STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

PATRICIA FLUHR, Complainant

JAMES MAGESTRO D D S, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199552715

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 makes the following:

FINDINGS OF FACT

1. James Magestro, D.D.S. (hereinafter "respondent") has practiced dentistry in Wisconsin for over 25 years. During the relevant time period, he maintained a dental office in Shorewood, WI.

2. In February of 1992 the respondent hired Patricia Fluhr (hereinafter "complainant") as a dental assistant and receptionist. Her responsibilities included providing "chair-side" assistance, answering telephones, scheduling patients, and performing a variety of general office duties. The complainant initially worked part time, from approximately 8:00 a.m. to 5:00 p.m., Monday through Thursday. Approximately a year later the complainant began working Fridays as well.

3. At the time of her hire the respondent agreed to pay the complainant a starting wage of $8.00 per hour and indicated that he would eventually provide her with health insurance.

4. When the complainant began her employment for the respondent there was only one other employe working in the office on a regular basis, Joy Hoard, the office manager. Ms. Hoard worked part time and was in charge of billing and other clerical duties.

5. In October of 1992 the complainant was in a car accident and sustained injuries to her back. On many occasions thereafter, she left work in order to go to medical appointments related to her back injury. The complainant's absences created a hardship for the respondent, who was required to see his patients without the help of a dental assistant and, if Ms. Hoard was also away, had to answer the telephones and schedule patients himself.

6. Between August and November of 1993 the complainant began to miss work on a more frequent basis. The respondent started to complain about her absences, explaining to the complainant that they created a hardship for him. When, in December of 1993, the complainant told the respondent she would need several weeks off work in order to have an operation on her back, he told her that he could not be without a dental assistant for that period of time and threatened to terminate her employment.

7. In late 1993 the complainant asked the respondent to help her pay her medical expenses in lieu of the health insurance he had promised to provide for her. The respondent gave the complainant a check in the amount of $1,000 to apply to her medical expenses. The respondent also told the complainant that he was rescinding his decision to terminate her employment and that he would hold her job open for her after her surgery.

8. The complainant had surgery at the end of 1993 and was out on leave until February of 1994. During this time Ms. Hoard resigned from her job as office manager. When the complainant returned to work the respondent asked her whether she would be willing to take over Ms. Hoard's duties, and the complainant agreed to do so. The respondent increased the complainant's pay to approximately $10.00 an hour.

9. In September of 1994 the respondent closed his office for a week in order to spend time at his vacation home in Northern Wisconsin. He invited the complainant to visit him there, and she did so. During this visit, the respondent revealed that he had strong feelings for the complainant and wanted to pursue a romantic relationship.

10. After this vacation, the respondent had frequent discussions with the complainant in the office regarding his affection for her. In late September or early October of 1994 the complainant and respondent went away for a weekend together, during which time they began a consensual sexual relationship. The respondent was married and had four children. The complainant was a single mother with one child.

11. Shortly after their sexual relationship began, the respondent increased the complainant's pay from $10 an hour to $13 an hour and changed her status from an hourly employe to a salaried employe.

12. In early December of 1994 the respondent told the complainant that he was receiving pressure from his children, who had found out about the relationship, and that he had decided their affair would have to be terminated. He told the complainant that it would be too difficult for him to continue working with her and that he, therefore, planned to terminate her employment. However, the respondent later relented, and the complainant continued to work for him.

13. Beginning in February or March of 1995 the respondent began paying the complainant an additional $125 a month to apply to the cost of her health insurance or health care.

14. After the termination of their sexual relationship in December of 1994, the respondent continued to hug, kiss, and touch the complainant in the workplace and to make comments about how attractive she was and how much she aroused him. The complainant would often ask the respondent to stop it or tell him that it was inappropriate, at which point he would desist.

15. Although the respondent initiated most of the physical contact in the workplace, the complainant would sometimes kiss him good morning or good night when leaving the building at the end of the day and, on a few occasions, gave him a hug. The respondent believed that his attentions towards the complainant were consensual.

16. Subsequent to the termination of their affair the respondent also telephoned the complainant at her home on a fairly frequent basis. On one or more of these occasions he told the complainant that he still loved her and was sorry their relationship had ended. At one point the respondent asked the complainant whether she was interested in resuming their relationship, and she indicated she would think about it.

17. The respondent never said anything to the complainant to suggest that any kind of adverse consequence would result if she refused to resume a sexual relationship with him.

