Wis.LIRC ER Decision: Nelson, Lenore - April 6, 1990 - Sex discrimination - sexual harassment, hostile environment, quid pro quo - offending supervisor as a separately-named respondent - employer responsible where supervisor acted under color of his authority

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

LENORE F. NELSON, Complainant

WAYBRIDGE MANOR, INC., Respondent A

THEODORE STERNBACH, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 8651771

In a complaint filed with the Equal Rights Division of the Department of Industry, Labor and Human Relations (hereafter, ERD) on August 15, 1986, Complainant alleged that the Employer-Respondent, Waybridge Manor, Inc., and its director, Theodore Sternbach, had discriminated against her on the basis of sex in violation of the Wisconsin Fair Employment Act. Complainant specifically alleged that Sternbach made unwelcome sexual advances to her and sexually harassed her, thereby creating a hostile working environment, that when she rejected his advances Sternbach also sexually harassed her in a quid pro quo manner by causing her to receive adverse performance evaluations, denying training opportunities and denying her promotion to a particular position she desired. As to the Employer-Respondent, Waybridge, Complainant specifically alleged in her complaint that Waybridge required "the involvement of Mr. Sternbach prior to filing a complaint with the board," (the reference is to Waybridge's board of directors).

On December 3, 1986, ERD's investigating Equal Rights Officer issued an Initial Determination that there was no probable cause to believe that Complainant was sexually harassed or unlawfully discriminated against by Sternbach or the Employer-Respondent, Waybridge. Complainant timely requested a hearing on the probable cause issue. Such hearing was held on November 10 or 11, 1987 and February 23, 1988 before Administrative Law Judge (hereafter, ALJ) Pamela Rasche. On March 25, 1988, ALJ Rasche issued her decision wherein, after making certain findings of fact, she concluded that there was probable cause to believe that Sternbach and the Employer-Respondent unlawfully discriminated against Complainant on the basis of sex by engaging in and/or condoning the sexual harassment of Complainant. The ALJ further concluded that there was no probable cause to believe that Complainant was denied training or a promotion on the basis of sex. The ALJ's decision did not expressly resolve the issue of whether Sternbach or the Employer-Respondent unlawfully discriminated against Complainant by giving her adverse performance evaluations, although the ALJ found as fact that the immediate supervisor who gave Complainant certain unfavorable performance evaluations (Peggy Limbachs) "may have been influenced" by Sternbach.

The Employer-Respondent and Sternbach separately filed petitions for Commission review of the ALJ's probable cause finding. Complainant did not petition for Commission review of the ALJ's s other, "no probable cause" findings. The Commission does not entertain petitions for review of an ALJ's findings that probable cause exists. Instead, such issues proceed to attempted conciliation and, if necessary, a hearing on the merits and an ALJ's decision on the merits, which the Commission will review if timely petitioned to do so. However, in view of the extensive hearing already had and the apparent futility of a conciliation attempt at this point, the Commission informed the parties that, if they so stipulated, the Commission would set a briefing schedule, review this matter on the existing record, consult with the ALJ concerning the credibility of witnesses, and issue a Commission decision on the merits. The parties so stipulated.

The parties have briefed the case on the merits and the Commission has reviewed the hearing record, considered the arguments presented and consulted with the ALJ. Based upon the credible testimony and exhibits, the Commission makes the following:

FINDINGS OF FACT

1. The Employer-Respondent, Waybridge, is a non-profit organization that provides counseling and housing in Kenosha for individuals recovering from addiction to alcohol and other drugs. At all relevant times, Waybridge had a staff of approximately 12 at the five houses it operated. Sternbach supervised the staff in his position as Director of the operation, throughout all but the last three months of Complainant's employment.

2. Complainant, Lenore Nelson, applied for employment at Waybridge in June or July of 1984. She was at that time a student in the Human Services program at Gateway Technical College and was working as a secretary for an insurance company but was interested in obtaining part-time employment with a treatment center in the Kenosha area. The rector of Complainant's church, the Reverend James R. Braun, was a member of Waybridge's Board of Directors.

3. In approximately August of 1984, Sternbach stopped in the insurance office where Complainant was employed and invited her to come to Waybridge to talk to him about a job opening. Complainant did so and was hired by Sternbach for the position of part-time house manager, starting sometime in August., 1984. She was first assigned to Waybridge's "main women's house."

4. As house manager, Complainant's duties included ensuring the safety of the house, conducting fire drills, enforcing rules and recording events in a log as well as being available to talk to residents.

5. In approximately June or July of 1985, after serving about one year as a house manager, Complainant was promoted by Sternbach to the combined position of part-time counselor-trainee and administrative assistant to Sternbach. Complainant received a raise in salary at that time and performed her new duties primarily at Waybridge's "men's house," where Sternbach's office was located. Those duties included work related to payroll, accounts payable, and the ordering of food and other supplies.

