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

BRENDA YAEKEL, Complainant

DRS LIMITED, Respondent A

BRYAN CLAPPER, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 9301087, EEOC Case No. 26G931381

An administrative law judge (ALJ) 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. DRS is engaged in the business of asphalt production and contracting. DRS' business is seasonal, generally operating from May 1 through late October annually. DRS has its business office in Madison, Wisconsin, and its plant in Middleton, Wisconsin. David Strassman (hereinafter "Strassman") is the founder, owner and general manager of DRS. During peak seasons, DRS employs 30 to 40 workers.

2. During the spring of 1992, Strassman decided to create a truck weigher position for the plant in order to relieve the plant operator, John Lauper (hereinafter "Lauper"), of some of his many responsibilities. A DRS employe, B. J. Yaekel, suggested to Strassman that he consider hiring his sister, Brenda Yaekel (hereinafter "the complainant.") The complainant's sex is female. Strassman had some concerns about hiring the complainant because her brother had informed him that she was "on the wild side." In addition, the complainant showed up for her interview with Strassman wearing leather boots and a leather jacket, giving Strassman the impression that she belonged to a biker crowd.

3. Strassman offered the complainant the truck weigher position at her interview. He informed the complainant that she would be the first contact person from DRS with the public and stressed that her appearance was important because she would be representing DRS. Strassman informed the complainant that her office was to be kept neat, clean, and orderly and that she was to be professional. He also told the complainant that if she had any problems with her supervisor, Bryan Clapper (hereinafter "Clapper"), the plant manager, she should inform Strassman. Clapper's sex is male.

4. Although Strassman worked out of the DRS business office, he was at the plant in Middleton daily. Strassman, Clapper, and Lauper trained the complainant in various aspects of her job. The complainant's duties included recording inventory, which consisted of total tons of asphalt in and out of the plant, weighing the trucks, picking up parts when needed, collecting money, and answering the telephone at the plant.

5. For the first month of her employment, the complainant was assigned to a desk in the control room, a mobile trailer with glass on two sides. The complainant knew Clapper before she started working at DRS because he had done business with her father. During the first few weeks of the complainant's employment at DRS, Clapper made several comments about the fact that she should not wear a bra. The complainant reacted humorously to Clapper's comments. After a while, the complainant noticed that Clapper seemed to be intentionally dropping objects so that when she picked them up Clapper could either look down the front of her shirt or watch her rear end as she bent over. In late May of 1992, the complainant was sitting across a desk from Clapper in the control room wearing a tank top with a cut-out tee shirt over it. She was not wearing a bra. Clapper reached across with one arm and grabbed the neckline of the tank top and tee shirt in front. He pulled both shirts down, exposing the complainant's breasts. The complainant exclaimed, "The older ones are worse than the younger ones!" She jumped up, grabbed her shirt, and ran out of the room.

6. The complainant did not report the incident with Clapper to Strassman. Shortly after the incident occurred she did talk to her boyfriend, Dennis Gohlke (hereinafter "Gohlke"), about it. Gohlke was employed at DRS at that time under a Huber work release program. At some point during the summer of 1992, the complainant also reported the incident to a friend, Todd Wieser, who was incarcerated with Gohlke at the Huber Center.

7. After the incident with Clapper, the complainant became more careful about the way she bent down to pick up objects from the floor and stopped socializing with Clapper. In addition, the complainant asked other DRS employes to stay at work until she was ready to leave so that she would not be alone with Clapper. Clapper never approached the complainant again in a sexual manner.

8. During June of 1992, Strassman became increasingly dissatisfied with the complainant's work performance. On a number of occasions Strassman warned her about wearing shorts that were too short and of the need for her to dress more professionally. On several occasions the complainant brought pets to work. She brought her dog to work, which she tied up next to the picnic table outside of the plant. She also brought an untethered parrot into her office. By June the complainant's office had been moved to another location at the plant. Once the complainant had her own office she became less concerned about keeping it orderly. The complainant had parrot food, food wrappers and personal items lying around in her office. At the same time the complainant was involved with Gohlke romantically. Gohlke did some cleaning and repair work at DRS and also drove a dump truck. The complainant would visit Gohlke at various DRS work sites on occasion. Strassman was concerned that both the complainant and Gohlke were neglecting some of their duties because of their relationship. In addition, the complainant had friends visiting her at the plant. Several times she did not return to the plant after leaving to pick up parts. Strassman was concerned in June of 1992 that the complainant was making mistakes in her record keeping. He also discovered funds missing.

