STACEY N RHYNER, Complainant
VETERINARY MEDICAL SERVICES, 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:
In paragraph 1 of the ALJ's ORDER, delete "his disability" and replace it with "her sex."
That the respondent shall pay the complainant's reasonable attorney's fees and costs associated with this matter, in the total amount of $62,274.31 (fees of $61,082.50 and costs of $1,191.81). A check in that amount shall be made payable jointly to the complainant and her attorney, Thomas Lenz of First, Albrecht & Blondis, S.C., and delivered to the office of Attorney Lenz.
That within 30 days of the date on which this decision becomes final, the respondent, by its officer, Dr. Rydberg, shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. The respondent shall submit a copy of the Compliance Report to the complainant at the same time that it is submitted to the commission. Within 10 days from the date the copy of the Compliance Report is submitted to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed February 25, 2016
rhynest_rmd . doc : 107 : 5 127.3
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The complainant worked for about one year as a part-time assistant for the respondent, a veterinary practice. The practice had two offices, one in Lake Geneva and one in Richmond, Illinois. The complainant and her co-worker alternated between working at each location.
Dr. Marvin E. Rydberg was the sole veterinarian in the practice. He did not have any medical education related to humans. At the time relevant to this complaint he was 80 years old. The complainant was 28 years old.
In February 2012, about one month after the employee was hired, an incident occurred that was not the subject of the complaint, but has some connection to the event about eight months later that triggered the complaint. While at work alone with Dr. Rydberg, the complainant asked Dr. Rydberg for his opinion about a lump in her breast that she was concerned about. She showed Dr. Rydberg the film from her mammogram, and Dr. Rydberg indicated that he could not determine anything from the film. According to the complainant, Dr. Rydberg asked if she could feel the lump, and the complainant consented by putting her fingers on the lump, over her clothing, and allowing Dr. Rydberg to touch it. Also according to the complainant, Dr. Rydberg asked if he could compare it to the other breast, and the complainant allowed him to touch a similar area on her other breast over her clothing. According to Dr. Rydberg, the complainant exposed her breast to him, while asking his opinion about the lump. The ALJ seemed to favor the complainant's description, although she did not make it clear whether the complainant exposed her breast:
...The Complainant allowed Dr. Rydberg to touch her breast and feel for the lump. She took his hand and placed his fingers where she felt the lump was located. She also allowed Dr. Rydberg to touch her left breast to compare how her two breasts felt. The Complainant sought Dr. Rydberg's advice because of his being a doctor of medicine.
Finding of Fact No. 5. Both parties are in agreement that there was nothing sexual about this incident, and the complainant does not claim the contact to have been unwelcome.
Eight months went by, during which there was no sexual contact between the two. The complainant testified that Dr. Rydberg occasionally asked her about whether she was conducting breast exams, which apparently struck her as a little odd, but she denied thinking that his questions were sexual in nature.
The incident that triggered the complaint occurred on October 5, 2012. It began not unlike the incident in February--the complainant expressed a health concern to Dr. Rydberg, this time a sore shoulder, and Dr. Rydberg responded to it, this time by massaging her back. The only two witnesses were the complainant and Dr. Rydberg. The ALJ's lengthy Finding of Fact No. 9 basically adopts the complainant's version of events.
Dr. Rydberg's version is similar to the complainant's, until the allegation that he rubbed his pelvis against her buttocks. He agreed that he asked her if she wanted him to massage her. He agreed that the complainant at first sat on his knee for the massage. They both testified that she moved from his knee to a chair. He agreed that she took her arm out of her sleeve and pulled up her shirts. He agreed that the complainant unfastened her bra. He agreed that he suggested that she stand up and lean over a table, and added that the reason he did so was that he had a cramp in his leg and needed to stand up. As for rubbing his pelvis against her buttocks, Dr. Rydberg described moving from side to side to work out the cramp. He testified that he did not intend to rub himself against the complainant. He denied trying to pull down her pants, touching her breasts, saying anything about her nipples, trying to kiss her, or giving her a bear hug. He testified that he did not recall the complainant telling him to stop. He testified that after a while they mutually decided to stop.
