Wis.LIRC ER Decision: Powell - July 11, 1997 - Sex discrimination - sexual harassment; Constructive discharge, what constitutes; Parties - proper parties respondent - liability of employer's agent as employer in his own right

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

STELLA J POWELL, Complainant

LAURA E SALTER d/b/a NORTHWOODS MARKETING, Respondent A

and

LES MINARD III, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199601071, EEOC Case No. 26G960911

An administrative law judge for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT

1. Northwoods Marketing is located in Antigo, WI, and is a business engaged in the telemarketing of magazine subscriptions. Laura Salter (hereinafter "Salter") is the owner of Northwoods Marketing.

2. Les Minard III (hereinafter "Minard") is Salter's son. Minard is responsible for the day-to-day operations of Salter's business, including the hiring and firing of staff and the supervision of all daily activities of the business.

3. Stella Powell (hereinafter "complainant"), a female, began employment with Northwoods Marketing on September 25, 1995, as a telemarketer. Her customary hours of work were from 5:00 p.m. until 9:00 p.m. six days per week.

4. Minard is an alcoholic who, throughout the complainant's employment, reported to work in a state of intoxication on a fairly regular basis and often continued to imbibe while at the workplace. At least a few times each month Minard would announce that he did not feel like working and would direct the entire staff to complete its shift at a nearby tavern. In order to be paid for the full shift employes were required to accompany Minard to the bar and remain there until 9:00 p.m.

5. At the time the complainant worked for Northwoods Marketing there were approximately 11 or 12 employes, all but one of them female. Minard frequently referred to the female employes as "fucking bitches" or "fucking cunts."

6. During the course of the complainant's employment, which lasted approximately five months, Minard made inappropriate comments and sexual advances to her on numerous occasions. For example, Minard told the complainant that he had hired her not just because of her voice, but also for her butt. He also told the complainant he thought she would be good in bed and that she looked like the "good in bed" type.

7. On one or more occasions Minard made comments about the complainant's buttocks in front of other men at the local tavern. This occurred during working hours.

8. Once, while at the bar during working hours, Minard tried to lift the complainant's shirt. However, the complainant turned around and walked away before he was able to do so.

9. The complainant never complained to Minard about his actions or told him to stop, nor did she attempt to go over his head to the owner of the business. The complainant had only seen Salter on a few occasions and, although she knew Salter was Minard's mother, the complainant was unaware of Salter's relationship to the business.

10. On February 17, 1996, the complainant reported to work at 5:00 p.m. After working only about fifteen minutes, Minard announced that he did not want to work and that the staff would be going to the local bar. While at the bar, Minard, who was evidently very inebriated at the time, approached the complainant and grabbed her buttocks. The complainant asked him what the hell he was doing, to which Minard responded that it was just what she thought. At this point the complainant's shift was nearly over and she went home. She did not return to work for Northwoods Marketing thereafter.

11. Minard's verbal and physical conduct towards the complainant constituted unwelcome sexual harassment and was so severe and pervasive that it created a hostile working environment.

12. Salter did not know, but should have been aware, of the sexual harassment. Although Salter was the owner of the business, she had taken no steps to draft a sexual harassment policy or to provide any mechanism by which employes could complain of sexual harassment. The complainant was not aware that Salter owned the business or that there was anyone above Minard to whom she could report his conduct.

13. The complainant's decision to terminate her employment with Northwoods Marketing was directly and solely related to the sexual harassment by Minard.

14. The complainant was compelled to resign based upon the intolerable working conditions to which she was subjected. Her quitting under these circumstances amounted to a constructive discharge.

Based upon the FINDINGS OF FACT made above, the commission makes the following:

CONCLUSIONS OF LAW

1. Respondent A, Laura Salter, d/b/a Northwoods Marketing, is an employer within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act.")

2. Respondent B, Les Minard III, the complainant's supervisor, was an agent of Salter.

3. The complainant, a female, is a member of a protected class, within the meaning of the Act.

4. The complainant established that Respondent A violated the Act by permitting sexual harassment to occur.

5. The complainant established that Respondent A violated the Act by constructively discharging her from her employment.

Based upon the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:

ORDER

1. That Respondent A shall cease and desist from permitting unlawful sexual harassment to occur. Further, Respondent A is to formulate and clearly articulate to its employes a reasonable policy notifying them that sexual harassment is prohibited and providing a clear and simple mechanism for the reporting of alleged sexual harassment committed by supervisors or co-workers. This policy shall permit employes to report such allegations directly to the employer/respondent, Laura Salter.

2. That Respondent A shall make the complainant whole for losses in pay in the amount of $2,184.00, which the complainant suffered by reason of its unlawful conduct. This amount represents the sum the complainant would have earned as an employe from her last day of work until August 10, 1996, at which time the complainant began other employment, but excluding the period of time extending from May 10-July 29, 1996, during which time the complainant was unable to work because she had just had a baby and some surgery. Any unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory set-offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.

