ERICA SUSANA SANCHEZ, Complainant

EILLIENS CANDIES 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.

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

Dated and mailed July 31, 2015

sancher_rsd . doc : 164 : 5   152

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

In her petition for commission review the complainant reiterates and expands upon the testimony she gave at the hearing, arguing that many of the factual findings made by the administrative law judge are either incomplete or incorrect. Because by law the commission must limit its review to that evidence that was presented at the hearing before the administrative law judge, the commission is unable to consider additional factual assertions that were raised for the first time in the petition for review, but must confine its review to that evidence that is already in the record. The commission has conducted an independent review of the record, and based upon that review, it concludes that the administrative law judge's factual findings are supported by credible testimony. Moreover, while the complainant contends that the administrative law judge gave "all the power" to the respondent's testimony, the commission notes that, where the parties disagreed, the administrative law judge frequently found the complainant's version to be the more credible. For example, in paragraph 19 of her decision the administrative law judge found that Ms. Edinger told the complainant Ms. Swille's conduct was an "American joke," a matter which Ms. Edinger repeatedly denied, and in paragraph 29 the administrative law judge adopted the complainant's testimony that Ms. Edinger told her everyone was angry that she had called the police about the incident, notwithstanding Ms. Edinger's testimony to the contrary. Thus, the commission sees no reason to believe the administrative law judge was biased in favor of the respondent or unwilling to credit the complainant's testimony.

The evidence adduced at the hearing established, and the administrative law judge found, that the complainant was harassed at work by two of her co-workers based upon her race, national origin, religion, marital status, and because of her use or nonuse of lawful products off the employer's premises during non-working hours. The evidence further established that the harassment was sufficiently egregious as to create a hostile work environment. The question to resolve is whether the respondent can be held liable for the hostile environment to which the complainant was subjected.

An employer cannot be found responsible for racial or religious harassment (or harassment on other grounds) unless it is carried out directly by the employer or, if carried out by co-employees, the employer knows or should reasonably know of it and fails to take reasonable action to prevent it. Acevedo v. Oshkosh Corporation, ERD Case No. CR200801252 (LIRC March 29, 2012). An employer has fairly wide latitude to address allegations of harassment as it sees fit, provided its actions are reasonably calculated to remedy the situation and prevent future harassment. Rusniak v. Fagan Chevrolet-Cadillac, ERD Case No. CR20000002 (LIRC May 23, 2002). In this case, the respondent was unaware of the harassment the complainant was experiencing in the workplace until she told the respondent about it in late January of 2013. When the respondent learned of the harassment it issued a written warning to the worker who had engaged in the most egregious conduct. It also transferred the complainant to a different production line in a different part of the building, where she would not be required to work with the two co-workers who had been creating a hostile environment for her and where her break times would not coincide with theirs. The harassing conduct did not continue thereafter, with the exception of a single instance when, passing the individuals in question in the hallway, the complainant perceived that they laughed at her and made a fist, a matter which she did not report to the respondent. Under the circumstances, the commission agrees with the administrative law judge that the respondent did not permit harassment to occur or otherwise subject the complainant to discriminatory terms and conditions of employment in violation of the Wisconsin Fair Employment Act.

With respect to the complainant's subsequent discharge, the evidence indicates that the respondent's decision to terminate the employment relationship was because the complainant was unable to keep up with production demands. The complainant's inability to adequately perform the job constitutes a legitimate, non-discriminatory reason for the discharge that was not shown to be a pretext for discrimination. The dismissal of her complaint is, accordingly, affirmed.

NOTE: The complainant has requested a Spanish translation of the administrative law judge's decision. Pursuant to that request, the Equal Rights Division arranged for a translation to be prepared, and the commission has enclosed a copy of the translated decision for the complainant's reference.

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