CHERYL VICK, Complainant

MARSHFIELD DOOR SYSTEM, 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 January 31, 2007
vickche . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The complainant alleges here that probable cause exists to believe that she was treated less favorably than similarly situated employees based on her age and sex.

Wisconsin courts, in the absence of the Fair Employment Act's (WFEA) establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, such as that advanced here, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985); Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003). As stated by the court in Puetz:

McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).

In general, to establish a prima facie case of discrimination, a complainant must show that she was a member of the protected group, and that the relevant circumstances create an inference of discrimination, i.e., that others not in the protected group were treated more favorably.

The commission notes that the probable cause standard of proof was applied in the analysis below.

Failure to promote/transfer

The complainant alleges that she was discriminated against based on her age and sex when she was not promoted to the Components Buyer position in March of 2004.

The complainant failed to prove age discrimination in regard to this allegation. Although his precise age is not a matter of record, the resume (respondent's exhibit #13) of Jack Lukasik, the successful applicant for this position, indicates that he served as the financial controller for a business beginning in 1970. It is reasonable to conclude, as a result, that he is necessarily older than the complainant who was born in 1956, just fourteen years earlier.

The respondent explains that Lukasik was selected for this position because he was better qualified than the complainant. This reason is legitimate and non-discriminatory.

The burden then shifts to the complainant to demonstrate that the reason offered by the respondent is a pretext for sex discrimination. The complainant did not sustain this burden. The complainant contends in this regard that she was actually better qualified for the Components Buyer position because she had more experience than Lukasik "in the mill." However, the record shows that the respondent's primary selection criterion for this position was training and experience in purchasing. This criterion was reasonable given the duties and responsibilities of a Components Buyer. The record further shows that Lukasik had many years of professional-level training and experience in purchasing, and that this training and experience better satisfied the respondent's reasonable selection criteria than the sales and mill experience of the complainant.

The complainant also alleges that she was discriminated against based on her age and sex when she was denied transfers to other positions.

The complainant contends that she requested transfer in general terms to her superiors, and, although she was not placed in another position, other workers were. The complainant describes only two transfers of other workers with sufficient specificity to permit a meaningful analysis.

The first relates to coworker Scott Wucherpfennig's appointment to another position. The complainant failed to prove age discrimination in this regard because Wucherpfennig's age is not a matter of record.

The respondent explains that a position was not created for Wucherpfennig, but, instead, he applied and competed for a vacant position, consistent with the respondent's recruitment and selection policies. This explanation is legitimate and non-discriminatory.

The complainant failed to show pretext in this regard, i.e., she failed to show that the respondent created a position for Wucherpfennig, that respondent did not follow its recruitment and selection policies in placing Wucherpfennig in this vacant position, that there were vacant positions for which the complainant was eligible but was not permitted to apply, or that the respondent failed to follow its policies when the complainant applied for vacant positions.

The complainant also cites the respondent's movement of coworker Lori Perkins, at her request, to a different "pod." However, the complainant failed to prove sex discrimination in this regard because Perkins is female; and failed to prove age discrimination because Perkins' age is not a matter of record. Although the complainant asserts in her brief that, after the hearing, she learned Perkins' age, this extra-record information may not be considered by the commission in reaching its decision.

Reorganization/early retirement

The complainant alleges that she was discriminated against on the basis of age when she, and others over the age of 40, were offered an early retirement opportunity by the respondent in February of 2004.

However, the offer of an early retirement opportunity alone, without, for example, evidence that workers were pressured to accept it, does not constitute age discrimination. Here, the record does not show, nor does the complainant appear to allege, that she was so pressured. The complainant does, however, imply in her testimony, making reference to complainant's exhibit #3, that she did request early retirement but that this request was not acted upon by the respondent. However, this exhibit is the complainant's application for the Components Buyer position discussed above, not an application for early retirement, and there is no other evidence in the record which would support a finding that the complainant completed and submitted an application for early retirement.