4. That Respondent A shall pay the complainant's reasonable attorney's fees in the amount of $1,498.00 and costs in the amount of $24.84, for a total of $1,522.84 in reasonable attorney's fees and costs associated with this matter. A check in the amount of $1,522.84 shall be made payable jointly to the complainant and to Attorney James B. Connell and delivered to Mr. Connell.

5. Within 30 days of the expiration of time within which an appeal may be taken herein, Respondent A shall submit a compliance report detailing the specific action 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.

Dated and mailed July l1, 1997
powelst.rrv : 164 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

Constructive Discharge (1 ) -- The complainant has contended that she was constructively discharged from her employment with the respondent based upon her supervisor's actions in subjecting her to unlawful sexual harassment. The commission agrees that the complainant should prevail on her claim of constructive discharge and has, therefore, reversed that portion of the administrative law judge's decision which held that the complainant was not constructively discharged and has awarded backpay and further attorney fees accordingly.

A constructive discharge occurs when an employer makes working conditions so intolerable that the employe is forced to resign. Bartman v. Allis-Chalmers Corp., 799 F.2d 311, 314, 41 FEP Cases 949 (7th Cir. 19 86), cert. denied, 479 U.S. 1092 (1987). To find a constructive discharge it must be established that, due to a discriminatory reason, working conditions are rendered so difficult or unpleasant that a reasonable person would feel compelled to resign. See Waedekin v. Marquette University, (LIRC, March 5, 1991), citing Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 22 FEP Cases 1191 (5th Cir. 1980); Jorgenson v. Ferrellgas, Inc. (LIRC, January 10, 1992).

In the instant case, the complainant demonstrated that she was subjected to frequent improper comments of a sexual nature, including a suggestion that she was hired because of her body, as well as at least one instance of inappropriate physical touching, and that all of these incidents were perpetrated by her direct supervisor. Mr. Minard's conduct in this regard created a highly unpleasant working environment, and one which a reasonable person might deem intolerable. While the law recognizes that it is preferable for an employe to seek redress for unlawful discrimination while remaining in the job, in this case there was no reason for the complainant to expect Minard's conduct to improve and no one above Minard to whom the complainant could have appealed for a remedy to the situation. Although it is possible that Ms. Salter would have taken some remedial action had she been notified of the harassment, given that the complainant was unaware Ms. Salter was the owner of the business, she could not have been expected to turn to her for assistance in this matter. Finally, the complainant testified without rebuttal that Mr. Minard's conduct was the sole reason for her decision to quit her job, and the evidence establishes a clear nexus between Minard's actions in grabbing the complainant's buttocks on her last night of work and her voluntary resignation.

Under all of the circumstances, the complainant demonstrated that she was subjected to sexual harassment which rendered her working environment intolerable, that she reasonably concluded she had no alternative but to terminate her employment, and that her quitting was directly related to the sexual harassment. She has, therefore, proven her claim of constructive discharge.

Liability of Les Minard -- In the administrative law judge's decision, which held in favor of the complainant only on the sexual harassment issue, the administrative law judge found both Ms. Salter and Mr. Minard to be employers, within the meaning of the Act, and held them jointly and severally liable for the complainant's costs and attorney fees. However, while the commission agrees that it would be satisfying to hold Mr. Minard financially responsible for his actions, the law does not sanction such a result. There is no evidence in the record to suggest that Minard was an employer or that he held any financial interest in the business. The only evidence in the record regarding Minard's role in the business establishes that he was the manager of the business and responsible for its day-to-day operations. Thus, while Minard may be legally characterized as Salter's agent, there is simply no basis for finding him to be an employer in his own right.

Having concluded that Minard is not an employer, the commission sees no legal ground for imputing financial liability to him in this case. The Fair Employment Act provides that the employer is liable for any financial remedies ordered as a result of a violation of the law by an individual employed by that employer. Wis. Stat. � 111.39(4)(c). Indeed, the commission has held that an individual supervisor should not be named separately as a respondent where the alleged violation of the law arose out of actions taken as an agent of the employer. See Yaekel v. DRS Limited and Bryan Clapper (LIRC, November 22, 1996), and cases cited therein.

For the foregoing reasons, the administrative law judge's decision has been modified to reflect the fact that Ms. Salter is the sole employer and, as such, is wholly liable for all financial remedies ordered.

Attorney Fees -- The commission has added $140 to the attorney fee award granted by the administrative law judge in his decision. The additional $140, which represents one hour of work at counsel's usual and customary hourly rate, is an amount which the commission considers reasonable for counsel's efforts with respect to the preparation and drafting of the petition for review.

cc:
James B. Connell

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Footnotes:

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