DANA M. MIHALOVICH, Complainant

JEWEL OSCO, Respondent

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 conclusions in that decision as its own, except that it makes the following modifications:

1. In the second line of paragraph 3 of the FINDINGS OF FACT, the address "1100 East Garfield Avenue" is deleted and "North & Humboldt Avenues" is substituted therefor.

2. 2. In the first line of paragraph 5 of the FINDINGS OF FACT, the word "not" is inserted between the words "was going."

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

Dated and mailed September 13, 2001
mihalda . rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The complainant, Dana Mihalovich, was employed by the respondent as a security officer beginning in February 1998, and last worked for the respondent on August 16, 1999. In December 1999, Mihalovich filed a complaint of discrimination against the respondent with the Equal Rights Division. Mihalovich's complaint essentially alleged that the respondent violated the Wisconsin Fair Employment Act by engaging in or permitting sexual harassment, by discriminating against her because she opposed a discriminatory practice under the Act, by terminating her employment because she opposed a discriminatory practice under the Act, and by terminating her employment because of her sex. The division issued an initial determination finding no probable cause to believe that Mihalovich had been discriminated against as alleged in the complaint. Following Mihalovich's appeal of the initial determination and a probable cause hearing, the ALJ also found no probable cause to believe that Mihalovich had been discriminated against and dismissed her complaint. The commission agrees with the ALJ's decision.

In her petition for review, Mihalovich apparently asserts that it seems that a large part of the ALJ's decision is based on the fact that she left the state after her shift (third) ended on the morning of August 16, 1999. Mihalovich argues that this simply is not true, and she has submitted a copy of her phone bill and a copy of a document relating to a dental appointment she had to show that she had not left the state. First of all, whether or not Mihalovich did or did not leave the state has little significance to the decision. What is significant, however, is that the testimony and evidence at the hearing established, and the ALJ so found, that after Mihalovich reported that she had been sexually harassed on August 16, 1999, the respondent contacted the employer of the alleged sexual harasser to bar him from working on the respondent's premises until an investigation could take place, and that Mihalovich, preferring a loss prevention position such as the one she previously held monitoring cameras for a prior employer, refused an offer to transfer to another store and resigned before the respondent could complete its investigation of the alleged incident. Second, even if there was some significance to whether or not Mihalovich had left the state, the commission could not consider the documents submitted as evidence since they were not presented at the hearing. The commission cannot consider documents submitted with the petition for review, which were not presented at the hearing.

Mihalovich next argues that had she known that the respondent was going to assert that she was offered a transfer to another store but refused it, stating that she was not interested, and resigned, she would have responded that: 1) after employment with the respondent she got another loss prevention job doing floor walking for customer theft; and 2) she never would have been allowed unemployment benefits. Again, Mihalovich has submitted documents with her petition that allegedly support these two points but that were not submitted at the hearing. One document includes a picture I.D. of Mihalovich, which indicates that she is an agent for an investigative corporation. The other is a copy of an unemployment insurance initial determination showing that she was allowed benefits. First, it must be noted that Mihalovich was represented by counsel at the hearing. Second, even if the identification submitted by Mihalovich could be considered by the commission, the mere fact that she got another loss prevention job doing floor walking after her employment ended with the respondent does not prove she did not resign from the employment that she had with the respondent. Further, pursuant to Wis. Stat. § 108.101(1), an unemployment insurance determination is not admissible or binding in a proceeding before the Equal Rights Division. (1)

Mihalovich apparently further argues that after her shift on August 16, 1999, when she reported what happened that night, the respondent claims she "stated that the sexual harassment was no big deal and I could handle the situation." Mihalovich is mistaken. What the respondent stated was that Mihalovich complained that a guard was continuously calling her on the radio asking for her location and that when asked why she had not called Tom Cairns (then respondent's district loss prevention manager) at home or the police, Mihalovich replied, "it was no big deal, I could handle it." See Exhibit 4. Mihalovich's claim that she was sexually harassed did not involve this guard, it involved another guard. Id. The respondent did not claim that Mihalovich "stated that the sexual harassment was no big deal and (that she) could handle the situation."

Finally, Mihalovich argues that not only did the guard (who allegedly sexually harassed her) continue to work at the same location, the respondent contends that "my sexual harassment meeting was on 8/19/99 and that they were unable to do a thorough investigation into the matter as the guard was in a serious accident and hospitalized." These arguments also fail. It was not established that the guard continued to work at the location where Mihalovich worked. The respondent did hold a meeting with Mihalovich on August 19, 1999. The guard who allegedly sexually harassed Mihalovich was apparently involved in an automobile accident on August 23, 1999, but this did not preclude the respondent from doing a thorough investigation. The evidence indicates that what occurred was that Mihalovich resigned at the meeting held on August 19, and that because of this the respondent did not continue with its investigation into the matter.

cc: 
Attorney Robert E. Sutton
Daniel Tracy

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(1)( Back ) Wis. Stat. § 108.101(1), provides as follows: "No finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under this chapter (i.e., ch. 108) is admissible or binding in any action or administrative or judicial proceeding in law or in equity not arising under this chapter, unless the department is a party or has an interest in the action or proceeding because of the discharge of its duties under this chapter." 

uploaded 2001/09/14