6. Also in June or July of 1985, Sternbach began to make frequent, unwelcome comments to Complainant to the effect that he "liked her legs and her long hair, and referring generally to long hair as being "sexy." Such comments were made by Sternbach once or twice a week throughout the period from approximately June or July of 1985 to December of 1985. As reflected in his subsequent conduct, Sternbach's intent in making such comments, with such frequency, was to begin a campaign of indirect but clearly communicated sexual advances. Although Complainant did not verbally object to Sternbach's continents, they were unwelcome and caused her to feel "nervous."

7. At a staff Christmas party on December 23, 1985, Sternbach's attentions to Complainant escalated; after distributing gifts of pens to staff members, Sternbach called Complainant into his private office and stated: "I have a special Christmas present for you." Sternbach then gave Complainant a bag containing a box; Complainant opened the box and found bikini underwear (a bra and panties) and a smaller box containing a set of "professional thumbcuffs." Sternbach's intent was to solicit, indirectly but clearly, a sexual relationship between himself and Complainant. Complainant was embarrassed and unable to immediately respond verbally; she left Sternbach's office and Waybridge's premises, although the party had not yet ended, and she did not return until the end of a holiday vacation period she had previously scheduled.

8. When she returned to work after her holiday vacation, on a date near the end of December, 1985, Complainant confronted Sternbach about the "Christmas gift," making it clear to him that she objected to it and understood it to be a sexual advance. Sternbach told Complainant that he was "just kidding" and was merely trying to "cheer her up" because he knew that Complainant's grandfather had recently died and that she had recently "broken up" with her boyfriend. Complainant did not believe Sternbach's explanations.

9. On January 17, 1986, Complainant accompanied Sternbach, at his request, on a trip by car from the employer's facility in Kenosha to the Mendota Mental Health Institute in Madison. Sternbach told Complainant they would be attending a work-related seminar. During the drive to Madison, Sternbach, who was married, talked to Complainant about his views of the desirability of "open marriage" and the assertedly "freer" attitudes of European women toward sexual matters, culminating in his question to Complainant, "What do you think you have, gold in between your legs?" Sternbach also told Complainant he was :involved in "a swinger's club in Madison." When Complainant and Sternbach arrived at the Institute, it was pointed out to them that the seminar location was in fact in Wisconsin Rapids (the Commission takes administrative notice that the 1987-88 road map distributed by the State of Wisconsin shows Wisconsin Rapids to be 108 highway miles north of Madison). Sternbach told Complainant that since there wasn't enough time to get to Wisconsin Rapids before the seminar started, they should return to Kenosha. On the return trip, Sternbach stopped at a coffee shop in a Madison motel and later at a restaurant for lunch. During this return trip, Sternbach talked about the same sexual topics he had discussed on the way to Madison and clearly suggested that he and Complainant should have sexual intercourse. Complainant asked him what his wife thought of his views. Sternbach told Complainant that his wife did not mind. Complainant told Sternbach, "I'm not into that." Despite several statements by Complainant clearly indicating that Sternbach's advances were unwelcome, he persisted during the return trip, varying his approach only to ridicule Complainant as not knowing "how to live."

10. Sternbach's intent, in asking Complainant to accompany him to Madison on January 17, 1986 was to subject. Complainant to sexual innuendo clearly implying the proposition that he and Complainant begin a sexual relationship, while retaining the option of denying any such intent.

11. Prior to and immediately after the aborted seminar trip of January 17, 1986, Complainant had received favorable written performance evaluations. However, in the period from January 117, 1986 to May 27, 1986, Sternbach began to indicate to Complainant, orally, that he was no longer happy with her work. On May 27, 1986, Sternbach gave Complainant a written performance evaluation wherein he criticized her as "scattered" and forgetful, citing as the only example a single incident in which Complainant failed to contact a food vendor as instructed. Sternbach's evaluation further charged Complainant with a "lack of detail," the only cited example being a vague reference to typing assignments; he further opined that one of Complainant's failings was that she "overreact(s) with emotion to extreme." Finally, Sternbach implied in the evaluation that Complainant did not like her job and that this was negatively affecting her performance.

12. Complainant sought promotion to the position of head of Waybridge's women's program, which came open when the incumbent indicated she was leaving sometime in 1986. If Complainant had obtained that position, she would have worked in Waybridge's halfway house for women. Complainant was initially told by Sternbach that she would receive that position. However, Peggy Limbachs was given that position and Complainant was promoted to a different position at Waybridge's three-quarterway house; Complainant also received a raise in pay which equalled the raise she would have received if she had been given the particular promotion she desired. Limbachs' promotion to the halfway house position desired by Complainant was necessary because Waybridge was required to have a certified counselor in that position, pursuant to Wisconsin Administrative Code provisions, and Complainant was not at that time a certified counselor.

