Wis.LIRC ER Decision: Jedrzejewski, Theresa - September 16, 2016 - 127.3 Employer's effort to keep the complainant and a co-employee separated by giving them different work assignments, then by approving the idea of the co-employee's transfer to a different shift, was a reasonably prompt response to the complainant's report of sexual harassment by the co-employee, and was reasonably calculated to address it, given the complainant's desired remedy that the co-employee be kept away from her, and the disputing descriptions about what had actually happened between them. The complainant experienced no further harassment from the co-employee for the remainder of her employment. (appealed to circuit court)

The decision of the administrative law judge (copy attached) is affirmed, subject to the modification noted below. Accordingly, the complaint in this matter is dismissed.

This case is before the commission to consider the complainant's allegations that the respondent engaged in or permitted sexual harassment, terminated the complainant's employment because of sex, and terminated her employment and discriminated against her for opposing a discriminatory practice, in violation of the Wisconsin Fair Employment Act (WFEA). An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision. A timely petition for commission review was filed. The commission has considered the petition and the positions of the parties, and has reviewed the evidence submitted at the hearing. 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 substitutes its own Memorandum Opinion for the MEMORANDUM DECISION of the ALJ.

The complainant alleged she was sexually harassed in a single incident at work by a co-worker. In a statement attached to her discrimination complaint, she alleged:

On or about June 8^th, 2013, Richard Radschlag, a co-worker at Signicast, sexually assaulted me by grabbing my breasts with both hands. He then told me, “You took that better than any woman,” or words to that effect.

The complainant's description of the incident in her testimony was similar to the statement in her complaint, although the complainant seemed unsure when the incident took place, offering several possible dates in the first two or three weeks of June 2013. Despite her problems remembering the date of the incident, the commission does not find her testimony about the substance of the incident to be incredible on its face. Given that there was no other first-hand evidence of what happened, the commission assumes the facts of the incident as alleged by the complainant for purposes of this analysis.

The Wisconsin Fair Employment Act (WFEA), Wis. Stat. §111.31 et seq., defines sexual harassment as follows:

“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. “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.

The complainant's allegations satisfy the statutory definition of sexual harassment inflicted by a co-worker. It was clear that the alleged conduct was sexual in nature and was unwelcome. Although it occurred in a single incident, that incident, having involved egregious contact of a sexual nature, was sufficiently severe to have interfered substantially with the complainant's work performance or to have created an intimidating, hostile or offensive work environment. See, Krienke v. Ramada Inn Conference Center, ERD Case No. CR200002246 (LIRC Oct. 29, 2002).

Nevertheless, for employer liability to attach in a case involving sexual harassment inflicted on an individual by a co-worker, the individual must inform the employer of the harassment and the employer must then fail to take appropriate action within a reasonable time. Monroe v. Birds Eye Foods, Inc., ERD Case No. CR200304303 (LIRC Mar. 31, 2010); Skilling-Vuckich v. Swift Transportation, ERD Case No. 200400213 (LIRC Jan. 31, 2006); Wis. Stat. § 111.36(3).

According to the complainant's own testimony, she did not report the incident to anyone in management for about three to four weeks. She then mentioned to her supervisor, Jason Peetz, that someone at work grabbed her, but did not divulge who, and declined Peetz's invitation to talk any further about the incident.

The complainant's main concern was that Radschlag and she be kept apart from each other. Radschlag worked on the D night shift, and the complainant worked on the C night shift. Normally they did not work together, but if she wanted to work overtime, she might work the D shift, and if he wanted to work overtime, he might work the C shift. If either of them worked overtime, then, they could find themselves in the building together for an entire shift.

Shortly after she mentioned the incident to Peetz, Peetz was replaced by Adam Miller. About two weeks later the complainant decided to speak to Miller and another supervisor, Andy Nichols, about the incident. Although there had been no subsequent incident involving Radschlag, the complainant was not comfortable with the fact their work schedules could put them in the building together if either one worked an overtime shift. Miller and Nichols asked her what she wanted and she replied that she wanted to stay far away from Radschlag. Miller did his best in the next few weeks to assign work to them so as to minimize any contact between them, and Nichols brought the matter to the human resources coordinator, Robbie Ramthun.

Radschlag was interviewed about the incident. He denied the complainant's allegations, and said any contact he made with her in the incident was accidental. Despite this conflicting evidence, the human resources office approached Radschlag with the idea of changing shifts in order to minimize contact between him and the complainant, and he opted to do that. As a result, beginning around October 2013 Radschlag worked days, after which the only potential interaction between him and the complainant was during a 10-minute shift change overlap.

An employer's duty, upon being notified by an employee of an act of sexual harassment at work, is to take appropriate action within a reasonable time. Monroe, supra. An employer's action should be reasonably calculated to address the situation. Rusniak v. Fagan Chevrolet-Cadillac, ERD Case No. CR200000027 (LIRC May 23, 2002). An employer has fairly wide latitude to address allegations of sexual harassment as it sees fit, provided its actions are reasonably calculated to remedy the situation and prevent future harassment. Krienke, supra. In this case, the respondent's effort to keep the complainant and Radschlag separated by giving them different work assignments, and then by approving the idea of Radschlag' s transfer to day shift, was a reasonably prompt response to the complainant's report of harassment, and was reasonably calculated to address it, given the complainant's desired remedy that Radschlag be kept away from her, and the disputing descriptions from the complainant and Radschlag about what actually happened. In fact, the complainant acknowledged that for the remainder of her employment she suffered no further harassment of any kind from Radschlag.

