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

TODD S DOBBERSTEIN, Complainant

NSIGHT TELSERVICES, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200203470, EEOC Case No. 26GA302234


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

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

Dated and mailed February 23, 2007
dobbeto . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The complainant, who was married, was employed as a market manager for the respondent, a cellular communications company. He managed three offices in the northeast part of the state, including an office in Shawano where a subordinate single female, Jill Whiteman worked. In August 2001, due to employee reports that Whiteman was receiving preferential treatment and the existence of poor office morale because of a suspected romantic relationship between the complainant and Whiteman, the respondent issued the complainant a one week suspension. Subsequently, based upon an anonymous phone call by an individual who stated he was a customer and threatened to take his business elsewhere unless the respondent did something about the relationship between the complainant and Whiteman, and the responses the respondent received upon further questioning of its employees about the rumored affair, the respondent terminated the complainant's employment on November 13, 2001. The complainant alleges that he was terminated because of his marital status.

Wisconsin Statute Section 111.321 prohibits employment discrimination on the basis of marital status. Wis. Stat. § 111.32(12) defines marital status to mean "the status of being married, single, divorced, separated or widowed." However, the WFEA's proscription against discrimination on the basis of marital status does not prohibit employer action that is triggered by the employee's conduct, rather than the employee's status as a married individual. The WFEA is not intended to protect an employee's right to engage in an extramarital affair. Federated Electric v. Kessler, 131 Wis. 2d 189, 212-214, 388 N.W.2d 553 (1986).

On appeal the complainant asserts that the ALJ made obvious errors, failed to consider the "real evidence", ignored undisputed evidence in his favor and misstated the evidence. The complainant urges the commission to review the trial briefs and the citation to evidence therein.

The complainant argues that Chief Operating Officer Dan Fabry's summary of the termination meeting shows overwhelmingly that his marital status was a central factor in the respondent's decision to terminate his employment. He asserts that the summary does not refer to a single workplace or job performance issue as a reason for his termination. He asserts that after repeatedly referencing his marital status, Fabry's summary concluded he was fired for inappropriate behavior. The complainant then asserts that since no workplace or job performance issues were discussed in the meeting, since all the respondent's witnesses testified he "was not fired due to the conduct of an alleged relationship with Jill [Whiteman]", and since the respondent had no policy prohibiting such relationship, the only reason that the cited behavior could be considered inappropriate by the respondent at the time of termination was because he was married.

The complainant's assertions about the summary of termination are not supported by the summary of termination document. The summary of termination does not show that the complainant's marital status was a central factor or a factor at all in his termination. The summary of termination shows that the focus of this document was the complainant's conduct. This is evident based on the very first sentence of the summary of termination itself, which states, "Jan [Janice Geiser] started the conversation citing continued instances of Todd's inappropriate behavior." and the subsequent concluding sentence which states, "Jan terminated his position based on lying and continued inappropriate behavior." Exh. C-4. The document's citing of continued instances of inappropriate behavior is a reference to the following: 1) The November 7, 2001, anonymous phone call the complainant's supervisor, Michelle Bartley, received from an individual who stated he was a customer and would be taking his business elsewhere if the respondent didn't do something about the relationship going on with the complainant and Whiteman; and 2) the information obtained by the respondent after questioning the complainant's work staff following the November 7 anonymous phone call. It is clear that the complainant's conduct was the focus of the summary of termination because when the matter of the complainant's relationship with Whiteman had first surfaced in August 2001 the respondent suspended his employment and issued him a written warning due to employee expressed concerns about preferential treatment and office morale, and because of the respondent's concerns about the potential for liability for sexual harassment. This is evident by the written warning issued to the complainant. Included in the written warning were the respondent's directives: "You are to attend the upcoming Harrassment (sic) training at NWTC"; "You are to be communicating your daily calander (sic) to your employees at all times"; and, "Your actions toward employees must remain consistent and without preferential treatment." Exh. C-10. Also, during its investigation following the November 7 anonymous phone call, included among the comments the respondent received from employees who reported to the complainant were: "I'm concerned because it's affecting our customers."; "Both of them [complainant and Whiteman] deny it."; "It's all over town. My gut tells me they're lying."; "Daily questions from customers."; "Several customers who are extremely upset." Exhs. C-2; C-5.

