BRIAN K THOMPSON, Complainant

ASHLEY FURNITURE INDUSTRIES INC, 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 modification:

In paragraph 7 of the FINDINGS OF FACT, the language "Approximately two weeks before he was discharged" is deleted and the phrase "On Friday, May 14, 1999" is substituted therefore.

This modification has been made because it appears the complainant actually claims that it was on Friday, May 14, 1999, when he overheard Steve Osborne and Todd Schuelke use the word "queer" in referring to him. At one point Thompson apparently did assert that either the occasion on which he used profanity towards Osborne for calling him a "queer," or the occasion that he overheard both Schuelke and Osborne calling him a "queer," had occurred about two weeks before his termination. However, the corrective action notice presented to Thompson on May 17, 1999, indicates that Thompson had used profanity towards Schuelke on Thursday, May 13, 1999. Further, Thompson has alleged that Schuelke and Osborne had called him a "queer" on the Friday before his termination and that he immediately reported the harassment to the plant manager, Paul Holte, after overhearing Schuelke and Osborne calling him a "queer." The Friday before Thompson's discharge was May 14, 1999. Also, Thompson testified that he told Holte about the harassment only once.

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

Dated and mailed July 16, 2003
thompbr . rmd : 125 : 9 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

Brian Thompson worked about 5 months, primarily as a pin router, for the respondent, a furniture manufacturer. On May 17, 1999, the respondent terminated Thompson's employment.

Thompson met with his supervisor, Scott Lingenfelter, and Sandra Helfrich, the human relation's manager, prior to the termination of his employment on Monday, May 17, 1999. At that time Thompson was presented with three corrective action forms that detailed various work rule violations. The work rule violations apparently all occurred during the previous week beginning on Monday, May 10, 1999. The work rule violated on Monday was smoking in a non-designated smoking area thereby causing a safety hazard. A second work rule violation regarding Thompson's conduct on Thursday, May 13, indicated that he initially refused to run parts as instructed by the products and inventory control person, Todd Schuelke, and used profanity towards Schuelke. Further, this corrective action form stated that after leaving the work area for about five minutes Thompson came back and was slamming and throwing parts around. The third work rule violation was for failing to show or call in his absence for a shift on Saturday, May 15, 1999.

Thompson alleges that the respondent discriminated against him on the basis of disability.

At the hearing, Thompson stated that he sustained a pinched nerve in his kidneys at a previous job, which causes him to have to wait five or six minutes for his urine to flow. Thompson asserted that the corrective action notice by Lingenfelter for Thursday, May 13, 1999, stated that his going to the bathroom was a problem. Further, Thompson asserted that Lingenfelter had gotten after him a few times for spending too long in the bathroom.

DISABILITY DISCRIMINATION

In a disability discrimination claim the complainant must initially establish that he has a condition that qualifies as a disability within the meaning of the Fair Employment Act and that the alleged discrimination by the employer occurred because of his disability. The Act defines disability to include a physical impairment that makes achievement unusually difficult or limits the capacity to work, or is perceived as having such an impairment. Wis. Stat. § 111.32(8). An impairment is a real or perceived lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or condition. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 759-760, 407 N.W.2d 510 (1987). The phrase "makes achievement unusually difficult" refers to a substantial limitation on life's normal functions or a substantial limitation on a major life activity. 139 Wis. 2d at 761. The phrase "limits the capacity to work" refers to the particular job in question. Id.

Thompson has failed to show probable cause to believe that he was suffering from a disability. As noted by the ALJ, Thompson only offered a hearsay document that purported to show the results of a test concerning urine flow in 1997. He offered no expert interpretation of the 1997 test, no medical evidence of the extent of the injury or its degree of permanence, and no medical evidence regarding his condition in 1999. Alternatively, even assuming Thompson was suffering from a disability, he failed to provide reason to believe that the respondent treated him adversely because of a real or perceived impairment. Contrary to Thompson's assertion, the corrective action notice for his conduct on May 13, 1999, does not state that his going to the bathroom was a problem. As correctly stated by the ALJ, the corrective action form does mention that Thompson left the area for five minutes, but that was not the primary basis stated in the corrective action form for his receiving the notice. Moreover, while Thompson did testify that he went to the bathroom during that five-minute period, there was no evidence that he told that to Lingenfelter, or that Lingenfelter otherwise knew that he had gone to the bathroom at that time. ALJ Memorandum, p. 4. Additionally, Thompson failed to supply any information whatsoever with respect to his assertion that Lingenfelter had gotten after him a few times for spending too long in the bathroom.

Thompson also alleges that the respondent discriminated against him on the basis of sexual orientation. "Sexual orientation" under the Act is defined as "having a preference for heterosexuality, homosexuality or bisexuality, having a history of such a preference or being identified with such a preference." Wis. Stat. § 111.32(13m)

Thompson testified that he "considered [his] sexual orientation to be heterosexual, though [he] did have sex with a guy when [he] was younger and experimented with it."

Thompson asserts that Todd Schuelke and Steve Osborne harassed him on the basis of sexual orientation because they were calling him a "queer." Thompson asserted that Osborne was an "assistant supervisor." Although Osborne apparently had authority to assign work in Lingenfelter's absence, Helfrich testified that Osborne was not a supervisor, nor was Schuelke.

