PAMELA M PAUL, Complainant
WEIMER BEARING AND TRANSMISSION, Respondent
On July 29, 2005, an administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter concluding that there was no probable cause to believe the respondent discriminated against the complainant in regard to her terms or conditions of employment or compensation because of her sex, age or marital status, no probable cause to believe the respondent discriminated against the complainant in regard to the termination of her employment because of her sex or marital status, and no probable cause to believe the respondent discriminated against or discharged the complainant because she filed, or the respondent believed she had or would file, a complaint under the Wisconsin Hours of Labor Act, s. 103.02. The complainant filed a timely petition for commission review of the ALJ's decision. The parties submitted briefs pursuant to a briefing schedule, which concluded with the reply brief received from the complainant on April 23, 2007.
The commission has considered the petition and the position of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review and for reasons set forth in the attached Memorandum Opinion, the commission issues the following:
2. The ALJ's determination that there is no probable cause to believe the respondent discriminated against the complainant, in violation of the WFEA, on the basis of her age or sex with respect to compensation, or on the basis of marital status with respect to her terms and conditions of employment, compensation or termination of employment is affirmed and that portion of her complaint is dismissed.
3. 3. The ALJ's determination that there is no probable cause to believe that the respondent discriminated against the complainant, in violation of the WFEA, on the basis of sex with respect to her termination, his apparent determination that there is no probable cause to believe the respondent engaged in or permitted sexual harassment and his determination that there is no probable cause to believe the respondent discriminated against the complainant on the basis of age with respect to her terms and conditions of employment are set aside and remanded for a new probable cause hearing.
Dated and mailed August 16, 2007
paulpa . rpr : 125 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
In discrimination complaints filed with the Equal Rights Division in late April and May of 2003, Pamela Paul alleged that the respondent violated the WFEA by discriminating against her on the basis of her sex, age (D.O. B. 12/5/57), marital status (married with dependents) and activities protected under the WFEA, with respect to demotion, pay or benefits and termination of employment. She also alleged that the respondent engaged in or permitted sexual harassment.
On May 7, 2004, the Division issued an Initial Determination which found probable cause to believe the respondent had violated the WFEA by discriminating against Paul on the basis of her age with respect to her termination of employment, (1) but no probable cause to believe the respondent had discriminated against her on any other basis alleged in her complaint and dismissed those complaint allegations. Paul filed a timely appeal of the Initial Determinations' no probable conclusions. A probable cause hearing on those issues was held on October 8, 2004, before the ALJ, who subsequently issued a decision on July 29, 2005, dismissing those complaint allegations, having concluded that there was no probable cause to believe the respondent discriminated against the complainant in regard to her terms or conditions of employment or compensation because of her sex, age or marital status, no probable cause to believe the respondent discriminated against the complainant in regard to the termination of her employment because of her sex or marital status, and no probable cause to believe the respondent discriminated against or discharged the complainant because she filed, or the respondent believed she had or would file, a complaint under the Wisconsin Hours of Labor Act, s. 103.02. (2)
Paul argues on appeal from the ALJ's decision that while the ALJ took particular notice of her pro se status at the hearing and stated that he would help her get her testimony in the record, the ALJ in fact "hindered the presentation of her case by a variety of rulings, directions, interruptions, and hostile questions such that it was impossible for her to develop her case to show probable cause that she had been discriminated and retaliated against by the respondent." Further, Paul contends that even with this interference she did manage to demonstrate probable cause to believe the respondent terminated her employment because she successfully pursued a wage claim against the respondent.
Paul began employment with the respondent in 1987, working as a receptionist. However, because of her work effort and performance she was given the added responsibility for accounts receivable, and subsequently received a number of promotions including a promotion to the position of Inside Sales, a promotion to the position of Director of Purchasing and a promotion to direct the implementation of the respondent's ISO 9000 Quality System. T. I, 9-10. Thereafter, Paul held two positions, that of Office Manager and Total Quality Control Coordinator. Paul's duties as Office Manager included supervising the receptionist, assisting with supervision of the inside sales people, making sure the building was running properly, assisting with inventory control, personally performing building and grounds maintenance as well as hiring contractors for building maintenance, working as a confidential assistant to company owner and president, Dick Strangl, assisting with accounting, assisting in the warehouse and taking care of company lunches and visits from customers. T. II, 149-150. As Total Quality Control Coordinator, Paul was in charge of the semi-annual audits of the ISO 9000 Quality System, and assisting the various departments to write procedures that were in line with the ISO to ensure the respondent was in compliance. T. II, 150-151.
The primary thrust of Paul's discrimination complaint is that shortly after filing a February 2002 wage complaint against the respondent with the ERD, the respondent embarked on a series of retaliatory actions against her which included taking away her job responsibilities, unfairly criticizing her work performance, denying her a raise, micromanaging her work, denying her a bonus and terminating her employment on May 2, 2003.
Wisconsin Statute § 111.322(2m) makes it an act of employment discrimination to, among other things, discharge or otherwise discriminate against any individual because "(a) The individual files a complaint or attempts to enforce any right under s. 103.02..." Section 103.02 is the statute regarding hours of labor and required compensation for an individual's hours of labor.
