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 |
Dated and Mailed: |
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ERD Case Nos. CR201300816 and CR201400425 |
August 22, 2018 |
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EEOC Case Nos. 26G201300700C and 26G201400545C |
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The decision of the administrative law judge (copy attached) is affirmed, subject to modification. Accordingly, the commission issues the following:
Order
1. Time within which respondent must comply with Order. The respondent shall comply with all of the terms of this Order within 30 days of the date on which this decision becomes final. This decision will become final if it is not timely appealed, or, if it is timely appealed, it will become final if it is affirmed by a reviewing court and the decision of that court is not timely appealed.
2. That the respondent shall cease and desist from discriminating against the complainant in retaliation for her protected conduct.
3. That the respondent shall remove the Employee Disciplinary Report issued to the complainant on May 31, 2103 from the complainant’s personnel file.
4. That the respondent shall make the complainant whole for all losses in pay the complainant suffered by reason of its unlawful conduct by paying the complainant the wages she lost when she served a two-day unpaid suspension on June 5 and 6, 2013, increased by interest at the rate of 12 percent simple. Interest on the net amount of back pay due shall be computed by calendar quarter until the day of payment.
5. That the respondent shall pay to the complainant reasonable attorney’s fees and costs incurred representing the complainant in this matter up until the issuance of the administrative law judge’s decision in the amount of $30,237.98. A check in that amount shall be made payable jointly to the complainant and her attorney, Colleen Bero-Lehmann, and delivered to Ms. Bero-Lehmann at Ehlke, Bero-Lehmann & Lounsbury, S.C.
6. That within 30 days of the date on which this decision becomes final, the respondent 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.
Notwithstanding any other actions a respondent may take in compliance with this Order, a failure to timely submit the Compliance Report required by this paragraph is a separate and distinct violation of this Order. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See, Wis. Stat. §§ 111.395, 103.005(11) and (12).
7. That the complainant’s complaint that she was discriminated against based upon her sex is dismissed with prejudice.
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By the Commission: |
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Georgia E. Maxwell, Chairperson |
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/s/ |
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Laurie R. McCallum, Commissioner
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David B. Falstad, Commissioner |
Procedural Posture
This case is before the commission to consider the complainant’s allegations that the respondent discriminated against her based upon her sex and in retaliation for having filed a prior complaint of discrimination, 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 which found that the complainant was not discriminated against based upon her sex, but that she was retaliated against for having filed a discrimination complaint. Both parties filed timely petitions for commission review of the administrative law judge’s decision.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted at the hearing. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusions in that decision as its own, except that it makes the following:
Modification
The administrative law judge’s Order is deleted and replaced with the Order set forth on pages 1 through 2 of this decision.
Promotion
In her petition for commission review the complainant argues, as she did at the hearing, that she was the most qualified candidate for promotion to the position of Corrections Captain and was denied a promotion to that position based upon her sex. The complainant maintains that the respondent’s asserted non-discriminatory reason for the decision--that she was a poor communicator and lacked people skills, while the male employee who was promoted had great people skills and was a “go getter”--was a pretext for discrimination. The complainant contends that the examples the respondent gave of her poor communication and people skills were outdated, exaggerated, or simply false. She further contends that the successful candidate, Adam Wogsland, was not actually a “people person,” but someone who harassed his subordinates and goofed off instead of working.
The commission has carefully considered the complainant’s arguments, but is unpersuaded that the respondent made its selection based upon sex. The two members of the selection committee who were most involved in the promotion decision, Amanda Welch and Al Kraeger, both testified that they did not feel the complainant had a very strong interview and that they came away with a less than favorable impression of her communications skills, a matter which they deemed important for the position. While Welch and Kraeger had little direct knowledge about the complainant’s personality and working style beyond what could be gleaned at an interview--and the commission agrees with the complainant that some of the examples they provided as to why she lacked the personality for the job were weak--they discussed the promotion decision with the current Corrections Captain, Jacci Olson, who knew the complainant well and shared her impressions with them. Olson considered the complainant difficult to work with. She thought the complainant had a “sharp tongue,” was slow to forgive and forget, and that she made people feel uncomfortable. Olson also testified that the complainant could be intimidating and that other employees, including a corrections officer named Charity Lepak, had asked not to be scheduled with her. (Ms. Lepak appeared at the hearing and testified that the complainant was very negative and angry, and always seemed to think everyone was out to get her. She confirmed that she arranged her schedule to avoid working with the complainant.) Although the complainant may disagree with Olson and Lepak’s assessment of her personality and working style, the commission sees no reason to doubt the sincerity or truthfulness of the testimony these witnesses provided at the hearing, nor does it see any reason to conclude that their negative opinions of the complainant were related to her gender. There is nothing in the record to suggest that Olson was unable to get along with other female employees, and her issues with the complainant were specific to Olson’s interactions with her. Further, while the fact that Olson is female does not necessarily mean that she is incapable of discrimination based upon sex, it seems unlikely that Olson would hold the view that a female could not be a good Corrections Captain, a job that she herself performed. The commission sees no reason to believe that sex was a factor in Olson’s recommendations to the interview panel, nor does it believe that Welch and Kraeger’s reliance on the information Olson provided them was undertaken in bad faith or that Welch and Kraeger were inclined to discriminate based upon sex.
