BILLIE T GALLAGHER, Complainant

BLAIN SUPPLY INC, 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. Blain Supply Co. (hereinafter "respondent") is a Wisconsin corporation located in Janesville, Wisconsin, that provides distribution, management and purchasing functions for all of the Blain's Farm & Fleet retail stores located in Wisconsin, Illinois and Iowa.

2.  Billie Gallagher (hereinafter "complainant"), began working for the respondent as a part-time warehouse associate at the Farm & Fleet store located in Janesville, Wisconsin on October 8, 2002. He voluntarily left that employment in May of 2003, but was rehired in November of 2003. The complainant became a permanent full-time employee at the respondent's Janesville store in 2004. He was discharged in July of 2009.

3. The respondent has a no-tolerance policy regarding discrimination which states, in relevant part:

"Blain's Farm and Fleet will not tolerate any form of illegal harassment, including sexual harassment in the workplace by anyone, including any Manager, Supervisor, Co-Associate, Visitor, Vendor, or Customer. Blain's Farm and Fleet prohibits touching past a handshake.

"Illegal harassment consists of unwelcome conduct, whether verbal, physical or visual, that is based upon a person's legally protected status such as sex, color, race, religion, national origin, age, disability, veteran status, sexual orientation or other protected status. We will not tolerate illegal harassing conduct that affects tangible job benefits, that interferes unreasonably with an individual's work performance, or that creates and intimidating hostile or offensive working environment. Any such illegal harassment is strictly prohibited and will result in immediate termination."

The policy defines sexual harassment in detail and includes, among others, the following examples of "prohibited conduct":

"Asking welcome or unwelcome questions or making welcome or unwelcome comments about another person's sexual activities, dating, personal intimate relationships, or appearance.

"Conduct or remarks that are sexually suggestive or that demean or show hostility to a person because of the person's gender including jokes, pranks, teasing, obscenities, obscene or rude gestures or noises, slurs, epithets, taunts, negative stereotyping, threats, blocking of physical movement."

The policy also notes:

"Management at all levels of the company is particularly responsible for preventing illegal harassment in the workplace. This responsibility includes immediately reporting conduct by anyone. . . that may constitute illegal discrimination or harassment, even if the conduct was sanctioned and regardless of how awareness of the conduct was gained. This reporting must be made immediately to any officials identified under procedures of this policy."

4. The complainant was born in 1953. During the time period related to this case, he was in his early to mid-50's.

5. At some point during his employment some of the complainant's co-workers gave him the nickname "Old Man." They did so because the complainant was the oldest employee in the warehouse. Thereafter many of the employees in the warehouse routinely referred to the complainant by that name, even in front of customers.

6. The complainant spoke with store managers Keith Brown and Roudell Weber about being called "Old Man" by his co-workers and told them he really did not like being called that. However, no action was taken and the complainant's co-workers continued to call him "Old Man" for the duration of his employment.

7. The complainant suffers from phlebitic syndrome, a permanent condition that causes swelling, and that affects his ability to walk, stand, and lift. The complainant uses a Segway to assist with walking when possible and takes pain medication as needed.

8. During the course of a work day at the respondent's store the complainant might walk as much as 9.3 miles. At the end of such a work day, the complainant's legs would have swollen up to 6 inches.

9. On April 16, 2008 the complainant submitted an "Accommodation Work Sheet" on which he indicated that he wanted to use his Segway at work. The complainant elaborated:

"Many items purchased by our customers are located long distances from the warehouse and require walking to these items. Due to blood clots in both legs, my legs swell severely and become quite painful. This device helps limit the pain I have to deal with."

10. The respondent has an accommodations committee that meets on the second Friday of each month to review accommodation requests. The committee consists of Corinna Fiorvanti, the human resources manager, Gary Hilt, the vice president of loss prevention and risk management, and three others. The next meeting of the accommodations committee after the complainant submitted his accommodation request took place on the second Friday of May.

11. After the committee met in May it asked the complainant to have his physician complete medical inquiry and fitness for duty forms. The complainant returned the completed forms to Ms. Fiorvanti on May 21, 2008. On the forms the complainant's doctor, Dr. Schneider, indicated that the complainant had a permanent impairment, phlebitic syndrome/swelling, that the impairment affected the major life activities of walking, standing, lifting, and sleeping, and that the complainant was substantially limited in one or more of these major life activities. In answer to the question, "What limitation(s) is interfering with job performance?" Dr. Schneider wrote, "Pt. has difficulties with ambulation over distances." In response to the question, "How does the Associate's limitation(s) interfere with his/her ability to perform the job function(s)?" Dr. Schneider wrote "does not interfere with job functions." In the space asking for suggestions for accommodations Dr. Schneider wrote, "Pt. should use Segway to move more comfortably from one location to another. This will limit pt. pain due to the disability."