The complainant's version of the incident is more credible than Dr. Rydberg's. First, it appears that Dr. Rydberg admitted to Detective Hewett that he touched the complainant's breasts on October 5th. Detective Hewett summarized her interview with Dr. Rydberg after the complainant reported the incident to the police. Dr. Rydberg argued that he only mentioned touching the complainant's breast back in February when he examined the lump, and that Detective Hewett somehow misunderstood him. The summary, however, does not indicate such a misunderstanding:
...I asked RYDBERG if he recalled touching her breasts during or after the massage. He stated he did, she had told him that she didn't feel the lump there anymore like she did before. When RHYNER stood up and faced him he did place his hand on her breast to feel for the possible lump. RYDBERG stated that he did not feel this was anything inappropriate because earlier in the working relationship and shortly after RHYNER started working with him, she had expressed concern about a lump in her breast and approached him, exposing her breast, and asking him to see if he felt it too....
Ex. C-28. Detective Hewett's summary throws considerable doubt on Dr. Rydberg's testimony that he did not touch the complainant's breasts on October 5th, which, in turn, considerably damages the rest of his testimony about the incident.
Second, Dr. Rydberg's testimony that the two of them mutually stopped and that he doesn't remember the complainant telling him to stop does not square with several statements he made afterwards. The complainant said the next time she saw him he said something like "I take it you don't like massages." He did not deny saying this; he said he didn't remember saying it. After finding out that the complainant resigned, he wrote a letter to "Dear Stacey" on a little note pad with pictures of baskets on it. Included in the note was:
Yes, you did send many mixed signals, and I'm sorry you didn't feel comfortable enough to talk about them instead of just quitting...
Sorry for the misunderstanding...
Ex. C-1. In the letter he enclosed a $100 bill as a bonus for extra work she did. Dr. Rydberg's explanation of the reference to "mixed signals" was that when the complainant came to work on the Monday after the incident she was not her "jubilant, bubbly self," and that sometimes she did not seem happy to be at work. He denied that it was a sexual reference. As to the use of the word "misunderstanding," he said it referred to the fact that he did not understand why she was quitting. This testimony is not credible. A handwritten letter on a cute stationery pad, starting "Dear Stacey" and talking about mixed signals and misunderstandings, with $100 enclosed, is not normal communication from an employer to an employee who had just quit her employment for no apparent reason. It also is not normal for an employer to send anxious text messages to such an employee, which he did, one of which was sent at 1030 p.m., asking to chat, and conceding that he may have "offended" her. The letter and text messages are the aftermath of a sexual advance that went awry.
Third, it appeared that Dr. Rydberg was responsible for the assertion to the Unemployment Insurance Division (UI) that the complainant quit due to family and time constraints. Ex. C-23. The respondent's other employee, Emily Mistretta, testified that she reported this reason for the complainant's quitting, and that she got this information from Dr. Rydberg. The date of the statement to UI is November 8, 2012, long after Dr. Rydberg knew that the complainant's expressed reason for quitting had nothing to do with family or time constraints, but was that he had allegedly sexually assaulted her. The false statement to UI makes Dr. Rydberg's later denials of sexual advances unconvincing.
On the morning of October 6, 2012, the day after the incident, the complainant worked as scheduled in Lake Geneva. She testified that she went back to work because she had kids to support, and was hoping she could get beyond the incident and it would go away. There was little interaction between them that day. Dr. Rydberg made his comment to her about not liking massages, and left to go to the Richmond office. On Monday, October 8th, the complainant worked alone in the office. Dr. Rydberg stopped in to pick up some medication. All he said was "hi." According to the statement she gave to the police on October 14th, she also worked on Tuesday and Wednesday October 9th and 10th, but said she worked alone those days. She did not return to work after October 10, 2012.
Legal framework
Sexual harassment
The Wisconsin Fair Employment Act (WFEA), Wis. Stats. § 111.36(1), provides in part:
(1) Employment discrimination because of sex includes but is not limited to, any of the following actions by any employer...
(b) 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...
