DONNA M. VERVOORT, Complainant
CENTRAL PAPER COMPANY, Respondent
On October 30, 1987, an administrative law judge issued a decision in this matter, dismissing Complainant's complaint. On November 12, 1987, Complainant timely filed a petition for review. Briefs were submitted by Complainant's substituted attorney, David Prosser, Jr., on behalf of Complainant, and by Respondent's attorney, Robert Torgerson, on behalf of Respondent.
Based on the applicable law, records, evidence and briefs in this case, and after consulting with the administrative law judge for his impressions of credibility and demeanor of the witnesses, the Commission makes the following:
2. Complainant, a female, began her employment with Respondent on September 13, 1983. Her educational experience includes high school and two welding courses. Her job experience previous to employment with Respondent includes food service work (waitress, cook, manager), carton line worker at a paper company, plate mounter, welder and harness assembler.
3. When hired Complainant was assigned to work as a rewind helper in Respondent's Rewind Department. Seven rewind machines are located in the Rewind Department. A crew consisting of a machine operator and three rewind helpers is assigned to each rewind machine. Approximately six females were employed in the department; the remainder of the personnel were males. Complainant was usually the only female working on a shift amidst the 100 males working on the three shifts for the Rewind Department. Rewind helpers knocked apart rolls of paper rolling off the rewind machines. Rewind helpers are frequently reassigned to other crews.
4. Coarse language and expletives such as "shit," "damn" and "fuck" were commonly used and heard on the plant floor. Complainant also used coarse language, but never referred to co-workers with sexual slurs. Women in general were referred to in sexually demeaning and sexually derogatory terms. Horseplay was also common. Although Respondent had a plant rule prohibiting general harassment, the rule was not generally enforced. No written rule or policy of either Respondent or the collective bargaining agreement between Respondent and the union of which Complainant was a member explicitly prohibited sexual harassment.
5. Complainant's first impression of her working environment at Respondent's plant was shock at the insubordination permitted by the foremen, the lack of discipline or control exercised by the foremen, and the unruly atmosphere. She personally witnessed four fights on the floor.
6. Beginning in December 1983, Complainant began experiencing a course of sexual harassment that continued until the day she quit on January 24, 1986. Although male co-workers had referred to females in general as "cunt," "wench" "bitch" "whore" "slut," and "God damned woman," they began addressing her and referring to her in these terms. The names derided her in the presence of other males. Other incidents that began in December in 1983 and occurred with almost everyday regularity thereafter were:
a. Wayne Malneg, a rewinder helper, would approach Complainant, asking her how she liked her sex, whether she liked kinky sex, whether she had "screwed" her husband the night before, whether she had been on the top or the bottom, what "things" she liked when having sexual intercourse, or remarking "we're going to hang you up by your bra." She would respond that it was none of his business. His remarks were frequently made to her in the breakroom in the presence of 40 to 50 males. Often foreman Mark Sprangers was present. Sprangers' reaction was to laugh or shake his head and walk away.
b. A frequent comment of Roger Able, a rewind helper, was "Sure, go out and hire another goddamn female and end up with all this shit. That's just what we need." These remarks were frequently made in the presence of foreman John Coon who said nothing.
c. Tom Schaffer, a rewind helper, copied Able's remarks and added innovations. Foreman Coon was often present.
d. Randy "Rocky" Bengel, a rewind helper, often responded to Able's and Schaffer's remarks by addressing Complainant and stating, "For a woman, she's not bad."
e. Bob Rajski, a rewind helper, would query Complainant "It must be nice to have a $20,000 a year job as a second income. Don't you feel the least bit guilty taking a job away from a man?" He always addressed her as "wench" when speaking to her.
f. Dale Lyons, a rewind helper, always addressed her as "all you cunts."
g. Ron Pierre made obscene gestures with his tongue at Complainant.
h. Dallas Cross frequently puffed in the breakroom that "women belong at home, chained to the stove, pregnant, and should just be used for sex."
i. Ralph Naumfelt, a machine operator and union steward, made general statements about women, always referring to them and Complainant as squealers or that women were "nothing but cunts, bitches, whores and sluts."
7. John Coon was Complainant's foreman from her starting date until sometime in December 1983. As he was frequently present when the remarks and comments were made and only laughed along with the other males, and because he always ignored her when she would greet him, she did not feel comfortable complaining to him and did not, although she was affronted by the conduct of her co-workers.
8. In January 1984, Complainant complained to a union representative, Greg Omerczynski, who informed her the situation at Respondent's had been like that for a very long time. He did nothing to help her. She also discussed the problems with the union president who informed her it was neither the union's nor his job or place to deal with the employes, but that it was the employer's responsibility. He further informed her she could file formal complaints against each of the individuals who were making the remarks, and reminded her of union solidarity by warning her that if no one corroborated her claims she would be "thrown out of the union and fired, because you don't turn in a union brother."
9. Chuck Williams succeeded John Coon as Complainant's next foreman. In January 1984 she complained to Williams that she was tired of being referred to as a "wench," "bitch," "cunt," "whore," "slut," "goddamn woman," and such terms. She further complained of the company's toleration for the manner in which the male workers spoke to and about women, other people and supervisors. Williams' response was to the effect that such talk was common in all the mills and she should be consoled with the thought that by her taking the abuse she would make it easier for other women to come in the future to work. Williams made no indication he would take any action to quell the harassment.
10. As of December 1983 Bob Nowak became the finishing department manager, in charge of the foremen and other supervisors in the Rewind Department. It was Nowak's practice to stroll around the plant floor observing the workers. On occasion he stopped at Complainant's station to inquire of her how things were going. In February 1984, when he stopped at her station, she complained to him of the derogatory sexual remarks and name calling and informed him of the specific remarks and names. She also informed him of her complaint to Chuck Williams and Williams' response. No action was taken.
11. Also in February 1984, Complainant began work on a crew consisting of Complainant, Ray Menting and Randy Bengel, rewind helpers, and Don Miller, machine operator. Don Miller is known as an operator "who goes wide open from the time he starts until he leaves for home and he wants things done his way." All the rewind helpers complained to each other about the speed at which Don Miller operated the machine.
12. On some rewind machines, while the operator leaves for a restroom break, a rewind helper will clean the machine with an air hose. Although Don Miller had no rule-making authority, on the machine he ran, he permitted cleaning with the air hose a few minutes before the end of the shift only.
13. On an afternoon in February or March 1984, while Don Miller left the machine for a restroom break, Bengel and Menting were making a roll change when Complainant began cleaning with the air hose. Bengel and Menting ceased making the roll change to back away from the cleanup dust. When Don Miller returned he was upset to find the roll not changed and demanded an explanation. Three days later the incident reoccurred. Don Miller and Complainant loudly argued. From that time on, Don Miller constantly directed Complainant, "If you can't handle the fucking job, get out the fucking door."
14. Following the air hose incident, Don Miller set his machine to make it difficult for Complainant to knock apart the rolls that came out on her side of the table. He would also whip the rolls of paper sent to Complainant in a manner causing the rolls to unravel, requiring extra work for her. In addition he speeded up the machine.
