VALENTINA J FROH, Complainant
BRIGGS & STRATTON CORPORATION, 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, except that it makes the following modifications:
The FINDINGS OF FACT, CONCLUSIONS OF LAW, and MEMORANDUM OPINION sections are deleted and the following substituted, for purposes of clarification and correction. The commission did not overturn any of the administrative law judge's credibility determinations in making these modifications.
2. On January 23, 2001, Froh filed an age discrimination complaint with the Equal Rights Division against Briggs & Stratton. Complainant's foreman Dave Piel and supervisor John Fischer, the alleged retaliators here, had no reason to be aware of this complaint prior to Froh's separation from employment.
3. Froh requested and was granted permission to take vacation beginning at 2:00 p.m. on January 26, 2001. Some time after Froh left the work site, a less senior employee was offered and accepted overtime hours for that day. When Froh later confronted Fischer about his failure to offer these hours to her, he stated that he had first learned overtime was available after she had already left the work site on January 26. Froh was offered overtime hours before and after January 23, 2001.
4. Some time during the period March 12-16, 2001, when Froh objected to striking certain parts she was working on to break off burrs, Fischer, in a loud tone of voice, stated, "Hit them out. It's your job." When Froh asked Fischer why he seemed to get upset with her when she asked to get her machine repaired, he told her that she asked "such stupid questions."
5. On February 8, 2001, Froh was directed by Piel and Fischer, as a result of their perception that she had been taking extended restroom breaks, to seek and receive supervisory approval before taking such breaks.
6. Prior to April 4, 2001, other workers had complained to management that Froh was not in her assigned area when she was supposed to be working.
7. Froh was directed to attend a meeting with management on April 4, 2001. At this meeting, Piel stated that Froh took extended lunch breaks, was not in her area when she was supposed to be working, and talked on the phone too long, and he intended to issue her a verbal warning as a result. Froh denied these accusations, and accused Piel of harassment for making them.
8. Mike Merrill, Froh's union grievance representative, who was present at the April 4 meeting, investigated Piel's accusations. He discovered that Piel had inaccurately cited a date Froh had been on leave as a date she had been observed away from her work area. The verbal warning was not issued as a result. Merrill also concluded from his investigation that Froh had not been singled out by Piel, and that other workers had observed her away from her work area at times she was supposed to be working.
9. During times when the machine she was operating was down for repairs, Froh frequently left her work area, even though it was not during an authorized break time, and could not be located for 10 to 30 minutes after her machine was repaired and ready to be operated.
10. On February 8 and February 23, 2001, Froh was told not to punch out when she attended meetings with management. On April 4, 2001, Froh was told to punch out when she attended a meeting with management. Both practices are routinely followed by Briggs & Stratton and neither has an impact on employee wages.
11. On April 5, 2001, Piel directed Froh to take over Janowski's job, in order for Janowski to attend to a union matter relating to Froh, without permitting Froh to punch in on Janowski's line or punch out on her own. Piel told Froh he would take care of changing the production record but did not do so.
12. On or around April 6, 2001, the chip-flushing rinse was not working properly in regard to the tapping job on which Froh was working. In June of 2001, Froh was assigned to lift 20-pound cast iron cylinders while deburring them and blowing the chips off with compressed air. Neither of these exposed Froh to any hazard.
13. Although Froh was a careful worker, not all of the quality concerns she raised were legitimate. Some of her co-workers believed she was a "nitpicker" in this regard.
14. Prior to August 7, 2001, when her supervisors did not agree with her in regard to certain quality concerns she raised, Froh would on occasion go over their heads to bring her concerns to the attention of a quality assurance analyst. On August 7, 2001, Fischer indicated that he would issue a warning to her if this practice continued, and Piel directed her to cease taking her concerns directly to a quality assurance analyst but instead to address such concerns through her supervisory chain of command. This directive was consistent with Briggs & Stratton policy. The chief quality assurance analyst to whom Froh took her concern on August 7, 2001, opined that the product could satisfy quality standards.
15. Some time after January 23, 2001, Froh was directed by her supervisors to leave the work site immediately after the end of her shift, instead of "loitering" in the break room. It had been Froh's occasional practice to punch out but stay at the work site and have a cup of coffee in the break room.
16. Froh's down time on her machine was not always accurately recorded on Briggs & Stratton's "data highway" due to computer problems. Neither Piel nor Fischer was responsible for computer repair. This occurred before and after January 23, 2001. Fischer tried to correct Froh's data highway record when an inaccuracy occurred.
16. On September 27, 2001, Froh informed Briggs & Stratton that she was retiring. When she advised the appropriate individual of her intent to do so, she told him that, if he were too busy at the time, she could come back to complete her retirement paperwork in six months or a year.
17. At hearing, Froh testified that the fact that Froh bumped another employee from a position in the M3 department in October of 2000 was "about the only reason" Briggs & Stratton took the actions at issue here.
