STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

GLORIA JEAN URBANEK, Complainant

ARROWHEAD REGIONAL DISTRIBUTORS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199600648, EEOC Case No. 26G960832

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:

Add the following at the end of Finding of Fact Number 5:

At no time during their relationship did Bergstedt put his arm around Complainant and say something to her about being his "sex slave" or "love slave." Bergstedt also did not put his money clip in a pocket and then hold his pocket out to Complainant and say, "Why don't you reach in my pocket for my money clip. You never know what you might find," although on one occasion when his hands were full, Bergstedt did ask the Complainant to reach into his jacket pocket to get the keys to his truck. Bergstedt addressed Complainant as "Gloria," and he did not address Complainant or refer to her with the terms "sweetheart" or "honey" or anything similar. Bergstedt also did not touch Complainant on the leg or put his arms around her.

Add the following at the end of Finding of Fact Number 10:

Bergstedt terminated his relationship with Complainant (and her husband) because of dissatisfaction with the quality of their work.

DECISION

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

Dated and mailed: September 19, 1997
urbangl.rmd : 110 :

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The parties in this case were involved in the business of distributing periodicals. Ken Bergstedt, the sole owner and operator of "Arrowhead Regional Distributors," had arrangements with publishers to distribute the periodicals they published. Gloria Jean Urbanek and her husband David Urbanek, who sometimes did business as "Urbanek Distributing," also engaged in the distribution of periodical publications. This case arises out of a relationship between Bergstedt and Gloria Urbanek (and her husband) involving the distribution of several newspapers.

The parties disputed whether their relationship was an employment relationship subject to the Wisconsin Fair Employment Act. The ALJ concluded that it was. The test used to decide the existence of a covered relationship under the WFEA is the one described in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979), which has been variously referred to as the "economic realities" test or the "hybrid test." Moore v. LIRC, 175 Wis. 2d 561, 568-71, 499 N.W.2d 289 (Ct. App. 1993). This test involves analysis of the "economic realities" of the work relationship and consideration of all of the circumstances surrounding the work relationship. This is an extremely fact-specific test. The issue of whether there is a covered employment relationship in this case is a close one. However, based on consideration of all of the particular facts concerning this relationship, the commission agrees with the Administrative Law Judge.

The Administrative Law Judge also found that Bergstedt had not engaged in any acts of discrimination against Complainant, and he dismissed the complaint on that basis. He explained that he did not find the Complainant's assertions of sexual harassment to be credible. The commission agrees with this decision, and includes this memorandum opinion to explain its agreement.

The commission found reason to doubt the Complainant's credibility as a general matter. She initially denied having ever been convicted of a crime, but then when faced with a copy of the record of it, she conceded that she had been convicted of one count of issuing a worthless check in violation of Wis. Stat. § 943.24. The commission does not credit her assertion, that she initially denied having ever been convicted of a crime because she was not aware of the fact that the offense was a "crime." Violation of Wis. Stat. § 943.24 is a Class A misdemeanor, and Complainant's testimony that she paid a "fine" upon her conviction for this offense, as well as the fact that the judgment of conviction referred specifically to "Section 943.24 of the Wisconsin Statutes," suggests that her conviction occurred on this basis, and not on the basis of a local ordinance. Furthermore, Complainant's subsequent assertion that she had initially denied having been convicted of a crime because she understood the question to be whether she had ever been convicted of a felony, is inconsistent with her earlier assertion that she was not aware of the fact that the offense of which she had been convicted was considered to be a "crime."

The commission also does not credit Complainant's assertion, that when she wrote the check in question she was not intending to defraud the person it was made out to, and that it was simply a matter of a misbalanced checkbook, that she didn't even know that a claim had been filed against her, and that "it was a default judgment." It is an element of the offense under Wis. Stat. § 943.24, that the person writing the check intends that it shall not be paid, and a conviction of that offense thus establishes that the person writing the check intended that it would not be paid. Furthermore, there is no such thing as a "default judgment" in a criminal proceeding.

The commission also found reason to doubt Complainant's credibility because of her inaccurate assertion (in the course of her attempts to explain her initial denial that she had ever been convicted of a crime), that she had never been arrested "for burglary or anything else." That was not true. As she eventually conceded, Complainant was once arrested (with her husband) for delivery of a controlled substance. While she initially tried to explain this situation as one in which her husband was arrested and she was just "with him" at the time, she eventually had to concede that "[she] was brought in when he was arrested," and that she was in fact charged in the matter (although not convicted).

