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


MARCY ANN TOBIAS, Complainant

JIM WALTER COLOR SEPARATIONS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199500297


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. Timely petitions for review were filed.

The commission has considered the petitions 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:

Delete paragraph 19 of the FINDINGS OF FACT and substitute therefor the following:

19. On September 20, 1994, circumstances arose which led Complainant to contact a client to have them check changes in a job. This angered O'Brien, who felt Complainant had gone over his head. They argued, and in this argument O'Brien spoke harshly to the Complainant, telling her "I don't give a shit what kind of stress you're underneath. When I tell you to do something, you better fucking do it". Following this incident the Complainant walked off the job and asked for the remainder of the week off. The Complainant was not intending to quit at the time she walked off her job on September 20, 1994. However, after thinking the matter over at home during the following days, she decided to quit.

Delete paragraph 21 of the FINDINGS OF FACT and substitute therefor the following:

21. The Respondent engaged in sex-based and sexual harassment of the Complainant.

Delete paragraph 23 of the FINDINGS OF FACT and substitute therefor the following:

23. The Complainant's decision to quit her job was precipitated by O'Brien's harsh treatment of her on September 20, 1994, and it was motivated primarily by that incident as well as by Complainant's unhappiness over other issues she had with O'Brien involving such matters as training and authorization to work overtime hours. These issues were not directly connected to the sex-based and sexual harassment to which she had been subjected. While the sex-based and sexual harassment to which Complainant had been subjected was a factor in her decision to quit, it was not a determining factor.

24. The working conditions of Complainant's employment were not so intolerable that a reasonable person would have felt compelled to resign. Respondent did not constructively discharge the Complainant.

Delete paragraphs 3 and 4 of the ORDER and substitute therefor the following:

3. That the Respondent shall pay to the Complainant reasonable attorney fees and costs for pursuing this matter. The combined total amount of reasonable attorney fees and costs to the date of this Order are Eight thousand ninety-four dollars and 6 cents ($8,094.06) (consisting of $6,500 in attorneys fees and $1,594.06 in costs). A check for the combined total amount of reasonable attorney fees and costs should be made out jointly to Marcy Ann Tobias (the Complainant) and Atty. Amy Scarr and the check should be delivered to Atty. Scarr's law office.

4. 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 53708.

DECISION

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

Dated and mailed: August 13, 1997
tobiasm.rmd : 110 :

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

This case involves the question of whether the circumstances of Complainant Marcy Ann Tobias' employment with Respondent Jim Walter Color Separation involved sexual harassment and discrimination because of sex, and the question of whether those circumstances were such that her quitting of that employment on September 26, 1994 could be considered a constructive discharge.

The Administrative Law Judge found that the Respondent engaged in or permitted sexual harassment with respect to Complainant, but that it did not otherwise discriminate against Complainant because of sex. He also found that the circumstances were not such that Complaint's quitting could be considered a constructive discharge. He allowed $5,000 in attorneys fees (plus $1,594.06 in costs) to Complainant based on her having prevailed on her complaint of sexual harassment, which represented less than what Complainant sought; he concluded that her prayer for fees for over 209 hours was excessive, that 95 hours would have been reasonable, and that she had only partial success overall and thus would be awarded fees for only half that many hours.

Complainant has petitioned for review, asserting that Complainant's quitting should have been found a constructive discharge. She also argued that the number of hours of attorney's work was reasonable, and that $21,960 in fees should therefore have been awarded. Finally, she has argued that even assuming that constructive discharge was not found, a reasonable reduction for partial success would still result in an award of $19,420 in fees (plus additional fees related to the petition for review).

Respondent also petitioned for review. It has argued that the complaint was barred by the statute of limitations, that the amendment of the complaint at hearing (to include evidence relating to allegedly offensive pictures and images in the workplace) was improper, that the acts found by the Administrative Law Judge did not constitute sexual harassment, and that in any event the Complainant's testimony about the acts in question was not credible.

Procedure -- Timeliness -- The complainant filed her first complaint on January 20, 1995. It was clear from the letters attached to the complaint that she was alleging that she had worked for Jim Walter Color Separations, had quit her job there, and had quit because she had been "sexually and emotionally harassed" to the point that she could no longer work under those circumstances. There were also a number of specific allegations about (alleged) acts of sexual harassment, with names and dates.

