Wis.LIRC ER Decision: Markgren - September 2, 1999 - Sex harassment, what constitutes; Retaliation - employer knowledge of opposition to discrimination

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

JEFF MARKGREN, Complainant

HARTZELL MANUFACTURING INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199603186, EEOC Case No. 26G961758

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed September 2, 1999
markgje.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review the complainant argues that he was hit in the groin on at least five occasions over a four-month period of time and that this clearly constituted deliberate physical conduct of a sexual nature, which was sufficiently severe as to interfere substantially with his work performance and create a hostile work environment. The complainant contends that his supervisor, Bart Almli, not only failed to address his complaints about the conduct, but witnessed the second occurrence and laughed about it. He further maintains that, although he reported the harassing conduct to the respondent on several occasions, it never conducted any investigation, but, instead, discharged him in retaliation for having filed the complaint. The complainant's arguments fail, for the reasons set forth below.

In the first place, the commission notes that the complainant's arguments assume facts that are in dispute. For example, while the complainant insists that he was attacked by Mr. Clark on at least five occasions, the administrative law judge's finding was that the complainant was attacked on "more than one occasion" and, the commission is not persuaded that he was subjected to the conduct in question even that often. Mr. Clark denied having hit the complainant in the groin, and it seems implausible that the complainant would have passively endured repeated physical attacks by Mr. Clark, only to react violently on a subsequent occasion because Mr. Clark was "mouthing off" to him. Moreover, while the complainant contended that several of his co-workers could verify that these attacks had occurred, none of those co-workers supported his story when questioned by the respondent in the workplace, and only one did so at the hearing. Finally, the commission credits the respondent's witnesses that the complainant never complained about the alleged attacks until such time as his job was in jeopardy due to a separate incident, and finds it unlikely that the complainant would have carefully charted each alleged assault on his kitchen calendar, as he contends was the case, while failing to make any mention of the matter to the respondent. These factors, along with various inconsistencies in the complainant's testimony, lead the commission to doubt whether the complainant was, in fact, assaulted in the manner alleged.

More importantly, even if it were to find that the complainant was hit in the groin on several occasions, the commission is in full agreement with the administrative law judge that this conduct did not amount to sexual harassment. In order to be considered sexual harassment, the conduct complained of must be more than simply harassing, it must be harassing on the basis of sex. The complainant's sole basis for arguing that Mr. Clark's conduct amounted to sexual harassment is the fact that Mr. Clark hit him in the groin area. However, the alleged assault on the complainant lacked sexual implications, notwithstanding the fact that the injury happened to be to the groin. Indeed, the complainant testified that Mr. Clark never made any sexual advances or comments towards him and that he was just a bully, and the testimony of the complainant's own witnesses suggests that Mr. Clark directed his abuse at male and female employes alike. Absent any evidence to suggest that Mr. Clark's alleged battery of the complainant was of a sexual nature, the commission sees no reason to conclude that it constituted harassment based on sex.

Next, even assuming an argument could be made that the complainant was subjected to sexual harassment on the part of Mr. Clark, he would not establish a violation of the law absent some reason to believe the respondent knew or should have known of the harassment and permitted it to occur. While the complainant contends that he repeatedly complained about Mr. Clark's conduct and, further, that Mr. Almli witnessed one of the assaults in question and laughed about it, the evidence simply does not support this version of events. Mr. Almli credibly and unequivocally denied having observed and laughed at an assault by Mr. Clark on the complainant, and it does not appear that the complainant ever mentioned the incidents in question to the respondent prior to the point at which he realized his job was in jeopardy for having pulled Mr. Clark's chest hairs. Consequently, the commission sees no reason to believe that the respondent permitted a hostile working environment to persist or that it deliberately failed to take appropriate action to address complaints of sexual harassment.

The commission also rejects as unpersuasive the complainant's arguments that he was subjected to unlawful retaliation. Although the complainant did ultimately notify the respondent that he had been assaulted by Mr. Clark, there is nothing in the record to suggest that the respondent understood the complainant to be complaining of sexual harassment or believed that he was engaging in statutorily protected activity. While the complainant accurately points out that one need not utter the words "sexual harassment" in order to receive the protections of the Act, there can be no unlawful retaliation unless the respondent believes the complainant is raising a claim that discrimination is occurring. Here, the commission is unconvinced that the complainant felt he had been discriminated against or that the respondent perceived his complaint as a complaint of discrimination.

Moreover, even if it could be found that the respondent did believe the complainant had engaged in protected activity, it presented a legitimate, nondiscriminatory explanation for its decision to discharge the complainant, which was unrelated to his claims of workplace harassment. The commission finds the respondent's explanation to be credible, and sees no causal link between the alleged protected activity and the discharge. Indeed, even the complainant's own theory as to why he was discharged does not extend to retaliation--the complainant speculated that the respondent wanted to get rid of him because it felt he was a "biker" and considered itself too "high class" for him. While the commission is unable to comment on this stated motivation for the discharge, it believes that the complainant's own failure to suggest a link between his discharge and his complaint to the respondent supports a conclusion that no such link exists.

Under all of the facts and circumstances, the commission agrees with the administrative law judge that the complainant failed to establish probable cause to believe he was discriminated against in the manner alleged. Accordingly, the dismissal of the complaint is affirmed.

cc:
Carol N. Skinner
James R. Scott

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