AMANDA MILLER, Complainant
GREENFIELD VETERINARY CLINIC, Respondent
An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
1. Paragraphs nineteen through twenty-one of the administrative law judge's FINDINGS OF FACT are deleted.
2. The administrative law judge's CONCLUSIONS OF LAW are deleted and the following CONCLUSIONS OF LAW are substituted therefor:
1. There is probable cause to believe that the respondent engaged in sexual harassment, within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act").
2. There is no probable cause to believe that the respondent discriminated against the complainant in terms, conditions or privileges of employment because of her sex, or because she opposed a discriminatory practice under the Act.
3. There is no probable cause to believe that the respondent terminated the complainant's employment because of her sex, or because she opposed a discriminatory practice under the Act.
The decision of the administrative law judge is modified and, as modified, is reversed in part and affirmed in part. This matter is remanded to the Equal Rights Division for further proceedings with respect to the sexual harassment issue.
Dated and mailed April 28, 2005
milleam . rmd : 164 :
/s/ James T. Flynn, Chairman
David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The record reveals that one of the two veterinarians for whom the complainant worked, Dr. Reed, slapped the complainant on the buttocks on two occasions, poked her in the ribs on one occasion, and made comments on two or more occasions regarding the size of the complainant's buttocks. The complainant considered this conduct to constitute unwelcome sexual harassment. The complainant complained to the respondent about Dr. Reed's conduct and specified that she considered it to be sexual harassment, but was told that Dr. Reed was "just playing" and, further, that she should put up with it and not rock the boat, since he was close to retirement.
The Act makes it unlawful for an employer to engage in unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. Wis. Stat. § 111.32(13). The conduct need not create a "hostile work environment" in order to be actionable. In concluding that sexual harassment was not established, the administrative law judge cited to a commission decision, Baier v. J&J Electric (LIRC, December 16, 2003), for the proposition that, even if the Act does not require the conduct of an owner or agent of the employer to rise to the level of a hostile work environment, the conduct must still be similar to the verbal or physical conduct that creates a hostile work environment in order for it to be a violation of the Act. However, in a recent decision the commission clarified that any conduct which falls within the statutory definition of sexual harassment is unlawful, if perpetrated by an employer or agent of the employer. Sanderson v. Handi Gadgets Corp. (LIRC, March 31, 2005).
As indicated above, in this case, one of the owners of the business, Dr. Reed, subjected the complainant to conduct which included slapping her on the buttocks and making comments about the size of her buttocks. While the administrative law judge found that Dr. Reed's conduct was not intended to be sexual in nature, the commission does not believe that Dr. Reed's intent, assuming it can be inferred from the record, is controlling in this case. The complainant perceived Dr. Reed's conduct as being sexual in nature, and the commission believes this perception was reasonable. A female employee could logically and rationally interpret repeated comments about the size of her buttocks and slaps on the buttocks by her male employer to be sexual in nature, whether or not accompanied by other overt sexual language or conduct. Based on this record, the commission finds probable cause to believe that the complainant was subjected to sexual harassment, and it has reversed the portion of the administrative law judge's decision which dismissed that aspect of the complaint.
However, the commission concurs with the administrative law judge that there is no probable cause to believe that the complainant was discriminated against as alleged with respect to the other terms and conditions of her employment or with regard to her discharge from employment. While the complainant did notify the respondent of her objections to the sexual harassment, the record reveals that she successfully passed her probationary period and received more than one salary increase thereafter. The complainant was not disciplined until the quality of her work began to deteriorate, and was not discharged until it became clear to the respondent that she was not attempting to improve. Under all the circumstances, the commission agrees with the administrative law judge that the complainant failed to demonstrate probable cause to believe she was discriminated against in the terms and conditions of her employment or was discharged because of her sex or in retaliation for opposing a practice of discrimination. Consequently, the dismissal of the complaint with respect to those issues is affirmed.
NOTE: The commission did not confer with the administrative law judge about witness credibility. The commission's reversal is not based upon a differing assessment of witness credibility. Rather, the commission has reached a different result when applying the law to the same set of facts as that found by the administrative law judge.
Attorney Ryan M. Benson
Attorney John Staks
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