15. In early spring 1984 Complainant complained to Nowak in his office. She stated that on top of everything else she was having problems with a machine operator, Don Miller. She complained that Don Miller ran the machine too fast, that she was having problems knocking apart the rolls, and that Don Miller refused to slow down. She recited Don Miller's statements to her and requested that Don Miller be informed that "we don't have to take that kind of abuse verbally or otherwise." Nowak assured her he was pleased with her work and should not worry about anything Don Miller said. Subsequently Nowak called the crew together on the floor and emphasized to Don Miller that if the crew was having problems knocking rolls apart, Miller could slow the machine. Don Miller responded, "She's not doing her job, and if she can't do her fucking job, she should get out the fucking door." No disciplinary or other action was taken. Thereafter, Don Miller and others referred to Complainant as "squealer." His constant refrain to her was "If you can't handle the fucking job, get out the fucking door." other than this refrain, he refused to speak to Complainant, directing instructions for her through a third person
16. Within a few weeks, Complainant again reported to Nowak's office and complained that the situation with Don Miller had deteriorated, and that what she objected to was not Don Miller's language, but his attempted control over her as he was not her foreman and did not have the authority. She also complained that her crew co-workers were giving her the "cold shoulder" and silent treatment. She further objected to the denigrating words used by floor personnel to address and refer to her. Nowak's response was to admonish Don Miller to watch his language and reminded him Respondent had plant rules prohibiting foul language.
17. Occasionally when Nowak walked his rounds of the plant floor, he stopped at Complainant's station to inquire how things were going. From her response, he knew that she was unhappy with the environment.
18. In June 1984, a supervisor reported to Nowak that the bickering amongst the crew was worsening. Nowak arranged for a meeting with the crew in his office. Present were Nowak; Greg Omerczynski, a union steward; foreman Mark Sprangers; Don Miller; Ray Menting; Randy Bengel; and Complainant. Nowak informed the crew he had had reports that the bickering had not ceased and he wanted it stopped and that they should work together as a team. He read aloud a plant rule prohibiting bickering and recited the penalties for violation. Don Miller was incensed and stated that Nowak could not order him to talk to co-workers. Don Miller demanded to know who had "squealed" on him. Following further excited vituperations, he arose, went to the door and opened it to leave. Nowak ordered him to remain. Don Miller's anger increased. He pointed at Nowak and said, "I have had enough of this shit. This sucks. Until you have something concrete you can tell me that I have done, I'm leaving." With that, he slammed out the door. Nowak closed the meeting. Complainant did not speak at the meeting. No mention was made of sexual harassment or abusive language.
19. In the days and weeks following the June 1984 crew meeting, Don Miller not only continued the same conduct toward Complainant that he had evinced before the meeting, but increased the intensity of the harassment. Complainant believed he deliberately kept trying to catch her fingers in the machine as he ran it. Twice her fingers were pinched in the machine.
20. Complainant requested a transfer to another machine crew. Nowak denied permission, stating that the union would not permit it as transfer could only be made pursuant to union contract procedures. In December 1984 Complainant was bumped to another machine. However, Don Miller continued to yell across the floor to Complainant at her new station "If you can't . . . fucking door." The relationship with her co-workers progressively deteriorated.
21. An incident demonstrating the effect of Miller's harassment and the notoriety of his disparagement of Complainant, providing incentive for the male workers, occurred one morning just before starting time. Complainant and Ray Menting sat facing each other. Chuck Lee, a rewind helper, squeezed between them, looked at Complainant's breasts, and said, "With boobs like that, I can't see any man ever getting mad at her. At least we know that everybody doesn't hate you because you have small tits."
22. Another effect was the increase in the frequency and the number of males who addressed Complainant with sexually derogatory slurs. On each occasion that Dan Dombrowski, a rewind helper, passed Complainant, he attempted to tickle her, first under the armpits, and then moving closer to her breasts.
23. In April 1984, Respondent hired Mike Miller as its employe relations manager. A chief concern he had when hired was the rampant general harassment and horseplay amongst the floor employes and the lack of rule enforcement. Another concern was the level of distrust. He conferred with the production managers on a daily basis and they reported events, problems and concerns, including Complainant's complaints. However, he categorized her complaints as general abusive language and general harassment. He did not recognize the language as sexually abusive. He was aware of the June 1984 crew meeting held by Nowak, but categorized the purpose of the meeting as "resolving personality conflicts."
24. In early February 1985, Complainant discussed her complaints with Allie Morgan, Respondent's personnel administrator in charge of benefits administration, employment records and hourly hiring. Morgan, a female, was under Mike Miller's supervision. Morgan then discussed the matters with Mike Miller.
25. On February 14, 1985, Complainant and Morgan met with Mike Miller. Complainant made the same complaints to M. Miller she had made to Chuck Williams and Bob Nowak. She informed M. Miller she had complained to Williams and Nowak but that nothing ever seemed to be done about it. She informed him of the length of time the abuse had continued. She provided him with the names of abusers and incidents. M. Miller responded he had never heard anything about the incidents and occurrences and that he wanted an opportunity to inquire of Williams and Nowak why they had not informed him of the problems. He also stated he wanted to divulge the matter plant-wide and that she could file a formal complaint, i.e., union grievance. She stated she did not want her name revealed to the entire plant, and that unless he could and would prevent the retaliation of her co-workers from continuing or worsening, she would not file a written complaint. She expressed concerns for her safety and welfare as a retaliation by co-workers for filing formal complaints. She informed him she was hesitant to permit him to reveal her name to the abusers, but that he did have her permission to confront them and reveal her identity to them.
Mike Miller opined to Complainant he considered keeping her confidentiality would present difficulties, but that he would contact Respondent's attorney for advice. She assured him she would cooperate fully to help solve the problem. Mike Miller considered that Malneg, Rohloff, Rajski and Schaffer were "big mouths" and troublemakers and he believed they might abuse Complainant as she described to him.
26. Following the conference on February 14, 1985, Mike Miller made Respondent's president, the executive vice-president and the plant manager aware of what transpired at the conference.
27. During the following week, February 17-23, 1985, and the weeks thereafter until Complainant quit, Mike Miller had numerous in-person and telephone conferences with Complainant wherein she updated him on further incidents. He frequently reminded her that she could file a grievance complaint. Concurrently Complainant also met with Allie Morgan to keep Morgan informed.
28. During the seven-day period between February 14 and 21, 1985, as Complainant left the breakroom, Elvis, a co-worker, approached her from behind and slapped her derriere. He remarked to her he had wanted to do that for a year and a half. She warned him never to do anything like that again.
29. As of February 21, 1985, Mike Miller had not indicated to Complain ant anything he could or would do to improve the situation. On February 21, 1985, Complainant filed her Fair Employment Act complaint with the Equal Rights Division. Mike Miller met with Respondent's attorney to discuss problems of general and sexual harassment and what action Respondent should take.
30. On February 22, 1985, Complainant reported the "Elvis" incident to Mike Miller. He reiterated that she could submit an official complaint (union grievance). He also stated that he had a plan to protect her: he would post an expansion of the rule prohibiting harassment, Rule No. 10, to include sexual harassment, and a memo. Complainant opined that the rule expansion and posting were acceptable to her and preferable to filing a grievance. She further requested that he try to resolve the problems and reiterated she would support whatever Respondent could do.
31. Although Mike Miller considered to himself that another option that would protect Complainant would be to put together an education program on harassment for all employes and to implement the program forthwith, he made no effort to assemble the program. He considered the program could consist of policy statements by Respondent, mandatory meetings for all employes, highlighting of federal laws prohibiting discrimination and sexual harassment, and strict enforcement of all plant rules.