18. In the beginning of 1995 the respondent began to suspect that the complainant had a drinking problem. In early April he confronted her with his suspicions and urged her to seek treatment. A few days later the complainant called the respondent at home and asked if he would come to her home because she was having a crisis related to her drinking problem. The respondent agreed to do so. He was accompanied by Richard Hicks, his friend and attorney, who was a recovering alcoholic and whom the respondent hoped would be able to encourage the complainant to seek treatment. While the respondent and Mr. Hicks were at her home, the complainant put her arm around the respondent, held his hand, hugged him, kissed him on the mouth, and told him she loved him.

19. In mid-April the complainant was hospitalized due to her drinking problem. The complainant did not apprise the respondent of this fact, and was absent from work without notice. A few days later a friend of the complainant's notified the respondent that the complainant was in treatment. On or about April 26 the complainant called the respondent and told him that she had been released from the hospital, but would need some additional time off work for out-patient treatment. The respondent agreed that the complainant could have the time off.

20. Shortly after her release from the hospital the complainant and the respondent went to dinner at a local restaurant. After the dinner the respondent made a quip that he had clean sheets on his bed and that he was hoping the complainant would go home with him. The complainant's response was to say "good-bye" and go home. Later that night the respondent telephoned her at home in order to talk about their personal relationship.

21. In early May of 1995 the complainant returned to work from her leave of absence. The respondent told her that he would not be able to tolerate her absences any longer and that he was terminating her employment. After the complainant implored him to change his mind, the respondent yielded and told her she could remain employed.

22. Sometime that spring the complainant, at the respondent's suggestion, moved from her apartment, which was in a rough neighborhood, to one in a more desirable location. The respondent stopped by the complainant's home when the movers arrived and assisted her in moving some of her things. The respondent also arranged to provide legal representation for the complainant with respect to a landlord/tenant matter involving her security deposit.

23. On June 15, 1995, the complainant approached the respondent in his office and demanded that he pay her all the money she felt he still owed her for her health insurance. The respondent took umbrage, and an argument ensued. During this argument, the respondent indicated that he had already given the complainant more than $2,000 to help pay for her health care and that, in addition, he was paying her a salary that was much higher than the going rate for dental assistants. The respondent told the complainant that he was terminating her employment.

24. The following day the complainant reported for work, but was informed that her employment was terminated and that she was to turn in her keys and leave.

25. The respondent's decision to discharge the complainant was precipitated by his anger at her request for money, and was not motivated by her failure to resume a sexual relationship with him.

26. A few months after she filed her complaint, the respondent had occasion to be at the complainant's home and asked her why she filed the complaint alleging that he had harassed her. The complainant explained that her actions in doing so were motivated by her embarrassment over the way his children had treated her and her feeling that the respondent owed her money towards her health insurance.

27. A few months thereafter the complainant visited the respondent at his home and began discussing her personal problems with him. During this visit the complainant sat on the respondent's lap, and kissed and hugged him.

CONCLUSIONS OF LAW

1. That the respondent is an employer within the meaning of the Wisconsin Fair Employment act (hereinafter "Act.")

2. That the respondent did not discriminate against the complainant on the basis of sex, within the meaning of the Act.

ORDER

That the complaint in this matter is dismissed.

Dated and mailed April 1, 1999
fluhrpa.rrr : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Credibility Issues

The commission conferred with the administrative law judge regarding the credibility and demeanor of the witnesses. The administrative law judge indicated that she considered the complainant to be the more credible witness, primarily because the complainant's recollection of events was often more detailed and specific than the respondent's. However, while the complainant's testimony may have been more detailed, it also contains a number of inconsistencies and self-serving statements which cast doubt on its overall credibility. For example, the complainant insisted that after the termination of their affair she and the respondent had a strictly employer/employe relationship and were not even friends. The record, however, contains an abundance of evidence to the contrary, leading the commission to believe that the complainant deliberately mischaracterized her relationship with the respondent in order to strengthen her sexual harassment case.

