JANEIL F. OLSON, Complainant
SERVPRO OF BELOIT, Respondent A
BILL WEBER, Respondent B
TOM ANDREWS, Respondent C
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
1. The second and third sentences in the first paragraph under paragraph 4 of the ORDER are deleted and the following sentences are substituted therefor:
"The amount of reasonable attorneys' fees and costs to date are Three Thousand Seven Hundred Fifty Eight Dollars and Thirty-six cents ($3,758.36), which consists of $3,460 in attorneys' fees and $298.36 in costs. A check in the amount of $3,758.36 should be made payable jointly to Janeil Olson and Attorney Paul Kinne (or his law firm) and delivered to Attorney Kinne's law firm."
2. In the second paragraph under paragraph 4 of the ORDER, the phrase "and/or Respondent C," appearing at the end of this paragraph is deleted.
3. Paragraph 5 of the ORDER is deleted and the following paragraph is substituted therefor:
"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 decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed August 4, 1995
olsonja . rmd : 125 : 9
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ James R. Meier, Commissioner
The complainant began employment with Servpro of Beloit, Respondent A, on September 11, 1991. Servpro is a business offering cleaning services. She initially worked as a cleaner but became a crew chief about two-and-a-half months after her hire. The complainant's husband, Michael, was already employed at Servpro as a supervisor when the complainant was hired. Respondent B, Bill Weber, is the owner of the Beloit Servpro. Respondent C, Tom Andrews, is the general manager of the business. The complainant was supervised by Weber and Andrews, and sometimes her husband. The respondent discharged the complainant's husband on January 14, 1992, for theft.
The ALJ found that the complainant was subsequently discharged on January 20, 1992, before she faxed a letter to the respondents' parent company complaining about sexual harassment, for failure to report for work or to call in after January 14, 1992, despite the complainant's claim that she had been in contact with the Webers (Bill and his wife Jane) after January 14 and that she was discharged on January 21. He did find that the complainant had been subjected to sex-based and sexual harassment which created a hostile and offensive work environment, however.
At issue was the complainant's claims of sexual harassment, retaliation and marital status discrimination. The sexual harassment claim was made in a complaint filed with the ERD on November 16, 1992. In this complaint she asserted that the conduct complained of last occurred on January 21, 1992. The retaliation and marital status claims were added in an amended complaint.
The issue on appeal in this case involves only the complainant's claim of sexual harassment. The respondents have appealed the ALJ's determination that the complainant was subjected to sex-based and sexual harassment which created a hostile and offensive environment. No appeal was filed by the complainant with respect to the ALJ's determination that the respondents had not discriminated against her on the basis of sex, marital status or retaliation in regard to her termination of employment.
In order to establish a claim of hostile environment sexual harassment, the complainant must prove the five following elements: 1. That she belongs to a protected group; 2. That she was subjected to unwelcome sexual harassment; 3. That the harassment complained of was based upon sex. 4. That the harassment complained of affected a term, condition or privilege of employment; and 5. Respondeat Superior.
The second and fourth elements are the only elements really at issue in this case. Under the second element it must be established that the conduct was unwelcome in the sense that the complainant did not solicit it, and in the sense that she regarded the conduct as undesirable or offensive. Henson v. City of Dundee, 682 F.2d 897, 29 FEP Cases 787, 792 (1982). Under the fourth element the complainant must establish that the sexual harassment was sufficiently pervasive so as to alter the conditions of her employment and create an abusive working environment. Henson, 29 FEP Cases at 793-794; Meritor Savings Bank v. Vinson, 477 U.S. 57, 40 FEP Cases 1822 (1986). This standard requires an objectively hostile or abusive environment such that a reasonable person would find hostile or abusive, as well as the victim's subjective perception that the environment is abusive. Harris v. Forklift Systems, Inc., 114 S. Ct. 367, 63 FEP Cases 225 (1993). Whether an environment is hostile or abusive can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employe's work performance. Id.