32. Respondent's formal disciplinary procedure under the union contract is a warning -- verbal, then written -- followed by discharge for a second offense within a one-year period. Respondent had no explicit rule prohibiting sexual harassment, nor any disciplinary procedures pertaining to sexual harassment. Before resorting to the formal disciplinary procedure, Respondent follows an informal procedure of placing a "nondisciplinary letter" in an employe's file and having a supervisor discuss the offense with the employe. Respondent considers that in most instances the informal procedure is more effective than the formal procedure.
34. On February 27, 1985, Mike Miller reported to Respondent's president, executive vice-president and plant manager the filing of Complainant's sexual harassment complaint. Mike Miller also informed department managers Bob Nowak and Tom Fromberg and alerted them that sexual harassment was occurring in the plant.
35. On March 6, 1985, Mike Miller met with Respondent's attorney, the manufacturing managers and supervisors. He pointed out Respondent's liabilities and responsibilities under Title VII and the state's Fair Employment Act, and instructed on how to properly deal with unlawful discrimination issues.
36. On March 7, 1985, Complainant contacted Mike Miller, informed him that she was scheduled to work with Wayne Malneg beginning that night and continuing through March 12, and requested that the supervisor be instructed to closely supervise the crew during her shift. During each of the six days Complainant worked with Malneg he bombarded her with questions concerning her sexual proclivities and other personal questions such as "Do you wear Kotex or Tampons?" Complainant would retort that it was none of his business. He would follow with, "Come on, all you women wear them. Don't you feel like you have a pickle shoved up your ass?" Other of his daily euphemisms concerned her physical attributes -- "little tits" and "nice ass." He continued his course of conduct until Complainant quit her employment. She informed Mike Miller, who took no action against Malneg. 37. Also on March 7, 1985, Mike Miller received a copy of Complainant's Equal Rights Division sexual harassment complaint. He met with union officers to explain the proposed posting.
38. On March 8, 1985, Miller posted a notice to the hourly employes, quoting Plant Rule No. 10:
"Employes are prohibited from threatening, intimidating, coercing or otherwise interfering with fellow employees on Company premises.
1st offense - Warning
2nd offense - Discharge"
The notice included a reminder that state and federal laws prohibit sexual harassment. A procedure for resolving complaints was provided as follows: "Reports should be made to your supervisor/department manager, Mike Miller, or if confidentiality is a concern regarding sexual harassment, to Allie Morgan, Personnel Administrator. All sexual harassment reports will be objectively investigated by Allie in a prompt manner and proper action to correct the situation will follow if the investigation concludes that sexual harassment has occurred." A second page attached to the notice was a photocopy of the EEOC Guidelines on Sexual Harassment.
39. Respondent did not rewrite or adopt any plant rule to explicitly prohibit sexual harassment. Mike Miller prohibited Morgan from investigating any of Complainant's complaints. Nor did Morgan ever investigate any complaints by anyone concerning sexual harassment. Mike Miller never investigated any of Complainant's complaints concerning sexual harassment. Respondent made no investigation of any of Complainant's complaints concerning sexual harassment. Plant Rule No. 10 was never enforced with respect to a sexual harassment complaint of Complainant, although after March 8, six "general" harassment complaints were made by other employes and each was fully investigated.
40. Following posting of the notice, the intensity of the sexual harassment of Complainant increased. The workers knew she had filed a complaint. A worker remarked to her that he had heard all over the plant that she "was the one." More workers called her the six epithets (cunt, whore, etc.). Orv Ryckman, a janitor, approached her at her machine, stood approximately a foot in front of her, held his hands one inch from her breasts, and threatened to grab. She warned him not to. He dropped his hands and walked away laughing. She informed Mike Miller of the incident, who took no corrective action against Ryckman.
41. Sometime after February 21, 1985, Ron Pierre, a co-worker, approached Complainant, placed both his hands on her thighs, and began talking to her. She threw his hands from her legs and remonstrated with him. On another occasion, as Complainant began to sit on a chair in the breakroom, she noticed Pierre place his hand palm up on the seat, fingers wiggling. He accompanied his action with nasty remarks. She reported the incidents to Mike Miller. Mike Miller's corrective action was to inform the supervisor that Ron Pierre "was doing some things that were not necessarily on his job description.". Miller's attempted justificaton of Respondent's failure to take any disciplinary action was that the latter incident occurred in the lunchroom and no supervisors were involved or observed the incident.
42. In the summer of 1985, Dallas Cross continued to observe in the breakroom that "women belong at home, . . . and should just be used for sex." Complainant reported him to Mike Miller.
43. In 1985, Ralph Naumfelt continued to state that Complainant and all women were "nothing but cunts, bitches, whores and sluts." She complained to Mike Miller.
44. After March 8, 1985, Mike Miller's response to Complainant's complaints was to approach the shift supervisor, Nowak, and mention that he heard through the grapevine that harassment was occurring on the floor and that if Nowak observed any, corrective action should be taken. Mike Miller believed that the sexual remarks and sexual slurs reported to him by Complainant should be categorized as common "shop talk" and not as sexual harassment.
45. The treatment of Complainant by her co-workers was sexual harassment of such degree as to create a hostile work environment. The sexual harassment was unwelcome and affected her life. She resorted to ingesting sleeping pills; she frequently cried before going in to work because she feared the actions of her co-workers; and she believed she was having "a nervous breakdown." In January 1985, she kept appointments with physicians because she was frequently ill. In December 1985 and January 1986 she attended a two-month course on stress.
46. By January 1986, the touching incidents had ceased, but the verbal sexual harassment had never ceased. Complainant considered the situation had deteriorated to a point where she had no one to turn to, nor any one co-worker who would converse with her. She was directly ignored by the workers, but indirectly the workers would continue their remarks in her presence. Although in certain aspects of the job workers must help each other, no one helped her.
47. On January 24, 1986, Complainant quit her employment with Respondent to take a job with another employer.
48. At no time did Mike Miller ever request Complainant to lift her confidentiality request in order for him to take action to correct the sexual harassment problems. In fact, Mike Miller told Complainant that he could correct the problems without her having to lift her confidentiality request. Other than the posting, he suggested no action he could or would take to eliminate the sexual harassment. The posted procedure for sexual harassment complaints suggested such complaints would be kept confidential. The procedure further required investigation by Allie Morgan and corrective action. In fact, Morgan was directed by Mike Miller, not to make an investigation, and Mike Miller himself never investigated any of Complainant's sexual harassment complaints, although Complainant supplied him with names, dates, places and incidents and he believed many of those named would act as Complainant described. Respondent has never taken any disciplinary actions concerning sexual harassment.
49. Complainant made no complaints to her first foreman because he joined in the laughter with her abusers when she was abused. Her first complaint was in January 1984 to her then foreman. She complained again in February 1984 to her department manager and thereafter on at least two other occasions during 1984. At least as of June 1984, Respondent's employe relations manager was aware of her complaints, and she complained personally to him and the personnel administrator in early 1985 before she filed her Equal Rights complaint. None recognized a sexual harassment problem and no effective action was taken to correct the problem because the harassment never ceased. She did not file a grievance complaint because she feared greater retaliation and reasonably believed Respondent would not protect her against retaliation.
50. Although Respondent was well aware of the working conditions to which Complainant was subjected, Respondent failed to take appropriate action, such as investigation, informal disciplinary action, informal or formal warning, mandatory education programs for all employes explaining laws prohibiting sexual harassment and sanctions therefor, adoption of a specific rule prohibiting sexual harassment, establishment of an effective complaint procedure for victims of sexual harassment, ensuring confidentiality and providing effective remedies, including protection of victims and witnesses against retaliation.
