TIFFANY ANDERSON, Complainant

MRM ELGIN CORP, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

1. MRM (hereinafter "respondent"), is a manufacturer of packaging equipment. In addition to its own employees, the respondent utilizes the services of workers employed by Midtown Staffing, a temporary staffing agency.

2. During the time period at issue, Tiffany Anderson (hereinafter "complainant") was an employee of Midtown Staffing. On July 16, 1998, the complainant began a temporary assignment as a general laborer for the respondent. During her assignment the complainant's supervisor was John Peterson. Mr. Peterson's title was Manager of Customer and Technical Services.

3. On several occasions during the course of her assignment with the respondent, Mr. Peterson complimented the complainant's hair, eyes and clothing.

4. On August 5, 1998, Mr. Peterson invited the complainant out for dinner and drinks after work, ostensibly as a reward for having worked late. The complainant accepted the invitation. Although the complainant assumed that other workers were going to be attending the dinner, the only ones present were herself, Mr. Peterson, and the lead man, Gerald Weinmann.

5. After dinner Mr. Weinmann retired for the evening and the complainant found herself alone in the cocktail lounge with Mr. Peterson. Mr. Peterson told the complainant that he and his wife had an "open relationship." He then began to discuss his sexual fantasies with the complainant and attempted to coax her into discussing hers. The complainant did not participate in the discussion. Mr. Peterson suggested that the complainant come up to his hotel room to watch television, but she refused. At a convenient opening in the conversation the complainant thanked Mr. Peterson for dinner and left.

6. The complainant had arranged to give her friend and co-worker, Amanda Theelke, a ride home from her second shift job at a fast food restaurant. The complainant arrived twenty minutes late, and Ms. Theelke observed that she was an "emotional wreck" and was practically shaking. The complainant told her what had happened and asked Ms. Theelke to spend the night at her house so she would not have to be alone.

7. Mr. Peterson continued to give the complainant compliments on her looks after the August 5, 1998, incident, and on more than one occasion he touched the complainant's hair. In one instance Mr. Peterson swatted the complainant on the rear end with a paycheck.

8. Sometime after the August 5, 1998, incident Mr. Peterson began telephoning the complainant at home on a regular basis. Mr. Peterson would begin the calls by making small talk, but would then turn the conversation to sexual matters. During a few of these conversations Mr. Peterson asked the complainant what color underwear she was wearing. When the complainant indicated she needed to get off the telephone, Mr. Peterson would change the subject to work-related matters in order to continue the conversation.

9. Near the end of August, 1998, Mr. Peterson called the complainant into his office and told her that he would like to see her working for the respondent on a permanent basis. He gave her an application to fill out and told her to leave the position section blank. Mr. Peterson had previously encouraged the complainant to apply for a secretarial position, notwithstanding the fact that she informed him she lacked secretarial skills. The respondent had no position available for the complainant and Mr. Peterson had no authority to create a position. The complainant did not fill out the application because she felt uncomfortable working with Mr. Peterson.

10. Shortly before August 27, 1998, the project for which the complainant had been hired ended. After the assignment was over the complainant was offered and accepted an additional day or two of cleaning work. Mr. Peterson was not responsible for the fact that the complainant was called back to work on that additional day or days, and he did not supervise the complainant in her performance of the cleaning tasks.

11. On August 31, 1998, the complainant told the staffing coordinator for Midtown Staffing that she did not want to go back to work for the respondent because her supervisor had been sexually harassing her. The complainant's assignment at the respondent was already completed at this point, and it was not demonstrated that the respondent had any further work available for her.

Based upon the FINDINGS OF FACT above, the commission makes the following:

1. That the respondent discriminated against the complainant on the basis of sex, within the meaning of the Wisconsin Fair Employment Act, when it engaged in sexual harassment.

2. That the respondent did not refuse to hire the complainant on the basis of sex or because she opposed a discriminatory practice under the Wisconsin Fair Employment Act.

3. That the respondent did not terminate the complainant's employment on the basis of sex or because she opposed a discriminatory practice under the Wisconsin Fair Employment Act.