Complainant filed another complaint on March 16, 1995. The major substantive difference between the March complaint and the January complaint was that in place of the two-page "Letter `A' " which had accompanied the complaint by way of an explanatory narrative, there was a "Statement Of Marcy Phelps Answering Paragraph 7 Of The Discrimination Complaint," which contained more detailed factual allegations than had been contained in the January complaint.

Respondent's argument that "the complaint" is untimely assumes that the March 16, 1995 complaint is "the" complaint for timeliness purposes. Respondent's Brief, p. 5. (1)   The commission believes that this is incorrect. A complaint was clearly "filed" on January 20, 1995. Even assuming arguendo that the ERD can somehow "reject" a complaint that has actually been "filed" within the meaning of Wis. Admin. Code Ind 88.01 (2)   if it is not adequate, without affirmatively dismissing it, the January 20, 1995 complaint was adequate, at least to establish the commencement of a proceeding even if certain elements of the complaint required correction or expansion. The Administrative Law Judge correctly treated the situation here as one involving an original complaint and an amended complaint, and he correctly held that the fact that the original complaint was not served on Respondent is not relevant to the question of the timeliness of its filing.

The question then becomes one of timeliness given a filing on January 20, 1995. However, since the case has been fully tried, no purpose is served by attempting to determine whether the allegations of the complaints were timely. The issue is whether Tobias proved at hearing a violation of the WFEA occurring within the 300 days preceding the filing of her complaint on January 20, 1995. For this reason, further discussion of timeliness issues is deferred to the discussion below of the facts and the findings.

Procedure -- Untimely Amendment -- The Respondent has also argued that the Administrative Law Judge erred in allowing the Complainant to amend her complaint at the hearing on April 16, 1996. The allegations in question relate to the presence in the workplace of various images of women which the Complainant allegedly found offensive. Complainant conceded at hearing that she did not make any mention of these images or of her alleged unhappiness with them, in either her unemployment compensation hearing on November 22, 1994, or original discrimination complaint of January 20, 1995, or her subsequent complaint of March 16, 1995, or her 11-page "diary" listing incidents of alleged sexual harassment, or in her March 7, 1996 deposition. In fact, she directly conceded that she was raising the allegations for the first time in the hearing. (T. 136). She also stated that she was asking that her complaint be amended to include the allegations. Ibid. After some argument, the Administrative Law Judge stated that he would allow the evidence.

As noted, Respondent paints this in its Brief as a situation involving an amendment of the complaint. It argues that this amendment was untimely under the ERD's rules limiting the right to amend a complaint shortly before hearing. However, the ALJ did not treat this as an amendment; instead, he treated it as a question of whether certain evidence was admissible. This was appropriate. The Statute of Limitations is not a rule of evidence, see, e.g., Forster v. Abbyland Processing (LIRC, 03/22/95), and evidence about an act which occurred more than 300 days prior to the filing of the complaint may well be relevant to the question of whether there was a violation of the Act within the 300 days of the filing of the complaint. Ibid. Similarly, even if specific evidence was not expressly pleaded in the complaint, the evidence may be relevant to the ultimate allegations of the complaint.

In this case, the issues include whether the Respondent engaged in or permitted "sexual harassment" as that term is defined in the WFEA. Evidence about acts which are relevant to that allegation should not be excluded simply because the evidence itself was not pleaded or because of when the acts occurred. The Administrative Law Judge took appropriate measures to address any problem of "surprise" presented by Complainant's reference to this evidence at hearing, and considering that the hearing continued on two more days, including one day a month later, the Respondent cannot credibly argue that its ability to respond to the evidence was impaired by the fact that it was only brought up on the first day of hearing. Therefore, the commission rejects the Respondent's argument that there was an improper amendment of the complaint.

Merits -- Sexual Harassment -- Facts -- This case turned largely on the facts, which were sharply disputed. The Administrative Law Judge, who heard three days of testimony and had a full opportunity to observe the witnesses while they testified, clearly found the Complainant to be a credible witness. Based on its review of the record, the commission agrees with his assessment. The alleged inconsistencies in the testimony of the Complainant which the Respondent points to are no more than the normal case of confusion and discrepancies which one can expect to see in testimony about events some distance removed in time, when the events are revisited a number of times in a number of contexts, and which it is the function of the trier of fact to resolve, see, State ex rel. Brajdic v. Seber, 53 Wis. 2d 446, 450, 193 N.W.2d 43 (1972). In addition, the commission found abundant reason to agree with the evident assessment of the Administrative Law Judge, that O'Brien was not a credible witness. Therefore, the commission adopts the credibility assessments and the Findings of Fact of the Administrative Law Judge.

