CAROLYN MARY PETERSON, Complainant

RGIS INVENTORY SPECIALISTS, 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 makes the following:

1. Respondent, RGIS Inventory Specialists (hereinafter, "RGIS"), is a company engaged in the business of conducting inventories for other businesses. The corporate headquarters of RGIS are located in Rochester, Michigan. RGIS has organized its business into divisions, one of which is the midwest division, which is based in Chicago. Within divisions, RGIS is organized into districts.

2. Complainant, Carolyn Mary Peterson (hereinafter, "Peterson"), began working for Respondent in January, 1996, as an auditor (counter). Peterson worked for RGIS in a district of the midwest division which conducts inventories for Wal-Mart and Sam's Club stores in North and South Dakota, Minnesota, part of northern Iowa, Wisconsin, and the Upper Peninsula of Michigan. The office for this district of RGIS (hereinafter, "upper midwest district") is located in Fridley, Minnesota. At the times material herein, the manager of this district was Kevin Crawford. The area manager under Crawford who had responsibility for the area of the district in which Peterson worked, was Dave Kleinheinz.

3. RIGS auditors are organized into crews which regularly work together. A crew generally conducts an inventory in a different retail establishment each day. Because the stores which RGIS provides inventory services for are located some distance apart, travel is required. The crews, composed of persons most of whom who live in the same city, travel together to these different locations, staying overnight in hotels during the course of trips which take them to several different stores over the course of several days. Peterson worked as part of a crew most of whose members, like Peterson, resided in Eau Claire, Wisconsin.

4. It is the stated, normal practice of RGIS to provide transportation for crew members from local meeting sites to the retail stores where they do their work and then back to the crew's local meeting point. In the case of the crew which Peterson worked on, the local meeting site was the parking lot of a Wal-Mart store in Eau Claire. The vehicles used to provide this transportation are vans owned by RGIS.

5. RGIS enforces rules with respect to employee conduct while they are being transported to stores in company vans. These rules include general "conduct" expectations, a requirement that seat belts be used, and a prohibition on smoking in any van in which any employee is a non- smoker.

6. RIGS pays employees for the time during which they are being transported from their crew meeting point to and from the stores where they work. The employees are paid for travel time on a "per-mile" basis (with the first 20 miles of travel being excluded), and are paid at overtime rates if total hours spent on travel and in-store inventory combined exceed 40 hours per week.

7. Peterson regularly rode in RGIS vans within the State of Wisconsin as part of her employment for RGIS. Every occasion on which Peterson's crew had to perform an inventory at a store outside of Wisconsin during the course of a trip would necessitate, at a minimum, an amount of time riding in an RGIS van, within the State of Wisconsin, sufficient to reach the border in whichever direction they were traveling from the City of Eau Claire.

8. In addition to regularly riding in RGIS vans within the State of Wisconsin as part of her employment for RGIS, Peterson also performed some amount of inventory work for RGIS in retail stores located within the State of Wisconsin.

9. Beginning in 1996, Peterson complained to Kleinheinz that she was being sexually harassed by one of her co-workers, Terry Miller. He told her that he did not know what could be done to solve the problem and suggested she talk to Crawford.

10. Peterson complained to Crawford on a number of occasions that Miller was sexually harassing her. On each occasion, he told her that it was her problem and that she would have to deal with it. He refused Peterson's request that he act as a mediator between her and Miller to attempt to resolve the problem.

11. Despite provisions in Respondent's employee handbook stating that an employee could report harassment to corporate headquarters, Crawford told the members of the team Peterson worked on that if anyone went over his head to corporate headquarters they would be fired.

12. Peterson continued to complain to Kleinheinz and Crawford in 1997 about being sexually harassed by Miller. She also complained to Sharon Aubuchon, Miller's girlfriend, who at that point had taken a management-level position with RGIS. Kleinheinz and Aubuchon told Peterson that they felt that "their hands were tied." On one occasion when she complained to Crawford about Miller's conduct, Crawford said that as long as Miller was making money for RGIS, he would not fire him.