The complainant asserts that the ALJ's paragraph 4 "implied" finding that there was preferential treatment is limited to a conclusory statement by Jim Siegel, who the respondent had fired for insubordination. The evidence, however, shows that Siegel's report of preferential treatment was corroborated by another employee working out of the Shawano office, Jim Wilkomm. T I, 120-121(1)

Also, contrary to the assertion by the complainant, the summary of termination document does not "repeatedly reference his marital status." The only possible reference the summary of termination makes to the complainant's marital status, if this can even be accurately considered a reference to his marital status, is the statement, "He [complainant] stated that he and his wife have been having problems for several years and they are currently in counseling." The complainant testified that he made this statement when asked "about my relationship with my wife." T II, 192. Even if the complainant had been asked about his relationship with his wife, however, the record provides no reason to conclude that his marital status played any role in his termination. The evidence overwhelmingly shows that the respondent terminated the complainant's employment due to the respondent's concerns regarding the effect his relationship with Whiteman was having on its employees and business, and a concern regarding the potential risk of a sexual harassment lawsuit against the respondent. (2)

Further, contrary to the assertion by the complainant, there was no testimony by the respondent's witnesses that he "was not fired due to the conduct of an alleged relationship with Jill." CEO Patrick Riordan testified that the reason for the complainant's termination was that there was an alleged affair between the complainant and Whiteman and that this affected employees in the workplace and its customers' relationship with the respondent. T I, 45-46. COO Fabry testified that what led to the complainant's termination was that there were inappropriate actions by him which could cause feelings of favoritism by other employees, and that the relationship [complainant/Whiteman] was negatively impacting the respondent's customers and increasing the respondent's risk of potential workplace harassment. T I, 84. Geiser testified that the fact that the complainant and Whiteman had some kind of relationship was a consideration and impacted her decision-making regarding the complainant's termination. T II, 287, 289. Geiser testified that after the anonymous phone call she did not feel the complainant had been honest during the respondent's first investigation about his relationship and behavior with Whiteman. T II, 268-269. Geiser denied that the fact that the complainant was married had anything to do with his termination. T II, 269. Michelle Bartley testified that she decided it was appropriate to terminate the complainant because "his conduct as a manager was very, very suspect...the rumor mill that was going on...There were several issues that were going on with regard to him being a worthy employee at Nsight." T II, 350. Bartley denied that the fact that the complainant was married had any bearing on her decision to terminate him. Id.

Regarding the ALJ's paragraph 15 finding that between August and November 2001 that although conditions in the office had improved the continuing relationship between the complainant and Whiteman was having a negative effect on morale, the complainant asserts "the employees all testified that by November 2001 everything in the office was fine." As previously noted above, however, included among the comments from employees during the respondent's investigation following the November 7 anonymous phone call were: "I'm concerned because it's affecting our customers"; "Both of them [the complainant and Whiteman] deny it"; "It's all over town. My gut tells me they're lying."; Daily questions from customers."; "Several customers are extremely upset." Exhs. C-2; C-5. Further, Jennifer Buechel, the respondent's senior employment and employee relations specialist who had questioned the complainant's subordinates, testified that based on her conversations with the employees she concluded things had gotten somewhat better in the workplace but were definitely challenging; that the customers were continuing to be concerned about the respondent's image; and that because the respondent's Peshtigo office had become aware of the situation in some respects the matter was not calming down. T II, 388-389.

