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


KATHERINE F. SARAZIN, Complainant

W & G TRANSPORT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199601006, EEOC Case No. 26G960958


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:

1. In paragraph 3 of the FINDINGS OF FACT, the amount "$1.00" is deleted and the amount "$.75" is substituted therefor.

2. The second sentence in paragraph 4 of the FINDINGS OF FACT, is deleted and the following sentence is substituted therefor:

"They were to arrive at the terminal by 9 a.m., and between 9 a.m. and approximately 10 a.m. they were to clean and maintain their trucks (maintenance primarily involved checking the oil), unload freight from the inbound trucks from the Minneapolis airport, scan it, sort it, and load it on the delivery trucks."

3. In the third sentence of paragraph 11 of the FINDINGS OF FACT, the words "The next day" are deleted and the words "Later that day" are substituted therefor.

4. In the second line of the footnote at the bottom of page 4 of the decision, the word "telephoned" is deleted and the word "stopped" is substituted therefor.

5. Paragraph 22(f) of the FINDINGS OF FACT is deleted.

DECISION

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

Dated and mailed: March 9, 1999
sarazka.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Katherine Sarazin, alleges that she was sexually harassed by her supervisor, Tom Hudson, and that after she filed a complaint of discrimination about the harassment she was subjected to several retaliatory actions and/or continued sexual harassment, and that she was constructively discharged.

Tom Hudson is an assistant regional manager for the respondent, W & G Transport. The respondent provides fast freight pick up and delivery service. The respondent is headquartered in Minneapolis, Minnesota, and operates out of a number of terminals around the country including a terminal at La Crosse, Wisconsin, where Hudson was the station manager. David Gorman and George Wessin are the owners of the company. Thomas Miles is the human resources director. Fidell Theis is the midwest regional manager for the company and was Hudson's immediate supervisor. Hudson had an assistant at the La Crosse terminal who performed job duties which included dispatch work, obtaining addresses for drivers and filling in for absent route drivers. Eric Faas was Hudson's assistant beginning sometime during the late summer/early fall of 1995. Previously, Richard Horstman, a lead driver, had been in charge of dispatch work.

Katherine Sarazin worked as a route driver at the La Crosse terminal from about January 18, 1994, when she was first employed through a temporary employment agency, (1) through December 27, 1996. On December 28, 1996, Sarazin notified Eric Faas that she was terminating her employment effective that day.

The La Crosse terminal received its freight each morning by truck from Minneapolis. Route drivers arrived for work at the terminal between 8:30 and 9 a.m. The drivers unloaded freight from the inbound truck, sorted it and reloaded it onto vans for delivery service on their routes. Drivers were responsible for checking the oil in their vehicle every morning. If there were addresses for delivery that were incomplete or unfamiliar to the drivers, they were expected to either make phone calls or ask Hudson or Faas for assistance in obtaining the necessary information to make the delivery.

With the exception of what was known as the Winona (Minnesota) route, delivery services would be completed by early afternoon. Drivers would then make pick ups on their route on the way back to the terminal, and then once back in La Crosse assist with pick ups in town due to the heavier volume of pick ups there. The Winona route driver was not expected to assist with pick ups in La Crosse because that driver's route involved a longer distance from the terminal to deliver freight. All drivers were expected to be back at the terminal by 5 p.m. in order to get freight that had been picked up loaded onto the outbound truck for Minneapolis by 5:30 p.m., so that it would have time to be loaded onto a plane leaving Minneapolis. At some point there was a second truck being loaded with freight going to Rochester, Minnesota.

The respondent had in place a written policy on sexual harassment throughout Sarazin's employment with the respondent. This sexual harassment policy was included in an employe handbook that was given to Sarazin at the beginning of each year of her employment. The policy described conduct that constituted sexual harassment, stated that sexual harassment was a serious offense that would not be tolerated, and provided that anyone found guilty of sexual harassment, or retaliation against an employe who made a charge of sexual harassment, would meet with appropriate sanctions. Finally, the policy advised employes who believed they had been the victim of sexual harassment to discuss the matter with their supervisor, or if the supervisor was believed to be the source or a party to the sexual harassment, to talk to their manager, region manager, or David Gorman, George Wessin, or Tom Miles at 1-800-647-7836. In addition, beginning with the 1995 employe handbook, the respondent announced the implementation of an Internal Grievance Resolution procedure which allowed employes to appeal disciplinary actions taken against them by their supervisor to a peer review panel for resolution.