The complainant also testified that she never initiated hugs or kisses in the office, even during the course of the consensual sexual affair, because she was always concerned about her professional relationship with the respondent. However, in response to the very next question by counsel, the complainant acknowledged that she did kiss the respondent while at work. The complainant offered no explanation for this immediate change in testimony, and did not explain why, in spite of her assertion that she was always too concerned about her professional relationship with the respondent to act indecorously at the workplace, she had kissed him while at work. In a similar vein, the complainant testified that, subsequent to the termination of the affair, she never initiated any kissing or hugging with the respondent, either in or out of the workplace. However, the respondent and his witness, Mr. Hicks, convincingly testified that the complainant hugged and kissed the respondent of her own initiative during their visit to her home in April of 1995, and the administrative law judge made factual findings consistent with that testimony. When asked about this in the credibility conference, the administrative law judge indicated that she did not necessarily consider the complainant's testimony on this point to be untrue and, further, that the fact a party is untruthful on one topic does not mean she is incredible on another. The commission, however, believes that the complainant was deliberately untruthful regarding the details of that visit and that her dishonesty with respect to this matter calls into question the credibility of her testimony as a whole.

In assessing the complainant's credibility, the commission also considers it noteworthy that, in her complaint of discrimination, a document she certified as being true and correct, the complainant specifically alleged that she did not go back to work for the respondent after June 15 because she "had had enough of [him]." However, at the hearing the complainant specifically acknowledged that she attempted to report for work the day after having been discharged, but was directed to turn in her keys. The commission believes that the complainant knowingly included a false statement of fact in her complaint in order to strengthen her allegations of harassment, and that her actions in doing so cast further doubt on her general credibility.

By contrast with the above, the respondent's testimony was generally consistent and, while his recollection of events was not always as detailed as the complainant's, this rendered it no less convincing. Moreover, the respondent exhibited a willingness to testify about matters that often appeared to be against his own interests, which lent his testimony an air of believability that the complainant's often lacked. Consequently, where the complainant's and respondent's versions of events differ, the commission is generally inclined to consider the respondent's version more credible and reliable.

The commission also notes that, during the credibility conference the administrative law judge indicated that she had not arrived at any credibility determination with respect to certain matters which were deemed irrelevant to the decision. For example, the administrative law judge made no determination as to the credibility of the complainant's testimony that the respondent occasionally touched her in an overtly sexual manner, a matter which he denies, or of the respondent's testimony that she subsequently visited the respondent at his home, sat on his lap, and kissed him, a matter which the complainant contends is untrue. Unlike the administrative law judge, the commission does consider these matters to be relevant, and for the reasons set forth above, it has resolved these and other disputed credibility issues not dealt with by the administrative law judge in the respondent's favor.

Legal Issue

The question presented in this case is whether the complainant was subjected to unlawful sexual harassment on the part of the respondent. (1)

The Wisconsin Fair Employment Act (hereinafter "Act") provides, in relevant part:

111.36(1) Employment discrimination because of sex includes, but is not limited to, any of the following actions by an 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 employe, other than an employment decision that is disciplinary action against an employe 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 employe's work performance or of creating an intimidating, hostile or offensive work environment..."

The Act defines sexual harassment in the following manner:

111.32(13) "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 employe's work performance or to create an intimidating, hostile or offensive work environment. (emphasis added)

In order for a complainant to demonstrate that she was subjected to unlawful sexual harassment, the complainant has the burden of establishing that the conduct to which she was subjected was "unwelcome" by her. Conduct is considered unwelcome where the employe did not solicit or invite it, and regards it as undesirable or offensive. Henson v. City of Dundee, 682 F.2d 897, 903, 29 FEP Cases 787, 792 (11th Cir. 1982). For the reasons set forth below, the commission does not believe the complainant met her burden of establishing that the respondent's conduct was unwelcome to her.

The conduct at issue in this case consists of frequent kissing, hugging, and hand holding in the workplace, accompanied by occasional statements of passion. The respondent did not deny engaging in this conduct, (2) but characterized his actions more as gestures of friendship than as sexual advances, and testified that he believed he was acting with the complainant's consent. Although it appears from the record that the respondent initiated the majority of the touching and was the party most interested in maintaining the personal relationship, the respondent's actions were not completely unreciprocated and he was given reason to believe that they were not unwelcome. The respondent testified that the complainant occasionally hugged him in the workplace and that she sometimes kissed him good morning or good night at the beginning and end of the day. This conduct on her part belies any notion that she found the respondent's advances undesirable or offensive, regardless of whether she occasionally told him to "stop it."

