S. Stadler
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