Merits -- Sexual Harassment -- Timeliness -- The 300th day prior to January 20, 1995, when the first complaint was filed, was March 26, 1994. The facts found by the Administrative Law Judge, which the commission has adopted, involve acts occurring between May, 1988 (when O'Brien attempted to kiss Complainant on the lips) and May 18, 1994 (when O'Brien threw a piece of popcorn at the front of Complainant's shirt and said "It was just so tempting," and when around that same time he also slapped the Complainant on the rear end and laughed).

There were at least two overt acts of sexual harassment occurring after March 26, 1994, i.e., within 300 days of the filing of the first complaint. One was O'Brien's tossing of a piece of popcorn at (3)  the front of Complainant's shirt following which he made the comment "It was just so tempting." Attempting to throw something down the front of a woman's shirt is not sexually neutral horseplay, and O'Brien's comment also makes it clear that this was a continuation of the same type of conduct focused on Complainant's breasts that O'Brien had been engaging in for some time. (4)    The other overt act, occurring around the time of the "popcorn" incident and thus also within 300 days of the filing of the January 20, 1995 complaint, was another incident of O'Brien slapping the Complainant on the buttocks. This is an overtly sexual form of assault, and it is also a repetition of conduct occurring earlier. (5)

Thus, even if the matter of the continuing display of certain images on the Respondent's premises is disregarded (6),   the occurrence of these two acts within the 300 days preceding the filing of the January 20, 1995 complaint justifies treating this as a case involving a continuing course of conduct extending at least within the 300 day period prior to the filing of the complaint. The Respondent's timeliness objection is therefore without merit.

Merits -- Sexual Harassment -- Application of Legal Standard -- The Respondent argues that even accepting the Administrative Law Judge's findings, the acts found by the Administrative Law Judge did not constitute sexual harassment as a matter of law. The commission does not agree. This case involves a number of occurrences of unwanted physical contact of a sexual nature (attempting to kiss Complainant on the lips, touching her buttocks) and a number of occurrences of unwelcome verbal conduct of a sexual nature (making comments about or related to Complainant's breasts). Even disregarding the other statements made by O'Brien and Walter which are more accurately characterized as sexist than as sexual harassment, (7)   and even disregarding the matter of the continuing display of certain images on the Respondent's premises, the unwanted physical and verbal conduct of a sexual nature is clearly sexual harassment as that term is defined in Wis. Stat. 111.32 (13), as:

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

Any suggestion that, because this physical and verbal conduct of a sexual nature was tolerated for some time it was thereby not "unwelcome" within the meaning of the statute, is meritless. An employe may well tolerate objectionable conduct without in any degree "wanting" it. The course of conduct found was appropriately judged by the ALJ to have been sexual harassment as contemplated by the statute.

Merits -- Constructive Discharge -- Complainant argues that her quitting should have been found a constructive discharge. However, the commission agrees with the Administrative Law Judge on the resolution of this question.

The Wisconsin Supreme Court has endorsed, in Marten Transport, Ltd. v. DILHR, 176 Wis.2d 1012, 1018, 1025, 501 N.W.2d 391(1993), the idea that an employe who quits his or her job because of dissatisfaction with discrimination occurring at that job will not be entitled to a remedy of reinstatement and back pay unless they establish that they were "constructively discharged" by that discriminatory treatment. While Marten Transport concerned discrimination in pay and job assignment, the court described its holding generally, as extending to "an employee who has been discriminated against in violation of the WFEA." 176 Wis. 2d at 1018. The dissent in Marten Transport had argued in effect that the mere fact of discrimination should be deemed to constitute per se good grounds to quit, so that where a person who had suffered discrimination then quits their job, there would be no need to consider the "constructive discharge" issue.    A dissent being what the law is not, State v. Perry, 181 Wis. 2d 43, 49, 510 N.W.2d 722 (Ct. App. 1993), it is apparent that Marten Transport rejects the idea of per se constructive discharge. Thus, in a case in which an employe quits a job because of sexual harassment, just as much as in a case involving any other type of discrimination under the WFEA, it is still necessary to determine if the nature of the discrimination was such that there was a constructive discharge.