12. The accommodations committee reviewed the complainant's documents on the second Friday of June 2008. In early July Ms. Fiorvanti met with the complainant to conduct a needs assessment. She then went back to the accommodations committee to make a final decision.

13. The respondent had never received an accommodation request for a Segway in the past. The committee therefore decided it wanted to familiarize itself with the capabilities of the Segway, as well as safety issues and hazards involved.

14. The complainant's accommodation request was approved and guidelines for use of the Segway were formalized on August 5, 2008. The guidelines limited the places in which the complainant could use the Segway to the outside lot, warehouse or cold storage building, prohibited him from using the Segway to transport merchandise or equipment, and required the complainant to wear a helmet, which the respondent agreed to purchase for him.

15. The complainant began using the Segway at work in August of 2008 and continued to use it throughout the duration of his employment.

16. On July 17, 2009, Gary Hilt, the vice president of loss prevention and risk management, received a fax from the Janesville store notifying him that an employee named Shannon Mattingly had complained to management that the complainant told her she had a "fat ass" and "thunder thighs" and that her "ass was way too huge for her body."

17. Before beginning his investigation into the matter, Hilt reviewed the complainant's file and learned that in March of 2007, Chris Goebel, the respondent's investigations manager, had investigated another complaint in which a female employee reported that the complainant made a comment about how she filled out her pants from the back and stated that her "ass looked good in [her] jeans." The female employee stated that the complainant had made similar comments in the past but that she had not reported them because she did not think it would do any good since, "It's Bill and that's the way he is."

18. Hilt discovered that, after receiving the 2007 complaint, Goebel had interviewed the complainant about the matter, after which the complainant signed the following written statement:

"I Billie T. Gallagher, #2301 give this statement of my own free will to Chris Goebel on 03-16-07. I admit that I have made inappropriate comments of a sexual nature to some of the female employees while at work at the Janesville Farm and Fleet. I will stop making the inappropriate comments and conduct myself professionally while at work. Chris has explained the company no retribution rules to me and I understand them and will abide by them."

19. On Friday, July 17, 2009, the same day that Hilt received Ms. Mattingly's complaint, he drove to the Janesville store to talk with her. Mattingly reiterated the details of her complaint against the complainant and informed Hilt that in the past, she had heard the complainant make derogatory sexual comments about women. She also told him that she had heard the complainant call an employee a "towel head." During the interview Mattingly was visibly upset and crying.

20. Hilt next interviewed an employee named Mindy Williams, who had allegedly heard a similar comment from the complainant. Williams reported that the complainant had approached her and commented that "a guy" had told Mattingly that she had a big butt and thunder thighs and that her butt was too big for her body. Williams stated that the complainant also asked her if she was a "McDonald's girl," which she assumed meant the complainant thought she was fat and that she must eat at McDonalds all the time.

21. Hilt then interviewed the complainant, whom he found to be belligerent and uncooperative. The complainant did not deny making the comments about "big butt" and "thunder thighs," but said he and Mattingly were just kidding around. When asked if he told Ms. Mattingly that her "ass was too big for [her] body," the complainant replied, "What difference does it make?" He then stated that he had heard other people say that to Mattingly. The complainant allowed that he also might have said something like that, although he insisted he does not use the word "ass."

22. During his interview with the complainant Hilt asked whether he recalled being warned in 2007 that he was not to engage in conduct that created a hostile or offensive work environment at the respondent's store. The complainant replied that he did remember that warning.

23. At the end of their conversation, Hilt prepared a statement based on the information that the complainant had provided. The complainant reviewed the statement and signed it. Hilt then notified the complainant that his employment was suspended with pay pending the outcome of the investigation.

24. Hilt returned to the Janesville store on Monday, July 20, 2009, and interviewed an employee named Jackie Norem. Norem informed Hilt that approximately a year and a half earlier the complainant had told her that she had a good enough body to be a stripper and that she looked good in the jeans she was wearing. Norem stated that she told the complainant to stop making such comments to her, and that the complainant apologized and never made any comments like that to her again.