1. Respondent is an employer within the meaning of sec. 111.32(6)(a), Wis. Stats.
2. Complainant has proved by a fair preponderance of the evidence that Respondent discriminated against her because of her sex in regard to conditions of employment, within the meaning of secs. 111.322(1) and 111.36(b), Wis. Stats.
1. That the Respondent pay to the Complainant and her attorneys, Richard Kewley, Jr., and David Prosser, Jr., attorneys fees and costs incurred in the handling of Complainant's complaint in this matter.
2. That Respondent shall within 30 days of the expiration of time within which an appeal may be taken herein, 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 53708.
Dated and mailed January 25, 1989
/s/ Hugh C. Henderson, Chairman
/s/ Carl W. Thompson, Commissioner
The Commission's findings of fact are not based on an assessment of credibility differing from that of the Administrative Law Judge (ALJ), but are based on the facts as they appear in the transcript of the hearing and the hearing record, including the exhibits. Because Complainant's attorney cited many errors in the ALJ's synopsis, evidentiary rulings, and findings of fact, and Respondent's attorney agreed there were numerous errors, the Commission ordered a transcript of the hearing.
I. Procedural Issues.
At the hearing held on November, 24, 1986, the Administrative Law Judge, sua sponte, raised the issue of the admissibility of testimony concerning events occurring after February 21, 1985 (the date the FEA complaint was filed). He permitted testimony concerning these events, subject to a later ruling. In the memorandum opinion of his decision issued October 30, 1987, he ruled the testimony was inadmissible, that the testimony be stricken and not be considered in reaching his decision. The Commission disagrees and has considered such testimony and has also considered evidence of record concerning events occurring after February 21 , 1985.
Admissibility of the evidence is dependent upon the statutes and rules. Section Ind. 88.16(1), Wis. Adm. Code, provides that hearings shall be conducted in conformity with the Act and the provisions of Ch. 227, Stats. The FEA is silent on the issue of precisely what evidence is admissible. Section 227.45(1), Stats., provides that a hearing examiner "shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony . . ." Section 904.01, Stats., defines "relevant evidence" to mean "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence:"
Section 904.02, Stats., provides that "All relevant evidence is admissible, except as otherwise provided by the constitutions of the United States and the State of Wisconsin, by statute, by these rules, or by other rules adopted by the supreme court. Evidence which is not relevant is not admissible."
An element that Complainant was required to prove was that the employer failed to take appropriate action within a reasonable time. The last supervisor to whom she complained was Mike Miller, Respondent's manager of employe relations. Her first complaint personally to him was made on February 14, 1985. She filed her FEA complaint one week later on February 21, 1985, charging sexual harassment to February 15, 1985. Between February 14, 1985, and the date she quit on January 24, 1986, she frequently complained to him. Evidence concerning the effects of her complaints and Respondent's actions in the time frame between February 14, 1985 and January 24, 1986, is reasonably probative on the issue of "failure to take appropriate action" and "within a reasonable time" because the evidence tends to make the fact that the Respondent never took appropriate action more probable and the fact that although afforded more than ample time within which to act, Respondent failed to take appropriate action. Therefore the evidence is relevant and reasonably probative, and as such, is admissible.
Section 111.39(1), Stats., provides a 300-day limitation for filing a complaint. Complainant's complaint charged sexual harassment to February 15, 1985. She filed her FEA complaint February 21, 1985. She terminated her employment January 24, 1986. The hearing in this matter was held November 24, 1986, 305 days after claimant quit her employment.
Respondent contends, and the ALJ so ruled, that Complainant should not be permitted to amend her complaint (impliedly to include claims for constructive discharge and/or retaliation). However, the issue is moot because neither Complainant nor her attorneys have ever moved to, nor made any argument to, amend her complaint to include any additional claim.
Respondent appears to assume that admissibility of evidence of events occurring after the date of filing a complaint always requires an amendment of the complaint to include such facts. The assumption is erroneous. In this case the evidence is admissible because it is relevant and probative on an element of Complainant's case. The evidence is neither immaterial nor unduly repetitious. Moreover Respondent was not surprised by introduction of the evidence as the initial determination included facts occurring after February 21, 1985; Respondent's attorney examined Complainant on these facts when it deposed her on October 14, 1986, and Complainant's attorney examined three of Respondent's witnesses on these facts when he deposed them on November 4, 1986. Much of Respondent's correspondence with the Equal Rights Division investigator concerned Respondent's post-complaint actions, and Respondent's argument for justification of its actions is based on actions it took after Complainant's Equal Rights complaint was filed.
II. Substantive Issues.
In addition to enduring sexual innuendoes, and physical touching, Complainant's male co-workers regularly addressed and referred to her as a cunt, wench, bitch, whore, slut and goddamned woman. The terms are defamatory and commonly used to denigrate females. No serious argument may be made that the terms are not sexual in nature.
Complainant contends she was a victim of sexual harassment. Sexual harassment is prohibited under the state's Fair Employment Act and is defined in pertinent part as follows:
Section 111.32(13), Wis. Stats:
(13) "Sexual harassment" means unwelcome sexual advances, 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, or the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes.
Section 111.36(1), Wis. Stats.:
(1) Employment discrimination because of sex includes, but is not limited to, any of the following actions by any employer . . . or other person:
(b) 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 permitting sexual harassment to substantially interfere with an employe's work performance or to create an intimidating, hostile or offensive work environment . . . ."
Complainant suffered no economic detriment or loss of concrete employment benefits. Her case was presented under the "hostile work environment" theory.
Because of the similarity between the state's Fair Employment Act and Title VII, (1) the federal cases serve as helpful guides in sex discrimination, including sexual harassment, cases.
Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399, 477 U.S. 57, 40 FEP Cases 1822 (1986), is the leading case on the "hostile work environment" theory. In Meritor the U.S. Supreme Court held that a violation of Title VII may be predicated on either of two types of sexual harassment: (a) quid pro quo sexual harassment, i.e., harassment that involves the conditioning of concrete employment benefits in return for sexual favors, and (b) harassment that, while not directly affecting economic benefits, creates a hostile or offensive working environment. Id. at 2404, 2405.
The Supreme Court's holding was based on (1) Title VII's prohibition of an employer's discrimination "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex (42 U.S.C. § 2000e 2(a)1); (2) (2) the EEOC guidelines, 29 CFR sec. 1604.11 (a) (1985); and (3) substantial existing case law.
The Court found that the phrase "terms, conditions, or privileges of employment" evinces "a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women"' and, therefore, Title VII includes not only discriminatory acts concerning a tangible loss of an economic character, but also harassment leading to noneconomic injury. Id. at 2404.
The Court cited with approval the EEOC definition of "sexual harassment" codified in 29 CFR § 1604.11(a); the codification distinction between quid pro quo harassment and hostile environment harassment; and the liability of an employer for either type under the Code. The Court stated that "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult." Id. at 2405.
The Court agreed with, and cited with approval, many cases holding that an employe may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. Id. at 2405, 2406.
The Court noted that not all workplace conduct that may be described as "harassment" affects "a term, condition, or privilege'' of employment. The Court instructed: "For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment.'' Id. at 2406.
