KATHLEEN M CROOK, Complainant

COUNTY OF VERNON, 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 February 23, 2004
crookka . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

Kathleen Crook petitions for a review of the ALJ's decision dismissing her complaint. Crook's complaint, filed with the Equal Rights Division on February 29, 2000, and later amended on April 7, 2000, alleged that the respondent retaliated against her during the period from January 27, 2000, through March 30, 2000, for having filed a prior complaint against the respondent. Crook had filed a prior complaint of discrimination against the respondent with the Division in September 1999. This complaint, which the Division sent to the respondent in January 2000, alleged discrimination on the basis of age, and a number of other bases of alleged unlawful discrimination. The ALJ concluded that Crook had not shown by a preponderance of the evidence that the County had violated the Act by discriminating against her because she had filed a complaint under the Act.

Pursuant to a request for a briefing schedule a briefing schedule was established and the parties submitted their written arguments to the commission. After the close of the briefing schedule, on September 10, 2003, the commission received a memorandum and affidavit from the respondent asserting that Crook had filed a complaint in federal court against the respondent that included a claim the respondent had retaliated against her in violation of Title VII for having filed a complaint of discrimination against the respondent, that the federal court had granted the respondent's motion for summary judgment dismissing her claim, and that application of the doctrine of claim and/or issue preclusion was appropriate with respect to Crook's pending cases before the commission. (1)   In response, Crook argued that the commission should not give any consideration to the respondent's memorandum because it was neither filed timely nor in accordance with section 1.07 of the commission's rules, which state that briefs or memoranda may be filed "within the time limits of the briefing schedule established by the commission" and that "requests for extensions of time for filing briefs shall be made in writing." However, even assuming, for purposes of argument, that the respondent's memorandum should not be considered, for the reasons set forth below and in the commission's companion decision, Crook's complaints must be dismissed.

In her petition for review, Crook asserts, as background to her retaliation complaints, that because she had supported Sharon Solverson's opponent (Roger W. Novy) in the fall 1998 County Clerk election, Solverson had publicly indicated in a pre-election announcement that if she won, Crook's position in the County Clerk's office would be cut as it was unnecessary. Further, referencing the subject of her September 1999 complaint, Crook asserts that contrary to Solverson's campaign promise, Solverson filled the vacant position with a younger individual at a higher pay level, and then later added yet another full-time individual to the office. In addition, Crook asserts that subsequently during 1999, Solverson utilized her position as Chairman of the Finance Corporation Counsel Study Committee and spearheaded efforts of that committee to eliminate her position in the Personnel Department. Crook contends that this background information provides support for her claim that the following were retaliatory actions the respondent took against her for filing her initial complaint of discrimination:

1) That in response to her original complaint, Attorney James Scott made comments on behalf of the respondent to the local newspaper that were retaliatory;

2) That there was a deliberate delay in filling the Personnel Coordinator position in an attempt to make things so difficult for her that she would quit;

3) That her responsibility for receiving job applications was taken away and transferred to the County Clerk's Office;

4) That County Board member Peggy Krambs made a retaliatory comment directed to her when the Board reviewed the proposed resolution for reclassification of the Personnel Coordinator position;

5) That she was accused of a breach of confidentiality;

6) That she was criticized for the language she used to call the personnel committee to a closed session;

7) That she was criticized for errors in the job advertisement for the Personnel Coordinator position;

8) That she was criticized for utilization of the County's labor counsel and an on-call secretary; and

9) That her requests for a wage increase for the additional work she performed in the absence of a Personnel Coordinator was denied.

Crook asserts that Attorney Scott was quoted in the local newspaper as stating that her original complaint "was utterly without merit and that anybody with 33 cents can file a complaint with the Equal Rights Division." The ALJ correctly refused to give any consideration to this assertion by Crook since she offered only the newspaper article, which was clearly hearsay, to prove Attorney Scott made this comment.

Crook contends that because of a retaliatory motive on the part of Solverson it took five months before a new Personnel Coordinator was hired, which was not consistent with the usual hiring process. The only delay in the hiring process that Crook attributes to Solverson during this period, however, relates to when County Board Chairman Chester Lee told Crook on February 11, 2000, to pull the job advertisement for the Personnel Coordinator position that began running earlier that day. Lee's action followed Solverson's discussion with County Corporation Counsel Lunde. Previously, on February 8, 2000, the Personnel Committee had presented the County Board with a resolution to upgrade the position of Personnel Coordinator. This upgrade included a revised job description and an increase in wages along with a change in job title to that of Personnel Director. The County Board rejected the committee's resolution. The Personnel Committee then met on February 10, 2000, and passed a motion to advertise the position under the old job title of Personnel Coordinator at the old wage but with the new job description. It was this job advertisement that Crook placed in accordance with the committee's February 10 action that Crook was asked to pull.