18. During the last months of Froh's employment, some of her co-workers also believed that they were being "pushed around" by Briggs & Stratton management.
19. Froh believed that she was harassed by Piel and Fischer before and after January 23, 2001.
2. Complainant has the burden to prove that probable cause exists to believe that she was retaliated against for engaging in a protected fair employment activity in regard to harassment, terms and conditions of employment, and discharge, as alleged.
3. Complainant has failed to sustain this burden.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed September 29, 2004
frohval . rmd : 115 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
Complainant's terms and conditions allegations include the following:
1. On January 26, 2001, complainant was denied overtime hours to which she was entitled due to her seniority.
2. On February 8, February 23, and April 4, 2001, complainant suffered a loss of wages when she was not paid for attending meetings with management.
3. Respondent intentionally shorted complainant's down-time record and then falsely accused her of being unproductive.
4. During a meeting with management on February 8, 2001, respondent required that complainant receive permission from a supervisor before using the restroom.
5. On April 4, 2001, complainant was issued a verbal warning for wrongful extension of her break times, wandering around the plant during work time, and lack of productivity.
6. On April 5, 2001, respondent, through Piel, ordered complainant to go to another line that was not her regular job without punching in on that line, and then claimed that she was being unproductive.
7. On and before April 6, 2001, respondent, through Fischer and Piel, forced complainant to work under unsafe conditions, resulting in her injury, by requiring her to run a tapping job without having the chip-flushing rinse working properly.
8. On June 7, 8, and 11, 2001, respondent, through Fischer, put complainant at risk by ordering her to engage in an unsafe practice of having to lift some 25 heavy cast iron cylinders while hand-deburring them and blowing the chips off with compressed air, resulting in an injury which she reported to respondent on June 13, 2001.
9. On August 7, 2001, respondent, through Fischer, threatened to issue a warning to complainant because she raised a quality concern, and Piel ordered her to never leave her department again to go to the quality assurance department.
10. Complainant was ordered to leave the plant immediately after the end of her shift, which prevented her from conducting business, such as that relating to personnel and insurance issues, with any other departments.
Complainant's harassment allegations include the following:
11. On January 26, 2001, respondent, through Piel, harassed complainant by stopping at her work station and glaring at her at 1:28 p.m., 1:35 p.m., and 1:47 p.m.
12. On at least one occasion, respondent, through Fischer, verbally abused complainant when she objected to striking parts to break off burrs by stating, "Hit them off. It's your job." in a loud tone of voice.
13. From March 19 through March 30, 2001, respondent, through Piel, would spy at complainant from around corners and parts bins until she would notice him and he would then steal away.
14. On April 25, 2001, respondent, through Piel and Schuettpelz, harassed complainant by glaring at her for about 16 minutes while the line she was working on was down.
15. On June 19, 2001, respondent, through supervisors Schuettpelz and Kaminski harassed complainant by glaring at her for about 10 full minutes while she made a phone call during her break.
16. On June 25, 2001, respondent, through Piel, harassed complainant by glaring at her while waiting for her to enter and exit the restroom; and, through Kaminski, harassed complainant by approaching her machine and checking her stock bin before reporting to Piel that she left her work with unfinished stock during her 4-minute visit to the restroom.
17. On August 7, 2001, respondent, through Fischer and Piel, verbally abused complainant and shouted at her for raising a quality concern about some drilling operations.
In a retaliation case under the Wisconsin Fair Employment Act (WFEA) like this one, the employer's motivation is the ultimate issue. Callaway v. Madison Metro. School District, ERD Case No. 9101304 (LIRC, Nov. 27, 1996). In order to establish a prima facie case of retaliation, the employee must show (1) that she opposed an unlawful employment practice, (2) that she suffered an adverse employment action, and (3) that there was a causal connection between the opposition and the adverse action. Sarazin v. W & G Transport, ERD Case No. 199601006 (LIRC, March 9, 1999). The employer can rebut the prima facie case by showing a legitimate non-retaliatory reason for the adverse action, and the employee can prevail by showing that the proffered reason is merely a pretext for retaliatory conduct. Acharya v. Carroll, 152 Wis.2d 330, 448 N.W.2d 275 (Ct. App. 1989).
Complainant claims as her protected fair employment activity the age discrimination complaint she filed with the Equal Rights Division on January 23, 2001. Her filing of this complaint establishes the first element of a prima facie case of retaliation.
As her adverse employment actions, the complaint cites the incidents of alleged harassment and less favorable treatment as to terms and conditions of employment listed above, as well as her alleged constructive discharge. Assuming for purposes of analysis that these constitute cognizable adverse employment actions (1), the inquiry shifts to the third element of a prima facie case of retaliation, i.e., whether a causal connection was established.