Based upon the FINDINGS OF FACT and CONCLUSIONS OF LAW above, the commission issues the following:

1. That the respondent shall cease and desist from discriminating against the complainant.

2. That the respondent shall pay the complainant's reasonable attorney's fees in the amount of $12,770.63 and costs in the amount of $100.25 for a total of $12,870.88 in reasonable attorney's fees and costs associated with this matter. A check in the amount of $12,870.88 shall be made payable jointly to the complainant and to Attorney Peter J. Morin and delivered to Mr. Morin.

3. 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 Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin. 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).

Dated and mailed January 28, 2004
anderti . rrr : 164 : 9 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The complainant has alleged that she was subjected to sexual harassment, that her employment was terminated because of her sex and in retaliation for having opposed a practice of discrimination, and that she was denied hire by the respondent for the same reasons.

Sexual harassment

The Wisconsin Fair Employment Act (hereinafter "Act") provides, in relevant part:

(1) Employment discrimination because of sex includes but is not limited to, any of the following actions by any employer. . . :

(b) 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.  Under this paragraph, substantial interference with an employe's work performance or creation of an intimidating, hostile or offensive work environment is established when the conduct is such that a reasonable person under the same circumstances as the employe would consider the conduct sufficiently severe or pervasive to interfere substantially with the person's work performance or to create an intimidating, hostile or offensive work environment.

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

The commission has interpreted the statute as providing for three categories of prohibited conduct: sexual harassment by an employer, quid pro quo sexual harassment, and hostile environment sexual harassment. The commission has specifically held, and the court of appeals has affirmed, that under the first category, which is italicized in the citation above, employment discrimination based on sex occurs if the employer -- meaning the owner or an agent in a position of responsibility such that it is appropriate to apply the rule of respondeat superior and treat the actions of the agent as being the actions of the employer -- engages in conduct that meets the definition of sexual harassment, whether or not that conduct creates a hostile work environment. Tobias v. Jim Walter Color Separations (LIRC, Aug. 13, 1997); aff'd. Jim Walter Color Separations v. LIRC and Marcy Ann Tobias, 226 Wis. 2d 334, 595 N.W. 2d 68 (Ct. App. 1999). Thus, where the employer or an agent of the employer is perpetrating the sexual harassment, it will be actionable even if the harassment would not be considered sufficiently severe or pervasive as to create a hostile work environment. (1)   For an employer to engage in any type of sexual harassment is a violation of the Act.

In this case, the complainant's allegations fall within the first category of conduct prohibited by the statute because she has contended that the sexual harassment was perpetrated by the employer itself, in the person of a managerial or supervisory employee. Mr. Peterson was the respondent's Manager of Customer and Technical Services. He reported directly to the respondent's General Manager and was responsible for supervising the project the complainant worked on. In view of his supervisory authority, the commission believes that Mr. Peterson should be considered an agent of the employer who is appropriately held to a stricter standard than that of a mere co-employee.

Thus, the question to resolve is whether Mr. Peterson engaged in unwelcome sexual harassment, within the meaning of the Act. Sexual harassment is defined in the statutes, as follows:

[U]nwelcome sexual advances,  unwelcome requests for sexual favors,  unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature.   "Sexual harassment"  includes conduct directed by a person at another person of the same or opposite gender. "Unwelcome verbal or physical conduct of a sexual nature"  includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature;  the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes;  or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employe's work performance or to create an intimidating, hostile or offensive work environment.

Wis. Stat. § 111.32 (13)(emphasis added).

The record demonstrated that Mr. Peterson made deliberate and repeated comments of a sexual nature to the complainant. It is undisputed that he engaged the complainant in a discussion about his sexual fantasies and in telephone conversations in which sexual matters were raised. The record also supports a finding that Mr. Peterson engaged in physical conduct of a sexual nature when he swatted the complainant on the backside with a paycheck. (2)   Unlike verbal contact, nothing in the statute suggests that physical contact must be "repeated" in order to constitute prohibited sexual harassment, and even a single instance of unwelcome physical contact of a sexual nature is a violation of the Act. Further, while Mr. Peterson's actions in complimenting the complainant's hair and eyes and touching her hair were not inherently sexual in nature and might not be considered sexual harassment in a more neutral context, given Mr. Peterson's other sexual overtures to the complainant, the commission believes that his actions in commenting on her looks and touching her hair were part of an entire course of harassing conduct and as such are properly regarded as further incidents of sexual harassment. However, even excluding that particular conduct, the record contains sufficient evidence to warrant a conclusion that Mr. Peterson engaged in conduct that falls within the statutory definition of sexual harassment.