After the advertisement for the Personnel Coordinator position was pulled on February 11, 2000, the Personnel Committee met in a special session on February 21 to consider the issue of whether it had the authority to advertise the position with the new job description. The Personnel Committee concluded that it did, and Crook again placed an ad for the Personnel Coordinator position. Thus, there was about a ten-day delay in the advertising of the personnel coordinator position.

Crook argues that Solverson "created a situation" which led Corporation Counsel Gregory Lunde and County Board Chairman Lee to believe that the County Board had turned down both the upgraded job description and the wage increase. In particular, what Crook apparently contends is that Solverson failed to make Lunde aware that after the County Board's rejection of the Personnel Committee's resolution for Personnel Coordinator position, the Personnel Committee had met again and decided to proceed with advertising the position with just a change in the job description. Testimony by Solverson, however, indicates that she had not created the situation as maintained by Crook. Solverson testified that, when discussing the Personnel Committee's decision to go ahead and advertise the position using the new job description with two board members, one of the members stated that the committee could not do that. Solverson testified that she replied she wasn't sure about that, she thought that it was all right but the board member again said they couldn't do that. Solverson testified that she then stated she would contact Lee to see what he thought and that Lee stated they should seek the opinion of Lunde. Further, Solverson testified that in informing Lunde of this issue she discussed the fact that the Personnel Committee had already voted to advertise the position with the new job description.

In what would appear to be evidence inconsistent with Solverson's testimony about having discussed with Lunde the Personnel Committee's vote to advertise the position with the new job description, Respondent's Exhibit B, the minutes of the February 21 committee meeting, shows Lunde stating at that meeting that "he didn't know anything about the action of the Personnel Committee on February 10th." However, Respondent's Exhibit N, Lunde's February 17, 2000, written opinion regarding this matter seems to contradict the purported statement by Lunde contained in the February 21 committee meeting minutes. Lunde's February 17 opinion reads in part as follows:

"It is my understanding that the Personnel Committee instructed the Personnel Assistant to advertise the position with a new job description. At the present time this new job description has not been approved by the county board and therefore cannot be used to advertise for applicants to fill the vacant position."

Neither party bothered to call Lunde to testify as to what was discussed in the conversation with Solverson. However, Lunde's February 17 written opinion to Solverson itself indicates that he was aware of the Personnel Committee's decision to go ahead and advertise the position with a new job description despite the absence of the Board's approval.

With respect to transferring responsibility for collecting job applications to the County Clerk's Office, Crook argues that Solverson was able to convince County Board Chairman Lee that it would be a conflict of interest for her to receive the applications for the Personnel Coordinator position in the Personnel Department. Further, Crook apparently disputes the existence of any conflict of interest. The minutes of the special February 21 meeting, Respondent's Exhibit B, shows that after the committee decided it could go forward and advertise with the new job description, Lee commented, "No offense to the Personnel Department, but I wondered if it would be a conflict if applications are returned to the Personnel Department. Kathy could get job applications from someone who could end up being her boss." Crook has provided no evidence to support her bare assertion that Solverson had convinced Lee that it would be a conflict of interest for her to receive the applications for the Personnel Coordinator position. Further, the evidence shows that the existence of a conflict of interest was real. In addition to the concern expressed by Lee as shown in February 21 meeting minutes, Crook herself was an applicant for the position of Personnel Coordinator.

As previously noted, on February 8, 2000, the County Board was presented with the Personnel Committee's resolution to upgrade the Personnel Coordinator position. Crook testified that during the discussion about upgrading the position of personnel coordinator board member Peggy Krambs didn't agree with that and stated "next they'd be hiring an assistant to help the assistant." Crook asserted that she felt Kramb's comment was directed at her and retaliatory. However, as Crook herself testified, Kramb's comment was made in the context of pointing out how the Personnel Coordinator position had started as a part-time position, was later increased to full time, then a part-time assistant was added and then that position was upgraded to full time. Crook provided no evidence to show that Kramb's comment was directed at her personally or that it was in any way related to the fact she had filed a complaint against the respondent.

Crook contends that because Solverson related to Personnel Committee Chairman, Ervin Novacheck, that an individual who wanted to exercise a family medical leave right did not want to go through the Personnel Department because it would get leaked out, Solverson was accusing her of having breached confidentiality in the Personnel Department. In support of her contention, Crook cites Novacheck's testimony that Solverson was "critical" of Crook regarding the confidentiality issue and his testimony that "he considered the complaint that Sharon Solverson had made with regard to the confidentiality issue against the Complainant retaliatory because the Complainant had filed a complaint." Crook, however, ignores the fact she and Novacheck both concede that it was not Solverson who had raised the confidentiality issue, that the confidentiality issue arose because a department head had complained to Solverson that an individual under the department head did not want to go through the Personnel Department for the family medical leave for fear that it would get leaked out. Furthermore, Solverson testified that the concern related by the employee to her by the department head was that "in the past.she's been aware that there was some breaches of confidentiality from the personnel office and now at this point in time, there was no personnel coordinator in place." Solverson denied that she or the department head had ever accused Crook of leaking information.