13. On August 4, 1997, after learning that she would be riding in Miller's vehicle that week, Peterson went to Crawford's office and complained to Crawford about sexual harassment by Miller. Crawford became angry and insisted that Peterson close the door to the office. When Peterson refused, stating that she wanted witnesses to the conversation, Crawford became more angry, went over and slammed the door, and physically blocked it with his body. Crawford then angrily told Peterson that he did not believe what she had been telling him about what was happening with Miller, and that she was fired.

14. When Peterson then went out to the van to gather her belongings, she met Kleinheinz and told him she had been fired. Crawford came up and told Kleinheinz that Peterson had quit. When Peterson interjected that she had been fired, Crawford said that she should keep her fucking nose out of the conversation, get her stuff, and get the hell out.

15. Crawford terminated Peterson because he was angry at her for complaining to him about Miller's sexual harassment of her.

1. RIGS is an employer within the meaning of that term as it is defined in the Wisconsin Fair Employment Act.

2. Peterson is an individual subject to the protection of the Wisconsin Fair Employment Act.

3. Peterson was in the course of her employment at all times that she was being transported in RGIS vans within the State of Wisconsin for the purpose of going to or returning from work conducting inventory services for RGIS.

4. Part of Peterson's employment with RGIS occurred within the State of Wisconsin, in that Peterson both performed services for RGIS within the State of Wisconsin and was in the course of her employment while being transported by RGIS within the State of Wisconsin, and the Wisconsin Fair Employment Act is therefore applicable to allegations of discrimination affecting her employment with RGIS.

5. There is probable cause to believe that RGIS discriminated against Peterson in violation of the Wisconsin Fair Employment Act, and in particular Wis. Stat. § 111.322(3), by discharging her because she had opposed a discriminatory practice.

The decision of the Administrative Law Judge is set aside. This matter is remanded to the Equal Rights Division for further proceedings, to include, unless the matter is first resolved by private settlement or conciliation, a hearing on the merits of the allegations of the complaint concerning alleged retaliatory discharge.

Dated and mailed October 19, 2001
peterca . rrr : 110 :  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

This matter is before the commission on petition for review of a decision of an Administrative Law Judge of the Equal Rights Division, on an appeal from an initial determination that there was no probable cause to believe that the Respondent violated the Wisconsin Fair Employment Act (WFEA) in connection with its discharge of the Complainant. (1)   The ALJ did not reach the probable cause issue; instead, he held that the Wisconsin Fair Employment Act did not apply to the discrimination alleged by the Complainant. On that basis, he dismissed the allegations of the complaint which were before him.

Threshold jurisdictional issue --

This case involves a question of the applicability of the WFEA to a case in which some events took place outside of the State of Wisconsin. For lack of a better term, this question can be described as one of "geographical jurisdiction."

There is nothing in the WFEA itself which addresses this question. However, the commission has issued a number of decisions concerning it. The early decisions in this area were reviewed, and a general approach to the question was articulated, in Hatfield v. Aurora Building Maintenance (LIRC, 11/17/95).

In Hatfield, the commission said:

The Wisconsin Fair Employment Act contains no provision expressly governing the geographical extent of its coverage, but some suppositions about it seem beyond dispute. Thus, it is obvious that if (for example) a Wisconsin employer with a workplace in Wisconsin fires a Wisconsin resident who works in that Wisconsin workplace, the Wisconsin Fair Employment Act is potentially applicable to a claim of discrimination connected with the discharge; it seems equally obvious that if an Alaskan employer with a workplace in Alaska fires an Alaskan resident who works in that Alaskan workplace, the Wisconsin Fair Employment Act is not applicable to any claim of discrimination brought in connection with the discharge. Somewhere in the range between these two hypothetical examples there must be a line dividing the cases over which the State of Wisconsin has jurisdiction from those over which it does not. [footnote omitted] There have been a few decisions issued by the commission which have provided some guidance as to how that line is to be drawn.

In Buyatt v. C.W. Transport (LIRC, 7/25/77), the complainant was a truck driver who was a resident of Wisconsin, who worked for the employer's Steel Division which was located in Chicago, had his "home base" at the employer's Chicago terminal, and was terminated by a representative of the employer who was in Chicago when he notified complainant (who was in Wisconsin) of the discharge over the telephone. It is not possible to determine from the decision where the complainant's driving responsibilities took him, but the commission believes that it is a reasonable inference, that Buyatt drove in a number of states including Wisconsin. The employer argued that Illinois had jurisdiction, based on the Illinois connections. The commission, without comment, affirmed the decision of the Hearing Examiner finding jurisdiction and stating (in part), "The controlling factor is where the discrimination took place."