The complainant testified that they (apparently the females) were called names such as "dumb bimbos," "cunts," (1) "dumb fucks" and "fucking bitches" by Bill Weber if he didn't think they were doing something right. She testified that this conduct began from the time that she started her employment and that it was something that occurred all the time. She testified that being called these names made her feel uncomfortable because she is a woman and because the names they were being called were references to women. The complainant testified that they were also subjected to Weber screaming obscenities at his wife such as, "fucking bitch" and "you dumb cunt," and that this made her and others feel horrible they were women. The complainant testified that often they (apparently the women) get to work, get their assignments and equipment, and get out of the office before Weber showed up.
The complainant also testified that it was difficult to come into work and be around Tom Andrews because he would continually make sexual innuendoes, talk about how he wanted to take an employe named Denise Thompson to bed, and because everyday he would talk about how long it had been since he had had sex with his wife. She testified, among other things, that Andrews once remarked to her that "she never had a penis until she had his penis, " that Andrews would put his hands on them, massage their shoulders, or put his arm around their waists, and that Andrews talked a lot about the size of breasts and their buttocks. She testified that Andrews made very lewd remarks on a daily basis and that it made her feel terrible because it was so demeaning.
The complainant further testified that there was no sexual harassment grievance procedure in place, that she was never shown any employe manual regarding same, and that there was never any discussion about this. Additionally, she testified that she was aware that another employe, Laura Rhamy, had gone to the Webers about harassment by a supervisor and was told to handle it herself.
Linda Sornson, a witness for the complainant who was employed by the respondent prior to the time the complainant was employed, testified that she heard Weber use the word "bimbo." She also stated, however, that she would have gone back to work there. But her testimony that she could not get a job at a lot of places appears to explain this testimony.
Similarly, Susan Costello, who left employment with the respondents two months before the complainant began employment with the respondents, testified that she heard Bill Weber use the words "bimbo" and "stupid bitch."
Laura Rhamy, whom the respondents claim to be biased because she was discharged along with Michael Olson for theft (Rhamy, who maintains her innocence, states that the police were called and she was charged with theft but the case was dismissed for lack of evidence), echoed the complainant's testimony about conduct by Weber and Andrews. She testified that throughout her employment she constantly witnessed Weber call his wife a "dumb bitch," a "dumb fucking cunt" and a "stupid bitch." She also referred to an incident where they had been moving some drywall and Weber asked the guys to flip a coin to see who would wipe off her shirt, and an incident where Weber called a client a "total bitch." She testified that Andrews would read from pornographic books and magazines that clients left laying around. She testified that she was told to handle it herself by the Webers when she complained about sexual harassment by a supervisor. Rhamy also testified that she might have kept working had she not been fired, but she also testified that she was looking for other employment while employed by Servpro for reasons which included to get out of that environment.
In addition, a witness for the respondent, Jackie Baldwin-Peterson, admitted that Bill Weber used the term "bitch" when he got upset, and that she had heard him use the term "fucking cunt" at least once, referencing an incident when she heard him call Jane Weber that name. She also testified that she had worked at Servpro twice and had never seen a sexual harassment policy.
Jane Weber, who had testified that she had never heard Bill Weber say the word "bimbo," had to concede that she had faxed a letter to the ERD which admitted that Mr. Weber used the word but contended that it was not directed at any one gender. Jane Weber further maintained that the respondent had a sexual harassment policy, but she admitted that it was kept in filing cabinet and she could not state whether or not employes were informed of the policy.
Bill Weber himself admitted using the term "bimbo" but contended that he had not known what that term meant and that he was simply referring to "blundering people."
The respondents make two basic arguments on appeal: That the complaint should be dismissed because it was not timely filed; and that the conclusion that they had engaged in hostile environment sexual harassment was unsupported by the evidence and contrary to law.
Under the Wisconsin Fair Employment Act, the department may receive and investigate a complaint charging discrimination if the complaint is "filed" with the department no more than 300 days after the alleged discrimination "occurred." Section 111.39(1), Stats. For purposes of s.111.39(1), a complaint is considered "filed" as of the date that it is received by the department. Hilmes v. DILHR, 147 Wis.2d 48, 53, 433 N.W.2d 251 (Ct. App. 1988). Further, the discriminatory act occurs at the time of the discriminatory act itself, not the point at which the consequences of the act become painful. Hilmes, 147 Wis.2d at 52. The respondents argue that the 300 days started to run at 12:01 a.m. January 15, 1992, since the complainant's last day of work was January 14, 1992, and there was no evidence that she had been subjected to any acts of sexual harassment after January 14. Further, the respondents argue that since it is undisputed that the sexual harassment complaint was not received by the department until November 16, 1992, it is clear that the complaint was not filed until the 307th day, and therefore must be dismissed as untimely filed.