Further, even if the commission were to accept the complainant's testimony that she did not hug or kiss the respondent in the workplace subsequent to the termination of their affair, this would not change its conclusion that the complainant was not subjected to unwelcome sexual harassment. The situation of which the complainant complains is one which evolved from a prior consensual relationship, after which an ongoing close friendship continued between the parties. While the fact of a prior consensual relationship does not excuse future unwelcome harassment, common sense dictates that allegations of sexual harassment based upon conduct which was once acceptable must be subjected to closer scrutiny than ordinary allegations of sexual harassment. (3)

Even presuming that the complainant did not reciprocate any of the respondent's workplace advances, telling him to "stop it" and that his behavior was inappropriate, the commission nonetheless considers this inadequate to have put the respondent on notice that the old rules which governed their relationship no longer applied. If the complainant really wanted the respondent not to touch her or to talk about his desire for her, she could and should have made this very clear. Notwithstanding her allegations to the contrary, nothing in the record suggests that the complainant's failure to permit the respondent to continue with his infatuated attentions would have adversely affected her employment. It was the respondent's decision to terminate the affair and, after the two were no longer intimate, the complainant's salary and benefits remained unchanged and the respondent began paying her an additional monthly sum to be applied to the cost of her health insurance or medical expenses. Further, while the respondent originally mentioned that he would be unable to work with the complainant once the physical relationship ended, he relented and made no further such threats. Thus, there is no reason to believe that the complainant's continued employment was contingent upon her acceptance of the respondent's advances. Given the unlikelihood of adverse repercussions and considering that the record portrays the complainant as an assertive and outspoken individual, the commission does not believe there was anything preventing her from clearly notifying the respondent that she no longer wanted him to touch her in the workplace.

The complainant had ample opportunity to take this matter up with the respondent, given that she and the respondent frequently discussed their personal relationship and their feelings for one another. However, the complainant not only failed to tell the respondent that he must terminate his workplace affections, but actively engaged in conduct which, at minimum, sent the respondent very mixed signals about her desire to maintain a relationship with him. The complainant had frequent off-duty telephone conversations with the respondent, went to dinner with him, permitted him to come over to her house to help her move, accepted his assistance in a legal matter, and sought his help with her drinking problem, at which time she hugged him, kissed him, and told him she loved him. At some point the complainant also told the respondent that she would think about resuming their relationship. While the commission does not necessarily construe the complainant's off-duty conduct as an invitation for the respondent to hug and kiss the complainant at the office or to tell her he was attracted to her, it also does not consider her conduct to be that of an individual who wants all workplace advances to cease or who considers those advances to be undesirable or offensive. In determining whether conduct is "unwelcome" it is appropriate to consider the subjective state of mind of the person to whom the conduct is directed. See Lass v. Robert Sawyer (LIRC, December 28, 1998). Where, as here, the complainant did nothing to avoid the respondent's company either at work or away from it and sent him mixed signals about the welcomeness of his attentions, the commission is unpersuaded that she genuinely objected to his conduct.

Finally, while not a major factor in this decision, the commission has considered the complainant's stated motivations in filing her sexual harassment complaint. The complainant explained to the respondent that she filed the complaint because she was embarrassed about the way his children had treated her and angry that he had not paid for her health insurance while she worked for him. While the complainant's belief that she was entitled to health insurance may explain her complaint that she was discriminated against in compensation, (4) her decision to file a complaint as a reaction to the embarrassment she suffered at the hands of the respondent's children suggests that the complainant may have been using sexual harassment law as a way of seeking redress for perceived or actual wrongs unrelated to sexual harassment allegations.

For all the reasons set forth above, the commission is unable to conclude that the complainant was subjected to unwelcome sexual harassment on the part of the respondent. Accordingly, the complaint in this matter is dismissed.

cc: Kirsten Fagerland Pezewski

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Footnotes:

(1)( Back ) Because neither party has sought review of the administrative law judge's findings with respect to the discharge allegation raised in the complaint, the commission has not specifically addressed that issue in its memorandum opinion and has limited its discussion to the sexual harassment issue.

(2)( Back ) The respondent did deny touching the complainant in an overtly sexual manner, which she contended occurred on a few occasions subsequent to the termination of their consensual sexual relationship. As stated above, the commission considers the respondent more credible in his assertions.

(3)( Back ) "When a consensual relationship has existed between the parties but then comes to an end, the "unwelcomeness" issue assumes especial importance. . . . Courts may well impose a greater duty upon the employee feeling harassed to signal that sexual conduct and attention, once a part of the relationship is no longer welcome." Larson, Employment Discrimination, Second Edition 1995 § 46.03[2][e].

(4)( Back ) The compensation claim was dismissed at the investigation level and is not before the commission.