Thus, Complainant inaccurately testified that she had never been convicted of a crime; and she inaccurately testified that she had never been arrested for anything else. These things inclined the commission to doubt Complainant's credibility as a witness. In addition, the evidence that she was convicted of a criminal offense involving dishonesty is significant to the issue of her credibility as a witness. (1)

Another factor which contributed to the commission's decision that the specific testimony of Complainant and her witnesses was not credible, was its internal contradictions. As the Administrative Law Judge noted, the testimony of Complainant contradicted that of one of her witnesses (Dahle) as to when certain incidents occurred. In addition, Complainant and her husband offered testimony on the question of whether Complainant's husband witnessed the supposed "pocket" incident, which was directly contradictory to the testimony of Dahle. Complainant's testimony also contradicted that of her husband on the question of whether this incident occurred before dinner, or after dinner when Complainant and Bergstedt were going to the bar to pay for dinner.

Complainant testified to a conversation with Bergstedt in August 1995 concerning the decision he had made to pull certain routes from her. According to Complainant, she asked, "Are there any other routes you're going to pull from me," and that Bergstedt answered, "That depends on what you can do for me." Complainant also testified to a conversation with Bergstedt sometime after the alleged "What can you do for me" statement, in which Bergstedt supposedly said to her, "I don't know how we can have a business relationship if we can't have a personal one."

These comments have no overt sexual content. Although they could be interpreted as being veiled references to the establishment of a sexual relationship, they could also be entirely unrelated to sexual issues, reflecting only a concern about a negative personal relationship interfering with the parties' ability to work together, and dissatisfaction with job performance. The only thing that would tend to make these statements seem to deal with a proposal for a sexual relationship, is other evidence of supposed sexual harassment. However, the other evidence offered by Complainant is not credible. These statements therefore are not viewed as significant.

The commission does not believe that there is any credible evidence that anything here occurred that constituted sexual harassment. Because of that, and also because of the general evidence bearing on Complainant's credibility, the commission does not believe that complainant engaged in any conduct that could be considered "opposition" to sexual harassment, which Bergstedt could have then retaliated against her because of. Complainant was asked at hearing if she had expressed her opposition to Bergstedt's (alleged) conduct, but she answered as if the question had been, whether she had ever encouraged that conduct. That is a different question. The allegation in Urbanek's complaint, that she "told [Bergstedt] on several occasions this is business only," was not supported by any testimony at the hearing. (2) In fact, Complainant offered no testimony whatsoever at hearing, that she ever told Bergstedt that anything he had done or said made her uncomfortable and she wanted him to stop. Apart from standing as evidence in itself, that Bergstedt had not in fact done so, this makes it difficult to conceive of a basis for sustaining the Complainant's theory of the case.

The commission is persuaded by all of the evidence, that the relationship between Bergstedt and Complainant involved neither sexual harassment nor expressions of opposition to perceived sexual harassment, and that Bergstedt eventually terminated the relationship for reasons that had nothing to do with these things or with Complainant's sex. For that reason, it has affirmed the Administrative Law Judge's decision.

NOTE: The commission had no disagreement with the material findings of fact made by the Administrative Law Judge. It has modified his findings of fact only to set forth more fully the reasons it arrived at the same result as the Administrative Law Judge.

cc: Jason W. Whitley, Attorney for Complainant
Teresa M. Elguezabal, Attorney for Respondent

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Footnotes:

(1)( Back ) Details of a prior conviction may be considered as evidence impeaching credibility where the probative value of the evidence is not outweighed by its danger of unfair prejudice. Wis. Stat. § 906.09. The commission considers that the probative value of this evidence outweighs concerns over unfair prejudice, because this evidence of an offense involving dishonesty is highly relevant to the issue of Complainant's truthfulness.

(2)( Back ) Another allegation made in the complaint, was that "[Bergstedt] had no reason to terminate me except for the fact `I was not willing to be friendly enough.'" The "I was not willing to be friendly enough" was enclosed in quotation marks in the complaint, as if to indicate that it was something that Bergstedt was supposed to have said. This implicit assertion was also not supported by any evidence at the hearing.