State of Wisconsin
Labor and Industry Review Commission
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Fair Employment Decision[1] |
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Complainant |
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Respondent |
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Dated and Mailed: |
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ERD Case No. CR201403587 |
October 5, 2017 |
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EEOC Case No. 26G201500209C |
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The decision of the administrative law judge is reversed. Accordingly, the complaint of discrimination is dismissed.
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By the Commission: |
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Laurie R. McCallum, Chairperson
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David B. Falstad, Commissioner |
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Procedural Posture
This case is before the commission to consider the complainant’s allegation that she was subjected to sexual harassment by the respondent, was discriminated against for having opposed that conduct, and was discharged in retaliation for opposing discriminatory conduct and based upon her sex, in violation of the Wisconsin Fair Employment Act (hereinafter “Act”). An administrative law judge for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision finding that the respondent violated the Act as alleged by the complainant. A timely petition for commission review was filed. The commission has considered the petition and the position of the parties, and it has reviewed the evidence submitted at the hearing. Based on its review, the commission makes the following:
Findings of Fact
1. The respondent, Brunner Wire Products, Inc., (hereinafter “respondent”), is a company that manufactures cold formed and precision machined steel products.
2. The complainant, Shawna Hodge, (hereinafter “complainant”), began working for the respondent in June of 2013. The complainant’s job was to run a drilling machine at the respondent’s Hilltop facility.
3. At all relevant times, Tim Brunner was the respondent’s president and a part-owner of the company. His father, Ron Brunner, was the CEO. The complainant’s supervisor was Sandi Lawrence, the lead worker for the drilling department.
4. The complainant knew Tim Brunner outside of work, and the two were Facebook friends. On one occasion during the summer of 2014 the complainant posted on Facebook that she was planning on getting a tattoo, and Mr. Brunner posted a response asking what kind. The complainant’s husband replied that Brunner should mind his own business, to which Brunner responded something to the effect of, “It’s not like I said she should get ‘welcome aboard’ tattooed on her ass.” Brunner apologized and took the comment down.
5. On August 6, 2014, the complainant was at her machine at work, located on the main aisle of the shop floor, when Tim Brunner walked past on his way to the tool room. Brunner noticed that the complainant was not wearing her work uniform and asked her why not. The complainant responded that the pants did not fit and that it was uncomfortable to tuck the uniform shirt into her jeans because the shirt was too long. Brunner told the complainant that she did not need to wear her pants “so tight to [her] ass.” Brunner suggested the complainant buy new pants, and the complainant responded that she could not afford them.
6. Other employees were not in uniform that day, but the complainant was the only one who Brunner talked to about it. On previous occasions Brunner had noticed employees wearing pants that were torn, which posed a safety hazard, and had told them to change.[2]
7. The complainant was upset by Tim Brunner’s comment about wearing her pants “so tight to your ass,” and she reported the matter to Nicole Turner, the respondent’s human resources representative. Ms. Turner asked the complainant to put her complaint into writing. The complainant then wrote a statement indicating that she thought Brunner’s comment was “extremely inappropriate” and noting that this was not the first time Brunner had made inappropriate comments. The latter remark was in reference to the Facebook incident. Neither the complainant nor any other employee had made a prior complaint to the respondent regarding inappropriate comments by Tim Brunner.
8. Ms. Turner asked the complainant to also put into writing what she wanted done about the situation. The complainant therefore submitted a second statement in which she indicated that she wanted Brunner to be talked to about his inappropriate comments and that she wanted no negative consequences towards herself for having complained. The complainant told Turner that she did not want to make a big deal out of it, but just wanted Brunner to be made aware that it was inappropriate and that conversations should be kept work-related.
9. That evening after work the complainant talked to her mother and her husband, who convinced her that more needed to be done and that the respondent’s talking to Mr. Brunner was not an adequate remedy.
