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

DRUCILLA  J  KRIENKE, Complainant

RAMADA INN CONFERENCE CENTER, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200002246, EEOC Case No. 26GA01445


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 makes the following:

FINDINGS OF FACT

1. The Ramada Inn Conference Center (hereinafter "respondent"), operates a hotel in Eau Claire, WI.

2. Drucilla Krienke (hereinafter "complainant"), worked for the respondent as a front desk person. Her duties included checking people in and out, dealing with customer complaints, and occasionally assisting the housekeeping department when it was behind schedule.

3. The complainant did not have a driver's license, and it was the respondent's practice to offer her a hotel room on those occasions when she worked late and would have to report for work early the following day, provided there was a vacant room available. On March 24, 2000, the complainant worked from 3:00 p.m. until 11:00 p.m., and was scheduled to work the following day from 7:00 a.m. until 3:00 p.m. The complainant spoke with a co-worker, who assigned her a hotel room in which to spend the night.

4. After her shift the complainant went to the hotel bar and had a drink with a female co-worker and the manager on duty that night. At approximately 11:30 p.m. she went to her assigned room and went to bed.

5. Jeff Torgerson, a male, who was in charge of the respondent's maintenance department, was in the bar and saw the complainant on the night in question. The complainant and Mr. Torgerson were co-workers and were friendly with one another.

6. The complainant was awakened from a deep sleep to find Mr. Torgerson sitting on her bed with his hand under the covers, stroking her leg and thigh. The complainant told him to stop, then got up and sat on the other bed. The complainant, who had been sleeping in her underwear, grabbed some clothes and left the room.

7. The complainant then went to the front desk and requested a new room. She demanded to know who gave out her room number, briefly explained what had happened, then went to the newly assigned hotel room, where she attempted unsuccessfully to sleep for the remainder of the night.

8. The following day the complainant reported the incident to Mark Johnson, the general manager. Mr. Johnson apologized and told the complainant he would take care of the matter. He asked the complainant if she wanted to take a couple days off of work, and she indicated that she did.

9. A few days later the complainant contacted Mr. Johnson, who told her he had given Mr. Torgerson a three-day suspension, but was allowing him to return to work. The complainant told Mr. Johnson that she would not be able to work at the Ramada anymore because she did not want to work with Mr. Torgerson. She did not return thereafter.

10. The complainant reported the incident to the Eau Claire County Police Department. Mr. Torgerson subsequently pleaded guilty to and was convicted of fourth degree sexual assault as a result of the incident, for which he served a 45-day jail sentence.

Based upon the FINDINGS OF FACT above, the commission makes the following:

CONCLUSIONS OF LAW

1. That the respondent discriminated against the complainant on the basis of sex, within the meaning of the Wisconsin Fair Employment Act.

Based upon the FINDINGS OF FACT and CONCLUSIONS OF LAW above, the commission issues the following:

ORDER

1. That the respondent shall cease and desist from discriminating against the complainant.

2. That the respondent shall offer the complainant reinstatement to a position substantially equivalent to the position she held prior to her quitting. This offer shall be tendered by the respondent or an authorized agent and shall allow the complainant a reasonable time to respond. Upon the complainant's acceptance of such position, the respondent shall afford her all seniority and benefits, if any, to which she would be entitled but for the respondent's unlawful discrimination, including sick leave and vacation credits.

3. That the respondent shall make the complainant whole for losses in pay in which the complainant suffered by reason of its unlawful conduct by paying the complainant the sum she would have earned as an employee from the date of quitting until such time as the complainant resumes employment with the respondent or would resume such employment but for her refusal of a valid offer of a substantially equivalent position. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter. Any unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory set-offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.

4. That the respondent shall pay the complainant's attorney's fees in the amount of $2,625 and costs in the amount of $191.25, for a total of $2,816.26 in reasonable attorney's fees and costs associated with this matter. A check in the amount of $2,816.26 shall be made payable jointly to the complainant and Julie A. Smith and delivered to Ms. Smith.

5. Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12).