9. When Gohlke first began working at DRS under the Huber work release program, he drove himself to work. Eventually, his driver's license was suspended and the complainant began taking him to work. Strassman received several telephone calls from the Huber Center informing him that Gohlke's absence from the center was not matching up with his work hours. In late June of 1992, the complainant asked Strassman to allow Gohlke a day off so that she and he could spend his birthday together. The complainant proposed to Strassman that she would pay for Gohlke's missed hours and Strassman would report to the Huber Center that Gohlke had worked at DRS that day. Strassman refused the complainant's request.

10. Within a week of the complainant asking Strassman to allow Gohlke time off to spend with her, Strassman decided that he needed to terminate both Gohlke's and the complainant's employment with DRS. He talked to Clapper about how to conduct the complainant's termination. Clapper informed Strassman that he believed it was Clapper's responsibility as plant manager to let the complainant go.

11. On June 26, 1992, when the complainant arrived at work, Clapper met her in the parking lot. The complainant informed Clapper that Gohlke had been fired and commented, "I suppose I'm next." Clapper replied, "Yes." He told her she should contact Strassman if she had any questions. The complainant then became angry and upset. She gathered up her belongings from her office, throwing items out the door, including plants and a wastebasket. She then jumped in her car and backed over the wastebasket on her way out.

12. That afternoon the complainant met with Strassman in person. When the complainant asked Strassman why her employment was terminated, Strassman replied that the situation was not working out. He mentioned her inappropriate dress, her bringing friends and pets to work, her relationship with Gohlke, her failure to follow directions properly, her failure to complete paperwork properly, and the missing funds. The complainant repeatedly asked Strassman for her job back. She told Strassman that the job was perfect for her and that it was the best job she had ever had. Strassman responded that it was not working out for DRS. When the complainant realized that Strassman was not going to reinstate her, she became angry. At the end of the conversation, she informed Strassman that Clapper had pulled down her top and that he had sexually harassed her.

13. Strassman decided to characterize the complainant's termination as a layoff so that it would not reflect badly upon her for future jobs and so that she would be able to receive unemployment compensation.

14. When the complainant told Strassman about the tee shirt incident, Strassman informed her that he would investigate her allegations. Strassman followed up by talking to people around the plant. He asked them if they had noticed any inappropriate behavior by DRS employes. Strassman eventually talked to Clapper regarding the complainant's allegations.

15. DRS did not engage in or permit sexual harassment. Until the day of her termination, the complainant never reported the tee shirt incident to Strassman, although she was aware that she could complain to Strassman about any problems with Clapper. DRS neither knew nor should have known that Clapper had sexually harassed the complainant. When the complainant finally reported the tee shirt incident to Strassman, he conducted an investigation into her allegations.

16. DRS did not discriminate against the complainant in retaliation for her unwillingness to respond to Clapper's sexual advances when it terminated her employment on June 26, 1992. Strassman alone made the decision to terminate the complainant's employment and did so because of his serious concerns about her work performance. Strassman had already terminated the complainant's employment by the time he learned of her sexual harassment allegations.

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

CONCLUSIONS OF LAW

1. DRS is an employer within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act.")

2. Bryan Clapper, the complainant's supervisor, was an agent of DRS.

3. The complainant failed to establish that DRS violated the Act by engaging in or permitting sexual harassment to occur.

4. The complainant failed to establish that DRS violated the Act by retaliating against her for opposing a discriminatory practice under the Act.

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

ORDER

The complaint is hereby dismissed.

Dated and mailed November 22, 1996
yaekebr.rrr : 164 : 9

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

Liability of DRS

The administrative law judge found that Mr. Clapper engaged in sexual harassment, but concluded that there was no basis for imputing liability to the employer for Mr. Clapper's actions. The commission agrees with this assessment. Employers are not strictly liable for the actions of their agents, and an employer's liability for sexual harassment by its supervisors or agents will hinge on the particular circumstances of the case. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 72 (1986); Roden v. Federal Express (LIRC, June 30, 1993). Where a complainant seeks to hold the employer responsible for a hostile environment created by her supervisor or co-worker, she must show that the employer knew or should have known of the harassment and failed to take prompt remedial action. Id. In this case, the complainant has made no such showing. The evidence established that the complainant was specifically told to bring any problems involving Mr. Clapper to the attention of the employer's owner, Mr. Strassman. However, in spite of the fact that the complainant spoke to Mr. Strassman virtually every day, she failed to notify him that she was being sexually harassed. The complainant specifically testified that she wanted Mr. Strassman to know about the tee shirt incident and could provide no explanation for her failure to tell him. While the commission is not required to theorize about why the complainant failed to report the sexual harassment, it does note that the fact the complainant told Mr. Strassman about the incident at the time of her discharge suggests that she was at least minimally comfortable talking to him about such things and forestalls any speculation that her failure to do so earlier was based upon a failure of the employer to provide her with an adequate mechanism for making a complaint. Under the circumstances, the commission sees no basis for imputing liability to the employer for Mr. Clapper's actions and concludes that the complaint against the employer was properly dismissed.