10. The following day, Thursday, August 7, 2014, the complainant again met with Nicole Turner, along with Tim Ritchie, the vice president of operations and a co-owner of the business, to discuss her complaint. Ritchie told the complainant that he was going to talk to Brunner about the matter. Ritchie also told the complainant that she should no longer have contact with Brunner, and that she was only to report to Sandi Lawrence, her lead worker, if she had questions or needed something in the tool room. Ritchie further stated that the complainant’s machine would be moved off of the main aisle, where Brunner walked on the way to the tool room. At some point during this meeting Ritchie told the complainant that he felt she and Brunner were both to blame for the situation. The complainant was upset by that comment and because she believed she was being punished by having her machine moved. The complainant stated that she did not think it was enough to talk to Brunner and that she had been told by family members that the respondent should do more. The complainant was asked what more she would like to see done, but stated she did not know. Because the complainant was upset by the conversation, she took the rest of the day off work.
11. Later that day, Tim Ritchie, Nicole Turner and Elmer Hoppmann, another of the respondent’s co-owners, had a meeting with Tim Brunner, in which they told Brunner that inappropriate comments would not be tolerated and that he should have no contact with the complainant outside of direct work-related issues. The respondent wrote up a statement to put in Brunner’s personnel file, which Brunner signed.
12. The complainant’s next work day was Monday, August 11, 2014. That day Nicole Turner met with the complainant again at the complainant’s request. Although the complainant had not asked to meet with Tim Ritchie, he was also present. The complainant stated that her family had advised her that she should do more to address the situation. Turner asked the complainant what more she wanted done, and the complainant stated she did not know. During the conversation, the complainant asked Ritchie if he was afraid to butt heads with the respondent’s owner and told him that he should “grow a set.” The complainant further stated that in a previous meeting Turner had told her that Brunner had engaged in this conduct in the past. Turner denied having made that statement, and the complainant called her a liar.
13. Later that day the complainant talked to Laurie Steinhoff, the respondent’s human resources manager. The complainant told Steinhoff that she thought Ritchie and Turner had mishandled her complaint and that she felt she was being punished. The complainant told Steinhoff that she believed Turner had made a statement about Brunner’s prior conduct then retracted it. She also indicated that the actions being taken were not enough. Steinhoff asked the complainant what she wanted to see happen, and the complainant stated she didn’t know. It was agreed that the complainant would think about it and get back to Steinhoff the following day to explain what further action she wanted. After talking to Steinhoff, the complainant took the rest of the day off.
14. The next day, August 12, 2014, Ron Brunner, the respondent’s CEO and father of Tim Brunner, had a meeting with Tim Ritchie and Laurie Steinhoff to discuss the complainant’s complaint. Steinhoff told Brunner that the complainant had been talking with her family and wanted to seek some type of counsel. She also mentioned that the complainant wanted to make sure there was no bad outcome from her complaint. Brunner stated he felt that everything had been handled according to the respondent’s policy and that he had no intention of terminating the complainant. Brunner elaborated that he would have fired the complainant based upon her attendance, but they had already let it go that far, so he was just going to remind her that her attendance needed to improve.[3]
15. Later that day the complainant was informed that Ron Brunner wanted to speak to her. The complainant insisted on bringing Laurie Steinhoff and Scott Garwein, the floor supervisor, with her to the meeting. When the complainant got to the conference room, she saw that Tim Ritchie was also present. The complainant was upset by this and stated that she would not enter the room with Ritchie there. Consequently, the meeting took place out in the hallway.
16. Ron Brunner asked the complainant what was going on, and she explained. Brunner asked the complainant multiple times what she wanted to see happen and what she thought would be fair, but each time the complainant responded that she didn’t know. Brunner became exasperated and asked the complainant if she wanted him to punch his son in the nose and tell him he was a bad boy or if she wanted money, because everyone likes money. At some point during the conversation the complainant stated that maybe she should get a lawyer, and Brunner responded, “maybe you should.” During the course of the meeting the complainant became progressively louder and more upset. She told Brunner that the matter had been mishandled, that Tim Ritchie wasn’t a good manager and that Nicole Turner was a liar. The complainant stated Turner should be fired and that some kind of discipline needed to be imposed on Ritchie. Brunner responded that he was not going to discipline or fire his managers and that as far as he could tell they had handled the situation as she asked. The complainant then stated that she was “done” and walked out of the meeting.
17. Laurie Steinhoff, the human resources manager, followed the complainant out onto the shop floor, and the complainant asked her what was going to happen and whether she was fired. Steinhoff responded that she thought the complainant had quit. Ron Brunner joined the conversation and told the complainant he thought she had been disrespectful to him. The complainant asked if she was fired and, Brunner responded, “Yes, now you can go get your lawyer. Then maybe I’ll be able to talk to somebody with common sense.”