In Gray v. Walker Manufacturing Co. (LIRC, 7/21/82), the complainant was a resident of Pittsburgh, the reasons for his termination had to do with his contacts with a Pittsburgh customer, the termination papers originated in Delaware, the complainant was informed of the termination in Delaware, and there was no indication that the complainant had ever lived in Wisconsin. Clearly, there was virtually no nexus between the events complained of and the State of Wisconsin, apart from the fact that the employer's home office was located here. In its decision, the Commission reiterated the statement in Buyatt that the controlling factor in determining whether the FEA applies is "where the discrimination took place."

In Birk v. Georgia-Pacific (LIRC, August 3, 1990), the employe was fired for not complying with a condition of employment which had originally been imposed on him in Wisconsin while he was negotiating with the employer about accepting the Georgia position. Invoking the holding of Buyatt and Gray to the effect that the controlling factor in determining whether the FEA applies to a particular employment action is where the action took place, the commission found jurisdiction.

Thus, Buyatt, Gray and Birk all endorse the general proposition that the controlling factor in determining whether the Wisconsin Fair Employment Act applies to a particular employment action is where the discrimination occurred. However, the question of where discrimination "occurs" is itself one that is by no means obvious. Consideration of both the factual situations in Buyatt, Gray and Birk, and the consequences of a number of possible interpretations, leads the commission to conclude that discrimination must be deemed to occur in the place where the employment which is affected by it occurs.

If discrimination were considered to "occur" where the challenged decision was made, the results would be anomalous. A decision to fire a Wisconsin resident working in a Wisconsin worksite would arguably be outside of the jurisdiction of the Wisconsin Fair Employment Act if the person who made the decision to fire the worker was outside of the state when making that decision; a decision to fire an Alaskan resident working in an Alaskan worksite would arguably be within the jurisdiction of the Wisconsin Fair Employment Act if the person who made the decision to fire the worker was within the State of Wisconsin when making that decision. Neither result can be justified as consistent with the purpose of the Wisconsin legislature in adopting the Act. If discrimination were considered to occur where the affected worker was informed of the challenged decision, similar anomalies could result, not to mention the difficulty in assessing situations in which a worker within the state is informed of the challenged action by way of a letter or telephone call originating outside of the state (e.g., Buyatt). If residency of the worker were viewed as determinative, there would be similar anomalies, since (for example) a LaCrosse resident whose employment took place entirely in a worksite in LaCrescent, Minnesota could invoke the jurisdiction of the State of Wisconsin over employment and an employer located wholly within another state -- while at the same time, an employer doing business in LaCrosse, Wisconsin could commit violations of the Wisconsin Fair Employment Act against any of its employes who happened to be commuting to their jobs from across the river. Other factors particular to the employer or the employe (for example, state of incorporation, state(s) asserting or exercising taxing authority) are similarly unsatisfactory because they could result in similar anomalies.

Although they have dealt with disparate factual situations, the results in Buyatt, Gray and Birk are consistent with a view that the location of the employment is the most important factor. In Buyatt and Birk, in which jurisdiction was found, the activities of the employes which constituted their employment appear to have taken place to some significant degree within the State of Wisconsin. In Gray, by way of contrast, it does not appear that the employe's employment took place to any significant degree within the state.

A construction of the Buyatt-Gray-Birk rule which views discrimination as "occurring" where the employment takes place, is also most consistent with the purpose expressed in the Wisconsin Legislature's Declaration of Policy in sec. 111.31(2), Stats., to the effect that "[i]t is the intent of the legislature [in enacting the Wisconsin Fair Employment Act] to encourage the full, nondiscriminatory utilization of the productive resources of the state."

The commission continues to subscribe to the approach described in Hatfield. Therefore, the question which must be addressed in this case is where the Complainant's employment occurred. The commission is satisfied that the evidence clearly establishes that the Complainant's employment occurred, at least in part, within the State of Wisconsin, and that there is therefore "geographical jurisdiction."