Crook further asserts that Solverson criticized her for errors in the job advertisement for the Personnel Coordinator position. After the Personnel Committee's February 21, 2000 decision to advertise the Personnel Coordinator position with the new job description, Crook submitted an ad to JobNet with instructions on how the ad was to be run. However, after a county employee questioned Solverson about the ad as it appeared on the internet, Solverson discovered that the ad posted on the internet contained a number of errors, including the number of hours of work, the educational requirement for the position and where applications were to be submitted. Crook asserts that Novacheck came to her stating that Solverson had said she had completely fouled up the ad and that it had been done intentionally. Crook asserts that she contacted an individual at Job Service who stated that the problems were entirely his fault.

Crook apparently contends that because Solverson did not check with her as to what had happened regarding the placement of her ad with JobNet but instead went directly to Novacheck with accusations of wrongdoing by her, Solverson's actions were in retaliation for her filing of a complaint against the respondent. However, Solverson testified that she did not call Crook herself because she understood they needed to go through Novacheck. Crook had been reporting to Novacheck in the absence of a Personnel Coordinator. It was not unreasonable for Solverson to have questioned Crook's responsibility for the inaccuracies in the ad since it had been Crook's responsibility to run an ad for the Personnel Coordinator position.

Crook asserts that she was criticized for the language she used in the preparation of agendas for closed sessions, even though that particular language had always been used in the past and had been approved by the Attorney General. At the center of this matter was the question of whether something more than a citation to the applicable statutory section of the open meetings law was required when the committee goes into closed session. In August 1999, in response to an inquiry on this question by Beth Hemmersbach, an assistant attorney general did state that in his opinion the open meetings law "does not require" a more detailed notice of closed sessions than the committee was providing. However, Solverson (as well as Personnel Committee member Melanie Role) preferred to see more specificity in the agenda notice so that the committee members and the public at least had enough information to reasonably know the nature of the matter to be discussed. Solverson (and Role) held this view before ever receiving Crook's discrimination complaint. While the assistant attorney general's opinion supported the limited language used by Crook in agendas for closed sessions, there is no reason to believe that Crook was being criticized because she had filed a complaint of discrimination. The assistant attorney general's opinion did not state that more information could not or should not be provided in the agenda notices for closed sessions. Solverson (and Role's) preference that more information be provided in the agenda notices for closed sessions was not unreasonable.

Crook argues that Solverson was the primary individual that engaged in the retaliatory treatment against her, but that Lenz and Role had also engaged in retaliatory treatment against her.

Crook asserts that Melanie Role retaliated against her by criticizing her for utilization of the County's labor counsel and an on-call secretary. With respect to the on-call secretary, Crook asserts that the Personnel Committee had approved her use of the secretary beyond a family medical leave she had taken from January 24, 2000, through February 4, 2000, and that she kept usage of the secretary to a minimum of approximately five hours per week after February 4. Further, Crook notes that although Role testified she had no objection to her utilization of an on-call secretary while on medical leave, Role had completely voted against any usage of an on-call secretary as shown in the January 21 minutes. Crook argues that Role was closely aligned with Solverson and utilized her position on the Personnel Committee "to carry out Solverson's vendetta against (her) and harassed and retaliated against her following the filing of (her) complaint."

While Crook maintains that the Personnel Committee had approved her use of the on-call secretary after February 4 at a committee meeting and that this was in the minutes of that meeting, Crook was never able to point to any such approval in the Personnel Committee minutes. In fact, the minutes for the January 13 committee meeting shows Crook recommending an on-call secretary for the Personnel Department "during the period of her absence from January 24 through February 4." Also, the January 21 committee minutes shows that when Chairman Novacheck introduced Betty Moffitt to the committee as the on-call secretary, Novacheck stated that Moffitt "will be acting as the on-call secretary in the Personnel Department while Crook is on Family Medical Leave." Further, Crook's argument about Role having voted against any usage of an on-call secretary ignores the fact that Role believed that the County Clerk, as the Administrative Coordinator, should have assumed the functions of the Personnel Department until a new Personnel Coordinator was hired. Finally, although Role may have been aligned with Solverson on a number of issues it was not established that they were carrying out a vendetta against Crook in retaliation for filing a complaint against the respondent.