13. On or about August 8, 1986, Sternbach asked Peggy Limbachs to prepare a written evaluation of Complainant's performance. Sternbach told Limbachs that he intended to promote Limbachs to the position of Clinical Director in December, 1986, and that Limbachs' evaluation of Complainant was to constitute training or preparation for Limbachs prior to Limbachs' promotion. Limbachs prepared a written evaluation of Complainant's performance on August 8, 1986, after a meeting in which Sternbach, Limbachs and Complainant all participated. Limbachs indicated in her written evaluation that she perceived Complainant to have problems with "blockage" as well as "sex ID and men" which alleged problems, according to Limbachs, related to "earlier abuse in family." Complainant indicated in writing her disagreement with that portion of Limbachs' written evaluation.

14. On August 15, 1986, Complainant filed her complaint with ERD.

15. On August 27, 1986, Limbachs prepared another written evaluation of Complainant's performance, wherein Limbachs indicated that Complainant "has transferred childhood experiences on to Ted (Sternbach)." Limbachs also stated in that written evaluation that Complainant was "hostile" to a "suggestion" that Complainant obtain "professional help."

16. In connection with one of the evaluations done in August, 1985, Sternbach ordered Complainant, in writing, to obtain professional counseling for the "sex problem" he asserted she had. According to Sternbach's order, Complainant was to arrange for such counseling before she returned to work from a scheduled vacation. When Complainant returned, Sternbach asked her whether she had complied with his order. Complainant then handed Sternbach her attorney's business card and indicated that Sternbach could contact the attorney about the matter. It is undisputed that Sternbach then retrieved the document containing his order that Complainant seek counseling and marked through the order. On this occasion, Sternbach also spent eight hours discussing with Complainant the complaint she had filed with ERD.

17. On September 26, 1986, Sternbach and Limbachs prepared another written evaluation of Complainant's performance, asserting therein that Complainant's performance in all listed categories was now only "fair" or "average."

18. On October 8, 1986, Limbachs prepared a written evaluation of Complainant's performance wherein Limbachs made some positive observations but also stated that Complainant "should trust her supervisor's decisions more."

19. In a written evaluation dated December 15, 1986, Limbachs acknowledged that "tension/problems" existed between Limbachs and Complainant. As to Complainant's professional performance, Limbachs made some positive observations but also asserted that Complainant "appears to be emotionally invested with her clients, and has not learned yet to detach professionally."

20. At the hearing in this matter, Limbachs conceded that she had a "personality conflict" with Complainant and that Complainant had been evaluated more often than any other staff member. As indicated in the above findings, Complainant was evaluated five times in the period of approximately four months beginning with the evaluation on August 8, 1986 and continuing through the evaluation on December 15, 1986.

21. Sternbach voluntarily terminated his employment with Waybridge in January, 1987.

22. Sternbach understood that Complainant had rejected his sexual advances in December, 1985 and on January 17, 1986. Sternbach's intent, in the period after January 17, 1986 and continuing through the date of his voluntary termination of employment in January, 1987, was to retaliate against Complainant for her rejection of his advances, by subjecting her to more frequent and more negative performance evaluations than she had previously received, and by pressuring her to obtain "professional help" for a "sex problem" which was in fact nothing more than a reasonable reaction on Complainant's part to Sternbach's sexual advances.

23. Peggy Limbachs' conflict with Complainant, and Sternbach's favorable treatment of Limbachs, motivated Limbachs to evaluate Complainant more frequently than any other staff member was evaluated.

24. Sternbach's overall conduct, from June or July of 1985 to his resignation in January of 1987, created for Complainant an intimidating, hostile and offensive working environment. Sternbach's actions, in the period after the trip to Madison on January 17, 1986 and continuing to his departure in January of 1987, also were direct, "quid pro quo" retaliation against Complainant, initially in response to Complainant's rejection of his sexual advances and, subsequently, in response to Complainant's complaints to the Employer-Respondent and her complaint under the Wisconsin Fair Employment Act.

25. Waybridge's Board of Directors first had actual knowledge of Sternbach's sexual advances toward Complainant sometime in July of 1986, when Sternbach went to Gerald Costello, the President of the Board, and told Costello that he (Sternbach) had "messed up," describing the Christmas gift incident. Costello's initial reaction was disbelief that an individual with Sternbach's professional qualifications in psychology and sociology would engage in such conduct. When Sternbach repeated his description of his conduct, Costello told Sternbach that Sternbach's conduct was clearly "inappropriate." Costello then convened a meeting of the Board's personnel committee which was held shortly after Complainant had filed her complaint with ERD on August 15, 1986. A second meeting was subsequently held.