Having concluded that Mr. Peterson was an agent of the respondent and that he engaged in sexual harassment, the final question to resolve is whether his conduct was "unwelcome" to the complainant. Sexual harassment must be "unwelcome" to be unlawful. Conduct is unwelcome where the complainant did not solicit or incite it and where the complainant regards the conduct as undesirable or offensive. Fluhr v. Magestro (LIRC, April 1, 1999), citing Henson v. City of Dundee, 682 F.2d 897, 903, 29 FEP Cases 787, 792 (11th Cir. 1982). Whether conduct is "unwelcome" presents a question as to the subjective state of mind of the person to whom the conduct is directed. Lass v. Sawyer (LIRC, Dec. 28, 1998).

Here, the complainant clearly did not solicit or incite the sexual harassment, and the record indicates that all of the objectionable conduct was initiated by Mr. Peterson without encouragement from the complainant. The complainant testified that Mr. Peterson's actions left her numb from fear and "dead terrified," and her witness supported this version of events, testifying that the complainant appeared to be an emotional wreck and was almost shaking after Mr. Peterson shared his sexual fantasies with her. Such testimony supports a conclusion that Mr. Peterson's conduct was indeed unwelcome to the complainant.

During the credibility conference the administrative law judge indicated that he had no doubt Mr. Peterson's actions were unwelcome to the complainant, but decided the case against the complainant based upon her failure to object to the conduct. However, as the administrative law judge recognized, a failure to object to sexual harassment does not necessarily indicate consent or welcomeness, and such assessment depends on the individual facts and circumstances of the case. Any suggestion that, because physical and verbal conduct of a sexual nature was tolerated for some time, it was thereby not "unwelcome," is meritless. Tobias v. Jim Walter Color Separations (LIRC, Aug. 13, 1997). Moreover, while a failure to object might, depending upon the circumstances, be indicative of welcomeness, once it has been determined that the sexual contact or comments were unwelcome, the fact that the complainant failed to object to such conduct has no effect on the employer's liability under the statute. (3)    The statute makes it unlawful for an employer to engage in sexual harassment, without regard to whether the complainant has objected. See, Mackey v. ICR Ltd. (LIRC, Jan. 31, 2002) (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 object to the harassment, but on the employer not to subject her to the harassment in the first place.)  In this case, the complainant's failure to object to Mr. Peterson's conduct does not lead the commission to believe she welcomed it, nor does it defeat her cause of action under the Act. Because the evidence established that the respondent engaged in sexual harassment within the meaning of Wis. Stat. § 111.36(1)(b), the commission concludes that it has violated the Act.

Discharge/constructive discharge/failure to hire

In her petition for commission review the complainant argues that, in addition to having been sexually harassed, she was also constructively discharged. However, the complainant's job with the respondent was a temporary assignment, and the evidence indicates that the complainant worked through the completion of that assignment. The complainant was given an opportunity to perform an additional few days' work, but there is no reason to believe that the respondent had any further work available for her thereafter. While there may have been future projects which the complainant would have had an opportunity to work on had she been interested, the competent evidence in the record suggests that her relationship with the respondent had ended before any such project became available and before she notified Midtown Staffing that she was unwilling to return. Consequently, the commission concludes that the complainant was not discharged by the respondent, constructively or otherwise.

In her petition the complainant also argues that Mr. Peterson offered her a job as a secretary which she turned down because she could not tolerate his "sexually intimidating manner." However, the complainant's decision not to fill out an employment application was not tantamount to turning down a job. Indeed, although Mr. Peterson did invite the complainant to fill out a job application, it is clear from the record that there was no secretarial position, nor any other position, available at that time. Moreover, even if there had been a permanent position available with the respondent, a question arises as whether the complainant would have been qualified for it and whether Mr. Peterson would have had the authority to hire her. Nothing in the record warrants a conclusion that the complainant was denied hire by the respondent based upon her sex, or for any other reason.