Around September 1994, Hudson and Sarazin started what was to become a romantic, consensual sexual relationship. Hudson and Sarazin both left their partners with whom they were living. The romantic relationship between Hudson and Sarazin ended sometime during the following year, and for a period of time after it ended Hudson continued to pursue Sarazin in an attempt to continue their romantic relationship. Sarazin and Hudson dispute when it was that their romantic relationship ended during 1995, although both agree that their last sexual encounter was on August 16, 1995. There is also some dispute as to when Hudson ceased pursuing Sarazin in an attempt to revive their romantic relationship but there seems to be agreement that by February 26, 1996, Hudson had ended his effort to revive the romantic relationship.

Sarazin's sexual harassment claim is that she tried to end the romantic relationship, because she wanted only to be friends with Hudson, and that although Hudson would agree to this, Hudson would then say or do things that made her aware that her continued employment was dependent upon her continuing the romantic relationship with him. The things Sarazin alleges Hudson did include issuing her written warnings, placing her on a 30-day probationary period, firing her at one point in January 1996, reassigning her to a less desirable route on February 27, 1996, and denying her a raise on March 11, 1996.

Hudson maintains that his disciplining of Sarazin had nothing to do with the fact that his sexual relationship with Sarazin ended, that Sarazin was totally in charge when it came to making deliveries, pick-ups and properly completing the paperwork and that he could not make Sarazin perform poorly in these tasks, and that her performance warranted discipline and was the reason for her not receiving a raise.

Sarazin's sexual harassment complaint appears to essentially fall under what has generally been referred to as the quid pro quo theory of sexual harassment. Under existing case law, a prima facie case of quid pro quo sexual harassment is established upon a showing that a complainant is a member of a protected class, that the complainant was subjected to unwelcome sexual harassment, that the harassment was based upon the complainant's sex, and that acceptance or rejection of the harassment by the complainant was an express or implied condition to the receipt of a job benefit or the cause of a tangible job detriment. See, for example, Isaac's Lounge v. LIRC & Gaile Paulette Biggers, Case No. 94-1136, Ct. App. Dist. 1, 4/25/1995. Once a prima facie case is made, an inference arises that quid pro quo sexual harassment has occurred and the burden of production shifts to the employer to rebut the presumption with legitimate, nondiscriminatory reasons for the employment decisions in question. Assuming the employer satisfies this burden, the burden then shifts back to the complainant to show that the employer's reasons are pretextual and that the employment decisions were based upon sexually discriminatory criteria. Id. at p. 9.

Sarazin has asserted that during the summer of 1995 Hudson would many times ask who she was dating and always ended up asking her if she was sleeping with that person. Sarazin was dating an individual named Terry Walters in June 1995. Sarazin states that on July 24, 1995, Hudson issued her a write-up for reporting to work late on that date, and having time to go shopping but coming back to the terminal late for the outbound freight on July 21, 1995. Sarazin acknowledges being late for work on July 24, but states that previously on Friday, July 21, Hudson had stopped her 3 different times while she was on her route to state how distraught he was over them not being together. Further, she asserted that her going shopping had never been a problem before. In addition, Sarazin stated that during their sexual relationship Hudson had also suggested that she start tanning at a salon since she was entitled to a half hour if her deliveries were done. Sarazin states that generally when she went to the tanning salon she would be done with her deliveries and back at the office, and that both she and Hudson would go tanning a lot of times.