26. In the meetings arranged by Costello, Waybridge's Board learn about all of Sternbach's acts described above. The Board's position was that while the Christmas gift was "inappropriate," Sternbach's overall conduct did not amount to sexual harassment and warranted only a verbal reprimand, which was not record in Sternbach's employment record and did not affect his position, salary or other conditions of his continued employment as Director of Waybridge's staff. The Board also told Complainant that any future complaints should be made initially to Limbachs and/or Sternbach.

27. The response of Waybridge's Board to the complaints Complainant made to the Board was inadequate to protect Complainant from Sternbach's retaliation; as indicated above, Sternbach's participation, with Limbachs, in negative evaluations of Complainant's performance continued through December of 1986. Waybridge's response was also inadequate in that the Board refused to acknowledge that Sternbach's overall conduct, in the period preceding the meetings, constituted repeated, unwelcome verbal conduct of a sexual nature rather than merely "inappropriate" behavior. Finally, Waybridge's response was inadequate in that Complainant was not provided with any clearly articulated option to bring future complaints of sexual harassment directly to the Board, bypassing Sternbach and Limbachs. The President of tine Board conceded at hearing that even after Complainant told the Board she would be uncomfortable making future complaints to Sternbach or Limbachs, Complainant was, nevertheless, told that future complaints should be taken, initially, either to Limbachs or Sternbach.

28. Complainant's allegation that Waybridge and Sternbach unlawfully discriminated against her on the basis of sex by denying training opportunities to her was not established; in 1986, Waybridge expended more money on Complainant's participation in professional seminars than was expended for any other staff member.

29. Complainant voluntarily terminated her employment with Waybridge on April 30, 1987 for reasons other than Sternbach's harassment and Waybridge's response thereto.

30. Complainant suffered no wage loss as a result of Sternbach's harassment and Waybridge's inadequate response.

31. In prosecuting her complaint, Complainant has incurred reasonable attorney fees in the amount of $5,000.00 and reasonable and necessary costs in the amount of $435.50.

CONCLUSIONS OF LAW

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

2. Sternbach, in his position as Complainant's supervisor, was an agent of Waybridge.

3. Waybridge did not unlawfully discriminate against Complainant on the basis of sex with regard to promotion or training opportunities, either directly or through the actions of its agent, Sternbach.

4. Waybridge did unlawfully discriminate against Complainant on the basis of sex in that its agent, Sternbach, made sexual advances to Complainant, sexually harassed Complainant, created a hostile working environment for Complainant, and retaliated against Complainant when she rejected his advances.

S. Waybridge also unlawfully discriminated against Complainant on the basis of sex by responding inadequately after Waybridge's Board of Directors was aware of Sternbach's acts.

6. The dual purposes of the Wisconsin Fair Employment Act, to deter discrimination and make its victims whole, will best be serves by requiring the Employer-Respondent, Waybridge, to pay Complainant's reasonable attorney fees and costs incurred in obtaining a determination that the acts of Waybridge's agent, Sternbach, and the inadequacy of Waybridge's response thereto, did constitute unlawful sexual discrimination, and by requiring Waybridge to clearly inform its current employes of a reasonable means for reporting a supervisor's alleged acts of sexual harassment without the necessity of going through that supervisor or his subordinates.

ORDER

1. Those portions of Complainants complaint alleging sex-based discrimination with respect to alleged denials of training and promotion are dismissed.

2. The Employer-Respondent, Waybridge, is to pay Complainant's attorney fees in the amount of $5,000.00 and costs in the amount of $435.50. Such payment is to be made by a check made payable jointly to Complainant and her attorney, Robert K. Weber, such check to be mailed or otherwise delivered to Attorney Weber.

3. The Employer-Respondent, Waybridge, is to formulate, and clearly articulate to its employes, a reasonable policy regarding the reporting of alleged sex-based discriminatory acts committed by supervisors or co-workers, such policy to expressly permit such a report to be made directly to the alleged harasser's superiors, including Waybridge's Board of Directors.

4. The Employer-Respondent, Waybridge, shall within 30 days of the expiration of time within which an appeal may be taken herein, submit a compliance report detailing the specific action taken to comply with the Commission's order. The compliance report shall be mailed to Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708.

Dated and mailed April 6, 1990.

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

MEMORANDUM OPINION

The majority considers that Complainant's allegations charged both "hostile environment" sexual harassment (based on the effects of Sternbach's repeated sexual advances in the period from June or July of 1985 through January 17, 1986 and the Employer-Respondent's inadequate response thereto), as well as "quid pro quo" sexual harassment in the subsequent period ending with Sternbach's departure in January, 1987 (based on Sternbach's retaliation for Complainant's rejection of his advances, which retaliation took the form of more frequent and more critical performance evaluations, as well as pressure to admit that it was she who had a sexual "problem").