Attorney fees

The complainant's attorney has requested a total of $17,657.70 in fees, representing 100.9 hours of work at an hourly rate of $175, plus $100.25 in expenses. The respondent has objected to the fee request as excessive. The respondent has not identified any specific aspects of the fee statement which it considers inappropriate, but argues that the fee request is excessive and exorbitant, particularly when compared to the fees the respondent is charging its client. However, the determination of reasonable attorney fees is not made by comparing the complainant's attorneys fees to those of the respondent's attorney, and the question of how many hours are reasonably expended on litigation in any given case is not decided on that basis. Fields v. Cardinal TG Co. (LIRC, Feb. 16, 2001).

The commission initially considers the question of the appropriate hourly rate. Ideally, the attorney fee affidavit should contain some information from which the commission can determine what types of fees are customarily charged in the locality by lawyers of reasonably comparable skill, experience and reputation. Olson v. Phillips Plating (LIRC, Feb. 11, 1992). Attorney Morin's affidavit addresses neither of these points and provides the commission with no basis to decide whether his hourly rate is appropriate. However, the respondent's attorney, whose practice is also located in Menomonie, has not raised any specific objection to Attorney Morin's hourly rate, and the commission, which has some experience in evaluating what constitutes a reasonable attorney fee, sees no reason to question the hourly rate requested. Consequently, the commission will not disturb the hourly rate requested by the complainant's attorney.

Turning next to the question of the number of hours reasonably expended, the commission's review of Attorney Morin's fee statement reveals several items which are not compensable through these proceedings. The fee request contains charges for telephone conferences with a Manpower representative and with an entity called "VSI," neither of which appear to be involved in this case. It also contains charges related to filing an insurance claim and for reviewing a potential criminal claim, both of which are unrelated to these particular proceedings. Finally, there are several unexplained entries for conversations with attorneys who were not involved in this case. Subtracting those charges, which total 3.6 hours, results in 97.3 hours expended on matters which appear to be reasonably related to this case.

The commission has reduced the attorney fee request by an additional amount as a reflection of the fact that the complainant's attorney met with only partial success. (4)   The complainant prevailed on her claim of sexual harassment, but did not prevail on her allegations relating to discharge or failure to hire. The commission believes that the litigation would have been reduced by approximately twenty-five percent if the complainant had focused solely on the sexual harassment issue, and it considers it appropriate to reduce the fee award accordingly. The commission therefore orders a total of $12,870.88, representing 72.98 hours at $175 an hour, plus an additional $100.25 in expenses, as reasonable attorney fees and costs related to these proceedings.

NOTE: The commission conferred with the administrative law judge who presided at the hearing to obtain the benefit of his impressions of the credibility and demeanor of the witnesses. The administrative law judge indicated that he found the complainant to be a generally credible witness and stated that he had no doubt Mr. Peterson's actions were unwelcome to her. The administrative law judge noted that the complainant appeared to be somewhat timid, which may have explained her failure to specifically notify Mr. Peterson that she found his conduct objectionable, but nonetheless decided the case against the complainant based upon her failure to object. The commission does not disagree with the administrative law judge's credibility assessment, but reverses because it believes that the complainant had no duty to object.

cc: 
Attorney Peter J. Morin
Attorney Julie A. Smith

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(1)( Back ) The respondent has devoted most of its brief to arguing that the complainant was not subjected to hostile environment sexual harassment. The respondent relies upon federal case law in support of its arguments. However, as the court of appeals pointed out in the Tobias decision, because Title VII does not contain any language similar to Wis. Stat. § 111.36(1)(b), federal cases addressing the question of hostile work environment sexual harassment are not helpful to this analysis.

(2)( Back ) In the Tobias case, cited above, the complainant alleged that the respondent slapped her on the buttocks. The commission found this to be an "overtly sexual form of assault."

(3)( Back ) This situation is distinguishable from a case involving co-worker conduct, in which the complainant may be required to put the employer on notice of the sexual harassment before the employer has a duty to act.

(4)( Back ) The commission has consistently held that it is appropriate to reduce the attorney fee award where the complainant's success has been only limited. See, for example, Foust v. City of Oshkosh Police Dept. (LIRC, April, 9, 1998); Roden v. Federal Express (LIRC, 06/30/93); Cangelosi v. Robert E. Larson & Assoc. (LIRC, Nov. 9, 1990), citing Hensley v. Eckerhart, 461 U.S. 424, 31 FEP Cases 1169, 1173-1174 (1983).

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