Dated and mailed October 29, 2002
kriendr . rrr : 164 : 9 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

A. Sexual Harassment Claim

The Wisconsin Fair Employment Act (hereinafter "Act") prohibits an employer, in pertinent part, from:

"Engaging in sexual harassment; or implicitly or explicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment; or making or permitting acquiescence in, submission to or rejection of sexual harassment the basis or any part of the basis for any employment decision affecting an employe, other than an employment decision that is disciplinary action against an employe for engaging in sexual harassment in violation of this paragraph; or permitting sexual harassment to have the purpose or effect of substantially interfering with an employe's work performance or of creating an intimidating, hostile or offensive work environment. Under this paragraph, substantial interference with an employe's work performance or creation of an intimidating hostile or offensive work environment is established when the conduct is such that a reasonable person under the same circumstances as the employe would consider the conduct sufficiently severe or pervasive to interfere substantially with the person's work performance or to crate an intimidating, hostile or offensive work environment."

Wis. Stat. § 111.36(1)(b)(emphasis added).

The Act, as set forth above, contains essentially three separate categories of prohibited conduct. The third category, in italics, addresses sexual harassment engaged in by co-workers, who cannot be treated as agents of the employer. This category obliges the employer to take steps to prevent or terminate sexual harassment in the work place, even if the employer is itself not engaging in the sexual harassment, if the harassment engaged in by other employees is enough that it interferes with work or creates a hostile, intimidating environment. See, Jim Walter Color Separations v. LIRC, 226 Wis. 2d 334, 345, 595 N.W.2d 68 (Ct. App. 1999). The Act further provides:

"For purposes of sexual harassment claims under sub. (1)(b), an employer, labor organization, employment agency or licensing agency is presumed liable for an act of sexual harassment by that employer, labor organization, employment agency or licensing agency or by any of its employes or members, if the act occurs while the complaining employe is at his or her place of employment or is performing duties relating to his or her employment, if the complaining employe informs the employer, labor organization, employment agency or licensing agency of the act, and if the employer, labor organization, employment agency or licensing agency fails to take appropriate action within a reasonable time."

Wis. Stat. § 111.36(3).

Finally, the Act contains the following detailed definition of the term "sexual harassment:"

" 'Sexual harassment' means unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature.. 'Unwelcome verbal or physical conduct of a sexual nature' includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employe's work performance or to create an intimidating, hostile or offensive work environment."

Wis. Stat. § 111.32(13)(emphasis added).

There is little question but that Mr. Torgerson sexually harassed the complainant, having engaged in unwelcome physical contact of a sexual nature for which he was ultimately convicted of criminal sexual assault. While at the hearing the respondent attempted to call into question the unwelcomeness of the advances by eliciting testimony from the complainant that on at least one occasion she gave Mr. Torgerson a hug when she was off duty and was having a drink with him and the general manager at the bar, the fact that the complainant and Mr. Torgerson had a friendly relationship certainly does not indicate that she welcomed his actions in entering her locked hotel room and stroking her thigh while she slept. The complainant objected to Mr. Torgerson's advances when they occurred, notified the employer of them, and brought the matter to the attention of the Eau Claire Police Department, all of which amply demonstrates that she found the incident to be unwelcome.

Once it has been determined that the complainant was subjected to unwelcome sexual harassment, it must be decided whether the harassment had the purpose or effect of substantially interfering with the complainant's work performance or of creating an intimidating, hostile or offensive work environment for her. This requires a determination that a reasonable person under the same circumstances as the complainant would consider it sufficiently severe or pervasive so as to create an intimidating, hostile or offensive work environment. While the conduct at issue in this case cannot be described as pervasive, in that it was a single incident, it was certainly severe, and the commission has no trouble concluding that a reasonable person would have found that it created an intimidating, hostile or offensive work environment. (1)

Having concluded that the complainant was subjected to "hostile environment" sexual harassment at the work place, the remaining question to resolve is whether the respondent is liable for permitting the sexual harassment to occur. In cases involving harassment by co-workers, an employer only becomes liable when it knows or should have known about harassment and fails to take adequate measures to prevent or eradicate it. See, Yaekel v. DRS Limited (LIRC, Nov. 22, 1996).

