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


SARA OSELL, Complainant

SCHEDULESOFT CORPORATION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199800073, EEOC Case No. 26G980566


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 and consulted with the ALJ in order to obtain his personal impressions as to the credibility of the witnesses. Based on its review, the commission agrees with the Findings of Fact and Conclusions of Law made by the ALJ and adopts those findings and conclusions as its own, except that it makes the following modifications:

Paragraphs 6 through 8 of the Findings of Fact are deleted and the following paragraphs are substituted therefor:

6. On some occasions, Flessas engaged in discussions with other persons at ScheduleSoft concerning who should go to an upcoming trade show. Whether or not Flessas may in some of these discussions have used the word "bimbo" in reference to a female employee, and whether or not Osell may have heard about this from another source, Flessas did not use the word "bimbo" in reference to a female employee while in the presence of Osell, nor did he suggest that a particular female employee should be sent to the trade show because customers liked "tits and ass".

7. Mr. Flessas on occasion spoke to Sophia Piliouras, an employee who was also a personal friend of both Mr. Flessas and his wife, about complaints Mr. Flessas had about his marriage and about wanting a divorce. Whether or not Osell may have heard about this from another source, Flessas did not complain about his marriage to Osell, nor did he tell Osell that he "couldn't get laid".

8. Any comments Flessas may have made to others in which he referred to a female employee as a "bimbo" or in which he complained about his marriage, did not subject Osell to an intimidating, hostile or offensive work environment.

Paragraph 16 and 17 of the Findings of Fact are deleted and the following paragraphs are substituted therefor:

16. Osell did not observe anything of a sexual or sexually suggestive nature occurring or being said between Flessas and Ramirez during the time she was in the room with them; she merely observed that Flessas had his attention focussed on Ramirez. From what she described having observed, Osell would have had no reasonable basis on which to form a belief that Flessas was sexually attracted towards Ramirez.

17. Notwithstanding that she had no reasonable basis on which to form a belief that Flessas was sexually attracted towards Ramirez, upon leaving the meeting Osell immediately returned to her desk and sent a "pop-up" computer message to Mr. Flessas' computer which said something to the effect that the next time Flessas called her in for a 5-minute meeting he should "clear the air" of "sexual overtones" or "sexual vibes". The commission infers from the circumstances of the meeting that Osell did not in fact have a good-faith belief that there had been "sexual overtones" or "sexual vibes" in the meeting, and that she was instead making that allegation out of resentment at having just been criticized by Flessas in front of another person for her absences from work without notice and for her failures to have assigned tasks completed.

Paragraph 20 of the Findings of Fact is deleted and the following paragraph is substituted therefor:

20. Mr. Flessas perceived Ms. Osell's "pop-up" message as a complaint that he was attracted sexually to Ms. Ramirez and that his attraction to her somehow affected the way he dealt with Ms. Osell at their meeting. While Flessas did not perceive this as a complaint that Osell felt she had been subjected to sexual harassment, he did perceive the complaint as having something to do with issues of sex discrimination. However, the actions taken by Flessas in the following days, including the eventual decision to terminate Osell, were not taken by him because of his perception that this "pop-up" message had had something to do with issues of sex discrimination.

Paragraph 23 of the Findings of Fact is deleted and the following paragraph is substituted therefor:

23. At some point on or about Wednesday, August 27, Osell had a conversation with an employee named Andy Widjaja, who had recently been discharged after it was discovered that he could not legally be employed there because of his immigration status. In this conversation, Widjaja told Osell that Flessas had told him that he had hired Ramirez because she had "great tits". This was not true; Flessas had never made such a statement to Widjaja. However, soon after Widjaja told Osell this, Osell relayed the story to another employee, Sharon Mueller, who soon relayed it to yet another employee, Sophia Piliouras.

The last two sentences of paragraph 28 of the Findings of Fact are deleted.

Paragraphs 29, 30 and 31 are deleted and the following paragraphs are substituted therefor:

29. Osell's net sales for August 1997 were much lower than her net sales for July, 1997. In neither month did her net sales equal the amount of her "draw" against commissions.

29. During Osell's employment, and at the time of her termination, there was a policy that 30-60-90 reports were due each Friday. It was also a policy that salespersons were required to submit market plans. Timely submission of both of these was considered by ScheduleSoft to be an important part of the process of improving sales.