The complainant has argued that a hearing was held in this case on November 19, 1993, that a final decision was rendered on May 20, 1994, and that throughout this entire time the respondents never raised the statute of limitations as an affirmative defense, the respondents' instant appeal being the first time any authority has been asked to consider the issue. The complaint argues that the affirmative defense based upon the statute of limitations must be raised in either the pleadings or in a motion, or be deemed waived. Indeed, section Ind 88.11 of the Wisconsin Administrative Code provides that "Any affirmative defense relied upon, including without limitation the statute of limitations, shall be raised in the (respondents') answer (to the allegations of the complaint filed with the division within 21 days after the date of a notice of hearing) unless it has been previously raised by motion in writing. Failure to raise the affirmative defense that a complaint is barred by the statute (sic) limitations in a timely filed answer may, in the absence of good cause, be held to constitute a waiver of such affirmative defense." (Emphasis added.)
In reply to the complainant's argument that the statute of limitations affirmative defense had been waived, the respondent cites County of Milwaukee v. LIRC, 113 Wis.2d 199, 335 N.W.2d 412 (Ct. App. 1983), wherein the court found that "In order for the County to take advantage of the defense of statute of limitations it must plead this defense in its petition for review," and asserts that there is no question that in this case the respondents raised the statute of limitations defense in their petition for review. However, the decision in County of Milwaukee preceded the above-quoted section of Ind 88.11, which became effective July 1, 1986.
Next, citing s. Ind 88.11 of the Wisconsin Administrative code, the respondents argue that they have good cause for not raising the statute of limitations defense in its answer for two reasons. First, because at the time the answer was filed they were not represented by counsel. Secondly, they argue that the complainant had concealed the availability of the statute of limitations defense because in her complaint she had alleged that the last date that the sexual harassment occurred was on January 21, 1992, and because the fact that the complainant was not claiming that any acts of discrimination had occurred after January 14 did not become apparent until she testified at the hearing. It should be noted that in Manor Healthcare Corp. d/b/a American Healthcare Center v. DILHR, Case No. 93- CV-4110, Dane County Cir. Ct. (May 12, 1994), where a question arose about waiver of the statute of limitations defense under a nearly identical provision under the Wisconsin Family and Medical Leave Act because the employer had not included such defense in its answer to the complaint, the court held that "Because the administrative rule is permissive rather than mandatory, one should be given the opportunity to show good cause for failure to raise the limitations defense before a finding that the defense has been waived."
The commission believes that the respondents have had an adequate opportunity to show good cause for failure to raise the limitations defense as evidenced by their written assertions responding to the complainant's claim that the respondents had waived the statute of limitations defense. However, the commission does not find that the respondents' reasons constitute good cause. Not being represented by counsel is clearly not a valid excuse. Parties who choose to represent themselves accept certain risks attendant with their decision to proceed without assistance of counsel. Hammer v G.E. Medical Systems, (LIRC, 8/29/89). Also, while the respondents claim that they were misled because the complainant had alleged in her complaint that the last day that the sexual harassment had occurred was on January 21, 1992, it has been the respondents' position all along that the complainant had simply failed to report for work after January 14, 1992, thereby voluntarily quitting her job. The respondents thus could have raised the statute of limitations defense in its answer to the complaint. Moreover, the respondent admits knowing that the complainant was not claiming any acts of discrimination occurred after January 14, 1992, at the November 19, 1993 hearing, at which time it was represented by counsel, but it did not raise the statute of limitations issue then nor subsequently in a motion or written arguments to the ALJ. Instead, the respondents waited until after the ALJ's decision when it filed a petition for commission review of the ALJ's decision before raising the issue.