"The remedial obligation of an employer is two-fold: it must end harassment that is ongoing and must deter any future harassment." Larson, Employment Discrimination, Second Edition 1995, Vol. 3, § 46.07[5][b][ii], p. 46-118. Regarding the type of corrective action that may be taken:

"The employer's remedial response will likely entail disciplining the offender to end the harassment and prevent a recurrence of the harassment. The discipline should reflect the severity of the harassment; it need not be drastic if some lesser measure will end the harassment. By the same token, something more than a slap on the wrist will be required when the conduct is severe or entrenched. Title VII (2) does not require discipline per se; it requires that the employer rid its work force of harassing conditions. Disciplining the offender serves the dual purpose of sending a message to both the offender and the whole workforce that sexual harassment will not be tolerated."

Larson, at 46-125 through 46-127.

An employer has fairly wide latitude to address allegations of sexual harassment as it sees fit, provided its actions are reasonably calculated to remedy the situation and prevent future harassment. For example, the commission has found that an employer's decision to address allegations of verbal sexual harassment by directing the harasser to cease the harassment and securing his promise that he would do so was adequate. Rusniak v. Fagan Chevrolet-Cadillac (LIRC, May 23, 2002). In Rusniak, the commission noted that, given that the harassment was strictly verbal in nature and that the respondent had not received any other complaints and believed the incident to be an isolated one, its response appeared to have been reasonably calculated to address the situation. The instant case, however, involves something more severe than mere verbal harassment, i.e. a sexual assault, for which the harasser ultimately pleaded guilty to a criminal charge. This is a serious matter warranting a serious response on the part of the respondent. Yet the respondent did not even take the basic preventive steps employed by the respondent in Rusniak to counter verbal harassment. While the record indicates that Mr. Torgerson received a three-day suspension, it does not appear from the record that Mr. Torgerson was counseled about his behavior or that the respondent received any assurances from him that he would not engage in such conduct again.

Moreover, the respondent did nothing to address the complainant's reasonable concerns about working with Mr. Torgerson in the future. The evidence indicates that Mr. Torgerson was frequently behind the front desk and in the back office, and that prior to her quitting the complainant had considerable contact with him in the workplace. A three-day suspension, after which Mr. Torgerson would return to work on the same terms as existed previously -- including the possession of a pass key offering admittance to any room at the hotel -- did nothing to put the complainant at ease. There were a variety of measures the respondent might have undertaken short of discharging Mr. Torgerson, such as assigning him to different shifts than the complainant, who worked only 30 hours a week, directing him to perform his work away from the front desk or back office, and having him turn in his key card when he was off duty or otherwise restricting his ability to enter locked hotel rooms. The respondent, however, took no such measures and, as stated above, did not even go so far as to counsel Mr. Torgerson about the type of conduct it expected and obtain some assurance that the situation was an isolated one and that it need not be concerned for the well-being of its employees and hotel guests. Given all of the facts and circumstances, the commission concludes that the respondent did not meet its obligation of undertaking appropriate remedial action, and therefore finds that it engaged in conduct prohibited under Wis. Stat. § 111.36(1)(b).

B. Constructive Discharge Claim

A second issue presented in this matter is whether the respondent constructively discharged the complainant by permitting sexual harassment to create a hostile work environment. A finding of constructive discharge will not be made based upon the fact of discrimination alone. Waedekin v. Marquette Univ. (LIRC, March 5, 1991), aff'd., Milwaukee Co. Cir. Ct., Jan. 21, 1992; aff'd., Ct. App., Dist. I, unpublished decision, April 26, 1994.  Rather, a constructive discharge occurs where working conditions are so intolerable that a reasonable person would have felt compelled to resign. See, Tobias v. Jim Walter Color Separations (LIRC, August 13, 1997).

