MELISSA BEYERS, Complainant

MEDIQ PRN, Respondent A

MEDIQ PRN, Respondent B

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter dismissing the complainant's case at the close of her evidence, concluding that she had failed to establish probable cause to believe the respondent violated the Act by discharging her because she opposed a discriminatory practice under the Act. The complainant filed a timely petition for review.

Based upon its review of this matter, for reasons set forth in the Memorandum Opinion attached to this decision, the Labor and Industry Review Commission hereby issues the following:

The decision of the administrative law judge is set aside and this matter is remanded to the Division for further proceedings.

Dated and mailed June 27, 2005
beyerme . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The respondent moved for a dismissal of the complainant's case after the close of the complainant's evidence on her complaint allegation that she was discharged for opposing a discriminatory practice under the Act. The respondent argued that the issue was whether or not the six reasons listed on the complainant's termination notification were in some way related to the complainant's complaint of sexual harassment, or whether they stood on their own. The respondent argued that there is substantial evidence that it was the latter because Shannon Peronto (the complainant's "supervisor") admitted that Kowalski called and gave her instructions about virtually every item on the termination notification, about uniforms, the lunch issue, about confidentiality and about cleaning the machines, so warnings were given to the complainant about these items, and that the complainant admitted the same thing. The respondent argued that what Peronto did not know was about the complaints from customers, but her not having knowledge of this didn't mean that it didn't happen, it just means she couldn't testify either way about it. The respondent argued that what we have here are clear rules, clear warnings and a clear violation, and no evidence that there is any reason to disbelieve those violations.

In opposition to the motion, the complainant argued that there was no evidence in the record that the complainant committed any of the violations listed in the termination notification. The complainant argued that she has denied being out of uniform most of the times, as did Peronto, and that they in fact explained they were given an exception to be out of uniform to clean equipment. The complainant argued that there was no evidence that she was ever out of uniform, or that Kowalski relied on that as a basis for terminating her. The complainant argued that Peronto denied ever learning of any accounts complaining, and as the complainant's supervisor, that Peronto certainly would be in a position to know about her abusing lunchtime privileges. Further, the complainant argued that the only testimony in the record is that of her's and Peronto's that they were told to lessen the amount of time they were punched in due to claiming overtime, and that if they are on the clock all day the lunch time privileges are automatically deducted. The complainant argued that the very poor quality and consistency of work item was a generic, vague allegation with nothing in the record to substantiate it, and that Peronto has denied that she observed that. With respect to being constantly late for work, the complainant argued that the only evidence in the record is that she wasn't late for work and that she came in late per instructions to cut down on overtime. Further, the complainant argued that there was no evidence in the record that she abused confidentiality, that she denies ever breaching confidentiality and that her supervisor has denied it.

The ALJ orally granted the respondent's motion to dismiss at the hearing. In the memorandum opinion attached to his subsequent written decision dismissing the complainant's complaint, the ALJ stated that the case was dismissed at the close of the complainant's case "because the evidence she presented was not believable, the evidence did not show any change in how she was treated after her complaint, and she failed to show that the decision-maker knew of her complaint."

The ALJ stated that the first problem with the case presented by the complainant was that she testified that Peronto told her on a daily basis of Kowalski regularly criticizing her work, while Peronto testified that Kowalski never complained about the complainant, that his comments were about what the employees of the Appleton office needed to change. The ALJ then went on to state:

Ms. Peronto was a more credible witness, but neither statement is believable given the current record, since Ms. Peronto's testimony conflicts not only with Ms. Beyers' testimony, but also with the (sic) Mr. Kowalski's memos. Since neither witness presented by Ms. Beyers was believable on this critical point, Ms. Beyers' evidence cannot be considered believable on any issue in dispute. However, the same decision would have been reached with any credibility assessment.

Next, the ALJ stated that the complainant disputed the basis for her discharge; however, the presence of memos dated June 13 and July 9, 2001, regarding allegations similar to those in the discharge records indicates that Kowalski had many of the concerns that he claims to have resulted in the discharge prior to the complaint. The ALJ stated:

Ms. Beyers did not present evidence to show that those memos were not written on or about the date given, so those dates must be accepted. The case presented by Ms. Beyers, then, showed no retaliation for complaint (sic) about sexual harassment. Rather, it showed that she had disagreements with Mr. Kowalski, and that those disagreements existed before and after Ms. Beyers' complaint.