Hudson asserted that Sarazin had been verbally warned about coming in late to work prior to issuance of the July 24, 1995 written warning. He stated that the problem with Sarazin shopping was that employes would be waiting for Sarazin to return from her route so the outbound truck could be loaded and Sarazin would come into the terminal with shopping bags. Hudson states that on July 21 one time he just dropped off a package for Sarazin and did not even see her, the next time was just to see how busy she was and that he could not remember what the third occasion was for but that it took only a few minutes. Hudson does not deny that during his sexual relationship with Sarazin he told Sarazin she could go tanning if she had the time.

With respect to a write-up issued to her on October 2, 1995, for not being diligent in delivering a piece of freight, Sarazin stated that on that same occasion Hudson also related that he had been advised by a friend of his that Karl Wehrs had been spending the night at her house. Sarazin states that Hudson was "really pissed off" because she had told Hudson that she was not sleeping with Wehrs. Sarazin asserted that afterwards Hudson apologized, and after she got home Hudson called to see how she was doing but then started talking about Wehrs again. Sarazin states that she told Hudson never to call again and hung up on him and that the next day Hudson said he had to put her on a 30-day probation. Sarazin complained to Hudson that being placed on probation was "personal" and not work-related. Hudson and Sarazin argued back and forth about whether a probationary period was justified until Hudson told her that she was not to work that day. Sarazin stormed out of the office.

Hudson asserted as reason for the October 2, 1995 write-up that Sarazin had been given directions for a delivery but took three days to get the freight delivered. Richard Horstman was present as a witness when Hudson placed Sarazin on probation. Horstman prepared a written statement on October 3, 1995 stating that Sarazin was placed on probation because of her attitude and taking too long to deliver freight. Two days later, Hudson retracted his decision to place Sarazin on probation. Sarazin secretly recorded a conversation she had with Hudson the day he retracted his decision to place Sarazin on probation, but the tape apparently ran out before Hudson's comment retracting the probation was made. Sarazin secretly tape recorded a second conversation she had with Hudson, apparently on Tuesday of the week following Thanksgiving.

On January 12, 1996, Sarazin came to work intending to wear shorts on her route because it was an usually warm January day. She and Hudson disagreed about whether she could wear shorts on her route. They argued about this for a period of time and then Hudson told Sarazin that she was fired. Sarazin states that she asked why and Hudson said it was because of insubordination and that he had plenty of records on her. Sarazin states that she replied that she had records on him and that he was in big trouble. Sarazin states that Hudson followed her out the door, asked if she was going to do that to him, stated that he had done so much for her, and then took his money clip and threw it across the truck and stated, "just take all my money too." Sarazin states that when she got home Hudson called, said he was sorry and asked to come over and talk. Sarazin states that Hudson apologized and asked if she wanted her job back when at her home. Sarazin asserts that Hudson asked for a hug and that she gave him one, and then Hudson stated how badly he wanted to make love to her and that he was sorry but he knew she did not feel that way. Sarazin asserts that as Hudson was leaving she mentioned the records Hudson said he had on her and that Hudson responded that she could help him destroy them.

Hudson states that his supervisor, Fidell Theis, suggested that he talk to Sarazin and offer her her job back due to the heated circumstances under which the firing occurred. Hudson denied making the comment about wanting to make love to Sarazin or destroying Sarazin's records. Theis recalled a conversation with Hudson about having fired Sarazin and instructing Hudson to rehire her.

After Sarazin's firing and rehiring, Sarazin and her children went to Hudson's place in January on Super Bowl Sunday.

Sarazin states that she and Karl Wehrs had broken off their relationship around Christmas, but started seeing each other again around the end of January and beginning of February 1996, and that Hudson became aware of this and was not happy. Sarazin states that Hudson began calling her more and more at home saying how hard it was when they weren't together. Sarazin asserts that on one occasion Hudson showed up at her place on the morning after a weekend in early February when she had been away, eventually inquiring if Wehrs had spent the night and indicating that he had driven by and seen his truck there.