18. The complainant failed to establish that she was subjected to sexual harassment by the respondent.
19. The complainant failed to establish that she was retaliated against for having opposed a practice of discrimination or that she was discharged based upon her sex or in retaliation for having opposed a practice of discrimination.
Conclusions of Law
1. That the complainant failed to demonstrate that she was discriminated against based upon her sex or in retaliation for having opposed a discriminatory practice, in violation of the Wisconsin Fair Employment Act.
Memorandum Opinion
Was the complainant subjected to sexual harassment?
The Wisconsin Fair Employment Act provides, in relevant 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. 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 employe 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)(emphasis added).
The commission has interpreted the statute as providing for three categories of prohibited conduct: sexual harassment by an employer, quid pro quo sexual harassment, and hostile environment sexual harassment. The commission has specifically held, and the court of appeals has affirmed, that under the first category, which is italicized in the citation above, employment discrimination based on sex occurs if the employer--meaning the owner or an 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--engages in conduct that meets the definition of sexual harassment, whether or not that conduct creates a hostile work environment. Tobias v. Jim Walter Color Separations (LIRC, Aug. 13, 1997); aff’d. Jim Walter Color Separations v. LIRC and Marcy Ann Tobias, 226 Wis. 2d 334, 595 N.W. 2d 68 (Ct. App. 1999). Thus, where the employer or an agent of the employer is perpetrating the sexual harassment, it will be actionable even if the harassment would not be considered sufficiently severe or pervasive as to create a hostile work environment.
In this case, the complainant’s allegations fall within the first category of conduct prohibited by the statute, because she has contended that the sexual harassment was perpetrated by the employer itself, in the person of a managerial or supervisory employee. Tim Brunner was the respondent’s president and a partial owner of the company. That Brunner should be considered an agent of the employer is not a matter in dispute.
The question to decide, then, is whether the conduct that Tim Brunner engaged in constituted “sexual harassment” under the law. 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 employe’s work performance or to create an intimidating, hostile or offensive work environment.
Wis. Stat. § 111.32(13)(emphasis added).
While the remark about wearing jeans “tight to your ass” may have been directed at the complainant because of her sex--it is hard to imagine Brunner making that comment to a male employee, and there is no evidence that he had ever made a similar remark to a male--there is a question as to whether it can be considered a “comment of a sexual nature,” within the meaning of the sexual harassment statute. The word “ass” is not inherently sexual, nor is the comment about the complainant’s jeans being “tight to your ass” an overtly sexual one. That is not the end of the inquiry, however. The commission has held that it is not always necessary for physical conduct or comments to be overtly sexual in order to be considered “of a sexual nature.” For example, the commission has found that an employer’s conduct in slapping an employee on the buttocks on two occasions and making comments regarding the size of her buttocks was reasonably perceived to be sexual in nature. Miller v. Greenfield Veterinary Clinic, ERD Case No. 200300303 (LIRC April 28, 2005)(“A female employee could logically and rationally interpret repeated comments about the size of her buttocks and slaps on the buttocks by her male employer to be sexual in nature, whether or not accompanied by other overt sexual language or conduct.”) Whether a remark can be interpreted as sexual may depend upon the context of the entire course of conduct. In Anderson v. MRM Elgin Corp., ERD Case No. 199804070 (LIRC Jan. 28, 2004) the commission held that:
“While [the respondent’s] actions in complimenting the complainant’s hair and eyes and touching her hair were not inherently sexual in nature and might not be considered sexual harassment in a more neutral context, given [the respondent’s] other sexual overtures to the complainant [which included discussing his sexual fantasies with the complainant and slapping the complainant on the backside with a paycheck], the commission believes that his actions in commenting on her looks and touching her hair were part of an entire course of harassing conduct and as such are properly regarded as further incidents of sexual harassment.”
