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

DEBBIE L. HAAS, Complainant

JERRY SARK, d/b/a
AMERICAN WESTERN EXCAVATING, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199700130

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

In paragraph 3 of the ORDER, delete "the date stamped on this Decision and Order" and substitute therefor "December 28, 1998." (1)

Delete paragraph 7 of the ORDER and substitute the following therefor:

"7. That within 30 days of the expiration of time within which an appeal may be taken herein, the respondent submit a compliance report detailing the specific action it has taken to comply with the commission's order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. 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. Stats., § § 111.395, 103.005(11) and (12)."

DECISION

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

Dated and mailed December 29, 1999
haasdeb.rmd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case arises out of allegations by Debbie L. Haas that when she was working for Jerry Sark, d/b/a American Western Excavating, during 1996, Sark engaged in a course of sexual harassment which eventually caused her to terminate her employment. A lengthy and contentious hearing was held on these allegations before Administrative Law Judge John L. Brown, who in December, 1998 issued a decision finding that Haas had established her allegations of sexual harassment and constructive discharge, and ordering relief. Sark has petitioned for commission review.

The nature of this case is aptly summarized by the first sentence in Respondent's Reply Brief: in this case, "the critical issue is who to believe." Respondent's Reply Brief, p. 1. The testimony offered by the opposing parties and their witnesses was in sharp, irreconcilable conflict on many material points. The primary task which confronted the ALJ, was making an assessment as to credibility of witnesses. Respondent having petitioned for review, that task has now fallen to the commission.

Based on a careful review of all of the evidence in the record, and giving due weight to the credibility assessment of the ALJ, who was in a position to observe the witnesses as they testified, the commission is persuaded that the testimony of Complainant and her witnesses was more credible than the testimony of Respondent and his witnesses.

Overall, the commission found the specificity and detail of much of what Complainant described to be characteristic of truthful testimony. It did not, in the commission's view, have the "feel" of a story made up out of whole cloth, which is what Respondent contended it was.

For numerous reasons, however, the commission felt that the testimony of Sark and his witnesses was not believable.

The reasons for the commission's agreement with the ALJ on the credibility of witnesses included, but were not limited to, the commission's belief that Sark's testimony concerning the bottle of DHEA pills was implausible and unbelievable. The commission also believed that Sark's testimony regarding the matter of his lowering the bucket of his hoe into Complainant's truck to immobilize her, including his claim that he did so in order to have privacy to go underneath his equipment to deal with a sudden attack of diarrhea, was implausible and unbelievable. The commission felt that Sark's fervent denials of ever having patronized "sex stores" were disingenuous, considering the evidence about his patronage of "Naughty But Nice." The commission also noted that Sark's testimony concerning the DHEA pills, and his testimony regarding the matter of his lowering the bucket of his hoe into Complainant's truck to immobilize her, was inconsistent in some respects with his earlier statements about those matters to Officer Singer. (2)

The commission also found that the condition of Exhibits L, N, O and P - undergarments which Complainant testified were worn and removed by Respondent in an incident at work - was consistent with elements of Complainant's testimony in ways not likely to be found had her testimony been confabulated. It is obvious that at some point the shorts marked as Ex. O split at the top of a side seam and were then sewn up by hand; this kind of splitting at a seam is what would be expected if someone for whom the shorts were too tight tried to pull them up. Furthermore, the shorts marked as Ex. N had obviously been altered at some point by someone who rolled the waistband over twice and then sewed it up (using a sewing machine) thus making the shorts much shorter; this is significant in view of Haas' testimony that Sark would sometimes wear extremely short shorts, so short that his penis would sometimes show. The demonstration conducted at the hearing showed that Sark could have worn all of these garments in the fashion testified to by Complainant. The unusual condition of the garments is peculiarly consistent with specific elements of the Complainant's contentions. These things left the commission inclined to credit Complainant's testimony about this "strip tease" incident.

These matters, as significant as they are, should be understood as illustrative examples rather than a complete listing of considerations affecting the commission's assessment of credibility. In making that assessment, the commission considered the entire testimony of the witnesses. Considering that entire testimony, the commission was left with the definite impression that Complainant's version of the events which occurred during her employment at American Western Excavating was the believable one.

Respondent's arguments - Respondent made a number of what amounted to alternative arguments: arguments that even if Respondent engaged in the conduct alleged by Complainant, she was still not entitled to the relief she sought. The commission has carefully considered these arguments but has found them to be without merit.