Finally, the ALJ noted that both the complainant and Peronto testified that Kowalski told them the decision to discharge the complainant was made by Hopkins, and carried out by Kowalski. The ALJ then stated:

The discovery answer to the question of who made the decision was "Tom Hopkins, Regional Vice President, along with Todd Kowalski." Ms. Peronto stated that Mr. Kowalski said the decision was from the "new V-P." Ms. Beyers failed to show that Mr. Hopkins knew of her complaint, or was even working for Mediq PRN when she filed [it was an oral complaint] her complaint. This combination of information, and lack of information, resulted in the conclusions first that she had failed to establish, even at the lower level of proof required in a probable cause hearing, that anyone other than Mr. Hopkins had actually made the discharge decision, and second, that Mr. Hopkins knew about Ms. Beyers (sic) complaint of sexual harassment.

While the ALJ questions the credibility of the complainant and Peronto because the complainant testified that Peronto told her that Kowalski was regularly criticizing her work while Peronto testified that Kowalski never complained about the complainant, that his comments were about what the employees in the Appleton office need to change, the commission finds it hard to discern any significant difference in the testimony of the complainant and Peronto. Up until the last two or three weeks before the complainant's employment was terminated, other than Peronto, the complainant was the only employee at the Appleton office. Surely Kowalski was not complaining about needed changes in the work performance of Ken Cychoz, a new hire that was still undergoing training. Furthermore, consistent with the complainant's testimony, Peronto did testify that there was an incident where Kowalski indicated the complainant had taken too long of a lunch, and that Kowalski had complained on one occasion that the complainant had pay stubs on her desk.

Regardless of the above, however, the record in this case is not one in which it was so clear the complainant could not prevail so as to justify not requiring the respondent to put on its case. The ALJ apparently concluded that because Kowalski's memos of June 13 and July 9, 2001, which preceded the complainant's complaint of alleged sexual harassment, contain allegations that are similar to those in the Preliminary Employment Termination Notification form, this showed that the same concerns had existed before the complainant's complaint of sexual harassment and thus her complaint of sexual harassment was not a reason for her termination. However, the only testimony in the record about the memos purportedly written by Kowalski was that Kowalski had not issued them any verbal warnings as asserted in those memos, that during the June 13 meeting Kowalski never criticized the complainant about her dress, lunch procedure, work or smoking in the office, that what he did say was that certain things needed to be changed, because they were trying to improve things, and Kowalski enumerated those things. Peronto testified that what Kowalski stated was that they needed to punch in and out for lunch, whereas their old manager had not asked them to do that, that Kowalski stated they needed to improve their cleaning of equipment and ordered them a lot of cleaning supplies they previously had not been furnished, and that when going out to make deliveries Kowalski wanted them to be in uniform, because before Kowalski came on board it was common place to see employees in their street clothes. With respect to the July 9 letter, the complainant testified that she had very few occasions to have face-to-face contacts with Mary Feldhausen, that maybe she had one, that she did not recall ever having an issue with Feldhausen in which she dealt with her face-to-face and that she was never counseled or reprimanded with respect to her dealings with Feldhausen.

Furthermore, the only testimony in the record regarding the Preliminary Employment Termination Notification form was that it had not been shown to the complainant nor had she signed it, and testimony that disputed the validity of the discharge reasons stated. With respect to being out of uniform, the complainant testified that there were never occasions when she would deliver stuff and not be in uniform. Peronto testified that she never had a problem with the complainant being out of uniform. Both the complainant and Peronto testified that Kowalski told them that they could wear street clothes when cleaning the equipment in the office so they would not dirty their uniforms for making deliveries later in the day. With respect to account complaints about her level of professionalism and tact, the complainant testified that she had very few occasions to have face-to-face contacts with Mary Feldhausen, that maybe she had one, that she did not recall ever having an issue with Feldhausen in which she dealt with her face-to-face and that she was never counseled or reprimanded with respect to her dealings with Feldhausen. Peronto testified that she had never received any complaints from the respondent's customers with respect to the complainant's attitude. With respect to abusing lunch time privileges, the complainant testified that they were informed to cut back on hours whenever possible (due to the amount of overtime they worked), and that if that meant taking a longer lunch they could do that if they were at the office. Also, the complainant testified that when making deliveries over the lunch hour she would just grab a bite to eat at a fast food restaurant and not be able to punch in and out for lunch. Further, the complainant testified that prior to her termination she had never been reprimanded for not punching out for lunchtime. Peronto testified that she did not have a problem with the complainant taking long lunches. Further, she testified that once you were on the clock for six or six and one-half hours, the time clock automatically deducted your lunch period for you. With respect to quality and consistency of work, the complainant testified that prior to her termination she was never counseled or reprimanded regarding the quality or consistency of her work, never given a verbal warning due to poor performance and that she had never received a performance evaluation while employed. Peronto testified that she never had any problems with the complainant's performance, that she thought the complainant did quite well. With respect to constantly being late for work, the complainant testified that while the typical hours of the Appleton office were 8 a.m. until 5 p.m., she did not start work every day at 8 a.m. because they were told to cut back on overtime hours by Kowalski, that they were to come into the office late when possible. Peronto testified that she had suggested to Kowalski that they come into work later than 8 a.m. in order to decrease the amount of overtime, because Kowalski had complained on numerous occasions about the amount of overtime they were getting, and that Kowalski told her that this was all right as long as the work they needed to get done, was done. As for being confidential with respect to pay, the complainant testified that one time she did bring her pay stub to Peronto's attention, that Peronto was busy at the moment and set it aside and told her she would look at it later. The complainant testified that she was never counseled or reprimanded about confidentiality regarding her pay and never received a verbal warning about asking people about what they were making. Peronto also testified that she never had any problems with the complainant in this regard.