30. Flessas' decision to terminate Osell was motivated by his accumulating dissatisfaction with her performance, which related to the combined effect of shortcomings including: the decline in her sales in August; her failure to show up at work on Friday, August 22 and her consequent failure to submit her 30-60-90 report required on that day; her failure to turn in her 30-60-90 reports and market plans on the following Tuesday, August 26 after she had told Flessas in their meeting on the day before that she would do so; her leaving work early without notice and skipping the sales meeting on Wednesday, August 27; and her failing without prior notice or permission to show up for work on Friday, August 29, as of which point she had 2 weeks' worth of 30-60-90 reports and market plans due. Flessas was also dissatisfied over the fact that Osell had criticized him for non-existent "sexual vibes" during his meeting with Ramirez, and the fact that Osell had been spreading the inaccurate rumor that he had made a statement about having hired Ramirez because of the size of her breasts, but his dissatisfaction over these things was not a determining factor in his decision to discharge Osell.

DECISION

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

Dated and mailed October 27, 2000
osellsa.rmd : 110

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The issues presented by Sara Osell's complaint in this matter, are whether Respondent ScheduleSoft Corporation engaged in or permitted sexual harassment, and whether Osell was terminated because of her sex and because of (in retaliation for) engaging in opposition to sexual harassment. The Administrative Law Judge ("ALJ") decided that there was no discrimination, and Osell appealed. Based on its review of the record, and after having consulted with the ALJ in order to obtain his personal impressions as to the credibility of the witnesses, the commission agrees with the result reached by the ALJ.

The commission had some disagreements with the ALJ on some issues of fact, and its different findings are reflected in the modifications to the Findings of Fact made above. In essence, the commission found the testimony of Sara Osell and Andy Widjaja to be less credible than the ALJ appears to have, and it found the testimony of Flessas, particularly concerning his reasons for discharging Osell, to have been more credible than the ALJ appears to have.

In addition, the commission did not agree with some of the legal analysis reflected in the ALJ's Memorandum Opinion. These points are discussed below.

Sexual harassment; "harassment" - In her complaint (1),  and in her testimony at hearing, Osell made a number of allegations about conduct Flessas was supposed to have engaged in which she asserted was sexual harassment. For the most part, the ALJ's findings simply do not address these allegations. The commission takes the failure of the ALJ to make any findings of fact consistent with Osell's allegations as being a reflection of a view that the allegations were not supported by the credible evidence. The commission agrees with this view.

The ALJ did find that Flessas had engaged in some "unwelcome, sexist" verbal conduct (2)  but he decided that Flessas had not engaged in sexual harassment within the meaning of the Wisconsin Fair Employment Act ("WFEA"), based on reasoning that Osell did not show that the conduct actually "harassed" her. The ALJ opined that for conduct to be "harassing" it needs to have a certain effect on the person who hears it, and he turned to the dictionary definition of the word "harassment" to determine whether this had occurred here. The commission does not agree with this analysis, for the following reasons. The WFEA already contains detailed definitions of terms bearing on the prohibition of sexual harassment. Both the terms "sexual harassment", and "unwelcome verbal or physical conduct of a sexual nature", are expressly defined in the Act. See, Wis. Stat. 111.32 (13). In the presence of such express statutory definitions, it does not seem advisable to the commission to base an analysis on a dictionary definition. In addition, the WFEA does not, per se, make it necessary for a complainant to show that conduct "actually harassed" him or her. Its prohibition relating to sexual harassment has a different structure, which is straightforward:  it defines "sexual harassment", and makes it unlawful for an employer to engage in it.

The ALJ noted that in Tobias v. Jim Walter Color Separation (LIRC, 8/13/97) the commission observed a distinction between certain comments "which are more accurately characterized as sexist than as sexual harassment". (3)    However, the commission did not rely in that case on any rationale that those comments did not "harass" the complainant, nor did it base its analysis on any interpretation of the word "harass". The comments which the commission noted were sexist, were not "sexual harassment" simply because they did not fall within the statutory definition of "sexual harassment".

More to the point, the commission's reliance in Tobias on a close textual analysis of the statutory definitions of "sexual harassment" and "unwelcome verbal or physical conduct of a sexual nature", is inconsistent with an approach of hinging analysis on a dictionary definition of the word "harassment".

Thus, the commission agrees with the ultimate decision reached by the ALJ that there was no violation of the prohibition against sexual harassment, but it does not do so based on any analysis of whether any conduct Flessas engaged in "harassed" Osell within the commonly-understood meaning of that term as it is defined in the dictionary. Rather, it does so because it finds that Flessas did not engage in any conduct which falls within the definition of "sexual harassment" in the Wisconsin Fair Employment Act.