With respect to Role's criticism of overuse of the County's labor counsel, Crook concedes that Role had complained about labor counsel expenses before she filed a complaint against the respondent when Hemmersbach was the Personnel Coordinator. Crook contends, however, that Role, by her own admission, had no idea what was going on in the Personnel Department after Hemmersbach's resignation and therefore Role's criticism regarding her use of the labor counsel was unfounded and retaliatory. The evidence does not suggest that Role's criticism was in retaliation to Crook's filing of a complaint. During Hemmersbach's employment Role had learned from a sampling of other counties in the state that other counties were utilizing labor counsel from two up to twelve times per year; however, Hemmersbach was utilizing labor counsel more than that. Crook admits to utilizing the respondent's labor counsel for everything that Hemmersbach did. Given Role's long-standing objection to labor counsel costs prior to Crook having filed a complaint, there is little reason to believe that Role's complaint about her use of the labor counsel was more likely a result of her complaint rather than a genuine concern for holding down County costs.

With respect to her claim that her requests for a wage increase was denied, Crook argues that although personnel committee members Richard Lenz and Role indicated that they "didn't expect" Crook to perform the job duties of the Personnel Coordinator, there was a five month time period involved where many emergencies and items of concern had to be handled by someone, and the Personnel Committee had no contingency plan to help her with those duties. Crook argues that Lenz and Role retaliated against her by denying her any type of additional compensation for the work she was doing over and above her job description because they had no idea of what was going on in the Personnel Department. The minutes of the Personnel Committee meetings on February 10, March 10 and April 6, 2000, as well as the hearing testimony show, however, that Lenz and Role voted to deny Crook additional compensation because they were concerned about the precedent that would be set by giving Crook additional compensation. In the past, other County employees had frequently filled in to perform the duties of a vacant position in addition to their own without additional compensation. By providing Crook additional compensation this would set a precedent for providing such employees additional compensation under these circumstances. The only exception to this practice occurred when the County Human Services Board decided to compensate a supervisor for performing the duties of a vacant subordinate position in addition to her own caseload and supervisory duties. The circumstances involved in that situation, however, were the following: The duties of the vacant position involved the need to complete certain reports in order to preclude the County from losing a great deal of state and federal funding; and in performing the additional duties of the vacant job the supervisor had lost approximately $6,000.00 in vacation and comp time benefits. Carryover of the supervisor's vacation time had been denied and her comp time was lost because it had not been used within 60 days. Crook did not establish that she had lost vacation and comp time benefits.

Crook argues that in dismissing her retaliation complaint, the ALJ totally ignored relevant evidence from her supervisor, Novacheck. For example, Crook cites testimony by Novacheck that in his opinion Solverson had obstructed the process for hiring a new personnel coordinator, testimony that Solverson had laid blame to her regarding placement of the ad for the personnel coordinator position, testimony that Solverson was critical of her regarding the confidentiality issue, which he considered to be retaliatory because she filed a complaint, and Novacheck's testimony that in his opinion, due to "outbursts" by Solverson against Crook the situation continued to deteriorate right up until she left.

The evidence regarding Crook's claims that Solverson obstructed the process of hiring a new personnel coordinator, blamed Crook for the problem with the ad for the personnel coordinator position and was critical of Crook regarding the confidentiality issue has been discussed above. Assuming for purposes of argument that there were "outbursts" by Solverson against Crook, the record does not provide persuasive evidence that this was because Crook had filed a complaint against the respondent. Novacheck himself asserted that there was "lots of harassment" by Solverson before January 2000 (when the respondent received Crook's complaint). Novacheck included Solverson's campaign promise to eliminate Crook's position as part of this harassment. Furthermore, while asserting that there was contentiousness on the part of the committee with respect to just about everything that involved Crook, Novacheck admitted that he thought a lot of this had to do with the election resulting in Novy being out and Solverson being in as County Clerk.

In order to show unlawful retaliation under the Act, the employee must show that he or she engaged in protected activity, was subjected to adverse employment decisions, and that there was a causal connection between the two facts. Kannenberg v. LIRC, 213 Wis. 2d 373, 571 N.W.2d 165 (Ct. App. 1997). However, Crook has failed to present sufficient evidence to establish a causal connection between her filing of a discrimination complaint and the actions she asserts were taken against her by the respondent. To the extent Crook may have encountered difficulties with Solverson and others she believed were aligned with Solverson, the record strongly suggests that the difficulties she encountered were more likely politically motivated rather than motivated by the fact that she had filed a complaint of discrimination against the respondent.

Accordingly, the commission has affirmed the decision of the administrative law judge.

cc: 
Attorney William P. Skemp
Attorney Lisa M. Bergersen

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(1)( Back ) Crook's other case pending before the commission, ERD Case No. CR200100052, a second complaint of retaliation filed by Crook, is addressed in a separate commission decision. 

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