The commission's decision in Tobias v. Jim Walter Color Separations, ERD Case No. 199500297 (LIRC Aug. 13, 1997), which was affirmed by the Wisconsin court of appeals in Jim Walter Color Separations v. LIRC, 226 Wis. 2d 334), 595 N.W.2d 68 (Ct. App. 1999), interpreted the above language as setting out three categories of prohibited sexual harassment: (1) an employer's engaging in sexual harassment; (2) an employer's explicitly or implicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment or the basis of any part of a decision affecting the employee ("quid pro quo" sexual harassment); and (3) an employer's permitting sexual harassment to substantially interfere with an employee's work performance or to create an intimidating, hostile or offensive work environment ("hostile environment" sexual harassment).
The commission in Tobias further explained the first category of sexual harassment above:
The first part of the definition, "engag[ing] in" sexual harassment, clearly and unambiguously applies to conduct by the employer (or an owner or agent in a position of responsibility such that it is appropriate to apply the rule of respondeat superior and treat the actions of the agent as being the actions of the employer). An employer thus violates the act if it "engages in" sexual harassment.
This case falls into the first category. The individual that the complainant accused of sexual harassment, Dr. Rydberg, was the owner of a veterinary clinic that employed two people.(1) When an owner/employer engages in sexual harassment, the conduct of the employer does not need to create a hostile environment (that is, it does not have to be severe or pervasive) in order for liability to attach. Kruschek v. Trane Co., ERD Case No. CR200603576 (LIRC Dec. 23, 2010). Liability attaches if the employer's conduct meets the WFEA's definition of sexual harassment, Wis. Stats. § 111.32 (13), which states in part:
"Sexual harassment" means unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature...
The question of whether the conduct complained of was unwelcome has to do with the effect of sexual conduct on a complainant's state of mind. Godfrey v. TK Oshkosh, LLC, ERD Case No. CR201002674 (LIRC Jan. 16, 2014).
Constructive discharge
To find a constructive discharge, it must be established that, due to a discriminatory reason, working conditions are rendered so difficult or unpleasant that a reasonable person would feel compelled to resign. Cole v. Northland College, ERD Case No. 199802086 (LIRC Mar. 19, 2001); Harper v. Menard, Inc., ERD Case No. CR200602401 (LIRC Sep. 18, 2009). A finding that there has been sexual harassment by the employer does not always require a finding of constructive discharge; the specific details and circumstances relative to the sexual harassment must always be looked to in deciding whether there was a constructive discharge. Tobias, supra. The commission has said that the complainant must present evidence of aggravating factors to support a finding of constructive discharge. Sarazin v. W & G Transport, ERD Case No. 199601006 (LIRC Mar. 9, 1999).
The commission noted in Jorgensen v. Ferrellgas, Inc., ERD Case No. 8850821 (LIRC Jan. 10, 1992), that certain federal case law (in the 8th circuit and 4th circuit) required a complainant, in order to prove constructive discharge, to establish that the employer created intolerable working conditions with the specific intent of forcing the employee out of his or her job. The commission in Jorgensen chose not to adopt that standard.
Application of facts to the law
Sexual harassment
Under the complainant's more credible version of the October 5th incident, it is clear that Dr. Rydberg engaged in sexual harassment--he had sexual contact with the complainant and engaged in verbal and physical conduct of a sexual nature with her after she repeatedly told him to stop. It is not necessary to consider whether the conduct was severe or pervasive--it is enough that it was unwelcome. Tobias, supra. If the events on October 5th unfolded as the complainant testified, the only theory that might have saved the respondent from liability is the theory that the complainant's protestations that Dr. Rydberg "knock it off" were not sincere, but were part of an act intended to set up a phony sexual harassment claim. There simply is not enough evidence to reach this conclusion. The ALJ's determination that the respondent engaged in sexual harassment is affirmed.