Here, the complainant quit because she was subjected to a sexual assault by a co-worker. The complainant testified that after the incident she was afraid to work with Mr. Torgerson and felt that she had been violated. While during a credibility conference with the commission the administrative law judge indicated that he did not believe the complainant was actually in fear for her physical safety, there is no reason to doubt her testimony that she felt violated and was concerned that Mr. Torgerson might sexually harass her again. An employee has a right to work in an environment where she is free from fear of sexual assault and harassment and where she can feel reasonably confident that her employer will be responsive to any legitimate concerns raised about her personal safety and well-being. Where the employer was not willing to take any steps to provide the complainant with such a working environment, the commission believes she was justified in quitting and that a constructive discharge was established.

C. Attorney Fees And Costs

The complainant is entitled to an award of reasonable attorney fees and costs associated with prosecuting this matter. The complainant's attorney has requested reimbursement at an hourly rate of $175. The affidavit submitted by the complainant's attorney fails to explain when she began practicing law or whether her practice includes any special emphasis on civil rights litigation, nor has counsel submitted affidavits from other attorneys in the locality establishing that the requested rates are in line with those prevailing in the community for similar services for lawyers of comparable skill, experience and reputation. However, the commission has experience in determining appropriate attorney fees, and it does not find the hourly rate requested to be unreasonable, notwithstanding the lack of supporting affidavits from the complainant's attorney. It is, therefore, disinclined to reduce it.

While in its responsive submission to the commission, the respondent maintains that a more appropriate rate would be between $90 and $100 an hour, the rate recommended by the respondent seems low by current standards, even for attorneys with limited experience or those practicing in small communities, and the respondent has not provided the commission with any factual support for awarding such a rate. The respondent also argues that it is "highly doubtful" the complainant's attorney charges $175 for her regular legal services. Again, however, the respondent has not provided any factual basis for this assertion, and the commission sees no reason to question the complainant's attorney's representation of her own hourly rate. The commission, therefore, determines that compensation at an hourly rate of $175 shall be awarded, per counsel's request.

The commission also has experience in evaluating the number of hours reasonably expended on litigation in an equal rights case. While the complainant's attorney indicates that she expended 26.2 hours on this matter, this was a straightforward sexual harassment case, which should have required very little research or preparation. Indeed, no briefs were filed, nor was any pre-hearing discovery conducted. The complainant did not bring any witnesses to the hearing, which lasted only two hours, and presented but a single exhibit on her behalf. Considering those circumstances, and in view of the limited amount of correspondence and other filings prepared in conjunction with this case, the commission concludes that this matter should not have required more than 12-15 hours of work, particularly for an attorney with the degree of skill and experience that would warrant a $175 hourly rate.

Upon consideration of the unique circumstances presented in this case, and based upon its prior experience in determining appropriate attorney fee awards, the commission awards $2,625 in reasonable attorney fees, representing 15 hours of work at $175 an hour. The commission additionally awards $191.25 in costs for the hearing tape and transcript, as requested by the complainant's attorney, for a total of $2,2816.26 in fees and costs.

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that he believed Mr. Torgerson did exactly what the complainant said he did. The commission agrees and has adopted essentially the same findings of fact as those made by the administrative law judge. The commission differs, however, with the administrative law judge's conclusion that the adequacy of the respondent's response to the sexual harassment is not relevant to this case. Because the commission believes that the respondent's response is relevant in assessing its liability, and because it finds that the respondent did not take appropriate remedial action, it reverses in favor of the complainant.

cc: Attorney Julie A. Smith


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Footnotes:

(1)( Back ) The commission notes that, although the act of sexual harassment occurred while the complainant was off duty, it took place at her place of employment, within the meaning of Wis. Stat. 111.36(3). Moreover, because the complainant was staying at the hotel for reasons related to her work, in order to facilitate the respondent's scheduling needs, and because Mr. Torgerson entered the hotel room with a pass key issued by the respondent, the evidence reveals a clear connection between the complainant's employment and the harassment.

(2)( Back ) Although the discussion in Larson centers on the federal anti-discrimination law, it applies equally to the Wisconsin Fair Employment Act.

 


uploaded 2002/11/15