In the instant case, the administrative law judge reasoned that the complainant reasonably inferred that “Brunner was looking at her body (in particular at her butt) and drawing conclusions about it-sexual or not-in ways he was not doing to other employees,” and that this rendered the comment “unwelcome verbal conduct of a sexual nature.” The commission disagrees with this analysis. As illustrated in Anderson and Miller, cited above, a remark that is not inherently sexual may be considered sexual harassment when viewed in the context of other behavior. Here, there was a single remark about wearing jeans “tight to your ass,” made in response to a comment by the complainant that she could not comfortably tuck her uniform shirt into her pants. The facts that Brunner was looking at the complainant’s body and not at other employees when this comment was made and that the complainant reasonably inferred he was drawing conclusions about her body are not sufficient to warrant a conclusion that Brunner’s comment was “of a sexual nature.” Taken in the context of the conversation, and considering that the comment was an isolated one, the commission does not believe that Brunner’s actions amounted to “verbal conduct of a sexual nature,” for purposes of the Act.[4]
Further, even if Bruner’s remark could reasonably be construed as verbal conduct of a sexual nature, a question arises as to whether a single such comment can constitute sexual harassment under the statute. In finding that it could, the administrative law judge cited the commission’s decision in Tolliver v. Milwaukee City Center, ERD Case No. 200704390 (LIRC Feb. 26, 2010):
The commission has specifically held, and the court of appeals has affirmed, that under the first category, which is italicized in the citation above, employment discrimination based on sex occurs if the employer--meaning the owner or an 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--engages in conduct that meets the definition of sexual harassment, whether or not that conduct creates a hostile work environment. Tobias v. Jim Walter Color Separations (LIRC, Aug. 13, 1997); aff'd. Jim Walter Color Separations v. LIRC and Marcy Ann Tobias, 226 Wis. 2d 334, 595 N.W. 2d 68 (Ct. App. 1999). Thus, where the employer or an agent of the employer is perpetrating the sexual harassment, a violation of the law may be established even if the harassment would not be considered sufficiently severe or pervasive as to create a hostile work environment. Harper v. Menard Inc. (LIRC, Sept. 18, 2009).
However, while the commission noted in Tolliver that actions by the employer need not create a hostile work environment in order to be actionable, it specifically found that the employer must engage in conduct “that meets the definition of sexual harassment” in the Act. With respect to conduct that is strictly verbal in nature, the Act defines sexual harassment as including the repeated making of comments of a sexual nature, or comments of a sexual nature, whether or not repeated, that a reasonable person under the same circumstances as the employee would consider sufficiently severe to interfere substantially with an employee’s work performance or to create an intimidating, hostile or offensive work environment. See, Wis. Stat. § 111.32(13) and Wis. Stat. § 111.36(1)(b). Brunner’s comment to the complainant was not repeated and, while the complainant clearly viewed it as unwelcome and offensive, the commission does not believe that a reasonable person in the complainant’s situation would have considered it sufficiently severe as to interfere substantially with her work performance or to create a hostile environment. Consequently, even if Brunner’s remark is considered conduct of a sexual nature, the commission would not find that it amounted to sexual harassment under the definition provided in the Act.[5]
Did the respondent retaliate against the complainant for having complained of sexual harassment, and did it discharge her for that reason and/or based upon her sex?
The administrative law judge who held the hearing concluded that the respondent discriminated against the complainant because she opposed a discriminatory practice under the Act, and that it terminated her for that reason and because of her sex.[6] In her memorandum opinion, the administrative law judge noted that she found it troubling that the respondent unilaterally chose to move the complainant’s machine, which had the effect of isolating the complainant, and that the complainant was no longer permitted to enter the tool room even though other workers were allowed to do so. The administrative law judge further stated that the respondent could have required sexual harassment training for Mr. Brunner, or an apology, but that by making the complainant change her behavior and location it sent the message that it was the complainant who needed to change, not Mr. Brunner, and that the remedial steps taken by the respondent were not reasonably calculated to remedy the situation. The administrative law judge also found that Ron Brunner’s comments to the complainant were retaliatory and discriminatory, noting specifically that:
“His offer to pay her money or punch his son on the nose and tell him he’d been a bad boy, bringing up her attendance issues when they had nothing to do with the issue at hand, and calling her “missy” were sexist and demeaning and made clear that the respondent did not take her sexual harassment complaint seriously. Ron’s Brunner’s comment that she was fired and can now go get a lawyer indicates a retaliatory animus.”