Constructive discharge
As stated above, the test applied by the commission is that if, due to a discriminatory reason, working conditions are rendered so difficult or unpleasant that a reasonable person would feel compelled to resign, the complainant has shown constructive discharge. Typically, where a complaint procedure is in place through which an employee can reasonably expect appropriate remedial action, a complainant will not be compelled to resign until after he or she has tried the complaint process, unless remaining in the job confronts the complainant with an aggravated situation. Waedekin v. Marquette Univ., ERD Case No. 8752240 (LIRC Mar. 5, 1991), aff'd, Milwaukee Co. Cir. Ct., Jan. 21, 1992, aff'd Ct. App., Dist. I, unpublished decision, Apr. 26, 1994. This case presents an aggravated situation, in that the complainant was working for a single owner/employer who had no formal complaint process, no human resources office, and no rules regarding sexual harassment. The only prospect for resolving the issue was through persuading the person who committed the harassment and who had complete control over her employment to not repeat his conduct. The commission concludes that under these circumstances a reasonable employee in the complainant's position would justifiably feel compelled to resign when her employer, against her will, tried to pull down her pants, grabbed her breasts, made explicitly sexual comments to her about her nipples, and tried to kiss her. Dr. Rydberg's conduct was egregious, and given the fact that the complainant was without any process or internal authority to protect her, it was reasonable for her to feel compelled to resign. The additional days the complainant worked after the incident are not significant. She did not see Dr. Rydberg much those days, and it is not implausible that for a few days she might have tried to continue working out of economic necessity.
The ALJ's determination that the complainant was constructively discharged is affirmed.
Attorney's fees
The complainant asked for an additional $18,610.00 in attorney's fees in connection with proceedings before the commission. This represented a total of approximately 64 hours to produce an initial brief of 10 pages and a reply brief of 15 pages, with approximately 40 of the 64 hours spent on the reply brief. The respondent objected that the descriptions of the services performed by the three attorneys for the complainant were inadequate, and the total time spent was excessive. Olson v. Phillips Plating, ERD Case No. 8630829 (LIRC Feb. 11, 1992). The commission agrees that the number of hours spent on the reply brief is excessive, and the similar descriptions of services by the three attorneys suggest redundant services. The commission considers it appropriate to reduce the fees attributed to the reply brief by $4,000.00, or approximately one-third.
Complainant's request regarding compliance order
Along with its petition for attorney's fees, the complainant requested that Dr. Rydberg and First Veterinary Clinic (Dr. Rydberg's Illinois practice) be required to submit a compliance report showing compliance with the remedial orders in this matter. In support of her request, the complainant filed documents showing that Veterinary Medical Services filed articles of dissolution with the Wisconsin Department of Financial Institutions several months after the ALJ's decision was issued. The complainant argues that the respondent "may attempt to close one or both of his businesses to avoid the consequences of having sexually harassed Ms. Rhyner." The respondent argues that the complainant's request is an attempt to make non-parties to the litigation liable, in violation of due process. Normally, only the named respondent is required to file a compliance report.
First, the commission notes that a corporation dissolving under Wis. Stat. § 180.1401 et seq., has certain obligations with regard to claims against it. It is not known whether Veterinary Medical Services, despite its possible dissolution, is incapable of complying with the remedy ordered. But in order to ensure that someone responds to the requirement to submit a compliance report, the commission identifies Dr. Rydberg, the officer who filed the articles of dissolution, as the individual who shall submit the compliance report on behalf of Veterinary Medical Services. The commission declines to make Dr. Rydberg personally liable, or his Illinois corporation liable, based on the complainant's unilateral post-hearing allegations. The commission has noted:
...where an incorporated employer is named as a respondent in a complaint alleging a violation of the Wisconsin Fair Employment Act, there is no basis for separately naming "owners" (i.e., owners of the corporations' stock) as respondents in their individual capacities based simply on their stock ownership. The corporation is a separate legal entity. Liability for actions taken by the corporation (acting through its agents) is liability of the corporation. It is a fundamental principle of corporation law, that the liability of stockholders for actions taken by the corporation is limited to the extent of their investment in the corporation, i.e., their stock holdings. While there may be cases in which the law will "pierce the corporate veil" to impose a liability of a corporation directly on its owners on a personal basis, whether this is appropriate or necessary must be determined on a case-by-case basis and cannot be automatically achieved merely by naming owners as parties.
Sinclair v. Mike's Towne & Country, ERD Case No. 9201449 (Oct. 15, 1993). The alleged facts giving rise to the complainant's request occurred after the evidentiary record in this case closed. The question of whether there are grounds to enforce the judgment in this matter against any party other than the named respondent is best left to enforcement proceedings. Wis. Stat. § 111.395.
cc:
Attorney Thomas Lenz
Attorney Cynthia Mack
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