Complainant has, in the view of the majority, established all elements necessary to a successful claim under both theories. As to the "hostile environment" theory, Complainant was clearly a member of a protected group (women). Sternbach subjected her to unwelcome sexual advances which were sufficiently pervasive to create an offensive and hostile working environment, considering the totality of the circumstances. The significant circumstances included, but are not limited to, the particular facts that Sternbach was a well-educated and experienced professional in the field Complainant aspired to enter, who hired Complainant to an initial position which was essentially that of a student intern and subsequently favored her with advancement. Sternbach was more than Complainant's supervisor; he was also, in the beginning of their relationship, Complainant's role model and mentor. Under the circumstances, the majority considers that whether Sternbach's conduct and the Complainant's reactions are gauged subjectively (the effect upon this particular complainant) or objectively (the effect upon a reasonable person other than Complainant, in the same situation), the result is the same: while other supervisors in other cases, may have far surpassed Sternbach's inventiveness, crudity and persistence, as argued by his separately-retained attorney, the majority considers that Sternbach's acts were sufficiently egregious and pervasive to create a hostile working environment for Complainant. Quite simply, the majority believes that the Wisconsin Fair Employment Act is intended to protect individuals from being required to endure such treatment for the privilege of earning a living.

Sternbach's harassment of Complainant was clearly based on her sex, as there is no indication in the record that he had subjected, or would subject, a male subordinate to similar treatment. When the Respondent-Employer's Board of Directors learned of Sternbach's acts, it responded inadequately and the result was continued sexual harassment by Sternbach in the form of retaliation. Thus, the elements of a "hostile environment" claim of sexual harassment are present and the Employer-Respondent's inadequate response Makes the Employer-Respondent liable under that theory.

As to the "quid pro quo" theory of sexual harassment, Complainant is, again, a member of a protected group, who has been subjected to harassment, based on her sex, by a supervisor. Moreover, beginning in August, 1986, she suffered tangible job detriments in that Sternbach's retaliation took the form of unfair comments in unusually frequent evaluations of Complainant's job performance and pressure upon Complainant to obtain "professional help" for what Sternbach mischaracterized as Complainant's "sex problem." In so retaliating against Complainant, Sternbach acted under the color of his authority as Complainant's supervisor (the Employer-Respondent, Waybridge, clearly had granted Sternbach authority to evaluate Complainant's job performance, although there is no reason to believe that Waybridge would have approved of Sternbach's misuse of such authority). Under these circumstances, the elements of a "quid pro quo" form of unlawful sexual harassment have been established by Complainant and considering all of the circumstances, the Respondent-Employer should, in the majority's view, be held liable for the violations of the Wisconsin Fair Employment Act committed by the individual chosen by the Employer-Respondent to supervise its employes, regardless of the state of its actual knowledge as to Sternbach's retaliation against Complainant.

Section 111.39(4)(c), Wis. Stats., provides that if any payment is awarded to a complainant because of unlawful discrimination committed by an employe of the employer, the employer is liable for such payment. That provision contains no exceptions or limitations depending upon resolution of the substantive issues discussed move (e.g., Sternbach's status as an agent of the Employer-Respondent, the state of the Employer-Respondent's knowledge and the adequacy of its response).

In summary, the majority's conclusion that the Employer-Respondent should pay Complainant's reasonable attorney fees and costs is based on several considerations. As to the "hostile environment" part of Complainant's case, the Employer-Respondent responded inadequately. As to the "quid pro quo" part of Complainant's case, Stench acted under color of his authority as a supervisor and, under all of the circumstances, the Employer-Respondent should be held liable. Moreover, sec. 111.39(4)(c), Wis. Stats., indicates that the Employer-Respondent should pay and no authority has been cited to the Commission for the proposition that the commission may order payment by a supervisor who is not the employer. The "make-whole" purpose of the Wisconsin Fair Employment Act would be thwarted if the Complainant, having established liability on the part of the Employer-Respondent, is required to bear the cost of vindicating her right to fair conditions of employment.

The dissent's approach to the issues of fact and law in this case is fundamentally different from that of the majority and demands a detailed response.