The complainant also contends that she was the victim of sex and age discrimination when the respondent reorganized part of its workforce in March of 2004, and did not place her in an internal sales position as a part of this reorganization.

However, the complainant failed to prove that she was discriminated against in this regard.

First, she failed to show that she suffered an adverse employment action, i.e., she failed to show that she requested placement in a particular position or classification, or that the consultant position in which she was placed was less desirable than others for which she was qualified, including the new internal sales positions. The record shows that the complainant's new consultant position was at the same level and pay as her previous position and as the internal sales positions created as part of the reorganization, and actually involved higher level responsibilities than the internal sales positions.

The record also shows that females over the age of 40 were placed in the new internal sales positions, which complainant now claims she considers more desirable, which tends to dispel any inference that age or sex played a role in such placements.

In addition, the complainant has failed to show that this reorganization affected males and females, or those older than 40 and younger than 40, differently.

Finally, the complainant also argues that she was discriminated against on the basis of age and sex when she was assigned to a pod which carried a larger share of the workload than other pods. However, the record shows that the complainant was assigned to a pod to which a male worker younger than 40 (Steve Nigon) was also assigned. Again, this fact tends to dispel any inference that the respondent was motivated by either age or sex discrimination in assembling this pod.

Discipline

During the last fourteen months of her employment, the complainant was issued two verbal warnings (May and June of 2003), a written warning (July 2003), and a two-day disciplinary suspension (December 2003).

The complainant failed to establish a prima facie case of age or sex discrimination in regard to any of these actions because she failed to show that male employees or employees younger than 40, who had engaged in similar actions, were not disciplined.

Even if the complainant had succeeded in establishing prima facie cases of age or sex discrimination in regard to any of these actions, the respondent offered legitimate, non-discriminatory reasons for its discipline of the complainant, and the complainant failed to show that such reasons were pretextual.

In regard to the May 2003 warning, the record shows that the complainant reacted with anger and resistance to her supervisor's attempt to counsel her and to present a list of future performance expectations, and the supervisor's resulting warning was reasonably justified as a result.

In June of 2003, almost immediately after receiving an email, and participating in a meeting, in which internal sales staff were directed not to contact supervisors in the mill asking for updates on the status of their orders, the complainant did just that. The complainant argues that the fact that Andy Konrardy engaged in a similar action but was not disciplined establishes pretext. However, the record shows that Konrardy was also female and also older than 40, so any difference in treatment would not be attributable to either age or sex. Moreover, the record shows that Konrardy did not in fact contact a supervisor in the mill with her request for an update but instead the individual in scheduling (Dave Happe) the internal sales staff had been directed to contact.

In July of 2005, after being told she was not permitted to accommodate a customer's request that certain molding be mitered, the complainant arranged for this mitering to be done and the order expedited. Although the complainant contends that her actions were appropriate because a production worker told her he had time to do the mitering, the record does not show that the complainant would have been reasonably justified in going forward based upon the willingness of a production worker to do the job after she had been told by those responsible for the order change process not to do so.

The complainant argues that her supervisor's reliance upon Judy Krohn's report of this incident, rather than upon the complainant's, establishes pretext. However, the complainant fails to show that such reliance was not reasonably justified, that Krohn had any reason to be motivated by the complainant's age or sex or to misrepresent the situation, or that Krohn's version of events was not factually accurate.

The administrative law judge found that, in December of 2003, the complainant expedited an order despite being told that this order was not to be expedited. The commission agrees with this finding.

The complainant again takes issue with her supervisor's reliance upon the report of another employee, Doug Mannigal, the Scheduling and Inventory Manager, as to the details of the incident, rather than the complainant. However, again, the complainant fails to show that such reliance was not reasonably justified, that Mannigal had any reason to be motivated by the complainant's age or sex or to misrepresent the situation, or that the version of events Mannigal presented to Price was not factually accurate.

