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

LEILA LYNN TOURDOT, Complainant

THOMPSONS JEWELRY INC, Respondent A

GEORGE ALBRECHT, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199502951, EEOC Case No. 26G951892

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.

DECISION

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

Dated and mailed: December 10, 1997
tourdle.rsd : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant, Leila Lynn Tourdot, is a female. Tourdot's date of birth is October 30, 1953. She began work at the respondent, Thompson's Jewelry, Inc., in 1980 or 1981 as a clerk. In 1981, the respondent, George Albrecht, who had first started working at Thompson's Jewelry at age 13, purchased Thompson's Jewelry, Inc. In 1992, Albrecht gave Tourdot the job title of manager and began compensating her by way of a salary. Albrecht terminated Tourdot's employment on or about December 22, 1994.

Leila Tourdot has filed a petition for review of the administrative law judge's decision finding no probable cause to believe that the respondents had discriminated against her in violation of the Act because of her age or sex with respect to compensation, terms or conditions of employment, or termination of employment. Tourdot's petition does not specify the basis for her appeal, and her written arguments on appeal are limited to whether or not the ALJ correctly found that there was no probable cause to believe that she had been sexually harassed in violation of the Act.

Nevertheless, the commission has reviewed this matter in its entirety. Tourdot failed to present any evidence to support her claim of age discrimination. With respect to the claim of discrimination in compensation on the basis of sex, there were no male employes at Thompson's Jewelry, Inc., with duties comparable in skill, effort and responsibility to that of Tourdot, and there was no evidence presented to establish reason to believe that Tourdot's compensation level was set based on her sex. Finally, the evidence shows that Tourdot's termination of employment occurred not because of her sex but because on December 21, 1994, Tourdot, who was interested in purchasing the business from Albrecht but having difficulty reaching an agreement with Albrecht due to their differences over the terms and sale price, became angry, called Albrecht a son-of-a-bitch, and told him that he would sell the business on her terms or deal with her attorney.

What Tourdot does assert on appeal is that the ALJ applied the wrong standard to determine whether there was probable cause to believe that she was sexually harassed. She argues that the correct standard is simply whether there is "any credible evidence" to believe that discrimination (harassment) has occurred. She argues that the ALJ's citing of Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) and Wis. Stat. 111.36(1)(b) with respect to conduct constituting a hostile work environment shows that the ALJ erroneously applied the preponderance of evidence standard required at a full hearing on the merits. Further, Tourdot argues that she limited her evidence to the "probable cause standard" and deserved a chance to present the rest of her testimony and witnesses (she makes specific reference to her therapist and husband), rather than being held to a standard that she did not know would be applied.

Tourdot's arguments fail. In Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d (Ct. App. 1992), the court rejected the any credible evidence standard stating, "Nor does `any credible evidence' accurately define the test. Some credible evidence of discrimination might exist, but LIRC could still conclude that upon all of the evidence produced at a (probable cause) hearing, it was not probable that discrimination had occurred." Id. at 475. The ALJ does cite Meritor as requiring a "totality of the circumstances" analysis and that the harassment be "sufficiently severe or pervasive `to alter the conditions of (the victim's) employment and create an abusive working environment.'" He has also noted the similarity of the Act's statutory language. However, the ALJ correctly applied the probable cause standard. His decision states, "In this case, considering the incidents of sexual conduct by Mr. Albrecht that were proven to a probable cause standard, they did not, in the totality of circumstances, create an environment that, either as to Ms. Tourdot or as to a reasonable person in her position, substantially interfered with work performance or created an intimidating, hostile or offensive work environment." Memorandum Opinion, p. 6. (emphasis added) The notice of hearing provided Tourdot with appropriate notice that the hearing was on the issue of probable cause. As noted by respondent Albrecht, Tourdot simply made a strategic choice not to call her therapist or husband as witnesses. Prior to the hearing, Albrecht had filed a motion to compel production of medical information from any therapist who had provided her treatment as a result of the alleged sexual harassment. The ALJ granted this motion as to health care providers Tourdot had seen since the beginning of 1995. Tourdot was thus aware of the likely importance that her therapist would bear on her case but failed to call the therapist as a witness on direct. Further, after testimony and evidence was given regarding her therapist's notes at the first day of hearing, Tourdot failed to call the therapist as a rebuttal witness for the continued hearing date which was four weeks later. Tourdot had specifically identified her husband as a potential witness but never called him to testify.

The second basic argument Tourdot makes on appeal is that she has met her burden of proof of showing sexual harassment. Tourdot asserts that she and her witnesses testified at length that the employment environment was one of the owner's frequent, regular and inescapable sexual innuendoes, continuing inappropriate physical attacks, requests and comments. She asserts that they told about repeated verbal and physical abuse subjected to and which they had to helplessly watch being inflicted on others, that when the owner was present they were extremely uncomfortable at work and that protests were laughed off and ineffectual.

However, the record supports the ALJ's finding that Tourdot had not established probable cause to believe that she had been a victim of hostile environment sexual harassment. As noted by the ALJ:

"As for Ms. Tourdot, the evidence points to her being turned down for the purchase of the store, not sexual harassment, as the cause of her bad feelings toward Mr. Albrecht. This is suggested by the timing of her complaint (Albrecht sold the store to a third party on July 1, 1995; Tourdot filed her complaint of discrimination on July 24, 1995), her lack of complaining to Mr. Albrecht about any alleged sexual harassment, her failure to show that the touching incident in December 1994 had any sexual connotation, her contradictory testimony concerning an alleged sexual contact in October of 1994 (the ALJ noted that Tourdot changed her testimony on whether or not Albrecht had grabbed her blouse), the lack of any other alleged incident of sexual contact with her within the 300-day period prior to the filing of the complaint, the lack of remarks in her psychologist's notes regarding alleged sexual harassment, the lack of evidence that any alleged sexual harassment adversely affected her work performance, and the emphasis in her complaint and in her testimony on the problems in negotiating the purchase of the store.
...
Of the instances of sexual conduct that were timely and shown to exist, the sexual contacts were infrequent and not directed at Ms. Tourdot, the jokes and comments were vulgar but not intimidating or offensive enough to create a hostile environment, and the magazines kept by Mr. Albrecht were not openly displayed to other employees."

Memorandum Opinion, pp. 5-7.

Tourdot's claim of sexual harassment is further undermined since the evidence shows that Tourdot herself engaged in telling of "dirty" jokes at the store, that when others told these jokes Tourdot laughed along with everyone else and did not appear offended, and that Tourdot went to Naughty But Nice and selected gag gifts including, penis and breast shot glasses, and male and female toothbrushes with fully exposed genitalia, for the store's Christmas Party held in January 1994.

Accordingly, the commission has affirmed the ALJ's dismissal of Tourdot's complaint.

NOTE: The commission acknowledges respondent Albrecht's objection and request to strike Tourdot's reply brief because it was submitted more than two weeks late. However, the commission declines to strike Tourdot's reply brief as its lateness did not hinder the commission's review of the case nor did it result in any apparent prejudice to Albrecht.

cc: Lorna Kniaz
Dale E. Hughes

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