To begin, the dissent indicates disagreement with "many of the findings of fact" of the majority. It seems clear that one such is Finding of Fact number 6, relating to the frequency of Sternbach's comments to Complainant regarding her hair and legs. The majority assessed as credible Complainant's testimony that Sternbach made such comments once or twice a week from June or July to December of 195.The dissent observes, "I believe the Complainant exaggerated the frequency of these comments." The dissent states no specific basis for disbelieving Complainant's testimony on that point. The record reflects no testimony by Sternbach contradicting Complainant's testimony as to the frequency of Sternbach's comments and, in the view of the majority, there was nothing inherently incredible in Complainant's testimony. Assuming, arguendo, some basis in the record for inferring a denial by Sternbach of the accuracy of Complainant's testimony on the point, the Administrative Law Judge's observations as to the demeanor of Complainant and Sternbach, related to the Commission during the credibility conference, were that while Complainant appeared "very nervous and upset," it was Sternbach who impressed the ALJ as being "not entirely straightforward," an assessment the majority considers further supported by the equivocation apparent in much of Sternbach's testimony. On this state of the record, the majority sees no basis for concluding that Complainant's testimony on the particular point was "exaggerated."

The dissenting Commissioner also indicates that she is "not convinced that (Sternbach) knew that the comments were unwelcome." Section 111.32(13), Wis. Stats., first defines sexual harassment in terms of "unwelcome" conduct and then defines the latter term:

"Unwelcome verbal or physical conduct of a sexual nature" includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments . . . (underlining added)

There is, in the view of the majority, nothing in this record that would adequately support a conclusion that Complainant solicited, in any manner, the twice-a-week continents from her supervisor-mentor as to the merits of her hair and legs. Indeed, there has not been even an assertion by Sternbach or the Respondent-Employer that Complainant, by word or action, solicited from Sternbach any verbal or physical conduct of a sexual nature.

The dissent also considers that "it is very possible for (Sternbach) not to know that the Complainant found the topics of conversation on the trip to Madison to be offensive." In the view of the majority, the Complainant is not required to prove her case beyond "possibilities" of an innocent explanation of Sternbach's conduct. The :majority further considers that the number and nature of Complainant's several objections to Sternbach's onslaught of indirect but clear verbal sexual advances during the trip to Madison and back to Kenosha, established to the majority's satisfaction by Complainant's credible testimony (including her reaffirmation of the truth of her written statement dated October 21, 1986), preclude any reasonable conclusion that Sternbach was, in fact, unaware that his continued verbal advances were unwelcome.

It was undisputed that Complainant, in several staff meetings, joined co-workers' comments to Sternbach that he should join "sex anonymous." From that fact, the dissent apparently infers that Sternbach's 26 to 52 comments about Complainant's hair and legs, his "Christmas gift" of bikini underwear and thumbcuffs, and his 200-mile marathon of indirect but clear sexual importuning were not quite as "offensive" (unwelcome?) as Complainant contends. The majority respectfully disagrees, considering that Complainant's participation in the comments that Sternbach should join "sex anonymous" is far more reasonably viewed as an attempt to discourage Sternbach's; objectionable conduct without the kind of individual confrontation which might, and ultimately did, trigger retaliation by Sternbach.

The majority has explained at the beginning of this opinion its conclusions of law that Complainant established sexual harassment under both the "hostile environment" and "quid pro quo" theories. The dissent focuses on a parsing of a particular provision of the Wisconsin Fair Employment Act, sec. 111 .36(1)(b), Wis. Stats., to isolate what the dissent asserts to be the "elements" thereof; the dissent concludes that such "elements" are necessary to Complainant's case and were not established by Complainant. The majority considers that the cited provision is not a roadmap to resolution of this case. The preamble in subsec. 111.36(1), Wis. Stats., makes clear that paragraphs (a) to (d) of the subsection constitute an inclusive rather than exclusive list of some of the kinds of acts which amount to "employment discrimination because of sex." It is thus clear, the majority believes, that whatever may be the "elements" of paragraph (b), establishing their presence is not the only way a complainant may prove sex-based discrimination. Moreover, paragraph (b) has two discrete parts, addressed in two separate sentences. The first part is a legislative pronouncement that both "quid pro quo'' and "hostile environment" forms of sexual harassment amount to "employment discrimination because of sex," within the meaning of the Wisconsin Fair Employment Act. The second part of that paragraph provides a statutory presumption. of employer liability for acts of sexual harassment by employes of the employer, if conditions therein stated are present (the absence of one or more of the conditions renders the presumption inapplicable but is not necessarily fatal to a complainant's case). The majority considers that neither sec. 111.36(1)(b) nor any other provision in the Wisconsin Fair Employment Act provides an exclusive laundry list of elements necessary to the proving-up of a case of sexual harassment. The necessary elements have, instead, been identified in case law, with respect to both the "quid pro quo'' and "hostile environment" forms of sexual harassment. The majority considers that it has, in the first part of this opinion, correctly analyzed this case under both established theories.