In addition, the commission is not quite sure what to make of all the documents from the various individuals in the complainant's personnel file dated after the complainant's discharge. Some of those documents suggest they had been solicited as after-the-fact justification for the complainant's discharge.

Finally, while the ALJ acknowledges that the respondent's discovery answer to the question of who made the decision to terminate the complainant's employment was, "Tom Hopkins, along with Kowalski", the ALJ nevertheless concluded that the complainant failed to even establish the lower level required probable showing that anyone other than Hopkins had actually made the decision and that Hopkins knew about her complaint of sexual harassment. The ALJ cites Peronto's testimony that Kowalski said the decision was made by the "new V-P", and states that the complainant failed to show that Hopkins knew of her complaint, or was even working for the respondent when she filed her complaint. First of all, the evidence presented is contrary to the ALJ's conclusion that the complainant had not shown that anyone other than Hopkins had actually made the decision to terminate her employment. The respondent's response to the discovery question about who made the decision to terminate the complainant's employment itself states that Kowalski was involved in the decision. Furthermore, attached to the respondent's discovery response, Kowalski himself had signed a statement "verify[ing] that the statements contained in the foregoing Responses of Respondent to Complainant's First Set of Interrogatories are true and correct to the best of my knowledge, information and belief." Further yet, the complainant's Preliminary Employment Termination Notification has only Kowalski's signature, not that of Hopkins. Clearly, this is sufficient evidence to show that someone other than Hopkins had been involved in the decision to terminate the complainant's employment. Indeed, the fact that only Kowalski's signature appears on the Preliminary Employment Termination Notice form raises the specter that he may have actually been the only person involved in the decision to terminate the complainant's employment. Furthermore, even assuming that Hopkins along with Kowalski made the termination decision, the fact that Kowalski knew of the complainant's complaint of sexual harassment and was involved in the decision to terminate her employment, along with the testimony by both the complainant and Peronto disputing the validity of the purported June 13 and July memos by Kowalski as well as the stated reasons for the complainant's discharge, presents enough evidence, the commission believes, that the ALJ should not have granted the respondent's motion to dismiss and instead required the respondent to present its case by offering its explanation for the termination of the complainant's employment.

A prima facie case of retaliation may be established by showing: (1) that the complainant engaged in statutorily protected expression (i.e., the complainant opposed a practice made unlawful under the Act, or made a complaint under the Act); (2) that the complainant suffered an adverse action by the respondent; and (3) that there is a causal link between the protected expression and the adverse action. If the complainant establishes a prima facie case of retaliation, the respondent may rebut the prima facie case by articulating a legitimate, non-discriminatory reason for the adverse action. Finally, should the respondent meet its burden, the complainant then has the burden of proving that the respondent's proffered reasons are merely a pretext for discriminatory conduct. Sarazin v. W & G Transport (LIRC, 03/09/99), citing Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989); Roden v. Federal Express (LIRC, 6/30/93).

Further, the causal link between the protected expression and the adverse action required in order to establish a prima facie case of retaliation can be established by showing that the adverse employment action followed within a fairly short period of time after the protected opposition activity. Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93); Horton v. Hopkins Chemical Co. (LIRC, 06/08/92), aff'd., Dane Co. Cir. Ct., 04/28/93; Frierson v. Ashea Indus. Systems (LIRC, 04/06/90).

In the instant case, the evidence shows that the complainant complained of alleged sexual harassment by a co-worker on July 17, 2001, that she immediately reported this to the person considered to be her supervisor, Shannon Peronto, who reported it the next day to the respondent's branch manager, Todd Kowalski, and that the respondent terminated the complainant's employment just two months later for alleged unsatisfactory performance, a termination decision in which Kowalski had been involved. Moreover, in addition to the above, the only testimony that has been presented thus far disputes the validity of purported documentary claims about alleged unsatisfactory performance on the part of the complainant.

cc:
Attorney Eric J. Haag
Attorney Larry Besnoff

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