The threshold issue then is whether the instances of harassment alleged by Complainant rise to a level of "hostility" offensive enough to be considered actionable. Scott v. Sears, Roebuck & Co., 798 F.2d 215, 41 FEP Cases 805 (7th Cir. 1986).
A "hostile work environment" claim is actionable under Title VII if unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature are so pervasive that it can reasonably be said that they create a hostile or offensive work environment. Id. at 2405, 2406. "Such severe harassment becomes discriminatory because it deprives the victim (usually female) of the right to participate in the work place on equal footing with others similarly situated." Scott v. Sears, Roebuck & Co., 798 F.2d 215, 41 FEP Cases 805 (7th Cir. 1986). Whether the sexual conduct is sufficiently pervasive to amount to harassment and create a hostile or offensive work environment must be determined from the totality of the circumstances. Meritor at 2406, 2407.
A claim that sexual harassment created a hostile work environment (amounting to sex discrimination with respect to the terms, conditions, or privileges of employment) claims essentially that "conditions of employment" include the psychological and emotional work environment -- the sexually stereotyped insults and demeaning conduct to which Complainant was indisputably subjected and which caused her anxiety and debilitation, illegally poisoning that environment. Bundy v. Jackson, 641 F.2d 934, 24 FEP Cases 1155, 1160 (D.C. Cir. 1981 ).
In Ross v. Double Diamond, Inc., 45 FEP Cases 313, 320 (N.D. Tex. April 1, 1987), the court set forth the four factors that should be considered in determining whether an abusive work environment exists, as follows: (1) the nature of the unwelcome sexual acts or words; (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive meetings occur; and (4) the context in which the sexually harassing conduct occurred. The court also stated (at p. 320), "In order for a plaintiff to be successful in a claim for hostile work environment, the plaintiff must prove 'that the defendant's conduct would have interfered with a reasonable individual's work performance and would have affected seriously the psychological well-being of a reasonable employee' and 'demonstrate that she was actually offended by the defendant's conduct and that she suffered some degree of injury as a result of the abusive . . . work environment.' Rabidue v. Osceola Refining Company, 805 F.2d 611, 620, 42 FEP Cases 631 (6th Cir. 1986)." Complete psychological and emotional debilitation is not required to establish the case. (Ross at 319.)
Complainant established incidents of physical touching; the threat of physical grabbing of her breasts; verbal, sexually derogatory slurs; derision, not only of her, but of her anatomy; and blatant hostility. Such acts occurred almost daily over a period of more than two years. She was the only female and worked with approximately 50 hostile males. The actions were a norm in the workplace. She frequently complained of the conduct to supervisors. She suffered from insomnia, nervousness and stress reactions.
Evidence of the general work atmosphere, involving employes other than, the plaintiff, is relevant to the issue of whether there existed an atmosphere of hostile work environment which violated Title VII. Vinson v. Taylor, 753 F.2d 141, 36 FEP Cases 1423, 1427 (D.C. Cir. 1985), aff'd in relevant part and rev'd in part 477 U.S. 57, 40 FEP Cases 1822 (1986); Broderick v. Ruder, 46 FEP Cases 2171 (D.C. D.C. 1988). Mike Miller, Respondent's employe relations manager, testified to the effect that general harassment and horseplay among the workers was rife and that rules were not enforced. Complainant testified concerning the fights she observed and the general insubordination to supervisors. Early in her employment her union steward commented to her on the poison work environment and that the condition was of long-standing duration. Hostility and an unruly atmosphere was a norm on the floor. However, no contention has been made that the male workers were sexually harassed.
In this case, not only were the slurs made about women in general, but were also addressed to Complainant personally. The conduct toward Complainant began in December 1983, increasing in intensity until she quit in January 1986. The protracted use of such references created and contributed to a pervasive atmosphere of sexual hostility in the work environment. Her endurance of the offensive poisonous atmosphere became a condition of her employment.
Complainant has established a pattern of sexually stereotyped insults, demeaning conduct and sexual abuse causing her fear, anxiety and debilitation continuing over a considerable period of time. Applying the subjective standard, the Commission considers that the abusive conduct, under the circumstances, would have interfered with any reasonable person's work performance and would have affected seriously that person's psychological well-being. Therefore, a hostile work environment existed that affected a term, condition or privilege of Complainant's employment. The Bundy court queried, "How then can sexual harassment, which injects the most demeaning sexual stereotypes into the general work environment and which always represents an intentional assault on an individual's innermost privacy, not be illegal?" Bundy, 24 FEP Cases at 1161.
The five elements of a "hostile work environment" case that a complainant must show are: (1) she belongs to a protected group, (2) she was subject to unwelcome sexual harassment, (3) the harassment was based on sex, (4) the harassment affected a term, condition or privilege of employment, and (5) the employer knew or should have known of the harassment in question and failed to take appropriate remedial action within a reasonable time. See Jones v. Wesco Investments, Inc., 46 EPD par. 37,985 (8th Cir. 1988).
Complainant is a female and therefore belongs to a protected group. She has established she was sexually harassed to a degree of severity or pervasiveness that it is actionable. Under the second element of her case she must establish that the harassment was unwelcome.
"In order to constitute harassment, the conduct must be 'unwelcome' in the sense that the employee did not solicit or invite it, and the employee regarded the conduct as undesirable or offensive." Hall v. Gus Construction Co., 46 FEP Cases 573, 576 (8th Cir. March 25, 1988) .
Argument has been made that because Complainant herself used profanity, she either invited her co-workers' actions and talk or, in the alternative that she cannot be heard to complain when she voluntarily was guilty of that of which she complained of others.
"The gravamen of any sexual harassment claim is that the alleged sexual advances were 'unwelcome.' . . . The correct inquiry is whether respondent [Complainant] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation . . . was voluntary." Meritor Savings Bank, FSB, supra at 2406.
Although Complainant conceded she used coarse language in expletives such as damn or shit, she never referred to or addressed her male co-workers in derogatory terms. Her profanity consisted of sexually neutral or nonsexual words. The use of profanity cannot be equated with the slander Complainant endured. Only a nonmeritorious argument may be made that an individual whose vocabulary includes the word "damn" thereby is transformed into a "whore," "slut," "bitch," "cunt," "wench" or "Goddamned woman" because of the use of the expletive "damn." Nor does use of common profanity license or invite others to call one a whore, etc. A check of the dictionary definitions of "whore," etc., establishes no connection between the user of common profanity and a "whore," etc. Here the male co-workers, who commonly used profanity were not addressed as "whore," etc. Complainant remonstrated with her co-workers and complained to her supervisors. She did not solicit or invite the sexually derogatory names, nor did she welcome them. She unhappily endured them. The record is replete with Complainant's unrefuted admonishments to the perpetrators and her complaints to four supervisors (Williams, Nowak, Miller and Morgan) establishing the conduct of the harassers was unwelcome.