The commission disagrees with the administrative law judge’s analysis for a number of reasons. To begin with, it must be noted that Nicole Turner and Tim Ritchie, the managers who initially attempted to address the situation, played no role in the termination of the complainant’s employment, which was a decision made solely by Ron Brunner, the respondent’s CEO. Moreover, the commission sees no reason to conclude that Turner and Ritchie failed to take appropriate action to resolve the complainant’s complaint or that they retaliated against her in that process. Turner and Ritchie met with the complainant several times, tried to find out what she wanted to remedy the situation, talked with Tim Brunner, and required him to sign a statement indicating that he had been told inappropriate comments would not be tolerated and to keep things work-related. They continued to attempt to work with the complainant even after she called Turner a liar, told Ritchie to “grow a set,” and walked out of a meeting that had been held at her request. Neither Turner nor Ritchie threatened to discharge the complainant or suggested to Ron Brunner that he do so.
While the administrative law judge found that the complainant’s work station was moved to an isolated area, the record contains no testimony to indicate that the complainant was in fact isolated, and the evidence established only that she was told she would be moved away from the main aisle. This was not shown to have been intended as a punitive measure towards the complainant, and the complainant ultimately acknowledged that moving her machine to a different location made sense. Further, although the complainant testified that she was no longer allowed in the tool room and indicated that she regarded this as retaliation for having complained, the respondent’s witnesses explained that the complainant was merely told that she should go through her supervisor, Sandi Lawrence, if she needed something in the tool room, and that this had always been the practice and was standard throughout the plant. There is nothing in the record to suggest that other employees were treated differently or more favorably with respect to the tool room or that the respondent’s directive in that regard was intended as retaliation against the complainant for having complained about sexual harassment. With respect to the respondent’s actions regarding Mr. Brunner, the commission believes that counseling him about not making inappropriate comments in the work place and keeping conversations work related was, in fact, a reasonable response to a complaint involving a single inappropriate remark. Moreover, the record reveals that the complainant was asked numerous times what resolution she wanted to see, but never requested that Brunner apologize to her, attend sexual harassment training, or receive any other specific type of disciplinary action. Given all the facts and circumstances, the commission sees no basis to conclude that the respondent did not make reasonable attempts to address the complaint of discrimination or that it retaliated against the complainant for having complained.
The remaining issue in this matter is whether Ron Brunner, the individual who made the decision to end the employment relationship, did so because of the complainant’s sex and/or in retaliation for the complainant’s having opposed a practice of discrimination. The evidence did not establish this was the case. To begin with, there is nothing to indicate that Brunner was angry with the complainant for having complained about sexual harassment or that he went into the August 12, 2014 meeting intending to discharge her. To the contrary, Laurie Steinhoff, the human resources manager, testified that when she talked to Brunner before the meeting he told her that he had no intention of terminating the complainant and elaborated that, while he would have discharged her based upon her attendance, since her absences had been permitted thus far he was just going to let her know her attendance needed to improve. Brunner could have used the complainant’s attendance as a pretext to terminate her employment, but did not do so. Instead, it appears that Brunner was genuinely looking for a mutually satisfactory resolution to the issue. Brunner asked the complainant to explain what was going on and then asked her multiple times how she would like to see the situation resolved. However, as in her prior conversations with Ritchie, Turner, and Steinhoff, the complainant would offer no suggestion as to how the matter could be resolved to her satisfaction. Brunner’s comments about paying the complainant money or punching his son in the nose, made after several attempts to determine what the complainant thought would be a fair resolution to the matter, appear to have been born out of frustration rather than retaliatory animus.
The commission also sees no reason to conclude that Brunner was motivated to discharge the complainant because she threatened to contact an attorney. When the complainant mentioned hiring an attorney, Brunner did not argue with her and told her she probably should. There is nothing to suggest that Brunner was angry that the complainant was considering hiring an attorney or that he was inclined to retaliate against her on that basis. Brunner’s subsequent jibe to the complainant, after telling her she was terminated, that now she could hire a lawyer and that if she did he would be able to talk to someone with common sense, was snarky and churlish but not evidence of retaliatory animus.
Finally, while the administrative law judge found that Brunner referred to the complainant as “missy” and that this was evidence of discrimination, that finding is without support in the hearing record.[7] However, assuming for the sake of argument that the remark was made, the mere fact that Brunner may have used an antiquated and arguably sexist term in conversation with the complainant does not mean that he did not take her sexual harassment complaint seriously or that he was motivated to discharge her because of her sex.