With respect to Wogsland, the commission does not disagree with the complainant that some of the behavior Wogsland engaged in prior to the promotion was inappropriate, and it can understand why the complainant would be troubled by the respondent’s apparent willingness to overlook that conduct. However, the salient fact here is that the panel responsible for making the promotion decision was largely unaware of Wogsland’s objectionable conduct. There is no assertion that the two county board members on the hiring panel knew anything about Wogsland’s prior behavior in the workplace, and Welch credibly testified that she was not aware of it. Although the administrative law judge credited the complainant’s testimony that she informed Kraeger about some of Wogsland’s actions, it is clear that Kraeger was not fully aware of the type of conduct Wogsland was accused of engaging in and that he did not believe Wogsland had done anything that would disqualify him from the job. Olson, for her part, knew that Wogsland liked to goof around and was aware of an occasion on which he had called a female officer some names that were offensive. However, Olson did not share this information with Welch and Kraeger. While Olson’s failure to act on the allegation that Wogsland had used offensive names in reference to a female officer or to make Welch and Kraeger aware of the situation is troubling, the commission believes it can be explained in large part by the fact that Olson had a close friendship with Wogsland outside of the workplace (he was best friends with her husband and stood up at their wedding) and believed that he had good people skills and was good at his job. As the administrative law judge noted in her memorandum opinion, there appears to have been a degree of nepotism/favoritism at play in the promotion decision which, if unfair, is not among the conduct prohibited by the Act. To the contrary, the fact that Olson regarded Wogsland as a friend, such that she may have been inclined to disregard questionable conduct on his part and may have wanted to see him promoted, constitutes a nondiscriminatory reason for her actions.
This was not an easy case to resolve, but although the commission can appreciate why the complainant believes she was treated unfairly in the promotion process, given her education and experience, and in light of some of Wogsland’s questionable workplace conduct, in the end it is unpersuaded that discrimination was established. The commission believes that the decision to promote Wogsland instead of the complainant was genuinely based on the respondent’s assessment of the personality traits of the two candidates, and that it was influenced by favoritism towards Wogsland that was unrelated to his sex. Consequently, the dismissal of this aspect of the complaint is affirmed.
Discipline
In its brief to the commission, the respondent argues that the complainant failed to establish that Russell and Wogsland had knowledge of her discrimination complaint at the time of the discipline and that therefore the discipline could not have been related to her protected conduct. The respondent points out that Wogsland’s testimony is inexact as to when he learned about the complaint. It further notes that the complainant filed her complaint against Waupaca County, and not against Russell or Wogsland personally. The commission does not find these arguments persuasive. While the complaint was not filed against Wogsland personally, Wogsland was the subject of the complaint, and it stands to reason that he would have known about it. Indeed, Wogsland specifically testified that he was aware of the complaint. Although it was not established exactly when Wogsland learned about it, he did not deny knowing about the complaint at the time the suspension was given and there is no reason to assume that he did not become aware of the matter until after the discipline was issued.
Prior commission decisions dismissing retaliation complaints for lack of employer knowledge of the protected conduct have involved instances where the decision-maker has either specifically denied having any knowledge of the complaint or where the circumstances were such that there was no reason to believe the decision-maker would have known about it. See, for example, Rosneck v. UW Madison General Library System, ERD Case No. CR201201335 (LIRC Aug. 30, 2017)(no evidence presented to establish that the human resource specialist, who did not testify at the hearing, had any reason to be aware of a discrimination complaint the complainant had filed many years earlier), and Aken v. Blood Center of Southeastern Wisconsin, ERD Case No. 199551409 (LIRC Dec. 23, 1998)(the individual who made the discharge decision did not begin working for the employer until a month after the complaint was served on the employer and testified that she was not aware of the fact that the complainant had filed a complaint). In Sabol v. State of Wisconsin, ERD Case No. CR200400230 (LIRC April 24, 2014), a case which the respondent cites approvingly in its brief, the commission held that employer knowledge of protected activity could not be inferred merely from the fact that the employer took an adverse action against the employee. However, in Sabol the employer specifically denied all knowledge of the complainant’s protected activity. In this case, by contrast, Wogsland admitted he had knowledge of the complaint, and the only unknown variable is the exact timing of that knowledge. Wogsland did not deny that he knew about the complaint at the time the discipline was issued and the record provides no reason to believe that he would not have known about it. The evidence is sufficient to support an inference that Wogsland was aware of the complaint at the time he decided to issue the suspension to the complainant.