Sarazin states that Hudson insisted that they talk on February 26, 1996, after a weekend when Hudson had kept calling her. Sarazin states that when they did talk on February 26, Hudson stated that she knew how hard it was when she was seeing Wehrs and that he was going to miss her, which she took Hudson to mean as saying good-bye. Sarazin states that the next day, February 27, 1996, Hudson completely changed her route so that she no longer had stops at the Valley View Mall and was to make stops in the Sparta and Fort McCoy area. Up until this time, Sarazin's route had almost always included Valley View Mall, and Hudson knew that she liked having the mall as part of her route. Sarazin told Hudson this was definitely personal and not work related.

Hudson acknowledged calling Sarazin in February 1996, but states that he was calling to tell Sarazin that he was getting back with his girlfriend and did not want Sarazin to call, come over or make a scene. Hudson asserted that he went over to Sarazin's the next morning because Sarazin had not called as she said she would and thought maybe she had overslept. Hudson asserted that he told Sarazin he was getting back together with his girlfriend. Hudson acknowledged that he knew Sarazin enjoyed the mall route, but asserted that he also had to do what was best for the company. Hudson asserted that there were three reasons for changing Sarazin's route on February 27, 1996. Those reasons were to reduce costs by consolidating Sparta deliveries on one truck instead of two, to separate Sarazin from the drivers working in La Crosse to appease those drivers who were unable to get along with her, and because there was a need for a straight truck driver and making the route change allowed this need to be filled.

The commission has examined the various incidents and allegations raised by Sarazin and concludes that she has not shown that she was sexually harassed for basically two reasons.

First, the commission is not persuaded that Sarazin was subjected to unwelcome sexual harassment. For example, after Hudson's July 24, 1995 written warning which Sarazin complains about, they had further sexual relations on the morning of August 16, 1995. While Sarazin maintains that she was "shocked" Hudson had asked to make love to her and that she just "laid there" with her back to Hudson, the very fact that she had first of all allowed him to get into her bed and then failed to resist his love making, undercuts her credibility on the issue of whether or not Hudson's sexual advances were actually considered unwelcome. But their relationship outside of work did not end there. Additionally, there is record evidence that around Christmas during 1995 Hudson took Sarazin's daughters shopping for a present for Sarazin, that Sarazin voluntarily visited Hudson at his home on Christmas Eve, and that Sarazin and her daughters visited Hudson at his home in January to watch the Super Bowl game. All of this occurred after Hudson had placed Sarazin on probation and terminated her employment. Again, these facts raise serious doubts that Sarazin considered Hudson's sexual advances to be unwelcome.

Second, despite Sarazin's argument to the contrary, there is substantial record evidence which establishes that Sarazin indeed did have work performance deficiencies. Several employes, including Richard Horstman, Eric Faas, Ron Malay, Valerie Stafslien and Jody Siebel all testified that Sarazin was having performance deficiencies. For example, Faas stated Sarazin was having problems during the fall of 1995 on her route making deliveries and pick-ups, in coming back to the terminal late and coming back with undelivered freight. Jody Siebel's testimony about Sarazin's work deficiencies, in particular, stands out in this regard because of the apparent objectivity of her testimony. Siebel was no longer employed by the respondent. Siebel worked for the respondent from February 10, 1996, until May 22, 1996, when she resigned. Siebel had been assigned to the Winona route until that route was given to Sarazin effective April 1, 1996. Siebel stated that she quit because of the problems with Sarazin. Siebel stated that Sarazin's problems were her attitude, she did not help other workers out, she was late getting back from her run, she would not help get the freight unloaded and sorted, she was bringing undelivered freight back and that she would not get the paperwork done right. Siebel, who testified that she enjoyed the Winona route, acknowledged that the assignment of the Winona route to Sarazin upset her (Siebel), but she testified that getting bumped off the Winona route had not colored her testimony.