Regarding the ALJ's paragraph 16 finding that the respondent was concerned about a sexual harassment claim, the complainant argues that this was a new reason brought up at trial and that there is no evidence that this was truly a reason for his termination. However, the complainant's assertions are refuted by the fact that when the respondent initially learned of the rumors regarding his romantic association with Whiteman, the respondent issued him a written warning which included directives that he attend harassment training, and that his actions toward employees must remain consistent and without preferential treatment (Exh. C-10).

The complainant attempts to attack Bartley's credibility, asserting that despite her "photographic memory" of so many specific details from August 3, 2001, to support his August 3 suspension, she "intentionally remembered nothing" that was discussed in the November 13, 2001 termination meeting and "brazenly denied" that anything contained in Fabry's summary of termination was actually discussed. However, the record does not support the complainant's contention that Bartley intentionally remembered nothing discussed at the termination meeting or that she brazenly denied that anything in the summary of termination was discussed. Bartley offered a reasonable explanation for her difficulty recalling what was discussed at the termination meeting. This explanation is indicated by her response when asked if there was a discussion about the complainant and his wife being in counseling at the termination meeting when she stated, "There was so much information that we had through this whole thing that I don't know if that was specifically in that meeting or not." T II, 366.

The complainant further argues that a voice mail message [Exh. C-4, bottom half] he left for Fabry two days after the termination of his employment shows he was fired because he was married. The message the complainant left stated in relevant part, "I know it was a moral moral (sic) issue of why I was fired I am sorry about that I accept that but if I could get something to say that it was not a job performance issue this would really help me in the future with getting other type (sic) of employment." The complainant argues that there would be no "moral" reason for the respondent to terminate him other than the fact that he was married. This argument fails. The mere fact that the complainant interprets his termination of employment as occurring for a moral reason provides no basis for establishing that this was the respondent's reason for his termination. Furthermore, the respondent never provided the complainant anything saying his discharge was not a job performance issue.

The complainant also asserts that as he left the meeting on November 13, 2001, Geiser stated, "I hope you have a good time explaining this to your wife" and that this makes obvious that marital status was the primary reason for his termination. However, it is not obvious. The subject of the termination meeting as shown by the summary of termination was the complainant's "continued instances of Todd's inappropriate behavior." As testified by Fabry, the author of the summary of termination, what led to the complainant's termination was that there were inappropriate actions by him which could cause feelings of favoritism by other employees, and that the relationship [complainant/Whiteman] was negatively impacting the respondent's customers and increasing the respondent's risk of potential workplace harassment. In other words, what was at issue was the complainant's conduct. Indeed, it was the complainant's conduct, based on the reports it received from other employees, which had caused the respondent to issue the complainant a disciplinary suspension on August 3, 2001 in the first place. Furthermore, Geiser's comment most likely stemmed from what the evidence shows as discussed in the paragraph immediately below.

The complainant further cites as having significance to his marital status, Geiser's admission that during the meeting with him on August 3, she asked him, "So you're telling me that if I pick up this phone right now and call your wife and tell her about the cake feeding [a reference to employee reports about the complainant and Whiteman feeding each other cake] she would find it appropriate?" (T II, 237.) The evidence shows that the basis for this inquiry by Geiser came directly from Northeast Wisconsin Technical College's (NWTC's) training material titled, Workplace Harassment, which was used by the respondent for its employees. Exh. R-7; T II, 238-239. In the section "Tips For Avoiding Harassment" appears the question "Would my spouse or significant other object to my behavior?" as one of the "Questions to ask yourself". Geiser testified that this was the exact reference where she came up with her question for the complainant. T II, 239.

The complainant further asserts as a basis for his claim of marital status discrimination that Geiser had a "very bitter" personal vendetta against married men. As support, the complainant cites his questioning of Jim Niederfeld, the former director of sales for the respondent, who stated that during a conversation with Geiser she told him that she and her husband were divorced because he had an affair with his secretary. T II, 208. This argument also fails. Niederfeld admitted on cross-examination that during the referenced conversation with Geiser that Geiser had talked about her boyfriend and that it was possible that Geiser was talking about her boyfriend having an affair. T. II, 309-310. Further, Niederfeld, who left the employ of the respondent in early 2001, testified that Geiser never told him that she had it in for married men who were having affairs, and that he had never observed that Geiser had a vendetta against married men who were having affairs. T II, 310. In addition, Geiser testified that she was not aware of her husband having an affair with his secretary. T II, 270.