Finally, the majority agrees with the dissent on one aspect of this case. The brief submitted by Sternbach's separately retained attorney argues that it is unlikely Sternbach would sexually harass Complainant because Complainant, in the opinion of the brief-writer, is "rather plain and ordinary" and because a witness regarded as "very attractive" by the brief-writer "never heard any harassment." Such subjective, unsupported and blatantly stereotypical assertions have absolutely no potential to persuade. Of similar value are arguments that the Administrative Law Judge who presided at the evidentiary hearing may have been "hypersensitive" because the Judges is, like the Complainant, a "female."

All members of the Commission have ignored these meritless arguments while carefully evaluating the real evidence and the supportable arguments presented by all three attorneys.

The Commission has not considered a letter the Employer-Respondent's brief purports to "incorporate" because such letter appears nowhere in the hearing record.

Complainant's claim for costs has been reduced from $450.22 to $435.50 because the larger amount was not substantiated by any itemization in Complainant's fee petition and the attachments thereto. Respondent Waybridge, in its response to the fee petition, brought to the Commission's attention a settlement offer dated March 30, 1988. While Waybridge's purpose in bringing the settlement offer to the Commission's attention was to demonstrate that Complainant's attorney had at one point been willing to accept an hourly fee of $75, the settlement offer also provides itemization of $435.50 in reasonable and necessary costs. Accordingly, that amount of costs has been award.

Returning to the issue of attorney fees, Complainant's attorney has been awarded, during the last several years, fees at an hourly rate of $100, in several equal rights cases decided at the Department and Commission levels. The majority considers this hourly rate reasonable for work performed in the instant case and is not persuaded otherwise by the apparent willingness of Complainant's attorney to accept a lower hourly rate as part of a proposed settlement of the case in March of 1988.

The majority has reduced the total number of hours claimed in the attorney fee petition from 57.5 hours to 50 hours. This reduction reflects the majority's view that two of Complainant's original claims (that she was unlawfully denied promotion and training) were almost totally unsupported by any evidence presented at the hearing. The majority has limited the reduction to 7.5 hours because Complainant did not pursue the unsupported claims regarding promotion and training after the probable cause hearing in this matter. Under all of the circumstances, the majority considers that an hourly fee of $100 is reasonable in this case and that 50 hours constitutes a reasonable amount of attorney time expended in prosecuting Complainant's case.

200

DISSENT

I am unable to agree with the result reached by the majority herein and I dissent.

I disagree with the majority on many of the findings of fact as well as the application of the law to those facts.

Section 111.32(13), Stats., "Sexual harassment" means unwelcome sexual advances, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. "Unwelcome verbal or physical conduct of a sexual nature" includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments, or the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes.

Under sec. 111 .36(1)(b), Stats., the Complainant must show (1) that there were unwelcome sexual advances or unwelcome verbal or physical conduct of a sexual nature, (2) that this conduct interfered with her work performance or created an intimidating, hostile or offensive work environment or the conduct was the basis for an employment decision affecting her, (3) that she complained to the employer, and (4) that the employer failed to take appropriate action within a reasonable time.

The Complainant testified that her supervisor made comments about her long hair and legs and that these comments were unwelcome sexual advances. While I believe these comments can be offensive, I am not convinced that the supervisor knew that the comments were unwelcome. The Complainant never told the supervisor that she was offended and the comments are not so strong that it would be obvious that the comments would be offensive. I believe the Complainant exaggerated the frequency of these comments. In any event she did not give the employer notice that comments about her legs or hair were offensive.

The second incident involved the Christmas present of bikini underwear and thumbcuffs. There is no question that this incident was improper and it would certainly fit into a category of unwelcome conduct. This present could be viewed either as a sexual. advance or as verbal or physical conduct of a sexual nature. The Complainant did finally complain to the employer about August of 1986. The employer reprimanded the supervisor and there was no repeat of this or similar conduct.

I believe that the trip to Madison to the seminar that actually was in Wisconsin Rapids was not a pretext for sexual harassment on the part of the supervisor. There really was a seminar but it was in Wisconsin Rapids in 1986 rather than at Mendota. The supervisor simply made an error on the location of the seminar. The Complainant wanted more training and the supervisor was trying to comply with her wishes. I did not find that stopping for coffee was a sexual advance merely because the coffee shop was attached to a motel.

I believe it is very possible for the supervisor not to know that the Complainant found the topics of conversation on the trip to Madison to be offensive. The Complainant had been willing to joke around with the supervisor, as did others at the work site, about the supervisor being a member of sex anonymous. The Complainant had not expressed herself that this kind of conversation was offensive to her. So under the totality of the circumstances this was not sexual harassment that created a hostile work environment.

Using the framework of sec. 111 .36(1)(b), Stats., let us examine the incidents of alleged sexual harassment to see if there was a violation of the statute.