Liability of Bryan Clapper

Although dismissing the complaint against the employer, the administrative law judge found that Mr. Clapper violated the law in his capacity as a "person" and ordered that certain remedial action be taken by him. However, the commission believes that Mr. Clapper should not have been named as a respondent in his own right and, therefore, reverses that portion of the administrative law judge's decision.

While sections 111.321 and 111.325 of the Act provide that no "person" may engage in an act of employment discrimination, the Act also expressly provides for employer liability for any financial remedies ordered as a result of a violation of the law "by an individual employed by the employer." Section 111.39(4)(c), Stats. The commission has previously interpreted section 111.39(4)(c) of the statute to mean that individual supervisors acting as agents of the employer should not be named as separate respondents in discrimination complaints. Thus, in Nelson v. Waybridge Manor, Inc. and Theodore Sternbach (LIRC, April 6, 1990), a case in which the complainant alleged that she was sexually harassed by her supervisor, Theodore Sternbach, and that the employer's response to this harassment was inadequate, the commission found that Mr. Sternbach was an agent of the employer and that the employer violated the law, but made no separate findings of fact or conclusions of law regarding Mr. Sternbach and ordered no remedy specific to him, in spite of the fact that he was named separately as a respondent. The commission's decision in Nelson clearly suggests that, where an individual person has acted as an agent of the employer, it is the employer and not the agent that is properly viewed as the respondent.

Subsequently, in Sinclair v. Mike's Towne & Country and Tim Arfstrom and Myron & Gay Tassoul (LIRC, October 15, 1993), a sexual harassment case in which the complainant named both the employer and the store manager as individual respondents, the commission addressed the question of supervisor liability directly and specifically noted:

"Assuming without deciding that sec. 111.39(4)(c) Stats. would even allow imposition of liability directly on an employer's agent rather than on the employer where the employer's agent has acted outside the scope of their agency, it would seem that where the alleged violation by the agent was within the scope of their agency, they should not be separately named as a respondent, since by statute the liability will rest on the employer." (emphasis in original).

Finally, in Koll v. Hair Design and Nancy Korth, (LIRC, April 27, 1995), a case involving allegations of a retaliatory discharge, the commission noted in a footnote that the complainant should probably not have named Ms. Korth as a separate respondent and that the appropriate respondent in such cases is the employer.

The above-cited cases plainly suggest 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. While in the Sinclair decision the commission expressly left open the question of whether the "person" language in the statute would permit the imposition of liability directly on a supervisor where the supervisor acted outside the scope of his or her agency for the employer, the complainant in this matter has never advanced any argument that Mr. Clapper acted outside the scope of his agency for the employer and, based upon the facts of this case, the commission sees no reason to conclude that he did. While, quite obviously, sexual harassment was not within Mr. Clapper's job description, the essential question in applying agency principles to cases such as these is not whether the act in question was authorized by the employer, but whether it took place in the scope of the agent's employment. See Yates v. Avco Corp., 43 FEP Cases 1595, 1600 (6th Cir. 1987), citing Restatement (Second) of Agency, section 230 (1958). Given that the sexual harassment occurred at the work place, during working hours, and was perpetrated by a supervisor against a subordinate employe, the commission sees no basis for finding that it was outside of the scope of Mr. Clapper's employment.

Credibility Note: Although the commission has some serious questions about the credibility of the complainant's testimony that she was subjected to a sexually hostile working environment by Mr. Clapper, it has deferred to the administrative law judge's credibility determination and, with only minor revisions, has adopted the administrative law judge's findings of fact in their entirety. To the extent the commission reverses the administrative law judge's decision, this reversal is the result of the commission's having arrived at a different legal conclusion when applying the law to essentially the same set of facts as that found by the administrative law judge. Consequently, no credibility conference was required.

cc:
WENDY A. WILLIAMS
STEVEN C. HELLAND
JOHN C. ALBERT

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