NICCOLE A HOLMES, Complainant
MANITOWOC COUNTY SHERIFF'S DEPT, 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.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed
September 30, 2014
holmeni_rsd . doc : 164 : 127.3 127.4
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The questions presented in this case are whether the complainant established that she was subjected to harassment or other discriminatory terms and conditions of employment based upon her sex, that her sex was a motivating factor in the respondent's decision to terminate her employment, or that she was discharged in retaliation for opposing discrimination. The administrative law judge found that no discrimination was established, and the commission agrees.
Sexual harassment/harassment based upon sex
The Wisconsin Fair Employment Act (hereinafter "Act") prohibits an employer, in pertinent part, from:
Engaging in sexual harassment; or implicitly or explicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment; or making or permitting acquiescence in, submission to or rejection of sexual harassment the basis or any part of the basis for any employment decision affecting an employee, other than an employment decision that is disciplinary action against an employee for engaging in sexual harassment in violation of this paragraph; or permitting 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. 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.
Wis. Stat. § 111.36(1)(b).
Sexual harassment is defined in the statute, as follows:
[U]nwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. "Sexual harassment" includes conduct directed by a person at another person of the same or opposite gender. "Unwelcome verbal or physical conduct of a sexual nature" includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employee's work performance or to create an intimidating, hostile or offensive work environment.
Wis. Stat. § 111.32(13).
However, harassment does not have to have a sexual component to be prohibited under the statute. Prohibited conduct also includes:
Engaging in harassment that consists of unwelcome verbal or physical conduct directed at another individual because that individual's gender, other than the conduct described in par. (b), (1) and that has the purpose or effect of creating an intimidating, hostile or offensive work environment or has the purpose or effect of substantially interfering with that individual's work performance. 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.
Wis. Stat. § 111.36(1)(br).
The complainant maintains that her former co-worker, Officer Mark Nienhaus, engaged in the following conduct which she regarded as harassment:
The complainant also contends that Officer Nienhaus harassed other women by calling them dumb blondes, flirting with them, and making other statements that she regarded as sex-based. She further maintains that she heard Officer Nienhaus comment to an inmate that women did not belong working in the corrections facility, and argues that the work environment was generally sexist, pointing out that one of her witnesses described it as a "man's world." The complainant notes that the respondent has more male than female employees, and does not provide sexual harassment training.
The commission has considered the complainant's arguments, but does not find them persuasive. As set forth above, in order to establish a violation of the law based upon Officer Nienhaus' conduct, the complainant needed to demonstrate that he engaged in harassment that had the purpose or effect of substantially interfering with her work performance or of creating an intimidating, hostile or offensive work environment. The complainant has not made this showing. None of the comments which the complainant considered offensive were sexual in nature, nor, contrary to the complainant's assertions, does it appear that they were based upon her sex. The remarks that the complainant was moody or bi-polar could as easily have been made to a male as to a female, and there is no evidence to support a conclusion that they were related to the complainant's sex. Moreover, the four comments in question cannot be considered so severe or pervasive as to have created a hostile environment for the complainant.
The evidence does indicate that Officer Nienhaus was sometimes flirtatious with other females, that he commented on their anatomy, and that he referred to one of the female employees as a "dumb blonde," although the latter remark appears to have been part of a back-and-forth joking relationship and not considered unwelcome or offensive by the individual to whom it was directed. Taken as a whole, the evidence does not demonstrate that Nienhaus' conduct with respect to other female employees created an intimidating, hostile or offensive work environment such as would be prohibited by the statute.
Further, it must be noted that the complainant never complained that Officer Nienhaus was engaging in harassment of her or anyone else. An employer is only liable for harassment by a non-supervisory employee if the employer knew or should have known about the harassment and failed to take appropriate action within a reasonable time. See, Monroe v. Birds Eye Foods, ERD Case No. CR200304303 (LIRC March 31, 2010). While in her petition the complainant contends that there was a strong friendship between Officer Nienhaus and Sergeant Schultz, (2) the complainant's supervisor, and maintains that she felt intimidated and believed she could not report problems with Nienhaus to Schultz, the record does not demonstrate that Nienhaus and Schultz had the type of strong friendship the complainant describes. Moreover, the evidence indicates that the complainant could and did report some problems involving Nienhaus to Sergeant Schultz, and the commission further sees no reason to believe that the complainant could not have taken her concerns to someone else in management if she was reluctant to go to Schultz.
Finally, the commission finds unavailing the complainant's general contentions that the respondent tolerated a sexist work environment in violation of the Act. In the first place, the commission is not persuaded that the record would support a conclusion that the work environment was "sex-laced" and "sexist," as the complainant alleges. Further, and more importantly, the Act prohibits sexual harassment and harassment of employees based upon sex, as well as discrimination in the terms and conditions of employment based upon sex, but does not specifically protect employees from working in an environment that could be considered sexist. Neither the fact that the respondent employs more men than women nor the fact that it does not require sexual harassment training is a circumstance that can be said to constitute a violation of the Act, nor does the fact that some female employees may have considered the workplace a "man's world" compel a different conclusion. While some employees may perceive a specific work environment as being more male-oriented than female-oriented, or vice versa, this is not a sufficient basis upon which to rest a finding that there has been a violation of the Act, in the absence of evidence that the employee was subjected to harassment or discriminatory terms and conditions of employment.
