Wis.LIRC ER Decision: Stanton - May 30, 1985 - Sex discrimination - employer discharged female employee because a male employe who the employer valued pressured the employer to do so unless the female employee entered into a relationship with the male employee - discrimination where discharge decision was based "in part" on this unlawful reason

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

VIRGINIA STANTON, Complainant

ABBYLAND MEAT PROCESSING, INC., Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8300934, EEOC Case No. 055833046

The examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on July 18, 1984. Complainant timely filed a petition for review and both parties subsequently submitted written arguments to the Commission.

On February 26, 1985, the Commission issued the decision in the case. Respondent timely filed an appeal for circuit curt review. On April 15, 1985, upon stipulation of the parties, the Court ordered that the Commission decision dated February 26, 1985, be set aside, that the case be remanded to the Commission for further proceedings, and that the Commission enter a new decision within 60 days from the date of the Court's order.

Based upon a review of the record in its entirety, and after consultation with the hearing examiner concerning his impressions of credibility, the Labor and Industry Review Commission issues the following:

FINDINGS OF FACT

1. Respondent, Abbyland Meat Processing, Inc., is a meat processing firm which is located in Abbotsford, Wisconsin. Abbyland employs about 75 employer, no more than 25% of whom are women. Abbyland has three departments: a sausage room, a cure room and a deboning room. Women normally are hired only in the sausage mom.

2. Harland Schraufnagel is the president of Abbyland. Rich Blume is employed by Abbyland as a deboner. In May 1983, Blame had worked at Abbyland between five and six years.

3. Complainant, Virginia Stanton, was hired by Schraufnagel in May 1983, in preference over 25 other applicants. Schraufnagel hired Stanton only because Blume recommended her and because Schraufnagel thought that Blume and Stanton "were going to get serious and start a life together." Stanton worked in the sausage room at Abbyland for a total of 10-1/4 hours on May 19 and 20, 1983.

4. A personal problem developed between Stanton and Blume because BI-Me wanted "to get more serious" (i.e., to get married or spend more time together), and because Stanton was not ready t0 get- more serious.

5. During the weekend of may 21-22, 1983, Blume informed Schraufnagel that he would not work at Abbyland if Stanton continued to work at Abbyland. On May 23, 1983, Stanton was informed by her foreman, Vaughn Forrester, that she was discharged. Forrester told Stanton that she was discharged because Blume would not work at Abbyland if Stanton continued to work at Abbyland.

6. Immediately following the notification of the discharge, Stanton attempted to discuss the discharge with Schraufnagel. He informed her that he could not think about continuing her employment so long as Blume refused to report for work because of her presence.

7. The decision to discharge Stanton was made by Schraufnagel. Schraufnagel decided to discharge Stanton in part because Blume would not work at Abbyland if Stanton continued to work at Abbyland (based in turn on Stanton's unwillingness "to get more serious" with Blume), and in part on Blume's greater relative value to Abbyland.

CONCLUSIONS OF LAW

1. Abbyland is an employer within the meaning of the Wisconsin Fair Employment Act.

2. Abbyland discriminated against Stanton on the basis of sex, in violation of the Act, when it discharged her on May 23, 1983.

ORDER

The case is remanded to the examiner for further proceedings in order to determine the appropriate monetary and nonmonetary relief to which Stanton is entitled, and to determine an appropriate award of attorney's fees.

Dated and mailed May 30, 1985

/s/ David A. Pearson, Chairman

/s/ Hugh C. Henderson, Commissioner

MEMORANDUM OPINION

The examiner found that Stanton's sex was not a factor in Schraufnagel's decision to discharge Stanton. Instead, the examiner found that Schraufnagel based his decision on economic and business reasons, specifically the comparative experience, skill and longevity at Abbyland of Stanton and Blume.

The Commission has consulted with the examiner and has carefully reviewed all of the evidence, particularly Schraufnagel's own testimony. Although the Commission accepts the examiner's finding that Schraufnagel's decision was based in part on Blume's greater relative value to Abbyland, the Commission reverses the examiner because it finds that the decision was based at least in part on Stanton's sex.

Stanton was discharged in part because Blume would not work at Abbyland if she continued to work at Abbyland, which in turn was based on Stanton's unwillingness "to get more serious" with Blume. To the extent that Schraufnagel discharged Stanton because she refused "to get more serious" with Blume, the decision was based in part on Stanton's sex. Cf. Barnes v. Costle, 561 F.2d 983, 989-992 (D.C. Cir. 1977). Blume was interested in getting more serious with Stanton because she was a woman, and thus, but for her sex, Stanton would not have been discharged because she refused to get more serious with Blume.

The discrimination in this case was plainly based on Stanton's gender. Retention of her job was conditioned upon her willingness to have a more serious relationship with Blume -- an exaction which neither Blume nor Schraufnagel would have sought from any male. No argument can be made that the Wisconsin Fair Employment Act does not outlaw terms of employment for women which differ appreciably from those set for men, and which are not genuinely and reasonably related to performance on the job.

It does not matter that Schraufnagel's decision to discharge Stanton was also based, in part, on Blume's greater relative value to Abbyland. As the Wisconsin Supreme Court recently reiterated in State v. WERC, 122 Wis. 2d 132, 139-40, 361 N.W. 2d 660, quoting Muskego-Norway C.S.J.S.D. No. 9 v. W.E.R.B, 35 Wis. 2d 540, 562, 151 N.W. 2d 617 (1967) , "an employee may not be fired when one of the motivating factors is his union activities, no matter how many other valid reasons exist for firing him." By analogy, in this case, the Commission finds that Stanton's sex was at least one factor in Schraufnagel's decision to discharge Stanton.

Appealed to Circuit Court. Affirmed February 14, 1986. Appealed to the Court of Appeals; affirmed (unpublished) February 3, 1987.

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