J. Wolman's concluding prose in the case of Hall v. Gus Construction Co., 46 FEP Cases 573 (8th Cir. 1988), is appropos:
". . . we note that the conduct and language complained of went far beyond that which even the most sensitive of persons is expected to tolerate in this era of generally impoverished discourse. In this day when certain so-called comedians command millions for spewing forth on film language of the drill field, perhaps each of us, consciously or not, has become inured to that which even two short decades ago might have been considered beyond the pale of colloquial speech. Title VII does not mandate an employment environment worthy of a Victorian salon. Nor do we expect that our holding today will displace all ribaldry on the roadway. One may well expect that in the heat and dust of the construction site language of the barracks will always predominate over that of the ballroom. What occurred in this case, however, went well beyond the bounds of what any person should have to tolerate. These women acknowledged that they had anticipated hearing a good deal of profanity when they accepted their jobs as flag persons. Indeed, Ms. Baxter acknowledged that she, Ms. Hall, and Ms. Ticknor had probably uttered profanity themselves out on the job site. They did not expect, however, the unrelenting pattern of verbal, physical, and psychic abuse to which they were ultimately subjected. They gave fair notice of the intolerable conditions under which they were being forced to work and from which they were entitled to protection under Title VII . . . they should not now be denied that which is their legal due."
The third element of the case is whether the harassment was based on sex. One insurmountable problem Complainant faced in the workplace was the insensitivity of not only her co-workers, but that of the supervisors as well. She never complained of foul language. Her complaint was the sexual slurs, the demeaning, derogatory and debasing sexually discriminatory language and actions. Certainly the men weren't referred to or addressed as "cunt," "wench," "bitch," "whore " "slut" or "goddamned women." Yet none of the male supervisors has ever evinced the sensitivity to understand the nature of her complaint. Mike Miller believes she was complaining of "shop talk." (M.M. Dep. 27)
Nowak believes the only sexual language was Malneg's questions concerning Complainant's sexual relationship with her husband and the Kotex and tampons questions and remarks. (T. 175) Williams categorizes the language as "floor language," not sexually derogatory slurs. (T. 134, 135, 137) As stated above, obviously the words used to refer to Complainant and women were sexually oriented epithets, just as the offensive references to her anatomy and vulgar displays were sexually oriented. Therefore, the harassment was based on sex.
The fourth element of Complainant's case is whether the harassment affected a term, condition or privilege of employment. The discussion of this element has been discussed above and decided in the affirmative.
The fifth element is whether the employer knew or should have known of the harassment in question and failed to take remedial action within a reasonable time.
Complainant's first foreman, John Coon, was often present when the offensive verbal abuse occurred. He merely laughed at the conduct. Complainant made her first complaint in January 1984 to her foreman, Chuck Williams. She told him she was tired of being addressed, called and referred to as "bitch," etc. Williams' only response was, "That's the way it is in all the mills. You should just think that by your standing up and not taking any more of it, you will make it better for other women who come in here to work." So Williams' response was to toss the ball back into Complainant's court and to do nothing. Williams never understood the nature of her complaints.
Mark Sprangers, a foreman who witnessed the sexual remarks, asked Complainant, "Have you just about had enough of this?" He did nothing to alleviate the problem. He, too, laughed at her discomfiture.
Beginning about January 1984, Complainant began complaining to Bob Nowak, finishing department manager. He also thought Complainant's complaints were nothing more than objections to general swearing because he, too, does not recognize a difference between the sexually derogatory epithets and general epithets. Nowak instructed Don Miller to watch his language and finally held a crew meeting in June 1984, where he told the crew they were to get along together and not bicker. He took no other action.
At least as of June 1984, Mike Miller, Respondent's employe relations manager, knew the general picture, if not the details of the harassment. In 1984 he took no action to prevent it.
In February 1985 Complainant made her complaints known to Mike Miller, employe relations manager, and Allie Morgan, a personnel administrator. Following conferences with Morgan, she met with Miller and Morgan together on February 14, 1985. Miller's response was to advise Complainant that she could file a formal union grievance complaint. (Presumably this meant she would be required to file numerous separate grievances against each harasser on each occasion of a remark or sexual conduct.) Complainant told him she didn't want plant-wide notoriety as the person informing him of the events. When Complainant hesitated to formally file a complaint unless he would prevent the retaliation of her co-workers as she feared for her safety and welfare, he said he would explore alternative ways of dealing with the situation with Respondent's attorney.
After February 14, Complainant met or contacted regularly Allie Morgan and Mike Miller, providing then with contemporaneous occurrences.
By February 21, a week after her first contact with Mike Miller, he had not informed her of any appropriate action he would take. Nor had either he or Allie Morgan investigated the complaints, nor was any investigation ever made on her complaints of sexual harassment. on that day she filed her equal rights complaint.
On February 22, 1985, Mike Miller suggested again to Complainant that she either file a formal grievance complaint or he would post an expansion of the rule prohibiting harassment generally to include sexual harassment. Complainant stated she preferred the latter option. On February 26, 1985, Respondent was informed Complainant had filed the equal rights complaint.
It was not until March 8, 1985, that Mike Miller posted the EEOC guidelines and the procedure for making sexual harassment complaints, a procedure that assured anonymity, investigation and disciplinary action against violators. Complainant continued to follow the procedure for another ten months, however no investigation was ever made and no disciplinary action was taken. On each occasion she complained to a supervisor, the intensity of the harassment increased.
During 1984 and January 1985, the sexual harassment of her co-workers was systematically directed to Complainant over a prolonged period of time. She often complained through official channels, but nothing was done. Supervisory personnel and management officials exhibited a callous indifference. Complaints by Complainant were addressed superficially if at all. Respondent had no explicit policy against sexual harassment. In sum, sexual harassment was the general, ongoing and accepted practice, and supervisory and management officials responsible for working conditions at the rewind department knew of, tolerated, and condoned the harassment. As Respondent's supervisory and management officials were aware of the repeated slurs and other sexually harassing conduct for a year and took no action, they did not act within a reasonable time.
Moreover, in the year following Complainant's filing of her FEA complaint, Respondent's only action was to afford her a supposedly sympathetic ear for airing her grievances, an outlet that was ineffective in preventing the harassment.
Complainant met the proof required to establish the elements of her prima facie case. The burden of going forward then shifted to Respondent to establish sane legitimate, non-discriminatory reasons for the action taken.
Respondent contends it gave Complainant's complaints serious and timely consideration and took immediate action to investigate the complaints, but was hampered by Complainant's request of confidentiality both before and after her equal rights complaint was file, and because Complainant failed to avail herself of formal grievance procedures under the collective bargaining agreement. Respondent further contends it attempted to remedy the problem by adopting a specific anti-sexual harassment policy and program, and that Complainant admitted the program resulted in some improvement.
Section 111.36(2)(b), Wis. Stats., provides in pertinent part:
. . . Under this paragraph, an employer . . . is presumed liable for an act of sexual harassment by that employer, . . . 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 . . . of the act, and if the employer . . . fails to take appropriate action within a reasonable time.
The EEDC Guidelines, 29 CFR sec. 1604.11 (d) concerning employer liability when co-workers sexually harass an employe, provides:
With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace when the employer (or its agents or supervisory employees) knew or should have known of the conduct, unless it can show that it took immediate appropriate corrective action.
Both the federal and the state's provision require that the employer take appropriate action. The difference between the two provisions is that the federal language specifically requires "corrective" as well as "appropriate" action and that the time frame within which action be taken is less, i.e., "immediately," rather than the state's "within a reasonable time." For purposes of this case, these are distinctions without a difference, and the Commission will defer to federal law for guidance.
A recent EEOC policy statement (3) comments that an employer generally will be found liable for "hostile environment" sexual harassment when the employer failed to establish an explicit policy against sexual harassment and did not have a reasonably available avenue by which victims of sexual harassment could complain to someone with authority to investigate and remedy the problem. In taking action against sexual harassment, the EEOC encourages employers to:
1. Initiate discussions on the subject with all supervisory and non-supervisory employees, explaining sanctions for harassment;
2. Have a procedure for resolving sexual harassment complaints that is designed to encourage victims of harassment to come forward, without (in the case of supervisory harassment) requiring that a victim complain first to the offending supervisor; and
3. Ensure confidentiality as much as possible and provide effective remedies, including protection of victims and witnesses against retaliation.