Having considered all of the evidence, the commission believes that what lead Ron Brunner to discharge the complainant was not retaliatory animus, but the fact that the complainant behaved rudely, unreasonably insisted that Brunner fire or discipline two managers--one of whom is a company owner--and then walked out of the meeting before it was over, stating she was done. Brunner credibly testified that he thought the complainant had treated him disrespectfully. While opposition to discriminatory conduct in the work place is protected under the Act, that does not necessarily mean that all behavior undertaken in the course of that opposition is excused. The complainant was entitled to complain about Tim Brunner’s conduct and to demand a reasonable remedy. If she thought that a verbal warning to Mr. Brunner was inadequate and that having her work station moved was punitive, she was certainly permitted to say so and to request different relief. However, the complainant’s demands that management employees be fired, along with her actions in walking out of a meeting with the CEO and declaring she was “done,” were rude and unreasonable, and the respondent’s decision to terminate the employment relationship based upon that conduct was a legitimate one, which was not shown to be a pretext for discrimination.
For all the reasons set forth above, the commission concludes that the complainant has not established that she was discriminated against in the manner alleged in her complaint. Consequently, the complaint is dismissed.
NOTE: The commission attempted to obtain the administrative law judge’s impressions of the demeanor of the witnesses. However, the administrative law judge had no demeanor impressions to impart. Where the commission has made factual findings that differ from those made by the administrative law judge, such findings are based upon the content of the record and not upon an assessment of the credibility of individual witnesses.
NOTE: The briefing schedule issued by the commission advised that reply briefs for both parties must be received or postmarked no later than January 17, 2017, but the respondent’s reply brief was not postmarked until January 18, 2017. The complainant has requested that the commission decline to accept the respondent’s reply brief on the ground that it was filed after the deadline. However, the commission will generally overlook a party’s failure to comply with deadlines in a briefing schedule where the lateness is minor and where there is no reason to believe that there would be any prejudice to the other party from accepting the late brief. See, Diedrich v. A. E. Goetze-Manitowoc, ERD Case No. 199703735 (LIRC Oct. 22, 1999); Tourdot v. Thompsons Jewelry Inc., ERD Case No. 199502951 (LIRC Dec. 10, 1997); Smith v. Condere Corp. and Clark, ERD Case No. 8652495 (LIRC March 27, 1990). In this case, the lateness of the respondent’s brief was minor (one day), and the complainant has not argued that accepting the respondent’s brief would result in any prejudice to her. Consequently, the complainant’s request that the commission decline to accept the respondent’s reply brief is denied.
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Attorney William T. Curran Attorney Reid H. Rayome |
[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] The record contains no information as to how often this occurred or whether those employees were male or female.
[3] During the course of her employment the complainant was absent on numerous occasions, mostly due to personal or family illness. Although the complainant’s absences exceeded the number of absences permitted by the respondent, the respondent took no disciplinary action against her based upon her attendance.
[4] Consideration of the off-duty Facebook incident would not lead to a different result. Brunner’s comment about the complainant getting “‘welcome aboard’ tattooed on her ass” was not a comment made to the complainant, but was in response to a complaint from the complainant’s husband, nor was it inherently sexual in nature.
[5] It should be noted that, in addition to the specific prohibition on sexual harassment, the Act also prohibits engaging in harassment “because of gender.” However, unlike sexual harassment, harassment because of gender must have the purpose or effect of creating a hostile work environment in order to be actionable. See, Wis. Stat. § 111.36(1)(br). The complainant has not alleged that she was subjected to harassment because of gender, nor does the evidence indicate this was the case.
[6] Even though the commission has found that the employer conduct which was opposed by the complainant did not constitute unlawful sexual harassment as defined in the statute, the complainant’s actions in opposing that conduct are nonetheless protected under the statute where the complainant was acting on a good faith belief that she had been subjected to prohibited discrimination. See, Notaro v. Kotecki & Radtke, S.C., ERD Case No. 8902345 (LIRC July 14, 1993).
[7] The hearing transcript was prepared by a legal assistant for the respondent’s attorney and was certified by the Equal Rights Division as being an accurate representation of the testimony. The word “missy” is not contained anywhere in the transcript or in Exhibit 4, the complainant’s written notes regarding her meeting with Ron Brunner.