As the ALJ found, RGIS is a business engaged in conducting inventories for other, retail businesses. RGIS is organized into districts which cover a number of states; Complainant performed services in a district that conducted inventories in the Dakotas, Minnesota, parts of Iowa, Wisconsin, and Michigan's Upper Peninsula. The evidence established that RGIS performed the inventory work for Wal-Mart and Sam's Club stores in that district. The Complainant testified that she did "some" work in the State of Wisconsin; the Respondent acknowledged in its brief, that Complainant "periodically" worked in the State of Wisconsin. It is a matter of common knowledge that there are Wal-Mart and Sam's Club stores in the State of Wisconsin.

In addition to the time she spent in the course of employment providing inventory services, the Complainant also spent time being transported by RGIS to and from the remote sites where inventories were conducted. The commission has concluded that this time must be considered to be time spent in the course of employment with RGIS. The employees were subject to the control of RGIS in a number of respects during that travel time, and the time was also paid for. The commission also finds support for its conclusion that the time spent in RGIS-provided travel was time spent in the course of employment for RGIS, in Johnson v. Templeton, 768 So. 2d 65 (La. App., 3 Cir., March 29, 2000), a decision of the Court of Appeal of Louisiana. That decision arose out of an automobile accident which involved a van carrying RGIS employees from their home city (Baton Rouge) to another location in Louisiana where they were to perform an inventory. An action in tort was brought by the heirs of employees killed or injured in the accident, against the RGIS employee who had been driving the van. The issue presented to the Louisiana Court of Appeal was whether the employees were within the course of their employment at the time of the accident, such that the exclusive remedy provisions of Louisiana's Workers Compensation Act would apply and bar the tort action. The Court of Appeal held that the employees were all in the course of their employment at the time of the accident, relying on the same kinds of facts concerning RGIS' provision of the transportation and of payment for transportation time as are present here. (2)   Thus, the court said:

The facts undeniably indicate RGIS interested itself in the transportation of its employees by providing a vehicle, driver and paying travel expenses to its employees. It is well settled jurisprudence where transportation is furnished as an incident of employment, either through a vehicle or payment of expenses, and where wages are paid for the time spent traveling, the employee is engaged in the course and scope of employment.

Johnson v. Templeton, 768 So. 2d at 71.

The commission recognizes that the record does not provide a basis for quantifying the amount of time the Complainant spent in the employ of RGIS within the State of Wisconsin as compared to the amount of time she spent in other states. However, considering the evidence as to both travel time occurring within the state and actual inventory work occurring within the state, it is reasonable to infer that the extent of the Complainant's employment occurring within the State of Wisconsin was clearly not de minimis.

The Complainant was engaged in employment occurring in part within the State of Wisconsin; the Respondent's decision to discharge her affected that employment because it put an end to it. It is therefore entirely appropriate for the State of Wisconsin to assert its jurisdiction to determine whether that discharge decision by RGIS was contrary to the fair employment laws of this state. Hatfield, supra.

Probable cause issue -

Having concluded that the ALJ erred in dismissing the complaint on a theory that there was a lack of jurisdiction, the commission is confronted with the question of how to proceed in view of the fact that, due to his decision on the jurisdictional question, the ALJ did not render a decision on the probable cause question.

While ALJ Olstad ended up issuing a decision which dismissed the complaint solely on jurisdictional grounds, it remains the case that the issue as to which no probable cause had been found in the Initial Determination (i.e., retaliatory discharge) was fully litigated by the parties. Thus, while Respondent made its motion to dismiss on jurisdictional grounds during the course of the hearing, the ALJ did not then rule on it, but merely took it under advisement. The hearing continued, with Complainant presenting her case and resting, and Respondent then presenting its case and resting.

There is therefore no reason for any further hearing on the probable cause issue. There is also no reason that the commission should not proceed directly to deciding the probable cause issue. Had the ALJ not erred by dismissing the complaint on grounds of lack of jurisdiction, he would have proceeded to and decided the issue of whether there was probable cause to believe that the Respondent had discriminated against the Complainant as alleged, and on petition for review the commission would have had the authority to take up and decide that issue. Because the matter is now before the commission on a petition for review, with a complete record, the commission concludes that the appropriate course is for it to directly review and decide the question of whether, on the record made at the hearing before ALJ Olstad, there is probable cause to believe that the discharge of Complainant was an act of unlawful retaliation, as alleged in the complaint.