Other discriminatory terms and conditions of employment
In her petition the complainant also argues that the respondent treated male officers more favorably then females, and specifically maintains that the respondent allowed male officers remedial training that she did not receive, and that it permitted them to have their probationary periods extended. The complainant cites to the testimony of Officer Cook and Sergeant Schultz, which she contends supports this assertion. However, while Officer Cook testified that she has seen the department extend the probationary period or provide remedial training for an employee who was considered to be not meeting standards, she could not recall when this occurred or under what circumstances, nor does her testimony indicate whether the affected employee was a male or a female. Similarly, Officer Schultz testified that he could think of two individuals who received remedial training, with surnames Marquardt and either Lee or Leiterman. However, Schultz' testimony does not indicate the genders of these individuals or the reasons for which remedial training was afforded. There is no reason to conclude that, had the complainant been a male, she would have received either additional training or an extension of her probationary period in lieu of discharge under the circumstances presented in this case.
Discharge because of sex
In her brief to the commission the complainant argues that, although the respondent stated she was discharged for poor performance, she presented evidence showing that she was performing her job in a satisfactory manner and never received any discipline for performance problems. The complainant further maintains that several co-workers who testified at the hearing indicated they saw no problems with the complainant's performance and were surprised she was discharged. In her brief she emphasizes the testimony of Inspector Schetter--who initiated the investigation into the complainant's actions and ultimately decided to terminate her employment--that nobody requested she be terminated. The complainant also argues that the respondent offered shifting explanations for her discharge, telling the complainant that she was released due to a failure to meet performance standards during her probationary period, but later arguing in its position statement provided to the department that she was discharged because she "manifested real and significant problems related to her interaction with other jail staff and jail inmates."
The complainant's arguments are not convincing. The respondent did not contend that the complainant's work performance was generally inadequate, and the fact that many of the complainant's co-workers saw no problems with her performance and that she had received no prior discipline is of little relevance. The commission fails to understand why the complainant attaches importance to Inspector Schetter's testimony that nobody asked him to terminate the complainant's employment, and it finds the respondent's explanation for the discharge to be persuasive and not a pretext for discrimination. While the respondent may not have always used the identical terminology in explaining why the complainant was discharged, its explanations were generally consistent with each other, and with the explanation provided at the hearing. The respondent learned that the complainant had stated to a co-worker that another worker "is such a fucking bitch, she better watch it once I get off probation." The respondent regarded this statement as threatening and inappropriate and, when called upon to explain it, the complainant could or would not do so. Rather than respond to the concerns raised by the respondent, the complainant used the meeting called to discuss the issue as a vehicle to make unrelated complaints against Officer Nienhaus. It appeared to the respondent's managers that the complainant was attempting to change the subject away from her own questionable actions by bringing up complaints about someone else, leading them to believe that the complainant was not trustworthy or truthful. After the meeting the respondent asked some of the complainant's co-workers to provide written statements explicating their feelings about working with the complainant and their opinions of her performance. Upon reviewing those statements, which indicated that the complainant had made intemperate and threatening comments that led some officers to feel uncomfortable working with her, the respondent decided to terminate her employment. A female officer was hired to replace her.
The complainant maintains that the decision to terminate her employment was made exclusively by male members of the respondent's administration relying heavily on information from Officer Nienhaus
and Sergeant Schultz, who were friends and collaborating to fire her. She offers
an elaborate "cat's paw" theory (3) to the effect that Nienhaus manipulated Schultz into terminating her employment based upon her gender. However, there is simply no evidence to support such speculation. As stated above, the record does not establish that Nienhaus and Schultz had the type of strong friendship the complainant alleges they had, nor is there any evidence to indicate that Nienhaus wanted to get the complainant fired because of her gender. Notwithstanding an isolated statement to an inmate to the effect that women did not belong in corrections, the commission sees no reason to believe that Nienhaus had any objection to working with women. Further, it was not Schultz who made the decision to terminate the complainant's employment, but Inspector Schetter, who did so after consultation with other members of the respondent's management and with the respondent's personnel director. Given all the circumstances, there is no reason to conclude that the complainant was discharged based on her sex, either as part of a scheme between Nienhaus and Schultz or otherwise.
Discharge in retaliation for engaging in protected conduct
The final question to decide is whether the complainant established that she engaged in protected conduct and, if so, whether her protected conduct played any role in her discharge. The administrative law judge found that the complainant did not oppose a discriminatory practice, and the commission agrees. The conduct which the complainant alleges constituted protected opposition was her complaint to Sergeant Schultz on February 11, 2008, that Nienhaus had told her she was bipolar and should be checked for ADD, which she repeated during the February 13, 2008 meeting with Sergeants Schultz and Messman. However, Nienhaus' alleged remark had nothing to do with the complainant's sex, and the complainant never told Schultz or Messman that she considered it to be. The evidence does not indicate that either Schultz or Messman regarded the complainant's complaint about Nienhaus as being a complaint of sex discrimination. Consequently, there is no basis to conclude that the decision to discharge the complainant was related to protected opposition on her part.
The commission has considered the remaining arguments raised by the complainant in her petition for review and supporting briefs, but finds them similarly unpersuasive. Because the commission agrees with the administrative law judge that the complainant failed to establish she was discriminated against as alleged, the dismissal of her complaint is affirmed.
cc:
ATTORNEY JANET L HEINS
HEINS & MINKO
ATTORNEY MEGAN A KUEHL
DENISSEN KRANZUSH MAHONEY & EWALD SC
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