ROBIN MACKEY, Complainant

ICR LTD, Respondent A

PETER KRIESELS, Respondent B

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

1. The following paragraph is inserted after paragraph six of the administrative law judge's ORDER:

"The respondent shall pay to the complainant reasonable attorney fees and costs associated with replying to the respondent's petition for commission review in the amount of $1,748.75. A check in that amount shall be made payable jointly to the complainant and Heath P. Straka and delivered to Mr. Straka."

2. Paragraph seven of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12)."

3. The administrative law judge's ORDER is renumbered accordingly.

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

Dated and mailed January 31, 2002
mackero . rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

In the petition for commission review the respondent, Peter Kriesels, argues that he should have a new hearing because he was prejudiced by the complainant's failure to comply with the ten-day rule for disclosure of witnesses and exhibits. The respondent maintains that he was not given the proper opportunity to prepare against such witnesses and exhibits and asserts that, had he received proper notice he was going to be called as an adverse witness, he would have sought legal representation. The respondent's argument fails. The complainant submitted a witness and exhibit list on the day before the hearing, indicating an intent to call four witnesses and introduce one exhibit. However, at the hearing the complainant presented only her own testimony and that of the respondent. In light of this factor, it is hard to imagine how the respondent can argue that he was not given an opportunity to prepare against the complainant's witnesses and exhibits. The respondent's argument is, apparently, that he was forced to testify adversely without sufficient time to prepare for examination by an opposing party, and that his own testimony was somehow prejudicial to his case. This argument has numerous flaws. In the first place, the respondent was or should have been was aware that he would be expected to testify and, in fact, was served with a subpoena by the complainant's attorney more than three weeks before the hearing. Moreover, the respondent voluntarily testified on his own behalf, subjecting himself to cross-examination by the complainant's attorney. It is hard to see how the complainant's actions in calling the respondent adversely could have resulted in any prejudice to him where the respondent himself chose to place his testimony into the record and to open himself up to cross-examination by the complainant. Next, even supposing for the sake of argument that the respondent did not know he would be testifying adversely and had no intention of testifying on his own behalf, he was aware of the nature of the complainant's allegations and should not have been taken by surprise by the questions asked at the hearing. That the respondent has not given any indication as to what line of questioning he found prejudicial or how he would have been better prepared with more notice only serves to illustrate this point.

Regarding the respondent's assertion that, had he received proper notice he was going to be called as an adverse witness he would have sought legal representation, this argument ignores the fact that the Division issued a hearing notice on January 12, 2001, two months prior to the hearing, along with an information sheet advising the parties that if they planned on having legal representation they should obtain an attorney immediately, since attorneys need time to prepare a case for hearing. While the respondent evidently regrets his choice not to retain counsel, his attempts to blame that decision on the complainant are disingenuous. Even accepting the unlikely premise that timely receipt of the complainant's witness list would have motivated the respondent to hire an attorney where he had previously made no attempt to do so, there is little reason to believe he could have successfully retained counsel only ten days prior to the hearing. Indeed, that is precisely why the Division advised him that he should make arrangements for legal representation well in advance.

Lastly, the commission notes that the respondent raised no objection to being called to testify adversely and offered his testimony freely. While the respondent offers that his failure to object was because he was without counsel at the hearing, his decision to appear pro se is a matter for which he must bear the consequences. Moreover, the record reflects that the administrative law judge specifically advised the respondent that if he had any objection to make he should do so, explaining that if he did not speak up on his own behalf nobody would do it for him. Notwithstanding this advice, the respondent did not voice any objection to being called as an adverse witness, and there is nothing to suggest that he testified under duress. For all of these reasons, the commission is unpersuaded by the respondent's argument that he was prejudiced by the complainant's failure to submit her witness list in a timely fashion, and it declines to order any new hearing on that basis. (1)

In the petition the respondent also makes an argument that, at the same time the administrative law judge permitted the complainant to call him as a witness, in violation of the ten-day rule, he was unable to introduce his evidence into the record because of the ten-day rule. Again, this argument fails. In the first place, where the respondent did not challenge any of the complainant's evidence on ten- day rule grounds, his suggestion that there was disparate treatment of the parties by the administrative law judge is unavailing. Further, while it is true that the administrative law judge did not permit the respondent to enter his exhibits, only two were precluded because of the ten-day rule (Exhibits 2 and 3), one of which would have been inadmissible on hearsay grounds without regard to the ten-day rule. With respect to the two documents in question, the complainant successfully established that she was either unfamiliar with their contents or was taken by surprise by them, and the administrative law judge's decision to exclude them under those circumstances was completely appropriate. Finally, the commission notes that the respondent has failed to explain how the introduction of the documents in question would have assisted him to present his case, except to state that the police report would have established that no formal charges were brought against him. The document in question, an incident report filed with the Columbia County Sheriff's Department--which, incidentally, was rejected on hearsay grounds and not because of the ten-day rule--does not give any indication as to whether charges were brought. Moreover, even if the report did establish that no formal criminal charges were brought, as the respondent asserts is the case, this fact would not prove that no sexual harassment occurred for purposes of the Fair Employment Act. Under all the circumstances, the commission sees no reason to believe that omission of the police report or other documents from the record was improper or prejudicial to the respondent's case.

Turning finally to the merits of the case, the respondent argues that his actions were welcomed by the complainant and were consensual. The respondent explains that he believed his interactions were consensual because they were done out in the open and because the complainant could have run away but did not. The respondent also points out that the complainant continued to remain in the apartment she rented from him for four months after quitting, in spite of her testimony that she was afraid of him. Once again, the respondent's arguments fail. While the respondent may have believed that his actions were consensual, the complainant never solicited or invited the sexual contact or remarks, nor indicated by word or deed that she liked them. At the hearing the complainant credibly testified that she considered the respondent's conduct unwelcome, and the respondent offered nothing to contradict this testimony. The fact that the respondent made his advances openly has no bearing on their welcomeness to the complainant, nor was her failure to run away tantamount to consent. While it would have been helpful to have more evidence in the record regarding the complainant's response to the respondent's comments and advances, the fact remains that an employer does not have a right to engage in sexual conduct then wait to see how the employee reacts. The burden is not on the employee to run away, but on the employer not to subject her to the harassment in the first place. Because the commission is persuaded that the respondent engaged in a pattern of unwelcome sexual harassment, which ultimately lead the complainant to quit her job, the finding of discrimination is affirmed.

NOTE: The complainant has requested a total of $1,748.75 in attorney fees for work associated with defending against the petition for review. The respondent has raised no objection to this request, and the commission considers it to be reasonable. The commission has, therefore, modified the administrative law judge's decision to include an additional award of $1,748.75 in attorney fees in conjunction with the petition for review.

cc: 
Attorney David E. Rohrer
Attorney Heath P. Straka

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(1)( Back ) In his reply brief the respondent argues for the first time that he was prejudiced by the complainant's failure to disclose in advance that she would be calling herself as a witness. However, even a layperson should have understood that the complainant would be telling her story at that time.

uploaded 2002/01/31