The complainant further alleges, in general, in regard to her allegation that she was discriminated against on the basis of age and sex when discipline was imposed upon her by her supervisor, that other employees violated certain of the respondent's policies but were not disciplined. The complainant points specifically to coworker Konrardy's violation of the respondent's order expediting policy and vacation time slip policy. Konrardy, however, is a female over the age of 40, and, although this circumstance could establish that the complainant was treated differently than other employees, it would not establish that this difference in treatment was due to age or sex.

The complainant also established that certain employees had violated the respondent's vacation leave policy but were not disciplined. However, the record shows that those violating this policy were both male and female, and both younger than 40 and older than 40. As a result, again, although this could establish that the complainant was treated differently than other employees, it would not establish that this difference in treatment was due to age or sex.

Unfavorable performance evaluation/denial of pay increase

The complainant received an unfavorable performance evaluation in November of 2003.

The record fails to show a prima facie case of sex or age discrimination in this regard. First of all, the complainant failed to show that any employee with a disciplinary record comparable to the complainant's, i.e., two verbal warnings and a written warning within the previous six months, had received a favorable evaluation. In addition, one of the other three individuals who received an unfavorable evaluation at this time was a male younger than 40. These circumstances do not create an inference of sex or age discrimination.

Even if they did, however, the complainant has failed to show that the legitimate, non-discriminatory reason offered by the respondent for her evaluation, i.e., that the complainant's work performance was unsatisfactory, was pretextual.

The complainant attributes her disciplinary record as well as her unfavorable evaluation to a "personality conflict" with Price, her supervisor. However, a clash of personalities alone, without some evidence that such conflict is based on a discriminatory animus, does not support the complainant's allegation that she was the victim of age or sex discrimination in this regard.

The complainant further alleges that Price discriminated against her on the basis of age and sex when he denied her a pay increase in May 2004. The explanation offered by the respondent for this denial, i.e., the complainant's recent disciplinary history and resulting unfavorable performance evaluation, is legitimate and non-discriminatory. The complainant, who failed to show, as discussed above, that either her discipline or her evaluation were not merited by her actions; or to show that others with work records similar to hers were granted pay increases, failed to establish that the respondent's explanation for the denial was a pretext for age or sex discrimination.

Workload

The complainant alleges in this regard that respondent discriminated against her on the basis of age and sex when, in May of 2003, she was assigned another customer account even though she was already too busy.

However, the complainant failed to show that she was singled out for unfavorable treatment. Price credibly testified that this assignment was made to bring the complainant's workload into balance with that of others in her classification, i.e., complainant's orders at that time were in the $3.5 million range, while those of others were in the $7 to $12 million range. The complainant did not successfully rebut this testimony.

Discharge

It is undisputed that the complainant forwarded to a customer an internal company email which stated that this customer was "used to going to the top to get things done." In response, the customer indicated that he took "a little exception to Eric's comment below as the last time 'I went to the top' was December of 2003 and can't remember when previously before that, but it only occurs once or twice a year. I think that 2.5 million per year should afford me that privilege (LOL) [laugh out loud]."

Price, the complainant's supervisor, concerned about the impression this email had created, directed the complainant not to forward internal emails to customers in the future. The complainant, in two email responses to this directive, took issue with the directive, refused to acknowledge that the relationship with the customer could have been affected by the statement in the email, and implied that Price, rather than focusing on the exchange of emails, should instead be concerned about getting the customer's shipment out.

Price reasonably concluded from the complainant's response that she again was refusing to accept supervision or direction.

To establish a prima facie case of a discriminatory discharge, the complainant must show that: (1) she was a member of the protected group; (2) she was discharged; (3) she was qualified for the job, and (4) either she was replaced by someone not within the protected class or others not in the protected class were treated more favorably. Puetz, supra.