The complainant appears to be arguing that the respondent's actions to address the situation were inadequate because on October 31, 2013, during the 10-minute shift overlap, the complainant saw Radschlag on the premises while she was picking up the trash at the end of her shift, a duty that rotated among the employees on her shift. As the complainant described it, Radschlag was minding his own business, getting ready to start his shift, and did not say anything to her or gesture to her. When the complainant saw him she simply backed away. The mere sight of Radschlag on this occasion did not render inadequate the respondent's actions to keep the complainant and Radschlag separated. Its actions continued to serve their purpose of preventing additional incidents. Under the circumstances the respondent did not have to guarantee that the complainant would never see Radschlag again in order to reasonably respond to her complaint. The commission therefore affirms the ALJ's decision that the respondent did not engage in or permit sexual harassment in violation of the WFEA.

The complainant testified that her employment was terminated on November 4, 2013 during a meeting with a plant manager, Jim Okonek and human resources director, Ramthun. What led to the meeting on November 4^th was an encounter the complainant had with Miller on October 31^st, shortly after she had seen Radschlag while collecting the trash. She testified that Miller, referring to her difficulty with Radschlag, told her to grow up and be a mature adult, and that this caused a yelling match between them.

Miller, on the other hand, testified that he saw the complainant near the trash cans on October 31^st, near where Radschlag had been standing, and before saying anything to her the complainant said to Miller that it was “bullshit” that she should be in the same plant as Radschlag. Miller testified that he then asked: “Can't we just be adults and walk by each other?” at which point the complainant called him a “fucking piece of shit.”

The ALJ credited Miller's version of this encounter over the complainant's, and the commission adopts that credibility assessment. The complainant provided different accounts of what she said to Miller, indicating a faulty memory or evasiveness.[2]

When the complainant arrived for her shift on the evening of October 31^st, she asked for a meeting with Okonek and a human resources employee about what had happened earlier in the day. Okonek, after investigating the incident, concluded that the complainant should be disciplined for swearing at Miller, and scheduled a meeting with the complainant to issue her a corrective action notice on November 4, 2013.

The complainant testified that Okonek fired her at the meeting on November 4^th. Okonek and Ramthun testified that they gave her a corrective action notice to take a decision-making leave for one day, and that while Okonek was reading the notice to the complainant, she threw down her building access button and her badge, left the meeting, gathered her personal items and left the building.[3] They testified that she quit her employment. The ALJ credited the version told by Miller and Ramthun over the complainant's version, and again the commission adopts that credibility assessment. The version of Miller and Ramthun was supported by a copy of the decision-making leave notification (R. Ex. 6). The complainant has failed to prove her claim of termination because of sex, having failed to prove that her employment was terminated. In addition, she failed to show that her sex was the motivation for whatever discipline she received on November 4, 2013.

The complainant's remaining two claims are that she suffered adverse treatment, and that her employment was terminated, because she opposed a discriminatory practice at work. Her termination claim cannot succeed because she did not prove her employment was terminated. That leaves the question of whether the treatment she did suffer, a corrective action for having sworn at her supervisor, was an act of retaliation for opposing a discriminatory practice.

A pima facie case of retaliation for opposing a discriminatory practice requires a showing that the complainant engaged in statutorily protected expression, suffered an adverse employment action, and that there was a causal link between the protected expression and the adverse action. Kruschek v. Trane Co., ERD Case No. CR200603576 (LIRC Dec. 23, 2010); Sarazin v. W & G Transport, ERD Case No. 199601006 (LIRC Mar. 9, 1999). The first two elements are undisputed. The third is disputed, and the complainant's evidence does not establish a causal link. As noted above, the complainant's insistence that she did not call her supervisor a fucking piece of shit is not credible. She also argued that the language she was accused of using was common at the workplace, and did not warrant discipline. She was unable to present any example, however, of an employee's receiving no discipline for having angrily directed obscenities at a supervisor. The respondent had a rule prohibiting insubordination and a rule prohibiting the directing o abusive or profane language at a fellow employee or at supervision (R. Ex. 6). This was a reasonable rule, and provided sufficient motivation for the issuance of a corrective action notice to the complainant. The commission therefore affirms the ALJ's conclusion that the complainant failed to prove that the respondent engaged in retaliatory conduct in violation of the WFEA.

Footnotes:

[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.

Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission's website http://lirc.wisconsin.gov.

[2] As noted by the respondent, the complainant acknowledged telling Miller that he was a fucking piece of shit in a letter written by her attorney (R. Ex. 3), provided a revised version in which she told Miller she thought he was a piece of shit when she was “outside the door” (R. Ex. 4 and 5), and testified that she said the phrase “piece of shit” as she was leaving, but did not direct it at anybody. (Tr, p. 19).

[3] It is noted that the complainant alleged that on her way out of the building on November 4^th she talked about an encounter with another employee, Bob Nichols, in which Nichols allegedly grabbed her face and hair and “blurted” something from a song to her. She did not report this conduct to anyone as sexual harassment, however, and it cannot be the motivation for any employment action, because all the complainant's relevant interactions with the respondent had already taken place, including her act of quitting employment, before she made her statement about Bob Nichols as she left the building on November 4th.