As further support for his discrimination claim the complainant asserts that Jeff Koshalak testified that when he was terminated in September 2001, the only reason Geiser discussed with him for his termination was that he was married and rumored to be having an affair with "a co-worker", Jennifer Chevalier. The complainant asserts that Geiser never mentioned favoritism, customer impact, sexual harassment, inappropriate credits or anything else during the termination meeting, except her obvious disdain for affairs. This argument is without merit. Chevalier was one of the complainant's subordinates. Koshalak admitted on cross-examination that employees were talking about his relationship with Chevalier on the sales floor and that he (Koshalak) told a UI claims investigator that Geiser gave him, either at or prior to his termination, a letter indicating he was discharged for misconduct due to poor leadership, which was a reference to accusations he was having an affair with Chevalier and because he had given special favors to Chevalier in the form of sales commissions. T I, 102-103; Exh. R-2.

The complainant has further asserted as support for his claim of discrimination that the respondent admitted it had no written or non-written policy against affairs and that he "was not fired for the conduct of the alleged affair." However, the fact that the respondent did not have a policy against affairs does not provide reason to conclude that he was terminated on the basis of his marital status. And as shown by the record evidence cited above, it was the complainant's conduct that served as the basis for his termination.

The complainant has further asserted that the respondent only fires married men and not their single female subordinate counterparts involved in the same activities and this demonstrates that being married is why he was fired. He also asserts the ALJ ignores the undisputed testimony that "Koshalak (married) was fired for having an affair with Chevalier (single)" and that likewise he "was first suspended, then fired for an alleged affair while Whiteman was promoted, then not fired for having an alleged affair." The record, however, contradicts the complainant's claim that the respondent only fires married men engaged in inappropriate relationships with their subordinates. Riordan, whose approval is required in all decisions to terminate an employee, testified that he had had to address a situation with a male who was divorced (and thus single) who was believed to be having an affair with a subordinate. T I, 58. Riordan testified that this single male was given the option of resigning or being let go, which was effectively a termination of his employment. Id. at 59. Riordan testified that where there is a relationship between a manager and a subordinate it presented problems because of the possible impact on customers, feelings of favoritism by employees and because it dramatically increased the potential for a sexual harassment lawsuit. T I, 47, 57.

The complainant asserts that the superior-subordinate argument is not supported by any legal authorities, was an afterthought, not a reason at the time of termination and, citing Federated Electric, asserts that it does not overcome Wisconsin law's requirement that employment policies regarding affairs in the workplace must be applied evenly, regardless of marital status. The complainant's argument that the superior-subordinate reason for his termination was an afterthought and not a reason for his termination is unpersuasive since the respondent had previously terminated the employment of a single manager believed to be having an affair with a subordinate, and because the respondent had initially issued the complainant a written warning with directives that he attend harassment training and that his actions toward employees must remain consistent and without preferential treatment. Furthermore, the respondent's practice of prohibiting affairs between superior and subordinate employees is reasonable based on the concerns expressed by the respondent. Moreover, because the evidence shows that the respondent terminated the complainant's employment due to his conduct and because the respondent's practice of prohibiting romantic relationships between managers and subordinates is applied equally to both single and married managers, the respondent's policy regarding affairs in the workplace does not violate the Act's prohibition against discrimination on the basis of marital status.

Finally, with respect to Whiteman's alleged promotion, the complainant has asserted that despite the respondent's claims at the hearing about the effect of his relationship with Whiteman, "there must not have been a lot of concern in August 2001, because two weeks after [he] was suspended without pay, Geiser and Michelle Bartley promoted Jill Whiteman to a full time position (inside sales) which would have put her together with [him] even more." This argument fails. The record evidence shows that the complainant had requested and insisted that Whiteman be placed in this full time position, and that this was not a promotion. Exh. C-7; T II, 254-257; 302; 343-344.