Respondent's supervisors were on notice beginning in January 1984 and condoned the practice. As of February 1984 Respondent's management was on notice of Complainant's complaints when Complainant began her complaints to her department manager. By June 1984 Respondent's employe relations manager was aware of her complaints. By February 1985, Complainant was complaining directly to two of Respondent's personnel managers. None of the managers investigated the practice. No concerted effort was made to squelch the practices of her co-workers. Indeed, the verbal slurs continued until she quit in January 1986. Respondent's supervisors and management did not understand what sexual harassment is, believing the sexual slurs and touching incidents to be trivial -- a common occurrence of horseplay and swearing. Under the circumstances, Respondent compounded Complainant's difficulty in obtaining relief from harassment and thus, in a sense, compounded the FEA violation.
As Respondent was on notice for more than a year before Complainant filed her FEA complaint, Respondent cannot claim it acted within a reasonable time.
Complainant's request of "confidentiality" was not made until February 14, 1985, when she discussed the problems with Respondent's employe relations manager. Her request was reasonable. She did not want her name associated plant-wide with her complaints unless Respondent would take effective action to prevent retaliation by co-workers. The EEOC policy statement encourages employers in sexual harassment matters to ensure confidentiality as much as possible and provide effective remedies, including protection of victims and witnesses against retaliation. Complainant had good reason to fear retaliation by co-workers. Her previous complaints had resulted in increased harassment by co-workers and condonation and toleration of the harassment by Respondent. Also, at no time did Respondent ever request her to lift her "confidentiality" request or tell her that no action could or would be taken unless she retracted her request. Indeed, she was informed that the problems would be corrected without her retracting her request for confidentiality. In addition, no "confidentiality" request could have hampered Respondent during the year 1984 because no such request had been made at the time.
Respondent's contention that any investigation was hampered by Complainant's unwillingness to sign a formal complaint (grievance) cannot be sustained. In rejecting a similar argument in the Meritor Savinggs Bank, FSB case, supra, the U.S. Supreme Court stated at pp. 2408, 2409: "Finally, we reject petitioner's view that the mere existence of a grievance procedure and a policy against discrimination, coupled with respondent's failure to invoke that procedure, must insulate petitioner from liability. While those facts are plainly relevant, the situation before us demonstrates why they are not necessarily dispositive. Petitioner's general nondiscriminatory policy did not address sexual harassment in particular, and thus did not alert employes to their employer's interest in correcting that form of discrimination. Moreover, the bank's grievance procedure apparently required an employe to complain first to her supervisor, in this case Taylor. Since Taylor was the alleged perpetrator, it is not altogether surprising that respondent failed to invoke the procedure and report her grievance to him. Petitioner's contention that respondent's failure should insulate it from liability might be substantially stronger if its procedures were better calculated to encourage victims of harassment to acme forward."
In this case, there is no evidence in the record that Respondent had any kind of a policy against discrimination. It certainly had no explicit rule or policy against sexual harassment, nor did the collective bargaining agreement prohibit sexual harassment. Respondent's general rule prohibited "threatening, intimidating, coercing or otherwise interfering with fellow employees on Company premises." Such a rule does not alert employes that Respondent is interested in correcting sexual discrimination, including sexual harassment. Moreover, the purpose of filing a complaint is to alert an employer to a situation. In this case, supervisors were present during many incidents. In addition, Complainant's verbal complaints made Respondent fully aware of the sexually offensive harassment. The rule did not alert Complainant or Respondent's supervisors and managers to any interest of Respondent in correcting sex disrimination as it appears Respondent tolerated and condoned the acts of her co-workers.
Filing a grievance requires a written complaint to the union. In early 1984 union representatives, including the union's president, denied any responsibility for the union to take corrective action on Complainant's circumstances. A union has jurisdiction on grievances only over a violation of a collective bargaining contract provision. As there was no contract provision prohibiting sex discrimination, nor a provision prohibiting sexual harassment, the union would have no apparent jurisdiction. The perpetrators were her union brothers. Complainant's fears of co-worker retaliation for filing a grievance complaint are substantiated by the union president's threat on union solidarity and threat of discharge if no "union brother" corroborated her claims. Her fears were further substantiated by the increase in intensity of the harassment following each of her verbal complaints to Respondent, the demonstrated lack of control over workers, and the tolerance and condonation by Respondent. Moreover, Mike Miller testified that Respondent's informal procedure of talking to a worker alleged to have violated a rule was more effective than the formal disciplinary procedure requiring the filing of a union grievance complaint. He never invoked the informal route on Complainant's complaints. That Complainant was unwilling to file a formal complaint with the union against her union brother perpetrators is not surprising.
Respondent's contention that it attempted to remedy the problems by adopting a specific anti-sexual harassment policy and program is not sustained. Respondent never adopted a specific rule prohibiting sexual harassment. Fourteen months after Complainant's first complaint, and 15 days after she finally filed her Equal Rights complaint, Respondent posted the EEOC Guidelines on sexual harassment. The Guidelines were attached as a second page under a posting of Respondent's general Rule No. 10 prohibiting the threatening of coworkers. The procedure for Rule 10 complaints was posted, along with Rule 10, on March 8, 1985. The procedure included a statement that sexual harassment could be reported and that Allie Morgan, personnel administrator, would objectively investigate such reports in a prompt manner. Mike Miller directed Morgan not to investigate Complainant's complaints. In fact, Complainant's sexual harassment complaints were never investigated; no action was ever taken that squelched the sexual insults, and Respondent has never acted upon any sexual harassment complaints. The statement further intimated that by reporting sexual harassment complaints directly to Allie Morgan, a complainer could maintain "confidentiality." Respondent cannot now argue that it provided a procedure for reporting sexual harassment complaints but its investigation of Complainant's sexual harassment complaints was hampered by her request for confidentiality -- when Respondent's procedure offered "confidentiality." Respondent's feeble attempts came too late, were ineffective; did not include a rule specifically prohibiting sexual harassment; and its procedure -- as to Complainant -- did not provide someone with authority who investigated and remedied the problem.
Respondent's contention that Complainant admitted the program resulted in some improvement is incomplete. Complainant's actual admission was that the touching incidents eventually ceased, but the sexual slurs and other sexual harassment increased.
Contention has been made that Don Miller's treatment of Complainant appears to be sexually neutral conduct and that Complainant appeared more incensed about his conduct than she was about the blatantly sexual conduct. However, Don Miller's treatment and attitude acted as the catalyst, providing the bravado for others to victimize Complainant. When he called her "squealer," others took up the refrain. When he refused to converse with her cordially, many others followed his lead with silent treatment of her. When he derided her, the derision of her by others increased. Following each occasion that she complained of Don Miller's actions, the sexually offensive atmosphere intensified making her work as a rewind helper a great deal more aggravating and humiliating.
