CAREY M FLANAGAN, Complainant

WISCONSIN BISTROS/
LARSON MANAGEMENT, 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) that this complaint be dismissed is affirmed.

Dated and mailed November 4, 2004
flanaca . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Sexual Harassment

The Wisconsin Fair Employment Act prohibits an employer, in pertinent part, from:

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 employee, other than an employment decision that is disciplinary action against an employee 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 employee's work performance or of creating an intimidating, hostile or offensive work environment. Under this paragraph, substantial interference with an employee'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 employee 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).

A threshold question in the interpretation and application of this provision is whether the alleged harassment was carried out by the employer or an agent of the employer, or whether it was carried out by a co-worker.

The record shows that the alleged harasser, Loporchio, was not acting as an agent of the employer at the time of the alleged harassment because he had no supervisory authority over the complainant, i.e., he did not have the authority to effectively recommend her hire, promotion, transfer, discipline, or discharge, or to assign or direct her work activities. See, Crear v. LIRC, 114 Wis.2d 537, 339 N.W.2d 350 (Ct. App. 1983); Ferguson v. Buechel Stone Corp. ERD Case No. 199900706 (LIRC April 24, 2001).

Another threshold question is whether the allegedly harassing act was connected with the complainant's employment within the meaning of Wis. Stat. § 111.36(3), i.e., whether the act occurred while the complainant was "at his or her place of employment" or while the complainant was "performing duties related to his or her employment."

The record here shows that, although one allegedly harassing act occurred during the dinner hosted by the employer (Finding of Fact 7.), the several remaining acts, and those which the complainant characterizes as the more egregious, occurred after the dinner was concluded and the complainant, Loporchio, Dalzell, and Voelz decided to go to the bar together. The actions which occurred at the bar and later had only a tenuous connection, if any, to the complainant's performance of "duties related to.her employment."

Clearly, Loporchio's actions, which involved unwelcome sexual advances and unwelcome physical contact of a sexual nature, would satisfy the definition of sexual harassment within the meaning of Wis. Stat. § 111.32(13).

Assuming for purposes of analysis that a sufficient connection exists between the subject acts of sexual harassment and complainant's employment, since these acts were carried out by a co-worker, the respondent would only be liable if it knew or should have known about the harassment but failed to take adequate measures to prevent or eradicate it. Krienke v. Ramada Inn Conference Center, ERD Case No. CR200002246 (LIRC Oct. 29, 2002).

It is undisputed that the respondent knew of the acts of harassment soon after they occurred. The question then is whether the respondent's reaction to this knowledge was adequate.

An employer has fairly wide latitude to address allegations of sexual harassment as it sees fit, provided its actions are reasonably calculated to remedy the situation and prevent future harassment. Krienke, supra. Here, the respondent conducted an immediate investigation; warned Loporchio that his actions were unacceptable and would result in termination if they were repeated; and advised both Loporchio and the complainant that he was to have no contact with her unless she desired an apology from him. It should be noted in this regard that Loporchio's work site was 20 miles from complainant's, she had only seen him once prior to the incident at issue here, and there were simple mechanisms, e.g., assigning other workers to make contact when necessary between the two work sites, available to assure that Loporchio would have no contact with the complainant. Given the immediate investigation, that Loporchio was counseled and warned about his offending conduct, and that reasonable action was taken to assure that complainant would not come into contact with Loporchio in the future, the record supports a conclusion that the respondent's actions were reasonably calculated to remedy the situation and to prevent future harassment. Although complainant contends that Loporchio should have been terminated, a remedial action is not inadequate simply because it does not accord with the complainant's expectations or desires. Moreover, as the commission noted in Rusniak v. Fagan Chevrolet-Cadillac, ERD Case No. CR200000027 (LIRC May 23, 2002), an employer is not "expected to discharge every worker accused of sexual harassment in order avoid liability in the event that individual should ever engage in further acts of harassment." 
 

Separation from employment

The complainant was on paid leave until April 3, 2003, the date she had been directed to make arrangements to return to work. The complainant indicated to the respondent on April 3 that the circumstances of her return to work were in the hands of the attorneys, and did not report for work at or after that date. Counsel for the parties apparently did not discuss the complainant's return to work after May of 2002. Erickson, the director of operations of respondent's Milwaukee area restaurants, and complainant's second level supervisor, advised Dalzell, her immediate supervisor, in or around June or July of 2002, that complainant was getting a settlement and not coming back, and Dalzell filled complainant's position with a permanent hire as a result.

Complainant filed her charge of discrimination with ERD on June 19, 2002, possibly prior to the date that she learned her position had been filled by someone else, although that is not entirely clear from the record. In this complaint, she stated that she had been constructively discharged by the respondent when she received no pay after April 3, 2002, and, as a result, she had sought and obtained other employment.

The parties, in their post-hearings, devote significant effort to arguing whether the complainant's separation was a quit or a discharge. However, regardless of how the separation should be labeled, the commission agrees with the administrative law judge that it resulted from the complainant's unreasonable refusal to return to work, not from discrimination or retaliation. The respondent had implemented and communicated to the complainant its reasonable plan to remedy the harassment and to assure that it did not recur; but, despite this, the complainant failed to return to work. 
  

cc:
Attorney Larraine McNamara-McGraw
Attorney Angela Black

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uploaded 2004/11/29