The test applied by the Administrative Law Judge to determine whether there was a constructive discharge, was whether working conditions were so intolerable that a reasonable person would have felt compelled to resign. Waedekin v. Marquette Univ. (LIRC, 03/05/91), aff'd., Milwaukee Co. Cir. Ct., 01/21/92; aff'd., Ct. App., Dist. I, unpublished decision, 04/26/94. This test has recently been implicitly acknowledged as appropriate in a court of appeals decision recommended for publication. Selerski v. Village of West Milwaukee, Case No. 96-1041 (Ct. App. June 3, 1997, publication recommended), citing Chambers v. American Trans Air, Inc., 17 F. 3d 998, 1005 (7th Cir. 1994, cert. denied, 513 U.S. 1001).

The question is therefore whether the sexual harassment found to have occurred here was a condition of employment so intolerable that it would have made a reasonable person in Complainant's position feel compelled to resign, that is, that they had no reasonable option but to resign. The commission believes that it is useful, in evaluating this question, to take a careful look at what the law says (and does not say) about "sexual harassment."

Under the WFEA, sexual harassment is an issue in a number of conceptually distinguishable and separately described circumstances. Under Wis. Stat. 111.36(1)(b), it is prohibited sex discrimination to:

engage in sexual harassment; or

implicitly or explicitly make or permit acquiescence in or submission to sexual harassment a term or condition of employment or the basis or any part of the basis for any employment decision affecting an employe; or

permit sexual harassment to substantially interfere with an employe's work performance or to create an intimidating, hostile or offensive work environment.

These three things are separately listed because they each have a somewhat different focus.

The first part of the definition, "engag[ing] in" sexual harassment, clearly and unambiguously applies to conduct by the employer (or an owner or agent in a position of responsibility such that it is appropriate to apply the rule of respondeat superior and treat the actions of the agent as being the actions of the employer). An employer thus violates the act if it "engages in" sexual harassment.

The second part of the definition addresses what has come to be called "quid pro quo" sexual harassment: cases in which the employe is pressured or effectively obliged to tolerate sexual harassment, or to engage in sexual activity, in order to obtain some benefit of employment which they would or should be entitled to in any event (such as, for example, the continuation of their employment). This separate formulation is necessary because of the qualification that sexual harassment must be "unwelcome;" this makes it clear that an employe's failure to object to (or outright acquiescence in) sexual conduct by a harassing employer does not mean that the conduct was "unwelcome" where it was in fact coerced by the withholding or the threat of withholding benefits of employment.

The third part of the definition addresses what has come to be called "hostile environment" harassment. This element of the definition is necessary to address sexual harassment engaged in by co-workers who can not be treated as outright agents of the employer in connection with their harassing behavior. This part of the definition obliges the employer to take steps to prevent or terminate sexual harassment in the work place, even if the employer (or its agents) is itself not "engaging in" the sexual harassment, if the harassment engaged in by other employes is severe enough that it creates a hostile environment which interferes with work or creates a hostile, intimidating environment.

Although O'Brien was Complainant's supervisor, this case does not involve an allegation of overt quid pro quo sexual harassment: Complainant did not assert that O'Brien either threatened to or did impose more onerous conditions of employment on her or deny her benefits of employment if she did not enter into sexual relations with him. Furthermore, this is not a "hostile environment" case in the classic sense of a workplace made intimidating, hostile or offensive by actions of co-workers which the employer tolerates and refuses to remedy. (8) Instead, this is a case in which the allegation is that the employer itself, in the person of a managerial/supervisory employe, is engaging in sexual harassment. It is in the context of this particular kind of violation, that the question of constructive discharge must be analyzed.

A finding that there has been sexual harassment by the employer does not always require a finding of constructive discharge; the specific details and circumstances relative to the sexual harassment must always be looked to in deciding whether there was a constructive discharge. Thus, in Miller v. Oak-Dale Hardwood Products, (LIRC 12/13/94), the finding of constructive discharge rested on the commission's analysis of the pervasiveness of the sexual harassment in the case and the Respondent's actions. Furthermore, the question of whether certain conduct is severe enough to warrant a finding of constructive discharge is not even reached unless there is a finding that the objectionable conduct was actually the cause of the person's decision to quit. Riley v. American Family Mutual Ins. (LIRC, 03/30/92). Where the quitting is actually motivated by some other factor, a finding of constructive discharge is not appropriate -- not least because a complainant's failure to quit because of the discrimination (as evidenced by the fact that they did not quit until some other cause intervened) suggests that the discrimination was not so intolerable that the complainant felt compelled to resign.

