NICOLE RUSNIAK, Complainant

FAGAN CHEVROLET-CADILLAC, 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 conclusion in that decision as its own.

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

Dated and mailed May 23, 2002
rusnini . rsd : 164 : 9 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

"Engaging in sexual harassment; or implicitly or explicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment; or making or permitting acquiescence in, submission to or rejection of sexual harassment the basis or any part of the basis for any employment decision affecting an employe, other than an employment decision that is disciplinary action against an employe for engaging in sexual harassment in violation of this paragraph; or permitting sexual harassment to have the purpose or effect of substantially interfering with an employe's work performance or of creating an intimidating, hostile or offensive work environment. . . ."

Wis. Stat. § 111.36(1)(b)(emphasis added).

The WFEA, as set forth above, contains essentially three separate categories of prohibited conduct. The third category, in italics, addresses sexual harassment engaged in by co-workers, who cannot be treated as agents of the employer. This category obliges the employer to take steps to prevent or terminate sexual harassment in the work place, even if the employer is itself not engaging in the sexual harassment, if the harassment engaged in by other employees is enough that it interferes with work or creates a hostile, intimidating environment. See, Jim Walter Color Separations v. LIRC, 226 Wis. 2d 334, 345, 595 N.W.2d 68 (Ct. App. 1999).

The administrative law judge found that the respondent met its obligation in this case, and the commission agrees. The respondent adopted a policy prohibiting sexual harassment in the work place and directing employees who believed they were being harassed to take their complaints to their supervisor, the human resources administrator, or another manager. The policy specifically states, "Do not assume that the company is aware of your problem. It is your responsibility to bring your complaints and concerns to our attention so that we can help resolve them." The complainant was aware of the existence of the policy, yet failed to notify the respondent about her complaints until after she had already quit her employment. At the hearing the complainant contended that her failure to avail herself of the policy was due to a belief that her supervisor would not help her, based upon previous remarks he had allegedly made to her about having a "bitchy" attitude and that women were "a bunch of you-know-whats" who were always talking about each other. However, even if such remarks were made, the commission does not regard them as sufficiently serious so as to have the type of chilling effect the complainant describes. Moreover, if the complainant felt uncomfortable talking to her supervisor, she could have taken the matter to the human resources manager, who was a female with whom the complainant had a positive working relationship. The complainant was unable to provide any reason for her failure to do so, and the fact that she told the human resources manager about the situation after she quit suggests that she was not uncomfortable discussing such matters with her.

In her petition the complainant argues that she had no duty to complain about sexual harassment before she could be protected by the WFEA. In support of her position, the complainant cites to San Filipo v. North Central Security Agency (LIRC, August 15, 1986), in which the commission noted that the statute does not impose a reporting requirement on the employee and that an employee's failure to invoke a grievance procedure does not relieve the employer of liability. The commission notes that in the San Filipo case it was interpreting a statutory presumption which is no longer a part of the current law. Moreover, while neither the earlier version of the statute nor the current law impose an affirmative reporting requirement on an employee, this does not mean that the employee never has any duty to report harassment. To the contrary, in San Filipo the commission concluded that the circumstances of each case must be evaluated individually, noting that to do otherwise would result in dismissal in situations where the reason the employee failed to complain was because the employer completely lacked a procedure to do so, where a grievance procedure existed but was inadequate to deal with sexual harassment problems, or where an adequate reporting procedure existed but was not sufficiently published by the employer. The problems envisioned by the commission in San Filipo do not present themselves in this case. Here, there was an adequate reporting procedure available to the complainant, which she was aware of but elected not to utilize. As with Ms. San Filipo, the fact that the complainant had a reasonable opportunity to complain, but chose not to do so, operates against her in determining the respondent's liability.

In arguing that she had no duty to notify the respondent of the harassment, the complainant states that an employer's duty not to permit sexual harassment in the workplace extends to taking affirmative steps to prevent sexual harassment in the first place. To this end, she asserts that an employer must be "proactive in its battle against sexual harassment" and that it has an obligation to all of its employees to take steps to ensure they are not harassed, even if those employees have never complained about sexual harassment. Applying that theory to her own case, the complainant maintains that the respondent did not do enough in response to her co-worker's complaint of sexual harassment by Mr. Hodge and that this inadequate response allowed his harassment of the complainant to occur. The commission disagrees. The respondent addressed the co-worker's allegations of sexual harassment by directing Mr. Hodge to desist and securing his promise that he would do so. Given that the harassment was strictly verbal in nature and that the respondent had not received any other complaints and believed the incident to be an isolated one, this response appears to have been reasonably calculated to address the situation. Indeed, the respondent's actions were initially effective, since the harassment stopped for a time, and although Mr. Hodge eventually resumed the objectionable conduct, this does not mean the respondent acted unreasonably in taking the steps it did. While, in hindsight, its response may have proved to be inadequate, an employer is not expected to be omniscient and to foresee that a particular individual will offend again, nor is it expected to discharge every worker accused of sexual harassment in order to avoid liability in the event that individual should ever engage in further acts of harassment. Had the complainant or her co- worker notified the respondent that the objectionable behavior had resumed, the respondent would have had an opportunity to take stronger action and, presumably, it would have done so. The record indicates that, once the complainant notified the respondent of the situation, Mr. Hodge was immediately discharged, which is a strong indicator that her complaint would not have gone unheeded had she made it known earlier.

Under all of the facts and circumstances, the commission concludes that the complainant failed to demonstrate that the respondent permitted sexual harassment to substantially interfere with her work performance or to create an intimidating, hostile or offensive work environment, within the meaning of Wis. Stat. § 111.36(1)(b). Nor did she show that she was constructively discharged from her employment based upon her sex. Accordingly, the dismissal of her complaint is affirmed.

cc: 
Attorney Paul A. Kinne
Attorney Dennis M. White

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uploaded 2002/05/24