The first element relates to whether the comments or conduct amounted to unwelcome sexual advances or unwelcome verbal or physical conduct of a sexual nature. There is nothing to indicate that a reasonable person would conclude that the supervisor's comments about hair and legs were unwelcome. The Complainant did not tell her supervisor that the comments were unwelcome. The Christmas present would probably be considered unwelcome conduct but it was not repeated. The Complainant's willingness to joke about her supervisor's being a member of "sex anonymous" undercuts the offensiveness of the present as well as the conversation in January on the trip to Madison.

The second element deals with the impact on her work. None of the incidents affected employment decisions with regard to pay, training, promotions, or assignments. There is no evidence that these incidents interfered with her work performance. The Complainant has not shown a hostile, intimidating or offensive work environment. There were not repeated, pervasive, non-trivial incidents occurring in the work environment.

The third element is the question of notice to the employer. The Complainant complained about the Christmas present and the trip to Madison in August of 1986. She did not complain to the employer or the supervisor about the comments about her hair. and legs.

The final element was the action taken by the employer after the complaint. The employer reprimanded the supervisor after investigation and no repeat of the conduct took place. The employer took appropriate action and saw to it that no further incidents occurred.

The Complainant has not met her burden of showing all four elements under 111.36(1)(b) so there was no violation of the statute.

This Complainant does not establish a "quid pro quo" case of sexual harassment. The Complainant was repeatedly promoted both before and after the Christmas present incident. The Complainant received more training than other staff. After the Christmas present and the trip to Madison, the Complainant was given good evaluations on February 3, 1986 (Exh. 5) and in March 1986 (Exh. 6) by Ted Sternbach. The Complainant did not receive the particular job she wanted but that was due to certification reasons and was unrelated to any personal motives by the employer or employer's agent.

Title VII is very similar to the Wisconsin Statutes so the federal interpretation of hostile work environment is of value. The U.S. Supreme Court stated that "For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Meritor Savings Bank v. Vinson, 40 FEP 1822, 1827 (1986).

In Scott v. Sears, Roebuck & Co., 41 FEP 805, 808 (7th Cir. 1986), the 7th Circuit Court found that ". . . the harassment plaintiff was subjected to (even as advanced by plaintiff) was not so severe, debilitating or pervasive that it created an actionable hostile environment claim within the current interpretation of Title VII . . . . Scott complains of being offensively propositioned, yet the only concrete example she raises is Eddie Gadberry's request that she join him at a mall restaurant after work. As for Gadberry's winks and suggestions he be allowed to give her a rub-dowm, there is no evidence whatsoever these 'hints' were so pervasive or psychologically debilitating that they affected Scott's ability to perform on the job. Furthermore, the continents and conduct of the other mechanics is too isolated and lacking the repetitive and debilitating effect necessary to maintain a hostile environment claim."

Basically, I believe the Complainant has not shown that there was a hostile work environment created by repeated, intimidating, hostile or offensive conduct. Further, she has not shown that the employer failed to take appropriate action within a reasonable time when she did complain.

The majority wants us to label the Christmas present and other conduct as sexual harassment based on unwelcome sexual advances. The majority believes that because the employer did not label the supervisor's conduct as sexual harassment that the employer failed to take appropriate action. I believe all that is necessary is for the employer to tell the supervisor "your conduct is inappropriate and you cannot do that again." If the conduct does not occur again, the employer has taken appropriate action. If the conduct happens again, then further action must take place or the employer will be liable.

I also disagree with the majority's application of strict liability to the employer for the supervisor's conduct. Even the U.S. Supreme Court refused to use strict liability in the Vinson case which was a very offensive "quid pro quo" case involving a pattern of 40 to 50 acts of sexual intercourse and even several cases of rape. The Complainant, in our case, has an infinitely weaker case, so strict liability would be unreasonable.

I also differ with the majority on the payment of attorney's fees. I believe that the Complainant is only entitled to attorney's fees if she receives some award. In this case, she does not receive any award so I would not grant attorney fees. The Complainant in Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984), received a non-monetary award because the court found that the employer had discriminated against her based on race when she was denied transfer to a service position. This case is different because the Complainant receives no award.

Swanson v. Elmhurst Chrysler Plymouth, 50 FEP 1082 (7th Cir. 1989) is a case where an employe was sexually harassed but was discharged for other reasons so she was not entitled to attorney's fees. In this case, we have similar facts except I do not believe the Complainant has shown a hostile work environment or failure to take appropriate action by the employer.

I must add that I was offended by the tone of Respondent B's brief. Sexual harassment or sexual advances are not limited to attractive looking people. The brief implies a man would not harass a plain or ordinary looking lady. This is simply not true in real life.

For all these reasons, I would dissent and find no sexual harassment based on hostile work environment and award no attorney fees.

Pamela I. Anderson
Commissioner

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