Sarazin argues that the ALJ made an important omission by his failure to find significant a tape recording of a conversation with Hudson in which she complains about sexual harassment by Hudson in late November of 1995. As asserted by Sarazin, Hudson did apologize during that taped recording for calling Sarazin and her boyfriend around Thanksgiving. However, Hudson maintained that if his actions constituted harassment it was "personal harassment at home," not sexual harassment. But more importantly though, if Sarazin truly felt that she was being sexually harassed in late November, the question must be asked, why did she continue to visit Hudson around Christmas time and again in January on the day of the Super Bowl game? Moreover, during that taped recording of Hudson, Hudson offered Sarazin a grievance form and told her to fill it out and take care of any thing she felt was sexual harassment. Sarazin never did.

Sarazin next argues that the ALJ had to account for the harassment injunction the court of appeals affirmed finding Hudson violated 947.013, Stats., because he engaged in a course of conduct which harassed or intimidated another person and served no legitimate purpose. The harassment injunction of which Sarazin speaks involved a Petition For Temporary Restraining Order And/Or Injunction she filed against Hudson in circuit court on April 10, 1996. (2) Sarazin alleged that she was the victim of "harassment" as defined under Wis. Stat., 947.013. Section 947.013(1m) of that statute defines harassment, in relevant part, to include conduct where someone "Engages in a course of conduct or repeatedly commits acts which harass or intimidate the person and which serves no legitimate purpose." Sarazin's argument ignores two important facts. First, the standard required to be shown to obtain the harassment injunction was minimal, requiring only a showing of "reasonable grounds to believe" Hudson had violated 947.013, Stats. Second, the issue presented here, whether or not Sarazin had been sexually harassed with respect to work-related matters, was never decided by the court.

Sarazin further argues that the ALJ committed error in refusing to admit notes she had compiled that formed the basis of her sexual harassment complaint, and compounded this error because he received into evidence the contemporaneous notes of the employer's witnesses. This argument also fails. Sarazin had the opportunity to fully present her testimony regarding her sexual harassment claim, and she had the opportunity to view the notes she had compiled for purposes of refreshing her recollection if that was deemed necessary. Further, for the most part, Sarazin did not object to the contemporaneous notes of the employer's witnesses that were received into evidence.

Sarazin's second claim is that after she filed a complaint of discrimination with the Equal Rights Division on March 19, 1996, she complained to the respondent, through letters by her attorney, about what she considered was continued harassment and retaliatory action by Hudson for filing a complaint, and that the respondent took no action on her complaints. Sarazin argues that the harassment continued with Faas being the conduit through which Hudson engaged in retaliatory conduct.

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, nondiscriminatory 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. See, for example, Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989); Roden v. Federal Express (LIRC, 6/30/93).

The commission concludes that Sarazin has not shown that she was harassed or retaliated against after filing a complaint of discrimination. The commission finds that the respondent investigated Sarazin's complaints and took appropriate action.

As part of her retaliation claim, Sarazin states that on March 21, 1996, Hudson told her that he had no work for her, that he was sending her home with pay, that he requested her gas cards, and that he told her that she did not have to report for a scheduled physical on March 22.

Miles testified that at the conclusion of his March 20, 1996 meeting with Sarazin and her counsel, it was his assumption that she was to report for work on March 21. Miles' testimony indicates that after the meeting, however, a decision was made to place Sarazin on administrative leave with pay while he questioned Hudson and Faas and addressed George Wessin's concern about a work performance matter involving Sarazin. Hudson, who did not attend the March 20 meeting, testified that on March 20 or 21, Miles called and told him that he was no longer Sarazin's supervisor and that Sarazin was placed on administrative leave. Hudson testified that he had no input in the decision to place Sarazin on administrative leave and that he had no knowledge about what management was doing. Hudson testified that he took Sarazin's gas credit cards because he did not know how long she would be gone and whether or not the respondent would need the credit cards. Hudson testified that it was real difficult to schedule physicals, that Jody Siebel, who then had the Winona route, was due to have her physical and that a decision was therefore made to get Siebel's physical done and to reschedule Sarazin's. The record shows that after Miles was notified of what had occurred on March 21, that Faas called to inform Sarazin that day that she was to report for her scheduled physical, and that Faas returned the gas credit cards to Sarazin the following day after her physical.