The respondent asserts that the complainant's appeal is frivolous and that pursuant to Wis. Stat. 227.483  (3)  it should be awarded attorney's fees and costs necessitated by the appeal. The respondent asserts that the complainant has maintained this claim solely for purposes of harassing the respondent, that from the inception of his complaint he had no evidence to reasonably support a marital status discrimination claim and that his insistence that he was terminated because of marital status can only be determined to have been pursued in bad faith. The respondent requests that at a minimum the commission should remand this matter to the ALJ, directing that the ALJ grant the respondent its costs and attorney's fees. While the record evidence does not support the complainant's claim that the respondent terminated his employment on the basis of marital status for the reasons stated above, it also does not support the respondent's assertions that the complainant had no evidence to reasonably support a marital status discrimination claim, or that he has maintained this claim solely for purposes of harassing the respondent or in bad faith. The commission therefore denies the request made by the respondent.

cc:
Attorney James E. Aschenbrener
Attorney Lauri D. Morris



[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) The complainant also asserts that there was no evidence, as found in paragraph 6 of the ALJ's decision, that Whiteman was observed massaging his back. However, the record supports this finding by the ALJ because Siegel testified that he viewed "their [complainant and Whiteman] giving back rubs and stuff like that." T II, 378. Further, regarding paragraph 10 findings made by the ALJ, the complainant asserts that at the hearing Kristin Robertson (former Shawano employee) denied acknowledging the rumors about the complainant and Whiteman or the tense situation in the office to Geiser, and denied confirming her suspensions about the relationship between Whiteman and the complainant by checking his telephone records and providing Geiser a computer printout showing an inordinate number of calls between the complainant and Whiteman. However, the findings made by the ALJ are supported by: Robertson's admission to testifying at her deposition that it was hard enough to do her job without the rumors about the complainant and Whiteman; that she "just wanted to be done with it" and that she told Geiser she felt "stuck in the middle (T I, 29-30); and Geiser's testimony that Robertson told her the whole office was "buzzing" about the affair, that it was really hard on her (Robertson), and that Robertson opened up a desk drawer and showed Geiser a bunch of call records and said she had checked on the complainant's call records. T II, 230.

(2)( Back ) On appeal the complainant asserts that his motion for a default judgment made before the ALJ should have been granted because the respondent "either destroyed or lost the most important documents relating to the true reasons for [his] termination - Jan Geiser's investigation notes." The complainant asserts that notebooks kept by Geiser and relating to the reasons for his termination were "missing" and "lost." A default judgment is not available under the Fair Employment Act. Cassetta v. Zales Jewelers (LIRC, 06/14/05); Kemp v. R J Heinen, Inc. et al. (LIRC, 10/27/00). Moreover, as previously noted by the respondent, there is no testimony that Geiser took any notes at the termination meeting and thus there can be no claim that any such notes are missing and lost. The complainant has also asserted that there has been a "mysterious disappearance of the State's Unemployment Compensation file on [him]" and that the "strong presumption" must be that the State's UC file showed that the respondent fired him in part because he was married. Surely, the complainant is not maintaining that the respondent was responsible for the "mysterious disappearance" of the State's UC file on him.

(3)( Back ) Wis. Stat. 227.483 provides in relevant part as follows:

"Costs upon frivolous claims. (1) If a hearing examiner finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by a party is frivolous, the hearing examiner shall award the successful party the costs and reasonable attorney fees that are directly attributable to responding to the frivolous petition, claim, or defense.
. . .
(3) To find a petition for a hearing or a claim or defense to be frivolous under sub. (1), the hearing examiner must find at least one of the following:

(a) That the petition, claim, or defense was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.

(b) That the party or the party's attorney knew, or should have known, that the petition, claim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law." 

 


uploaded 2007/03/02