Flessas' reasons for terminating Osell --The ALJ appears to have focussed on the fact that Osell's performance problems were of long standing, and he appears to have concluded that nothing in particular occurred in August --  except for the matters arising out of the Ramirez hiring and Osell's "pop-up" note and rumor-spreading   --  to explain a sudden decision to discharge. However, the commission believes that decisions such as this can result from an employer's recognition of a trajectory, and of the degree of persistence of certain problems. In this case, Osell's August sales were much lower than her July sales. Flessas was also discovering in August, as product returns from July sales began to come in, that Osell's July performance had been even poorer than its initial numbers suggested. This made Osell's lack of compliance with the requirement for the weekly submission of a 30-60-90 report and a market plan, more serious. The events of the week of August 25 were particularly significant. Osell had failed to show up at work on Friday, August 22, and she had not turned in her reports for that week. Even though Flessas specifically told her on the following Monday that she was to do the reports immediately, and she said she would have them in by Tuesday, she then did not do so. She did not have them in by Wednesday, and she also missed a sales meeting on that day. (4)    She did not have her reports in by Thursday, a day on which she took a 2-hour lunch break. On Friday August 29, Osell was not at work, without notice or permission, and she was at that point 2 weeks behind in required reports. Flessas' testimony that it was at this point that he decided to discharge her, was credible, and the commission believes that it is a reasonable inference that those events were in fact the main precipitating cause of the discharge decision.

Retaliation -- The ALJ concluded that Flessas was in part motivated to terminate Osell because of his resentment over the fact that she had spread the rumor that he had made a statement about having hired Ramirez because of the size of her breasts. He also concluded, however, that the act of spreading a rumor among employees that an employer had a sexual motivation for hiring someone does not amount to a complaint of sexual harassment or discrimination. The commission does not rely on this rationale, and its decision to affirm the result here should not be taken as an endorsement of it. (5)    The commission's decision that there was no unlawful retaliation is based on its finding that Flessas' reason for terminating Osell was his dissatisfaction with her sales performance and with her attendance problems and failures to keep current with her required reports.

The ALJ also concluded that Flessas was in part motivated to terminate Osell because of his resentment over the fact that she had sent the computer "pop-up" message criticizing him for supposed "sexual vibes" in his meeting with Ramirez. As with the matter of Osell spreading the rumor about Flessas' supposed statement, he also found that Osell's sending of that message did not amount to a complaint of sexual harassment or discrimination. Again, the commission does not rely on this rationale, and its decision to affirm the result here should not be taken as an endorsement of it.

The commission agrees with the ALJ, that the computer "pop-up" message that Osell sent to Flessas immediately after meeting with him during his meeting with Ramirez was not something that Flessas would have perceived or did perceive as a complaint by Osell that she felt that Flessas was engaging in harassment of or discrimination against her. However, there was some evidence that would support the inference that Flessas perceived the message as having something to do with issues of sex discrimination. The protections of Wis. Stat. 111.322 (3) for "oppos[ing] any discriminatory practice under this subchapter" are broad enough to cover complaints by one employee that she believes that the employer is engaging in discrimination even if it is not discrimination which adversely affects that particular employee.

However, the commission is persuaded that Osell's conduct in sending that "pop- up" message to Flessas was not in fact based on a good-faith belief on Osell's part that something in the nature of discrimination or sexual harassment had occurred. There is a complete absence in Osell's descriptions of what she observed in that meeting, of anything which could be characterized as discrimination or harassment. At the same time, there is good reason to believe that what really upset and angered Osell about what had occurred in the meeting, was the fact that her performance had been criticized - and in front of a potential new employee, to boot. Osell's decision to send her message to Flessas immediately, by way of a computer "pop-up" message which she knew would come up on his computer screen, while he was still sitting in the meeting with Ramirez, is also significant. The most reasonable inference from all of the evidence about this incident, is that Osell was simply making up a charge about "sexual vibes" and sending it to Flessas in a way which would tend to embarrass him in front of the potential new employee, as Osell had just been embarrassed.

While the WFEA protects conduct in opposition to what an employee believes to be a discriminatory practice, conduct is only protected if it is supported by a good faith belief that discrimination in fact occurred. Roncaglione v. Peterson Builders (LIRC, 08/11/93), aff'd. sub nom. Roncaglione v. LIRC (Dane Co. Cir. Ct., 05/06/94). It is not necessary that the employee have been objectively "right" about a belief that an action opposed was prohibited discrimination, but it is necessary that the employee have had a good faith belief that the action they opposed was prohibited discrimination. Where an employee makes allegations of discrimination without believing in the truth of those allegations, the "opposition" is not protected under the Act. Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93).  It is for these reasons, that the commission agrees that this incident cannot form the basis of a finding of unlawful retaliation. In addition, as is noted elsewhere in this decision, the commission is persuaded that Flessas' motivation for terminating Osell was good-faith, non-discriminatory dissatisfaction with her performance.