The respondents argue, for a number of reasons, that the ALJ erred in crediting the complainant's testimony regarding her hostile environment claim. For example, they argue that the ALJ erred in his assessment of credibility because he had found the complainant's testimony relating to her discharge to be incredible. However, the fact that ALJ found the complainant's testimony concerning her discharge to be not credible does not mean that he could not find other aspects of her testimony to be credible. Moreover, as noted above, the testimony of other witnesses, including Jackie Baldwin-Peterson, a witness for the respondent, and the respondent Bill Weber himself, corroborated the complainant's claim of sexual harassment.
The respondents seek to dismiss the testimony of Sornson and Costello as irrelevant because they were not employed during the time period that the complainant was employed by the respondents. While Sornson's and Costello's testimony may not directly assist in establishing that the complainant was subjected to a hostile environment during her employment, such testimony is nevertheless relevant in that it corroborates the complainant's testimony that sexually harassing conduct did occur at the respondents place of business. Further, the respondents argue that the testimony of Rhamy was biased because she had been discharged for theft. However, the ALJ, who was able to personally observe the testimony of Rhamy, obviously had no difficulty accepting Rhamy's testimony.
In a further attempt to undermine the complainant's credibility the respondents have also argued that since the complainant's sexual harassment claim did not come until after the discharge of her husband, her friend Rhamy and herself, the complainant's sexual harassment claim appears to be little more than a retaliatory act of a disgruntled employe. They assert that this conclusion is further bolstered by the fact that the complainant did not raise any allegations of sexual harassment at any time during her employment. The discharge of the complainant, her husband and Rhamy all occurred in early January 1992, however. It seems unlikely that the complainant would have waited until November 1992 to file a complaint of discrimination if she were a "disgruntled employe" bent on "retaliating" against her former employer. The complainant's failure to raise the matter of sexual harassment during her employment does nothing to bolster the respondents' claim in view of the complainant's testimony (and other witnesses) that employes were never made aware that the respondent had a policy and grievance procedure regarding sexual harassment, that she spoke to others and decided that neither Weber nor Andrews could be approached about the matter since they were the ones doing the harassing, that she was aware of another situation where Rhamy had reported being sexually harassed and both Bill and Jane Weber had told Rhamy to handle it herself, and that it took her a while to decide just what to do because it was a touchy situation. The respondents have also asserted that because the instant complaint was filed after the respondent (Bill Weber) had filed a small claims case against her (and her husband) in a non-related matter, that the instant complaint may be little more than a thinly disguised attempt to recoup money she stood to lose in the small claims case. (According to information in the case file the small claims case was apparently filed on November 5, 1993 and involved a claim for rental monies and damage done to the rental unit.) There is nothing to support this claim by the respondents, however. Moreover, it seems too far-fetched to believe that the complainant would have filed her complaint of discrimination in the hopes of prevailing so that she might recoup what she stood to lose in another matter.
Lastly, the respondents have argued that because the complainant failed to call her husband and former coworker, Denise Thompson, as witnesses, that the ALJ should have found .a negative inference to have arisen from the fact that she elected not to call these "material witnesses." However, "A party to a lawsuit does not have the burden, at his peril, of calling every possible witness to a fact, lest his failure to do so will result in an inference against him." Ballard v. Lumbermens Mutual Casualty Company, 33 Wis.2d 601, 615 (1967). Moreover, as noted above, the respondent's own witness, Jackie Baldwin-Peterson, as well as respondent Weber himself, gave testimony which corroborated the complainant's hostile environment sexual harassment claim.
Secondly, the respondents have argued that even assuming the complainant's allegations are true, that she has failed as a matter of law to establish a prima facie case of hostile work environment sexual harassment. Specifically, the respondents argue that the complainant must provide evidence sufficient to show that the alleged conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive or offensive work environment as found by both a reasonable person (objective standard) and herself (subjective standard), and that she has failed to prove that the conduct was sufficiently severe to alter the conditions of her employment since she admitted that the respondents "never made any of the comments explicitly or implicitly a term or condition of my employment." The respondents thus argue that the complainant has failed, as a matter of law, to establish the subjective element of harm to prove her prima facie case.