25. Over the next two days, on July 21 and 22, 2009, Hilt interviewed eleven more employees, ten of whom were male. All ten of the male employees interviewed confirmed that the complainant had made crude or sexually suggestive comments. One employee, Billy Hughes, told Hilt that the complainant had commented that Hughes' fianc‚e would look good wearing nothing but a miniskirt and the hat she had on. Another employee, Mark Strampe, stated that the complainant made offensive comments and that he heard the complainant tell a female associate she was getting bigger or fatter. Bradley Lux said he had heard the complainant comment about women having "nice racks" or "nice tits." An employee named Mike Makami, the individual whom Mattingly contended the complainant called a "towel head," told Hilt that the complainant often made comments about women's butts and rear ends. John Sedwick told Hilt that he heard the complainant make the remark to Mattingly about having "thunder thighs" and that the complainant made comments about both female colleagues and customers along the lines of "look at the butt on her" or "look at the rack on her." Kenneth Dorn told Hilt that the complainant gave another employee a hard time because his brother was gay and called him a "fag."

26. The final employee interviewed was Beverly Brockwell, who informed Hilt that the complainant had asked her when she was going to leave her husband for him. Brockwell said she was upset by this remark.

27. After Hilt completed his investigation of the allegations against the complainant, he prepared an investigative report and forwarded that report to Thomas Trebesh, the vice president of human resources.

28. Trebesh reviewed the evidence and decided to terminate the complainant's employment. In making that decision, Trebesh considered the fact that the complainant had good performance evaluations. However, Trebesh was concerned that, although the complainant had been warned in 2007 for a similar incident, he persisted in making sexually inappropriate comments to and about women as well as disparaging comments about individuals in minority groups. Trebesh considered those comments unacceptable in a work environment, and did not believe that the complainant's behavior in this regard was likely to change.

29. On July 27, 2009, Trebesh sent a letter to the complainant informing him that "due to company policy violation" his employment was terminated effective his last day of work, July 17, 2009.

30. Trebesh knew the complainant used a Segway at work but had no other information about his medical condition and did not know whether the complainant had a disability. The complainant's physical condition and Segway use had no bearing on the discharge decision.

Based upon the FINDINGS OF FACT made above, the commission makes the following:

1. There is no probable cause to believe that the respondent discriminated against the complainant based upon disability, in violation of the Wisconsin Fair Employment Act.

2.  There is probable cause to believe that the respondent discriminated against the complainant based upon his age, in violation of the Wisconsin Fair Employment Act.

Based upon the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:

The administrative law judge's decision is affirmed, in part, and reversed, in part. The complainant's allegations of discrimination on the basis of disability are dismissed. This matter is certified for a hearing on the merits of the complainant's age discrimination complaint.

Dated and mailed March 28, 2014
gallabi_rrr . doc : 164 :   

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

There are three separate issues presented in this case: 1) whether the complainant was discriminated against in the terms and conditions of his employment based on his age; 2) whether the complainant was denied a reasonable accommodation for a disability, and; 3) whether the complainant was discharged because of a disability. The administrative law judge found that the complainant did not establish probable cause on any of the issues presented in this case. The commission agrees with this assessment as it pertains to issues 2 and 3, but it believes the complainant has met his burden with respect to issue 1. The commission has therefore reversed and remanded this matter for a hearing on the merits of the age discrimination issue.

Age discrimination

A complainant can establish a prima facie case of an age-based hostile work environment claim by showing that: (1) The complainant is age 40 or over; (2) the complainant was subjected to harassment, either through words or actions, based on age; (3) the harassment had the effect of unreasonably interfering with the complainant's work performance and creating an objectively intimidating, hostile or offensive work environment; and (4) the existence of some basis for liability on the part of the employer. Mroczkowski v. Belmark Inc., ERD Case No. 200301289 (LIRC April 28, 2005), citing Crawford v. Medina General Hospital, 96 F.3d 830, 834-835 (6th Cir. 1996).

The commission has considered at least two other cases in which an employee complained about being called "Old Man." In the first case, Josellis v. Pace Industries Inc., ERD Case No. CR199900264 (LIRC, Aug. 31, 2004), the commission held that a single such incident was not sufficiently severe or pervasive to support a conclusion that the respondent engaged in illegal harassment. The second case involved multiple instances of co-workers calling the complainant "Old Man." However, the commission found that, because the complainant did not allege that he had complained to the respondent about his co-workers calling him that name, there was no basis for imposing liability on the employer. Mroczkowski v. Belmark Inc., ERD Case No. 200301289 (LIRC April 28, 2005).

In the instant case, the complainant proved that he was called "Old Man" by his co-workers on a regular basis, that he disliked it, and that he complained to management about it. The respondent concedes that it knew about the problem but took no steps to resolve it. This evidence is sufficient to warrant a finding of probable cause on the issue of whether the complainant was harassed based upon his age.

In finding that no probable cause was established, the administrative law judge explained:

"Gallagher did not testify that he informed his supervisors that he believed that he was being subjected to unlawful discrimination when his coworkers called him that and that he asked his supervisors to investigate his complaint."