NOTE: As is indicated above, the commission consulted with the ALJ in order to obtain the benefit of his personal impressions as to the credibility of the witnesses. The ALJ confirmed for the commission the elements of his analysis related to credibility which are reflected in his decision. However, after considering the ALJ's impressions and the evidence in the record, the commission found itself more dubious than the ALJ about the credibility of Osell, as well as of Widjaja.

As noted above, Osell's assertion about "sexual vibes" in Flessas' meeting with Ramirez was, as the ALJ put it, based on "no observable word or act of Mr. Flessas"; given that, her attribution of a sexual component to this event was clearly unreasonable. Flessas' comment to Osell on the day after she ran in a marathon, "How was it", was entirely innocuous and understandable; Osell's assertion that she "assumed" that Flessas was actually making a reference to her having supposedly had sex and asking her how that was, was also unreasonable. The old photograph of 1940's era pin-up star Betty Page which Flessas had as a screensaver, basically an antique which is more interesting as a piece of cultural history than anything else, is unremarkable by contemporary standards and is certainly not "sexually graphic" within the meaning of Wis. Stat. 111.32 (13). Osell's description of this image as "pornographic" in her complaint (Ex. 27, pp.9-11) was also unreasonable. It does not reflect well on Osell's credibility that she was so willing to reach out to characterize as sexual in nature, things that no reasonable person would find so under the circumstances. Osell also made assertions in her complaint which were disingenuous at best. Her complaint made the suggestion that she had objected to Flessas about many instances of supposed harassment, when in fact even Osell conceded that the only action she claimed to have been protected opposition was her sending of the computer "pop-up" message. That complaint also contained the factual allegation, "[Flessas] told me that he hired a female employee because she was `the best looking' which Osell contradicted at hearing, acknowledging that she did not hear Flessas say this but was only told by Andy Widjaja that he had said it.

In addition to this, the commission was significantly affected in its assessment of Osell's credibility by the evidence that she was untruthful about the reasons that she left work early and missed the mandatory sales meeting on August 27, 1997. Her claim that she left work early to conduct an interview with members of a dance troupe (Ballet Folklorico) performing that week at the civic center, was clearly shown by the testimony of the Civic Center Director to have been impossible - the troupe did not appear until more than a month later, after Osell had been fired. In addition, an e-mail which Osell wrote to a friend on that day before she left work, mentioned the fact that she would be interviewing the troupe when they appeared September 30. (Ex. 32). This factual issue was material to the reasons for Osell's termination. One of the reasons advanced by Flessas for his decision was Osell's absences from work. The commission does not believe that the inaccuracy of Osell's assertion about where she went that afternoon can be attributed to anything less significant than disregard for accuracy in her testimony, and may in fact be attributable to deliberate dishonesty.

These things all contributed to the commission's assessment, that Osell was an unreliable witness whose testimony is entitled to little if any weight.

Widjaja acknowledged that the statement he made in his affidavit, that he heard Flessas say (about Ramirez) "she's got great tits", was inaccurate. He also did not deny the testimony that he had told Osell that he heard Flessas say that he had hired Ramirez because she had "great tits", but his own testimony as to "all" he recalled hearing Mr. Flessas say about Ms. Ramirez did not include such a thing; the inference is, that he lied to Osell. Additionally, there is some reason to suspect personal bias on Widjaja's part, in that he had been discharged by ScheduleSoft (when it was discovered that his immigration status did not allow him to work there). These factors contributed to the commission's assessment, that Widjaja was an unreliable witness whose testimony is entitled to little if any weight.

cc: 
Attorney Robert Horowitz
Stafford, Rosenbaum


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Footnotes:

(1)( Back ) See, Ex. 27, pp. 9-11.

(2)( Back ) The ALJ's Findings of Fact numbers 6 and 7, for which the commission has substituted its own, made findings that Flessas made certain comments about "bimbos", "tits and ass", and "not getting laid".

(3)( Back ) These comments were, "When I see a woman out in a bar, I think she's out there looking to be picked up", and a statement that once the complainant was divorced and "footloose and fancy free" she would quit her job.

(4)( Back ) The commission notes that the reason Osell advanced at the hearing for her leaving early that day -- the supposed Ballet Folklorico interview -- was clearly shown by the testimony of Robert D'Angelo to have been false.

(5)( Back ) While it may be appropriate to say that, in this case, Sara Osell's conduct in spreading the rumor about Flessas' supposed statement was not "oppos[ition] to any discriminatory practice" under the WFEA within the meaning of Wis. Stat. 111.322 (3), the ALJ's rationale is perhaps too broadly stated. There may be situations in which an employee' expression to a co-worker of an opinion that the employer has made hiring decisions based on sexual interest could constitute statutorily-protected opposition to perceived sex discrimination. Whether this would be the appropriate judgment will necessarily depend on the particular facts of those cases.