Thompson was not crystal clear as to when these events allegedly occurred, but he appears to assert that he was being called a "queer" on May 13 and 14, 1999. Thompson apparently asserts that the reason he used profanity towards Schuelke on May 13 was that Schuelke had called him a "queer." Thompson also asserts that on May 14 he overheard both Schuelke and Osborne calling him a "queer," which offended him. Thompson testified that he overheard Schuelke and Osborne calling him "queer" once at the headboard line and two or three times in the router area on the Friday before his termination. Thompson testified that he told Lingenfelter about the harassment several times.

SEXUAL ORIENTATION DISCRIMINATION WITH RESPECT TO TERMS AND CONDITIONS OF EMPLOYMENT

The respondent has a written policy against sexual harassment that states that sexual harassment will not be tolerated, and it includes a procedure for employees to follow if they feel they have been sexually harassed. Employees could report sexual harassment to their immediate supervisor, or to any member of management. Complaints of harassment in which the employee's supervisor was alleged to be committing the sexual harassment, or in instances where the harassing conduct had not stopped after reported to the supervisor, were to be made in writing to the vice president of human resources.

Lingenfelter testified that he had no recollection of Thompson ever telling him that Schuelke and Osborne were calling him a "queer." Further, as previously noted, Thompson met with both Lingenfelter and Sandra Helfrich, the human relation's manager, on Monday, May 17, 1999. Helfrich testified that the corrective action notice regarding the incident with Schuelke was discussed at the meeting on May 17 and that Thompson never complained that he uttered a profanity against Schuelke because Schuelke had called him a "queer." Further, Helfrich testified that neither she, nor anyone else to her knowledge, had been informed that Thompson was being subjected to sexual harassment, and that she had not been aware of Thompson's sexual orientation.

Thompson never filed a written complaint alleging that he was being harassed with the vice president of human resources.

Assuming that coworkers had been harassing Thompson by calling him a "queer," in order for a violation with respect to Thompson's terms and conditions of employment to have occurred, the harassment must have been sufficiently severe or pervasive so as to have altered the conditions of his employment and created an abusive working environment. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986). Whether or not a work environment is hostile or abusive can be determined only by looking at all of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating; or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc. 510 U.S. 17, 23 (1993).

The ALJ concluded that Thompson failed to show that his coworker's derogatory references about him were severe or pervasive enough to constitute sexual harassment. The evidence supports this conclusion. While undoubtedly disturbing to Thompson and clearly inappropriate, the harassment alleged to have occurred only occurred on May 13 and 14, 1999, and with most of that occurring on May 14. Further, the harassment was not shown to have been physically threatening to Thompson. Indeed, the harassment alleged to have occurred on May 14 was not shown to have been directly stated to Thompson, but was instead overheard by Thompson.

The commission is satisfied that the evidence in this case falls short of establishing probable cause to believe that the respondent discriminated against Thompson on the basis of sexual orientation in regard to his terms and conditions of employment.

DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION WITH RESPECT TO DISCHARGE

Thompson claims that Lingenfelter had set him up to get him terminated. All three of the corrective action notices presented to Thompson on May 17, 1999, as well as a prior corrective action dated May 10, 1999 regarding careless and negligent performance of work, was signed by Lingenfelter.

Thompson asserted that two of his coworkers were outside smoking, but he was the only one disciplined for it and that Lingenfelter had been known to smoke in the same spot near a dust collection silo. Further, with respect to his no-call, no-show on Saturday, May 15, 1999, Thompson asserted that he received a call on his answering machine telling him that he did not have to report for work. Thompson asserted that "They just wanted to get rid of me."

Thompson's brother, Dennis, testified that in August 2000, he heard Lingenfelter telling people at a bar that he (Lingenfelter) had gotten Brian Thompson fired, and that Lingenfelter called him a "fag" and a "retard."

The commission is not persuaded that Thompson has shown probable cause to believe that the respondent violated the Act by terminating his employment on the basis of sexual orientation.

Despite Thompson's assertions about others, including Lingenfelter, smoking near the dust collection silo, what appears to be Thompson's signature appears on the corrective action notice for this violation; an indication, according to Helfrich, that Thompson acknowledged the violation. Furthermore, Helfrich testified that she did not recall any response from Thompson when the smoking violation was discussed on May 17, 1999.

Lingenfelter denied any knowledge about Thompson being told that he did not have to work on Saturday, May 15, 1999. Thompson failed to establish that Lingenfelter was responsible for leaving the message on his answering machine that he did not have to report for work.

Lingenfelter denied ever having talked about Thompson's termination in a bar, or anywhere else outside of Ashley Furniture. Moreover, the comments allegedly made by Lingenfelter occurred some 15 months after Thompson's termination. Thompson did not testify that Lingenfelter had ever called him a "queer" or a "fag" while he was employed by the respondent. Further, Thompson did not present evidence to show that Lingenfelter was behind the harassment he incurred from Schuelke and Osborne.

In short, Thompson has failed to present evidence sufficient to conclude there is probable cause to believe that his employment was terminated on the basis of sexual orientation.

cc: Attorney Bruce J. Kostner

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