However, whether or not the respondents had made sexually harassing comments "explicitly or implicitly a term or condition of employment" usually references a claim under the quid pro quo theory of sexual harassment since the conduct is alleged to be directly linked to the grant or denial of an economic quid pro quo. This contrasts with a hostile environment sexual harassment claim where the conduct is alleged to have the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. See Bridges v. Eastman Kodak, 64 FEP Cases 1093, 822 F.Supp. 1020, n. 9 (DC SNY, 1993). The only issue before the commission is that involving a hostile environment sexual harassment claim. The complainant's testimony that the comments made by the respondents "did affect how comfortable I was about my job," "did affect how I felt about my job," "affected how I felt about being a woman," "how I felt about my employees," and that "It made it very difficult to even come in (in) the morning," is clearly sufficient to establish that she subjectively perceived her work environment to be hostile and abusive. (2)
The respondents point out, however, that the record includes testimony that the complainant herself had engaged in banter of a sexual nature, sexual innuendo, and that she had also used vulgar language. This argument apparently goes to the question of whether or not the complainant found the respondents' conduct unwelcome. It is true that there was testimony that the complainant, in the company of other workers, occasionally instigated conversations or jokes of a sexual nature and used vulgar language. This does not defeat her hostile environment sexual harassment claim. As found by the ALJ, it was not unreasonable for the complainant to feel disturbed by sexually offensive comments and/or other actions by persons with supervisory authority over her even while tolerating or not being offended by similar comments from co-employes who did not have supervisory authority. A "Plaintiff's use of foul language or sexual innuendo in a consensual setting does not waive her legal protections against unwelcome harassment. Swentek v. USAir, 830 F.2d 552, 44 FEP Cases 1808 (4th Cir. 1987) .
Finally, the respondents have also argued that the complainant's evidence of sexual harassment consists almost entirely of testimony from coworkers regarding incidents that allegedly occurred while the complainant herself was not even present, that the focus must be on what acts of discrimination, if any, were directed towards her or committed in her presence, and that it is legally irrelevant whether coworkers were allegedly subjected to conduct they found objectionable. This argument also fails. "Because courts look to the totality of the circumstances, a plaintiff who has been harassed on only a handful of occasions may be allowed to offer evidence of harassment suffered by other employes, in order to show that harassment was pervasive. The rationale is that an employe can be intimidated or oppressed by witnessing an employer harass her coworkers, or by hearing about such behavior." Larson, Employment Discrimination, 2d Ed. 1995, Vol. 3, s.46.05(4)(b), p. 75. The complainant's testimony about how the respondents' conduct affected her has already been noted above. See also, Chambers v. American Trans Air, 17 F.3rd 998, 64 FEP Cases 213 (7th Cir. 1994) (Charge that females, including those in management, were routinely referred to in vulgar sexist language in their absence by the highest levels of management fairly states issue of hostile work environment); and Hicks v. Gates Rubber Co., 833 F.2d 1406, 45 FEP Cases 608 (10th Cir. 1987) (Incidents of sexual harassment directed at employes other than the plaintiff can be used as proof of the plaintiff's claim of a hostile work environment since one of the critical inquiries in a hostile environment claim must be the environment; evidence of a general work atmosphere therefore -- as well as evidence of specific hostility directed toward the plaintiff -- is an important factor in evaluating the claim).
For all of the above reasons, the commission has affirmed the ALJ's decision finding that the respondents discriminated against the complainant on the basis of sex in regard to engaging in or permitting sexual harassment.
NOTE: The commission has modified the ALJ's award of attorneys' fees to include an additional award for work performed in connection with the petition for review. Also, the order has been modified to exclude Tom Andrews as potentially liable for payment of the attorneys' fees and costs since section 111.39 (4) (c), Stats., provides that "If the examiner awards any payment to an employe because of a violation of s.111.321 by an individual employed by the employer, under s.111.32(6), the employer of that individual is liable for the payment." (emphasis added) Andrews was employed by Servpro of Beloit as a supervisor.
Paul A. Kinne
Peter L. Albrecht
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(1)( Back ) The commission is at a loss as to the ALJ's spelling of this word.
(2)( Back ) From an objective standpoint, clearly a reasonable person would find that the constant making of lewd remarks and sexual innuendoes and a routine reference to females in such disparaging terms as "dumb bimbos," " cunts," "fucking cunt," "fucking bitches," and "stupid bitch," etc., was sufficiently severe or pervasive enough to alter the conditions of employment and create an abusive or offensive work environment.