Hall v. Gus Construction Co., 46 FEP Cases 573 (8th Cir.) is a sexual harassment case involving actions that could be deemed sexually neutral horseplay in addition to sexual insults and offensive touching. Here the court considered the horseplay as well as the clearly sexual conduct. In response to the employer's argument that only conduct of a sexual nature should be considered in a sexual harassment claim, the court states, ". . . the predicate acts underlying a sexual harassment claim need not be clearly sexual in nature . . ." since "intimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances." Id. at 575, 576. In the present case, Don Miller's lead provided incentive and an example for the other workers. Complainant testified to the increase in the number of workers sexually harassing her and to the increased intensity of the harassment on each occasion Don Miller increased his harassment of her. She reasonably blamed him for much of the harassment of the others. In fine totality of the circumstances, Don Miller's actions must be considered in the totality of the environment. His actions and verbal abuse were part of the sexual harassment Complainant suffered.
Considering the overall record, Complainant has sustained her burden of proof under a "hostile work environment" theory and also should not now be denied that which is her legal due.
III. Appropriate Award.
Complainant's complaint charges harassment through the date of filing the complaint, February 21, 1985. Complainant was still working for Respondent when the complaint was filed. She suffered no loss of concrete employment benefits through February 21, 1985. Therefore back pay and reinstatement are not appropriate. Complainant is no longer employed by Respondent. Therefore, injunctive relief also is not appropriate because there is no reasonable expectation that the conduct towards Complainant will recur at Respondent's plant.
In Bundy v. Jackson, supra, 24 FEP Cases at 1162, fn. 12, the court stated:
. . . Back pay and reinstatement are, of course, irrelevant to the discriminatory environment issue, and we follow the great majority of the federal courts in construing "equitable relief" to preclude any award of damages for emotional harm resulting from a Title VII violation. (Citations omitted.) We add that, since our holding makes Bundy a -prevailing party in this suit, the District Court on remand may entertain a request for attorney's fees. . .
Cited with approval in Mitchell v. OsAir, Inc., 45 FEP Cases 580, 585 (N.D. Ohio 1986) and Ross v. Double Diamond, Inc., 45 FEP Cases 313, 325 (N.D. Tex .1987).
An award of damages for emotional harm resulting from a FEA violation is precluded. However, Donna VerVoort as the prevailing party today is entitled to an award of attorneys' fees and costs.
I am unable to agree with the result reached by the majority herein and I dissent.
I believe the majority opinion is based on major credibility differences with the Administrative Law Judge. The majority finds that the Complainant reported or complained about sexually discriminatory language and actions prior to the meeting with Mike Miller in February of 1985. The majority opinion states that Mike Miller not only did not investigate the Complainant's complaints, but also prohibited Allie Morgan from investigating the complaints.
While I agree that there were some incidents that occurred that were sexual harassment, I do not believe the Complainant has shown that the Respondent had knowledge or should have been aware of these problems prior to February 1985. The record fails to show that the sexual harassment was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment prior to her complaint in February of 1985. The Complainant did not notify the Respondent of sexual harassment until she talked to Mike Miller in February 1985. The conduct the Complainant mentioned was not so frequent that the Respondent should have had knowledge of it prior to her complaint.
From a credibility point of view, I believe the Respondent rather than the Complainant regarding the manner in which language was used at the plant. The Complainant had no complaints about the first three months of her employment. If women were always addressed by degrading names as the Complainant testified, and if this was a daily occurrence, it would not have taken three months to begin.
I believe the Complainant was originally concerned with the way co-workers treated supervisors and the general lack of respect for authority shown in the plant. This behavior was not sexual in nature.
The Complainant began having problems when she worked on a crew with Don Miller. The Complainant did not follow Miller's personal rules on the job and did not believe that Don Miller had the right to make his own rules. Don Miller wanted to run the machine as fast as he could and the Complainant's cleaning interfered with how he wanted to work. The Complainant had trouble keeping up when Miller ran bad paper. She told Miller she could keep up when he ran good paper but not when he ran bad. Don Miller responded with "If you can't handle your fucking job, get out the fucking door." The Complainant then complained to Nowak about Don Miller.
Contrary to the majority opinion that the Respondent did nothing, the Respondent did talk to Don Miller about his language because the Respondent believed the Complainant was offended by the swearing. Miller reacted to the complaint and continued to run the machine full speed. The statement by Don Miller was perceived by the employe to relate to her as a woman not being able to do the work. She did not communicate this to the Respondent.
The Complainant's testimony varies from saying that she was the only one who had to deal with Don Miller running at full speed to admitting that other members of her crew (all men) also suffered. The Complainant's friend, Ray Menting, is credible when he testified that "He's (Miller) an operator who goes wide open from the time he's there till the time he goes home, and he wants things done his way." (T. 148) I do not believe the actions by Don Miller were at all sexual in nature. Don Miller treated everyone the same. His attitude toward the Complainant may have changed after she reported him because he believed she was a squealer. However, this does not denote sexual harassment either. The Respondent did attempt to get members of the crew to work together when the Complainant complained about Don Miller.
The fact that the Respondent acted on general harassment, which is certainly not as serious as sexual harassment, makes me believe that I the Complainant did not specifically complain about demeaning language. The Complainant's testimony is that a lot of her early problems had to do with the general lack of respect for supervisors (all of whom were men).
I believe the Complainant did not want the Respondent to use her name too individuals she charged had sexually harassed her. The Respondent could not take disciplinary action against employes under the union contract without specifically saying what the complaint was. This requirement was reasonable from a due process point of view, especially in this case, where the Complainant waited for a long time to complain and also had difficulty remembering names.
I disagree with the majority that the Respondent needed to write a new rule to prohibit sexual harassment. I believe what the Respondent did in this case is sufficient to show that the old rule included sexual harassment. I do believe the Respondent was required to post the new interpretation of the rule to give notice to employes that sexual harassment was prohibited by rule 10. I believe the courts would not allow a respondent to rely on an old rule for protection against a claim, if the respondent did nothing to show that this rule had covered sexual harassment in the past.
I believe the conduct occurring after the Complainant filed her complaint is not relevant here because the complaint was never amended to include that conduct. Even if one accepts the majority's interpretation and includes those events which happened after the complaint was filed, the Complainant has not shown that the harassment was so pervasive as to alter the conditions of employment. The Respondent did act as best it could especially where the Complainant wanted to keep the investigation confidential. The Respondent posted a reminder that Respondent's rule number 10 prohibited sexual harassment, as well as EEOC guidelines on sexual harassment.
This is a close case because some of the conduct the Complainant complained of is without question sexual harassment. The Complainant, however, has not shown that the Respondent should have known about the sexual harassment prior to her meeting with Mike Miller or that the Respondent could have done more within the restrictions established by Complainant, to investigate her complaints.
For these reasons, I dissent and would affirm the decision of the Administrative Law Judge.
Pamela I. Anderson
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(1)( Back ) The EEOC definition of "sexual harassment," codified at 29 CFR sec. 1604.11(a), (1985), in pertinent part is as follows:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) . . . or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
The EEOC definition of "sexual harassment" was cited with approval in Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399, 2405, 477 U.S. 57, 40 FEP Cases 1822 (1986).
(2)( Back ) Sections 111.321 and 111.322(1), Wis. Stats., prohibit an employer from discriminating against "any individual in promotion, compensation or in terms, conditions or privileges of employment . . . because of . . ." sex.
(3)( Back ) An EEOC policy guidance memorandum to field office personnel, approved unanimously by the five-member commission. See FEP Summary of Latest Developments, Vol. 24, No. 22, October 27, 1988, p. 128, published by The Bureau of National Affairs, Inc.