Sarazin further complained, by letter through her counsel to the respondent, about being assigned to the Winona route upon return from her administrative leave. Sarazin cited her assignment to the Winona route, plus a May 1, 1996, write-up she received from Faas for not checking her oil, unpreparedness for work and having a hostile and confrontational attitude following work corrections, as further incidents of alleged retaliatory actions in an amended complaint Sarazin filed with the division on May 2, 1996.

With respect to Sarazin's assignment to the Winona route upon her return from administrative leave, the record shows that this decision was made during a telephone conversation open discussion with Miles, Wessin, Hudson and Faas. Hudson testified that Sarazin was assigned the Winona route because she did not like to come back to La Crosse early to assist the other drivers with pick ups, something which had upset the other drivers. Jody Siebel's testimony regarding Sarazin's job performance, particularly Sarazin's unwillingness to assist other drivers, severely undermines Sarazin's claim that her assignment to the Winona route constituted an act of retaliation. There was also record evidence that Sarazin came to enjoy the Winona route.

Faas testified that Sarazin not checking her oil was something that he observed over several days, that he was seeing unpreparedness for work in the morning on the part of Sarazin because one morning she could not find her spare set of truck keys while at other times she could not find her clipboard or scanner pouch, and that Sarazin would become confrontational, accusing him of picking on her, whenever he attempted to correct a problem. Moreover, Faas testified that he documented what he felt were important matters because he just wanted to protect himself since one lawsuit had already been filed. Further, Faas testified that nobody ever gave him any order or inferred that he should come up with anything on Sarazin, and that he never consulted with Hudson on whether or not he was going to counsel or write up Sarazin.

With respect to Faas' June 6, 1996 counseling of Sarazin about having her shirt unbuttoned too far, Sarazin, who denied to Faas that she was that individual, contends that because the complaint Faas received about this was anonymous and because Sarazin's boyfriend had delivered roses to the La Crosse office at the same time, the inference is clear that Hudson or the employer invented the open shirt story to get back at Sarazin. The contention that Hudson or the employer invented the open shirt story is not established by the record. Furthermore, Faas testified that he believed that he was reacting to a customer complaint and felt that he would be making a mistake if he ignored the complaint and ended up losing a customer. Faas testified that he also felt it necessary to document this matter because the complaint was of a sexual nature and a sexual harassment suit had already been filed.

Sarazin further complains about an incident which happened in August, 1996. With respect to this incident, the record shows that at the end of a conversation in which Faas was having a difficult time getting Sarazin to agree to make a delivery, Sarazin accused Faas of maligning her to a mutual friend. Faas issued Sarazin a warning for making this accusation, but later tore it up after realizing that he had written the warning notice in anger. Sarazin argues that this incident represents but another example of the psychologically abusive treatment of her. This argument fails. The mutual friend in question was a male named Brad Schwaegerl, whom Sarazin had begun dating. It was Sarazin's contention that Faas had said something to Schwaegerl that caused Schwaegerl to stop seeing her. Faas testified that the only thing he told Schwaegerl about Sarazin was that she worked for the respondent, that she worked from 9 to 5:30 and that what happened after that was none of his (Faas') business. Schwaegerl testified that Faas only told him that Sarazin worked for the respondent. Schwaegerl testified that he dated Sarazin one or two times after speaking to Faas about her but concluded that his relationship with Sarazin was not going anywhere after Sarazin had almost gotten into a fight with a another female that he was at a bar with one evening.

Sarazin also maintains that she was being harassed by Faas on December 27, 1996, the day before she terminated her employment with the respondent. On that date Faas presented a write-up to Sarazin about misrouting manifests to First Freight instead of Burlington Air Express, putting her signature on packages requiring the signature of the customer and leaving it at the door, and preparing two manifests for Burlington Express, resulting in a double billing. Sarazin argues that the ALJ did not understand the testimony about misrouting the manifests. Sarazin argues that she was written up to make it appear that it was her fault and no fault of Faas when it was not possible to tell who made the mistake. Sarazin argues that under the feeling of frustration and hopelessness, she said maybe she should work on the dock rather than do the paperwork to which Faas replied, "you'll get it there too!" Sarazin argues that this was the last straw, and thereafter left her employment feeling she had been constructively discharged.