Respondent argues that the ALJ erred in finding that Haas was subjected to a hostile work environment. Respondent's Brief, p. 5. The only "error" the ALJ made in this respect, was invoking the "hostile environment" standard at all. This is not a case which needs to be analyzed under the "hostile work environment" theory. As was explained in Jim Walter Color Separations v. LIRC and Marcy Ann Tobias, 226 Wis. 2d 334, ___ N.W.2d ___ (Ct. App. 1999), Section 111.36(1), Stats., provides in 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 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. Under this paragraph, substantial interference with an employe'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.

and this statutory language in effect addresses three separate categories of prohibited conduct:

(1) an employer engaging in sexual harassment;

(2) an employer explicitly or implicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment or the basis of any part of a decision affecting the employee ("quid pro quo"); and

(3) permitting sexual harassment to substantially interfere with an employee's work performance or to create an intimidating, hostile or offensive work environment (collectively, "hostile environment").

In Tobias, the court of appeals agreed with the commission's interpretation that, under the first category, there is employment discrimination based on sex if the employer -- that is, 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, 226 Wis. 2d at 342-44. This is such a case. The acts of sexual harassment involved here were engaged in by the owner and operator of the business. Unwelcome physical contact of a sexual nature and unwelcome verbal or physical conduct of a sexual nature may constitute sexual harassment without regard to whether they meet the "hostile work environment" standard, when they are engaged in by a business owner. Tobias, at 344-45. Therefore, Respondent's arguments as to whether the acts alleged to have occurred here rose to the level of a hostile work environment are not relevant.

Citing Garner v. Manpower Temp. Services (LIRC, 8/11/98), Respondent argues that the alleged sexual harassment in this case was not actionable because it was not both severe and subjectively offensive. However, Garner was a case involving harassment by co-workers.

Respondent argues that the fact that Haas stayed on the job for 5 months, that she engaged in some physical horseplay with co-workers, and that she did not complain to Sark's wife, show that Sark's actions towards here were not subjectively offensive to her. Respondent suggests that Haas was "an active participant, obviously enjoying the attention of her male co-workers." Considering the facts of this case, the commission considers this argument to be wholly without merit. The nature and frequency of the kinds of horseplay Haas engaged in with male co-workers was simply not comparable to Sark's actions.

Respondent's argument that Complainant failed to go to Sark's wife, who was also an owner of the business, is not persuasive. Haas testified that she did raise the matter of Sark wearing extremely short and revealing shorts with Sark's wife, and reports that she simply became defensive about it. (T. 2 p. 18).

Respondent argues that

"If Ms. Haas falsely accused Mr. Sark of the striptease then she falsely accused Mr. Sark of all the other incredible fantasies she created. When a witness tells one lie, it is appropriate and necessary to recognize that all of the witnesses statements are false."

Respondent's Brief, pp. 12-13. He also argues that

"Once the evidence fails to support even one of the claims alleged by the complainant then the review panel must realize that the ALJ's credibility assessments are not reliable and therefore the credibility pendulum must swing toward the appellant/respondent's credibility outweighing the appellee/complainant's."

Respondent's Reply Brief, p. 2. What Respondent is alluding to here, is the old maxim falsus in uno, falsus in omnibus ("false in one thing, false in all things") - except that Respondent has misstated it. The falsus in uno principle, incorporated in Wisconsin law as a jury instruction (Wis. J I -- Criminal, No. 305), provides that if a trier of fact finds that a witness has testified falsely about any material fact, they may, in their discretion, choose to disbelieve the rest of the testimony of that witness. It is not, as Respondent suggests, a mandatory rule. A trier of fact is not obliged to reject all of the testimony of a witness because some of it is willfully false. Nehls v. Nehls, 21 Wis. 2d 231, 237, 124 N.W.2d 18 (1963). Even if a trier of fact did not accept everything Haas testified to as completely true - for example, if it was felt that there may have been some exaggeration in her testimony as to the number of times that certain events were repeated - the trier of fact would still be entitled to credit those parts of her testimony which were found reliable. The commission, in agreement with the ALJ, has found that Complainant's testimony was, in general, much more credible than that of Respondent in respect to the factual issues which are material to the sexual harassment issue presented in this case.

Respondent argues that there was no constructive discharge here because the working conditions were not shown to be so intolerable that a reasonable person in a similar situation would have felt compelled to resign. Citing Musgrave v. Matthew (LIRC, 4/13/98), Respondent argues that "if the employe engages in unreasonable conduct, they must accept the environment that they help create." However, Musgrave did not involve anything in the nature of sexual harassment, but rather an employe who was cut to half-time and put under strict supervision because of his unsatisfactory job performance, including insubordinate refusal to follow employer directives. The commission simply observed in that case, that Musgrave's having been cut to half-time and put under strict supervision was an adverse consequence of unreasonable conduct which he himself engaged in, and that quitting was not a reasonable person's response to that situation. The situation in this case has nothing to do with the Musgrave situation of an employe complaining about the disciplinary consequences of their own misconduct. Accepting the accuracy of Haas' allegations about the facts, the conduct of Sark easily fits within the category of "intolerable."