The commission disagrees with this rationale. The respondent's own policy states that it has zero tolerance for harassment based upon age. The complainant told the respondent he was being called "Old Man" by his co-workers and that he did not like it. The complainant was not specifically required to explain that he felt he was being discriminated against. The name "Old Man" speaks for itself; it is inherently ageist. The complainant also was not obligated to specifically request that the respondent conduct an investigation. Once the complainant notified the respondent that his co-workers were calling him "Old Man" and that he found this unwelcome, the burden was on the respondent to attempt to resolve the matter. The respondent was not justified in doing nothing simply because the complainant failed to explain that he felt he was being discriminated against and wanted action taken.

Disability - reasonable accommodation

The complainant's initial burden in a reasonable accommodation case is to prove that he is an individual with a disability, within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act"). Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980). Section 111.32(8) of the Act defines the term "individual with a disability" as an individual who, (a) has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work, (b) has a record of such an impairment; or (c) is perceived as having such an impairment. An "impairment" for purposes of the Act is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). The test to determine whether an impairment makes achievement unusually difficult is concerned with the question of whether there is a substantial limitation on life's normal functions or on a major life activity. By contrast, the "limits the capacity to work" test refers to the particular job in question. Further, the inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty. AMC v. LIRC, 119 Wis. 2d 706, 350 N.W.2d 120 (1984).

The administrative law judge concluded, without further explanation, that the complainant did not establish he is an individual with a disability, within the meaning of the Act. The commission disagrees. The reports completed by the complainant's doctor, which were provided to the respondent, indicate that the complainant has a condition called "phlebitic syndrome" which is a permanent impairment that affects the complainant's ability to walk, stand, lift and sleep. The doctor noted on the paperwork submitted to the respondent that the complainant required an accommodation in order to limit his pain "due to the disability." Given this information, the commission is satisfied both that the complainant established he has a disability, within the meaning of the Act, and that the respondent perceived him as having a disability.

The next question to decide is whether the complainant established probable cause to believe that the respondent refused to provide him with a reasonable accommodation. The complainant contends that the respondent discouraged him from requesting the accommodation, then took an unreasonable amount of time to approve the accommodation, and that this constituted the denial of a reasonable accommodation.

While an unreasonable delay in providing an accommodation could conceivably constitute a violation of the Act, the commission does not believe the respondent acted unreasonably in this case. The respondent has an accommodations committee that meets monthly according to a set schedule. When the complainant requested an accommodation, the committee met according to its schedule and moved the process forward with each meeting. The respondent ultimately approved the accommodation as requested by the complainant with only minimal limitations. The entire process took just under four months from beginning to end. Although the complainant may consider a four-month delay to be unreasonable, particularly given that his legs were bothering him, the respondent credibly explained that it had never had a previous request for an employee to use a Segway at work and considered it necessary to assess the safety considerations attendant in granting such accommodation. The commission believes the respondent's concerns were reasonable and that there was no undue delay in evaluating and approving the complainant's accommodation request.

Disability - termination

The complainant contends that he was discharged because of his use of the Segway and that the respondent's explanation that he was discharged for sexual harassment is really a pretext for discrimination. In his petition for review the complainant attempts to provide context for his remarks to Ms. Mattingly, which were made in anger during the course of a conversation where Ms. Mattingly told the complainant he had a "fat face," and points out that Ms. Mattingly testified that she did not feel she had been sexually harassed. The complainant also argues that other employees who testified at the hearing indicated that the complainant had not intimidated them or interfered with their job performance. The complainant further argues that the 2007 incident never occurred, that he never received a warning for that conduct, and that he only signed the statement agreeing he had engaged in the conduct under duress. However, even accepting the complainant's arguments as true, the commission sees no basis to conclude that the respondent's explanation was really a pretext for discrimination. It is clear from the record that the respondent received a complaint about the complainant's conduct and, further, that prior to deciding to terminate the employment relationship it conducted an investigation which entailed interviewing numerous employees who uniformly told the respondent that the complainant engaged in conduct that was, at minimum, crude, and at worst, that constituted sexual harassment. Based upon its investigation the respondent reasonably concluded that the complainant was contributing to or creating a hostile work environment. The respondent's decision to discharge the complainant on that basis was made for a legitimate nondiscriminatory reason.

Finally, while the complainant maintains that he was really discharged because of his use of the Segway, it should be noted that the respondent agreed to allow the complainant to use his Segway at work, and the complainant failed to present any evidence to indicate that the respondent considered the accommodation to be problematic or was motivated to end the employment relationship because of it. In fact, the discharge did not occur until July of 2009, at which point the complainant had been using his Segway at work for almost a year.

cc: Attorney George K. Steil

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