With respect to the manifests, the evidence shows that manifests were placed in trays before being put into envelopes for the appropriate freight company. Faas conceded that manifests could have been placed in the wrong trays by anyone, including himself. Faas testified, however, that it was not enough to take manifests from the trays and shove them into the envelopes, drivers had a responsibility to check the manifests to make sure they went to the right company. Moreover, Faas testified that his only intention in discussing this with Sarazin was to make sure that the paperwork was accurate.

Faas testified that when Sarazin suggested performing work that did not involve paperwork responsibilities, he stated that the only work would be out on the dock and that "you'll get it there, too." Faas testified that his response was taken out of context, it meant that Sarazin was going to have responsibilities wherever she went.

A constructive discharge occurs when an employer makes an employe's working conditions so intolerable that the employe is forced into an involuntary resignation. See, for example, Bartman v. Allis Chalmers Corp., 759 F.2d 311, 314 (7th Cir. 1986, cert. denied, 107 S.Ct. 1304 (1987). Further, a finding of constructive discharge will not be made based upon the fact of discrimination alone, the individual must also present evidence of "aggravating" factors. Bourque v. Powell Electric Mfg. Co., 617 F.2d 61,65 (5th Cir. 1980).

The evidence does not support a showing that Sarazin was constructively discharged. As noted above, Faas' only concern when he counseled Sarazin on December 27, was that the paperwork was accurate. Faas did not in any way threatened Sarazin that her work performance warranted termination of her employment. Moreover, the evidence shows that Faas felt that he had to document everything because one discrimination suit had already been filed and he just wanted to make sure that he protected himself against anything further.

Sarazin, however, also apparently includes as part of her constructive discharge claim that Hudson had several times made the remark, "Why don't you drop your complaint so we can both continue to work here." The ALJ found that Hudson had on several occasions during the summer and fall of 1996 asked Sarazin to drop her complaint so that they could both continue to work there. The ALJ found that Hudson's remarks were ambiguous, but even to the extent that these remarks threatened retaliatory action, they were never acted on in any way that affected Sarazin's terms or conditions of employment. Further, the ALJ found that the upper management of W & G was unaware of these statements, that Sarazin did not report them to management even though aware that she could, thereby precluding management from taking any remedial action regarding them, and that these statements did not create an intolerable working condition for Sarazin, or cause her to submit her resignation from work.

Sarazin argues that the ALJ's finding misses the point of the "concerted effort of Hudson to make her leave her employment." However, the record does not support a showing of any concerted effort to make her leave her employment. Sarazin also cites medical records of hers, which she alleges establishes the extreme psychological pressure she was under. She apparently argues that this coupled with the lack of any visible sanctions of Hudson by the company and Faas' comment that it did not matter where she worked, "We'll get you there, too" was justification enough for her to feel compelled to resign. This argument fails. First, Faas did not use the pronoun "we" when he indicated to Sarazin that she would have responsibilities whatever job she performed. Further, the record shows that all Faas had really wanted to accomplish by discussing the paperwork problems with Sarazin was to make sure that it was done correctly. Second, the record shows that the respondent had investigated the complaints of Sarazin of which it had notice but could find no support for her claims. Thirdly, while Sarazin did present medical records showing that she was under psychological stress, there is no persuasive evidence that this was the result of the imposition of discriminatory or retaliatory working conditions attributable to Hudson, Faas or other respondent management personnel.

Accordingly, the commission has affirmed the ALJ's decision dismissing Sarazin's claims of discrimination.

cc: Donald J. Harman
James J. Natwick


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Footnotes:

(1)( Back ) Sarazin became a regular W & G employe on March 8, 1994.

(2)( Back ) By this time about a month had elapsed since Sarazin had filed a complaint of discrimination with the Equal Rights Division and the respondent had removed Hudson from direct supervision of her.