Remedy - The ALJ ordered that Respondent pay Complainant back pay, on terms more particularly described in his decision, for the period from October 16, 1996 to the date of issuance of his decision (which was December 28, 1998). However, the ALJ indicated, in his Conclusions of Law, that the level of hostility between the parties made an award of reinstatement not feasible in the case, and he therefore did not order reinstatement. In addition, the ALJ ordered that Respondent adopt and promulgate an employment policy regarding sexual harassment. Finally, he ordered payment of attorneys fees, in an amount less than that which Complainant sought, and greater than that which Respondent argued would be appropriate.

Respondent has not raised any argument that the ALJ erred in any respect in his remedial order, either in terms of the requirement to develop a sexual harassment policy, or in the duration of the back period or the hourly rate and interim earning offsets to be used in the computation of the amount of back pay. He has also not raised any argument in respect to the amount of attorneys fees awarded.

For her part, Complainant has not raised any argument that the ALJ erred in not awarding the full amount of attorneys fees she sought, or in cutting off the running of the back pay period as of the date of his decision, or in not including an order for any further payments in lieu of an award of reinstatement. (3)

The commission considers that by failing to raise any of these arguments which would have been available to them and which could have been argued in their briefs, the parties have abandoned the issues and have implicitly indicated their agreement to the commission's affirmance of the remedial order in the event that it affirms the decision of the ALJ on the question of liability. For this reason, and because the ALJ's remedial order is reasonable on its face and effectuates the purposes of the Fair Employment Act, the commission affirms it without modification. (4)

Attorneys fees connected with commission review - The briefing schedule which was issued in this case specifically instructed Complainant to include in her brief any request for additional attorney's fees for work performed in connection with the appeal to the commission. Any such request was, according to the instructions in the briefing schedule, to be accompanied by a supporting affidavit and documentation. However, Complainant failed to comply with this provision of the briefing schedule, and she made no mention of anything pertaining to additional attorney's fees in her brief or in any other communication to the commission. For these reasons, the commission considers that Complainant has waived her entitlement to an award of additional attorneys fees related to the commission review process, and it therefore adopts the ALJ's order relating to attorney's fees without modification.

cc:
Attorney Robert C. Howard
Attorney Lori K. Murphy

Appealed to Circuit Court. Appeal dismissed as untimely, June 21, 2000.

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Footnotes:

(1)( Back ) The ALJ's decision was issued on December 28, 1998. This modification carries out his intent, that the back pay period run until the date on which his decision was issued.

(2)( Back ) At hearing, Respondent objected to the receipt of Officer Singer's report, Ex. AA, which contained (among other things) her notes as to statements made to her by Sark. The ALJ ruled that he would receive it as evidence of prior inconsistent statements which could have a bearing on credibility. While Respondent argued that the only parts of the Exhibit which could be considered for such impeachment purposes should be parts about which Sark had been specifically confronted and questioned about during the hearing, the ALJ did not thus qualify his ruling as to the purposes for which the document would be received. He stated, "I'm going to refer to AA as I review the testimony to see what prior inconsistent statements there are within those documents that I believe bear on the credibility of witnesses" (T. 4 p. 289). Later, he stated, "AA is admitted for prior inconsistent statements." (T. 4 p. 290). As is noted below in this Memorandum Opinion, Respondent has not made any argument to the commission that the ALJ engaged in any error in respect to any procedural or evidentiary ruling. The commission considers that whatever objection Respondent might have had to the decision-maker using Ex. AA as evidence of prior inconsistent statements by witnesses, that objection has been waived by Respondent's failure to make it to the commission.

(3)( Back ) On the question of whether "front pay" may be awarded in lieu of reinstatement in cases of this type, see, Oak- Dale Hardwood Products v. LIRC (Pierce Co. Cir. Ct., 02/16/96), and Kaczynski v. WSR Corp. (LIRC, 10/29/97).

(4)( Back ) The commission will generally not exercise its authority to address issues when they are neither expressly nor implicitly raised by a petition for review or arguments submitted in connection with the petition. See, e.g., Crosby v. Intertractor America Corp. (LIRC, 05/21/93). An argument which could have been made before LIRC when it was reviewing an ALJ's decision, but was not made, is waived. Pickering v. LIRC, 156 Wis. 2d 361, 370, 456 N.W.2d 874 (Ct. App. 1990).