ROSINE BOCK, Complainant
SHOPKO STORES INC, 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 AU. Based on its review, the commission agrees with the decision of the AU, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications to more accurately reflect the evidence of record: (1)
Numbered paragraph 9 of the FINDINGS OF FACT section is modified to read as follows:
From October of 1997 through her termination in 2003, Bock reported to Don Kempen, the Divisional Replenishment Manager. Kempen gave Bock a favorable performance evaluation in May of 2002.
The first phrase of the first sentence in numbered paragraph 11 of the FINDINGS OF FACT section is modified to read as follows:
Some time in the late summer or early fall of 2002,
The first sentence of numbered paragraph 13 of the FINDINGS OF FACT section is modified to read as follows:
Bock's work relationship with Kempen deteriorated after May of 2002.
The following sentence is inserted before the final sentence in numbered paragraph 21 of the FINDINGS OF FACT section:
Kempen did not make the decision to relocate the work group's offices, or to locate his office adjacent to Bock's.
The second sentence of numbered paragraph 30 of the FINDINGS OF FACT section is modified to read as follows:
Bock admitted in this meeting that she was not paying as close attention to the Pampers account as she should have been and that the problems with this account were caused by her inattention.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed August 16, 2006
bockros . rmd : 115 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
Bock alleges that she was discriminated against based on sex and age in regard to certain terms and conditions of her employment, i.e., compensation, the relocation of her office next to Kempen's, Kempen's verbal abuse of her, and denial of access to certain social opportunities, including in particular office golf outings.
Bock, however, failed to show that her base pay or pay increases were less than those of similarly situated male/younger employees, i.e., those with similar seniority, work history, and position responsibilities. In addition, the record does not show that Kempen, the alleged discriminator, made the decision to relocate the work group or to locate Bock's office next to his.
The only competent testimony as to the alleged verbal abuse is that of Bock and Kempen. The ALJ, who had an opportunity to observe the testimony of witnesses, did not credit Bock's testimony in this regard, and the commission found no persuasive basis in the hearing record to overturn this credibility determination. It is also noted that, although Bock alleges the Kempen engaged in a pattern of yelling and swearing at her, she testified that the swearing actually consisted of his use of the phrase "God damn" once in conversation with her.
Finally, the record does not show that Kempen or anyone else discouraged Bock's participation, or the participation of other females or protected-age employees, in office social activities, and, in fact, shows that the rate of female participation in office golf outings was comparable to that of males, and that employees of all ages participated.
Bock also alleges that she was discriminated against on the basis of sex and age when she was not promoted. However, Bock only applied for promotion to two positions during the time period relevant here, and did not satisfy the minimum education qualifications for either of them. The ALJ did not credit Bock's testimony that she was told she was ineligible for promotion due to her previous demotion, and no persuasive basis exists in the record for overturning this credibility determination. Moreover, Bock fails to explain why, if this was what she believed, she applied, for two promotions in 2002, or continued to hold this belief even after she became aware of the promotion of others who had been previously demoted. Bock also points to respondent's replacement policy as a bar to her advancement with ShopKo. However, this policy applied to employees regardless of their age or sex. Finally, Bock alleges that the position to which Poppele, a male, was promoted in December of 2002 was not properly posted. However, even if this were true, this would have affected potential applicants equally without regard to age or sex.
Bock alleges that she was discriminated against on the basis of sex and age when she was discharged in 2003, and attributes this to a discriminatory animus on the part of Kempen. However, complainant's coworkers reported the same attributes and behavior as relied upon by Kempen in reaching the discharge decision, i.e., that Bock was abrasive and negative in her relationships with others, and condescending in her interactions with other team members. In addition, as the ALJ found,, the record shows that Bock failed to communicate effectively, particularly with her supervisor, and failed to acknowledge and take responsibility for her shortcomings or to commit to change them. These reasons provided a legitimate and nondiscriminatory basis for the discharge decision, and Bock has failed to demonstrate that these :reasons were pretextual
The complainant failed to sustain her burden to show probable cause to believe that she was discriminated against based on her age or her sex as alleged.
Bock also alleges that she was retaliated against after she reported to respondent's human resources unit that she was being treated less favorably due to her sex. Even if Kempen or any other alleged retaliator had reason to be aware of Bock's allegations of sex discrimination, the record does not show that any were motivated by a retaliatory animus. As concluded above, Bock failed to show either that she was singled out for less favorable treatment or that any less favorable treatment she received was not reasonably justified by her behavior and attitude.
The complainant failed to sustain her burden to show probable cause to believe that she was retaliated against for engaging in a protected fair employment activity.
It is also noted that, in her appeal to the commission, Bock makes reference to, and relies upon, facts which are not part of the hearing record in this matter, and which, as a result, the commission may not rely upon in reaching its decision. Bock also references certain information which she alleges was improperly presented to, and relied upon by, the ERD investigator. However, upon appeal from an investigator's initial determination, a de novo proceeding is conducted, and, as a result, the type of defect in the investigative process alleged here would not affect either the ERD's or the commission's disposition of the charge.
cc: Attorney Michael J. Cieslewicz
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