In this case, both of these factors in combination led the commission to agree with the Administrative Law Judge, that there was no constructive discharge. The incidents in question were serious, overt, and offensive sexual harassment, but while they persisted over time, it is also the case that they were relatively infrequent. Furthermore, the last incidents of sexual harassment occurred several months before the quitting. (9)   Most significantly, the quitting was not only precipitated by an incident which did not involve sexual harassment, but was primarily motivated by issues other than the sexual harassment. The Complainant's decision to raise the issue of the sexual harassment in her resignation letter, while it clearly reflected genuine concerns on her part, still appears to have been an afterthought to her actual decision to quit, made because "other problems [she] had with [O'Brien], not necessarily the sexual harassment part . . . had [not] been addressed in what [she] would consider a reasonable way." (T. 58- 59). Considering this and other evidence in the record, the commission was persuaded that the sexual harassment which occurred here was not a determining factor in Complainant's decision to quit her job. (10)   Weighing this together with the nature and extent of the sexual harassment, the commission concluded that the Complainant's decision to quit could not be treated as a constructive discharge. (11)

Attorneys Fees -- Work Prior To Decision Below -- Complainant argued that the number of hours of attorney's work was reasonable, and that $21,960 in fees should therefore have been awarded. She has also argued that even assuming that constructive discharge was not found, a reasonable reduction for partial success would still result in an award of $19,420 in fees (plus additional fees related to the petition for review.

Because the commission has agreed with the Administrative Law Judge that there was no constructive discharge, the Complainant's arguments with respect to the number of hours appropriate to "full success" will not be addressed.

Complainant argues that only a relatively small reduction (less than 10%) should result from a decision that there was no constructive discharge. However, her argument is unpersuasive. It is not accurate to claim, as Complainant does in her Brief in Chief, that "sexual harassment was the primary focus of this case, and the . . . work related to the constructive discharge was done only in preparing for the trial, conducting the trial, and researching and drafting the initial closing argument". Complainant's Brief, p. 14. (emphasis added). For one thing, there was an issue of sex discrimination in conditions of employment, relating to denial of training, which formed a significant focus of the initial complaint, and which Complainant lost on. (12)   For another thing, the sexual harassment was a focus of the case in large part because it was essential to the assertion that there had been a constructive discharge.

In trying to decide on an appropriate reduction in attorneys' fees, it is worthwhile to consider the question of how a case would probably have been litigated, and how much time would have been spent, if a complainant had actually set out to prove only the allegations that she ended up prevailing on. In other words, the question here would be, what kind of case would this have been if Complainant had, after she quit, decided to bring a complaint alleging only that O'Brien had sexually harassed her while she was working for Respondent -- but not alleging that there had been any other discriminatory treatment such as denial of training because of sex, and not asserting that the conduct had been so intolerable that a reasonable person would have felt compelled to quit as she did. How would the case have been tried, if Complainant's purpose had only been to obtain a decision confirming that the acts described by the Administrative Law Judge in Findings of Fact Nos. 7 through 18 had in fact occurred and constituted sexual harassment?

As it answers that question, there is no reason for the commission to close its eyes to the practicalities involved. The results that can be obtained in terms of remedy are much more significant where a constructive discharge is proven. The practical and rational approach to litigation is to try to make the effort expended correspond to the likely results. It was entirely reasonable of the ALJ to conclude, that significantly fewer hours would have been expended in a reasonable effort at litigating only those issues for only that purpose. Therefore, the commission affirms the Administrative Law Judge's decision, which was to reduce the allowed hours by 50% to reflect the only partial degree of success obtained.

The overall number of hours expended by Complainant's counsel (205) was quite large. The 95 hour figure adopted by the Administrative Law Judge (for the number of hours that would have been reasonable in an effort that prevailed on all issues) is clearly justifiable on this record, in that even the Respondent's "expert" (who gave an affidavit in support of its position on fees) estimated a figure of 75 to 80 hours.