In order to establish such a connection, it must be shown that the alleged retaliator was aware, or had reason to be aware, of the complainant's protected fair employment activity. Here, the complainant failed to show that Fischer or Piel, the alleged retaliators, would have had any reason to be aware of her age discrimination complaint prior to the date of her separation. In her hearing testimony, complainant posits that Fischer and Piel discussed her employment with Michael Merrill, her union grievance representative who was aware of the complaint, and Merrill could have mentioned the complaint to Fischer and Piel during these discussions. This is entirely speculative. In addition, complainant, who was represented by counsel at the hearing, called Merrill as a witness but did not ask him whether he had ever discussed the age discrimination complaint with Fischer or Piel.
It should also be noted in this regard that the complainant herself, in her testimony, did not attribute her allegedly retaliatory treatment by the respondent to her filing of the age discrimination complaint, i.e., did not draw a connection between her protected activity and the alleged retaliation. When asked to what she attributed the respondent's allegedly retaliatory actions, she mentioned only her bumping of another employee from a position in the M3 department in October of 2000 due to her greater seniority, and stated this was "about the only reason" the subject actions were taken.
The commission concludes as a result that the complainant failed to establish a prima facie case of retaliation and her complaint should be dismissed as a result.
However, even if the complainant had succeeded in establishing a prima facie case, the record does not support a conclusion that retaliation occurred as alleged.
In regard to the incidents of alleged harassment (allegations 11-17 listed above), the only one established by, or even detailed in, the evidence of record is allegation 12., i.e., that, on at least one occasion, Fischer told complainant, when she objected to striking parts to break off burrs, "Hit them off. It's your job." This incident, standing alone, would not be sufficiently severe or pervasive to constitute actionable harassment.
The commission also concludes that the complainant failed to show that her foreman or supervisor would have had any reason to be aware that she was still at work on January 26, 2001, when the overtime opportunity became available (allegation 1.); that she suffered any loss of wages when she attended meetings with management (allegation 2.); that her supervisors intentionally shorted her down time record (allegation 3.); that respondent was not reasonably justified in monitoring and controlling the amount of time complainant spent away from her work area (allegation 4.); that she was issued a verbal warning or any other discipline during the relevant time period (allegation 5.); that respondent ever raised a productivity concern specifically relating to her performance of Janowski's job duties on April 5, 2001 (allegation 6.); that she was ever exposed to hazardous working conditions (allegations 7. and 8.); and that the respondent was not reasonably justified in requiring complainant to go through her supervisory chain of command when raising a quality concern (allegation 9.).
Finally, the complainant failed to show that she was constructively discharged. To find a constructive discharge it must be established that, for a retaliatory reason, working conditions are rendered so difficult or unpleasant that a reasonable person would feel compelled to resign. See, Waedekin v. Marquette University, (LIRC, March 5, 1991), citing Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 22 FEP Cases 1191 (5th Cir. 1980); Dingeldein v. Village of Cecil, ERD Case No. 199503536 (LIRC May 8, 1997), citing Bartman v. Allis Chalmers Corporation, 799 F.2d 311 (7th Cir. 1986); Cole v. Northland College, ERD Case No. 199802086 (LIRC March 19, 2001). Even if the complainant had succeeded in proving that Piel or Fischer were motivated to retaliate against her, the only acts of harassment or less favorable treatment which she proved occurred as alleged and without reasonable justification, i.e., allegations 10. and 12., above, would not have rendered her working conditions so difficult or unpleasant that a reasonable person would have felt compelled to resign.
In her appeal to the commission, the complainant raises issues of race, age, and disability discrimination. These issues are, however, not before the commission. It should be noted that the complainant was represented by counsel at the time that her request to amend her complaint was filed and granted, but failed to request at that or any other time that her complaint be amended to include these additional bases.
In her appeal, the complainant asserts, at least by implication, that she was not permitted to complete her case in chief by the administrative law judge. However, the complainant was represented by counsel at the probable cause hearing before the administrative law judge and there is no indication in the record that, at the time the respondent offered its motion to dismiss, the complainant intended to call further witnesses or offer additional exhibits. Neither the complainant nor her counsel asserted that such a motion was premature because the complainant's case in chief had not yet been completed. The commission finds no basis in the record upon which to conclude that the complainant was not provided full and fair opportunity to present her case at hearing.
Finally, the commission notes that the complainant offered facts not of record in her appeal and supporting argument. The complainant was represented by counsel before and during the probable cause hearing and was provided full and fair opportunity to present her case. She has provided no persuasive reason for permitting further hearing on the issue of probable cause. The commission has, as a result, considered only the evidence of record in reaching its decision here. See, Butler v. City of Madison, ERD Case No. 199704815 (LIRC Nov. 27, 2000).
cc: Attorney Emery K. Harlan
Appealed to Circuit Court. Affirmed February 14, 2005.
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