The respondent also argues that the difference in treatment between the complainant and the other officers who were the subject of the citizen complaint can be explained by the fact that Ms. Peskie’s main concern was the complainant and that her concerns about other officers were minor compared to the complainant. However, while it is true that Peskie’s complaint primarily addressed the complainant--the only officer whose name she knew--she also made reference to the actions of three other officers whom she described as treating her rudely, and specifically stated that she thought several people should be disciplined. While the factors cited by the respondent might explain issuing a lesser degree of discipline to the other officers than that meted out to the complainant, the fact that the respondent made no effort to determine who those officers were suggests that it was specifically motivated to discipline the complainant. If the respondent was acting out of genuine concern for ensuring that its employees treated the public politely, it would have attempted to discover who the other three officers were and put them on notice as to the type of conduct expected in the future. The commission agrees with the administrative law judge that its failure to do so warrants a conclusion that its explanation was a pretext for discrimination.
Attorney’s fees
In her petition for commission review the complainant’s attorney argues that she spent a total of 49.5 hours on issues that concerned the retaliation claim alone (for which the administrative law judge ordered payment in full), and that she spent 264.5 hours on tasks that were a mix of both the retaliation and promotion claims. She maintains that only a small portion of the 264.5 hours should be reduced based on partial success, since much of the time spent on the combined cases would have been spent in its entirety even if only the retaliation claim had been tried and because many issues that appeared in the promotion claim were also important for the retaliation claim. Specifically, the complainant contends that four depositions were taken, each of which covered discrimination and retaliation issues, including her husband’s, which involved his observations from the meeting at which he put the respondent on notice that the complainant believed she was denied a promotion because of her sex. She also argues that much of the evidence the administrative law judge considered unrelated to her retaliation complaint was, in fact, important to both claims, including evidence showing that the respondent was aware she may file a discrimination complaint and evidence regarding her prior disciplinary history, both of which were key to her retaliation complaint. The complainant also maintains that some evidence about the denial of the promotion would have been presented even if the hearing was held only on the retaliation complaint, in order to prove she had a good faith belief she had been discriminated against.
The commission has considered the complainant’s arguments, but does not find them persuasive. There is no question but that the vast majority of the time spent litigating this matter was related to the promotion claim, and the only issue to decide is how much the fee request must be reduced to reflect that fact. The administrative law judge already considered and rejected the same arguments the complainant has presented to the commission, and issued a detailed decision explaining her reasoning. The commission can see no reason to differ with the administrative law judge’s assessment of the situation. Resolution of the retaliation claim did not require detailed information about the promotion decision, and while some evidence about the complainant’s past disciplinary record was certainly helpful, detailed disciplinary information was also unnecessary to the successful claim. Nor was it necessary that the complainant establish that the respondent believed in advance that she may file a complaint--the fact that she actually did so was adequate evidence that the complainant engaged in protected conduct, and formed the basis for the administrative law judge’s findings on that point. The complainant’s husband’s deposition was not relevant to the retaliation claim, and reimbursement for that item was appropriately denied. Given all the circumstances, the commission considers the 102 hours of attorney time awarded by the administrative law judge (at a rate of $275 per hour)[2] to be reasonable, and it affirms her decision in that regard.
Finally, the commission notes that, although its briefing schedule issued on September 13, 2017 contained express instructions that any request for additional attorney’s fees for work performed in connection with the petition for review was to be included along with the complainant’s initial brief, no request for additional fees has been made. The commission therefore concludes that the complainant has waived the right to request additional attorney’s fees, and will order no additional fees. See, Peterson v. TCAT Corporation, ERD Case No. CR201200326 (LIRC April 30, 2015).
cc: Jenifer D Binder
Colleen Bero-Lehmann
[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] In her petition the complainant argues that the administrative law judge erred in reducing her attorney fee request from $300 to $275 an hour. However, the complainant’s briefs to the commission do not address this issue and she appears to have abandoned this argument. Lacking any compelling reason to conclude that the administrative law judge’s decision on this point was incorrect, the commission will allow the $275 hourly rate to stand.