The complainant failed to establish a prima facie case because the record does not show that she was replaced by a male or a younger person, or that younger or male employees with work records comparable to hers were not discharged.

However, even if the complainant had established a prima facie case of age or sex discrimination, she failed to show that the legitimate, non-discriminatory reason offered by the respondent for her discharge, i.e., her unsatisfactory work record, was a pretext for discrimination.

Complainant argues that it was apparent to her, in view of her friendly and apparently casual relationship with the customer, that he was joking when he indicated he took exception to the email. However, given the totality of circumstances, Price was reasonably justified in trying to avoid any possibility of damaging relationships with this customer or any other customer by directing the complainant not to forward internal emails to customers in the future. Moreover, it was not the forwarding of the internal email per se which led to the complainant's discharge, but instead her failure to acknowledge a potential problem and to accept supervision. This, coupled with her earlier progressive discipline, provided ample and reasonable justification for her discharge.

The complainant argues that pretext is demonstrated by the fact that a coworker sent a casual email which included profanity to a customer but was not disciplined or discharged by the respondent. However, the complainant admits she would have no reason to know whether the coworker was disciplined for sending this email. Moreover, the record does not show that this coworker had resisted direction or supervision in regard to this email or otherwise, and the circumstances, as a result, are not substantially similar.

The complainant has failed to show probable cause to believe that she was discriminated against on the basis of age or sex as alleged.

Retaliation

The complainant alleges that she was retaliated against for engaging in a protected fair employment activity when she was discharged by the respondent.

Proof of retaliation is governed by the general framework for the analysis of discrimination claims as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 5 FEP Cases 965 (1973). Initially, the complainant must present prima facie proof of retaliation. To establish a prima facie case of retaliation, the complainant must show (1) that she engaged in statutorily protected activity; (2) that the respondent has taken an adverse employment action; and (3) that a causal connection exists between the two. Secondly, if a prima facie case has been established, the employer must then rebut the complainant's evidence with a legitimate, nondiscriminatory reason for its actions. Third, if the employer carries its burden of production, the complainant then must have an opportunity to show that the respondent's asserted reasons were in fact a pretext for retaliatory conduct. See, Frierson v. Ashea Industrial Systems, ERD Case No. 8752356 (LIRC April 6, 1990).

Although there was close proximity in time here between the complainant's protected fair employment activity, i.e., her complaint to the respondent's human resources unit that she was being discriminated against and harassed, and her discharge, the record does not show a causal connection between these events. The prior disciplinary actions, which provided the first four steps in the respondent's progressive discipline of the complainant, occurred prior to the complainant's protected activity and could not, as a result, have been causally connected to it; and, as discussed above, the complainant's discharge, the fifth and final step in the progressive discipline process, was reasonably justified by the complainant's work record, including, in primary part, her record of prior discipline.

The complainant has failed to prove that probable cause exists to believe that she was retaliated against for engaging in a protected fair employment activity when she was discharged by the respondent.

Sexual Harassment

Although the respondent argues that the complainant effectively withdrew her claim of sexual harassment, this is not apparent from the record.

However, the complainant did fail to prove her claim of sexual harassment.

None of the actions under consideration here have a sexual component within the meaning of Wis. Stat. § § 111.32(13) and 111.36(1)(b).

Moreover, the only actions which could arguably qualify as harassing in nature, rather than as discrete employment actions or terms and conditions of employment, were remarks in certain discussions and emails which the complainant considered "disparaging." However, the record does not show that these remarks were directed at the complainant, or, in fact, that certain of them even related to her, and, as a result, they would not constitute actionable sexual harassment within the meaning of Wis. Stat. § 111.36(1)(br). Moreover, even if these remarks had been directed at the complainant, they were clearly not sufficiently severe or pervasive to constitute actionable sexual harassment.

The complainant failed to sustain her burden to prove that probable cause exists to believe that she had been sexually harassed as alleged.

cc: Marie E. Nahn

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