Attorneys Fees -- Petitions For Review (13) -- Complainant was unsuccessful on the issues which she petitioned for review on, and therefore she should not be allowed any fees for that work. Also, a significant portion of the argument in Complainant's brief in response to the Respondent's Petition for Review actually sought modifications of the Administrative Law Judge's decision to add findings of fact he had not made; (14)  this argument should have been included in her initial brief, and was not a matter of a response to Respondent's petition. Taking these factors into consideration, the commission finds that it is reasonable to allow an additional 15 hours of attorney fees at Attorney Scarr's hourly rate of $100, for the work done in successfully responding to and opposing the Respondent's Petition for Review. This amount has been incorporated into the Order.

cc:
Amy Scarr, Attorney for Complainant
William Cunningham, Attorney for Respondent


Appealed to Circuit Court, which reversed June 19, 1998.  Cir. Ct. decision reversed and LIRC decision reinstated by Court of Appeals  sub nom.  Jim Walter Color Separations v. LIRC and Marcy Ann Tobias, 226 Wis. 2d 334, 595 N.W.2d 68   (Ct. App. 1999)

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Footnotes:

(1)( Back ) Respondent noted that in the Memorandum Opinion, the Administrative Law Judge stated that it was unnecessary to reach the timeliness question because the display of certain pictures and posters on the premises as of September 26, 1994 was part of a continuing hostile environment. Respondent's Brief, p. 6. While this is true, Respondent ignores the fact that the ALJ also expressly found that the January 20, 1995 complaint was the one from which all time limits should be measured.

(2)( Back ) "`Filing' means the physical receipt of a document at any division office."

(3)( Back ) Whether or not the piece of popcorn actually went down the front of the Complainant's shirt, the commission would view this incident as significant to the issues presented in this case, and it would arrive at the same overall result.

(4)( Back ) Findings of Fact Nos. 9, 10, 12, 14.

(5)( Back ) O'Brien had done this before in 1992; see, Finding of Fact No. 13.

(6)( Back ) The Administrative Law Judge characterized the materials in question as being sexually "suggestive" and/or "provocative." These characterizations are accurate, but the commission must note that the statute specifically addresses itself only to the unnecessary display of sexually "graphic" materials. With the possible exception of the "wet-t-shirt" image (which the ALJ made no finding that Complainant had seen) and the tattooed naked woman poster (which was taken down when first objected to), the images at issue here are not sexually "graphic." However, the commission would arrive at the same result as the Administrative Law Judge, both on the question of application of the Statute of Limitations and on the merits, even if the matter of the display of these images was not considered, based on the other conduct found.

(7)( Back ) See, Finding of Fact No. 11 (O'Brien's statement that "When I see a woman out in a bar, I think she's out there looking to be picked up"), and Finding of Fact No. 15 (Walters' statement that he thought that once Complainant was divorced and "footloose and fancy free" she would quit her job).

(8)( Back ) It is for this reason that the commission has modified Finding of Fact No. 21. To use the term "hostile and offensive work environment" in a case which involves sexual harassment by the employer (rather than sexual harassment by co-workers which the employer allegedly has not remedied) introduces unnecessary analytical confusion which the commission believes should be avoided where possible.

(9)( Back ) The only conduct which continued beyond that point was the display of sexually "suggestive" or "provocative" (as opposed to "graphic") images. See, note 6, supra.

(10)( Back ) As is reflected above, the commission has modified the Administrative Law Judge's decision to include an express finding that the Complainant quit principally because of her unhappiness about unwarranted limitations on her work and training opportunities and unfair treatment by O'Brien, and that her unhappiness about O'Brien's sexual harassment was only one factor in her overall decision and would not have motivated her to quit absent the other factors. It believes that this was to some extent implicit in the Administrative Law Judge's decision, see, Administrative Law Judge's Memorandum Opinion at p. 10, but it determined that it was better practice to make this express.

(11)( Back ) The commission wishes to note that even though it found that the working conditions of Complainant's employment were not so intolerable that a reasonable person would have felt compelled to resign, it did not intend thereby to express any opinion on the question of whether the Complainant's decision to resign was reasonable or unreasonable. In many cases in which an employe is confronted with a difficult employment situation, there will be a number of different alternatives, including resignation, which may all be fairly characterized as "reasonable." However, the question where "constructive discharge" is asserted, is whether resignation is the only reasonable alternative. Whether or not the Complainant's decision to resign was a reasonable one from her point of view, the commission could not conclude that it was the only course of action a reasonable person would see as possible in these circumstances. Therefore, there was no constructive discharge.

(12)( Back ) Findings of Fact No. 22, Conclusion of Law No. 4.

(13)( Back ) The Complainant did not include a prayer for a specific amount of fees relating to briefing this matter to the commission.

(14)( Back ) Complainant's Response Brief, pp. 2-7.