Based on its review of the record, the commission is satisfied that the evidence meets the threshold for establishing probable cause. There is no dispute that the Complainant did speak to Crawford on a number of occasions, complaining of sexual harassment by Miller. There is no dispute that the Complainant was discharged in the course of a heated meeting between the Complainant and Crawford on August 4, 1997, in which (according to the Complainant) the subject was the Complainant's objections to continued sexual harassment by Miller. It is not disputed by Crawford that he became angry during this meeting and that he used profanity, something which was asserted by Complainant.

Based on the evidence presented at the hearing before him, ALJ Olstad found that the Complainant had been raising objections to sexual harassment by a co-worker for some time but that RGIS had taken no real action to deal with the situation; he also found that in the meeting in which she was terminated, the Complainant had complained about sexual harassment to Crawford who told her that he did not believe her and that she was terminated. The commission believes that these findings are supported by the record, and that they convincingly support the inference, that Crawford fired the Complainant in retaliation for her complaints about sexual harassment.

For all of the foregoing reasons, the commission is satisfied that the evidence establishes, to the degree of certainty necessary to establish probable cause, that the Respondent's decision to discharge the Complainant was infected with a retaliatory motive arising out of the Complainant's objections to the sexual harassment to which she had been subjected.

NOTE: The commission has not consulted with ALJ Olstad concerning his impressions as to the credibility of witnesses. It is clear from ALJ Olstad's findings, that he accepted the Complainant's testimony about the circumstances of her termination. ALJ Olstad did not reach the question of whether the evidence established probable cause. He dismissed the complaint based solely on his legal conclusion that there was no jurisdiction. The commission reverses the ALJ's ruling on the jurisdictional question based on its different view of the law.

cc: 
Carol S. Dittmar, Attorney for Complainant
Stephen L. Weld, Attorney for Respondent

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(1)( Back ) The complaint in this matter alleged sexual harassment, sex discrimination in terms and conditions of employment, and retaliatory discharge. The Initial Determination found probable cause as to the allegations of sexual harassment and sex discrimination in terms and conditions of employment, but found no probable cause as to the allegation of retaliatory discharge. Complainant filed an appeal from the no probable cause determination. Pursuant to the regular practice of the Equal Rights Division, proceedings were held first on the appeal of the no probable cause determination. That appeal resulted in an April 27, 2000 decision by ALJ Gary L. Olstad, that the Wisconsin Fair Employment Act did not apply to the discrimination alleged by the Complainant because the discrimination occurred in another state, and that the allegations should for that reason be dismissed. Proceedings were then held on the other allegations of the complaint, as to which probable cause had initially been found. Those proceedings resulted in a February 15, 2001, decision by ALJ John L. Brown, that the Respondent violated the provisions of the WFEA relating to sexual harassment and discrimination because of sex in regards to conditions of employment. ALJ Brown ordered that the Respondent cease and desist from the violations found and that it pay attorneys fees and costs to the Complainant and her counsel. The Complainant then filed a petition for review of ALJ Olstad's April 27, 2000, decision. (This petition for review was timely because, pursuant to Wis. Admin. Code Ch. DWD 218.20(2) and 218.21(1), there was no final decision appealable to the commission until the entire case was finally disposed of by the issuance of ALJ Brown's decision on February 15, 2001). The Respondent did not file a petition for review from ALJ Brown's February 15, 2001 decision, and that decision on those allegations is now final. Thus, the only matter now before the commission is the part of the complaint which was before ALJ Olstad.

(2)( Back ) "RGIS' common practice was to provide its employees transportation to and from out-of-town inventories. Dennis Burleigh testified this was done to ensure the proper number of auditors arrived on time at the inventory site. No employee was ever required to take their own vehicle to an out-of-town inventory. RGIS also paid each employee $0.08 per mile, less the first twenty miles, for riding to the inventory site. . . . In the present case, the transportation provided by RGIS was not an occasional accommodation or gratuity. RGIS arranged, in advance, for the transportation needed by its employees to travel out-of-town and paid their travel expenses." 786 So. 2d at 71.

uploaded 2001/10/22