A review of the record supports Paul's assertion that the ALJ improperly hindered the presentation of her case.
For one thing, Paul asserts on appeal that on August 4, 2004, she sent a letter to the ALJ asking that the respondent produce various records and documents but her request was never addressed by the ALJ. Paul's assertions appear to be accurate. In a letter to the ALJ from Paul dated October 11, 2004 (but stamped as received by the ERD on February 22, 2005, and which the ALJ apparently characterizes as Paul's "post-hearing brief that was received on February 22, 2005"), Paul complains, among other things, that "I never received any discovery items that I requested well in advance of the hearing, why is it that they were not required to provide it 10 days before the hearing?"
In addition, at the hearing itself, in several instances the ALJ made erroneous rulings with respect to objections raised by the respondent's counsel, thereby precluding Paul from eliciting relevant testimony in support of her case. For instance, Paul's performance review signed by her supervisors, Daniel Strangl and Robert Holowitz, on February 10, 2003, included the comment "Professional attire lacking" as one of several negative comments preceding a statement that significant improvement was needed or she would be terminated. Paul attempted to elicit from Holowitz what it was about her attire that was unprofessional but Holowitz's answers were completely unresponsive. T. 1, 23-26. Despite Holowitz's failure to ever answer Paul's question, upon counsel for respondent's assertion that "we're beating a dead horse here. I think this was asked three times" the ALJ responded, "Yeah. Let's Move on." T. 1, 26-27. Another negative comment in this section of the February 10 performance review stated that Paul was on vacation when an HVAC system was being installed at the respondent. Referencing Exhibit R-5, p. 2, a document ostensibly written by Holowitz containing a statement that Paul's absence during the HVAC installation "caused Bob Holowitz to be (sic) become very involved with the project", Paul attempted to question Holowitz about the extent of his required involvement with the HVAC installation but was met with an objection by respondent's counsel that "we've been at this for two hours and I have yet to hear a question that's related to age or sex or anything". The ALJ responded, "Right. That's why we're here. All of this is fine, it's interesting but it - I haven't heard anything yet that in any way is going to show me that the Respondent took any action against you because of the reasons you complained in your complaint and you need to start focusing on that." T. 1, 89.
In Paul's performance review signed by Dan Strangl and Holowitz on August 9, 2002, in the section regarding accountability was a comment that it took Paul way too long to gather competitive pricing. Attempting to discredit the validity of this comment because it was not something over which she had any control, Paul asked Holowitz, "Is this a fair assessment of my being accountable for something that was totally out of my control?" T. 1, 63-64. However, Paul's inquiry was met with an objection that she was asking about the judgment call of the witness, which the ALJ sustained, stating they were not there to "convey whether it's a good review or a bad review....[that] going through here showing that you disagree with the review is not helping your case...we're not here to review their [business] judgments." T. 1, 64. Clearly, however, Paul's questions were not merely to show disagreement with her performance reviews or the respondent's business judgment, but to establish that the respondent's statements regarding her performance were pretextual. This is completely evident based upon Paul's complaint allegations, and her appeal of the Initial Determination's no probable cause conclusions wherein she asserted that the respondent retaliated against her after she filed her wage claim by, among other things, "discriminating against me by noting on my review "Professional attire lacking, clerk-like dress", "retaliat[ing] against me by downgrading my dependability score to a 2 and justifying it with the written comment on my review stating that I brought desert [sic] to the (voluntary) company picnic late" and "showing the pattern of favorable reviews until after my wage claim was filed and then petty issues that were drummed up to reflect poorly upon me".
It is Paul's contention that her performance had not changed after she filed the wage complaint against the respondent.
As another example of an erroneous ruling by the ALJ, questioning Holowitz, Paul stated that on December 11, 2002, Holowitz asked the respondent's Executive Assistant, Julie Brown, to remove her name (Paul's) from the management column in the telephone exchange list, where it had been for the last 10 years, to the administrative column, and then asked him why. The respondent's counsel objected, stating, "this is now testimony". Despite the fact that Paul had clearly asked a question, the ALJ responded, "Yeah. You can testify to that. What - you need to focus more on your complaint." T. 1, 92. Paul's complaint specifically cited the respondent's removal of her name from the management column on the phone exchange as evidence of retaliation against her by the respondent.
Further, despite the fact that "difficult economic times for Weimer in the present economy" was an alleged contributing factor in the respondent's decision to terminate Paul's employment (See Complainant's Exh. #1, p.3), the ALJ sustained as "totally irrelevant" the respondent's objection to Paul's asking Company President, Richard Stangl, "Was business in 2003 better than in 2002?" T. 2, 138.
Further still, when Paul attempted to question Richard Stangl about calling Bob Holowitz into his (Stangl's) office and stating that hers and another worker's (Dave Bode's) jobs with the company were secure, the ALJ sua sponte inquired: "And this has got what to do with your complaint?" The following exchange then occurred between Paul and the ALJ:
MS. PAUL: Well, he - made some - he told us - I just wanted to put on the record what he told Bob and I.
ADMINISTRATIVE LAW JUDGE: What's that got to do with your complaint though?
MS. PAUL: Well, he said that -
ADMINISTRATIVE LAW JUDGE: I mean, there are a lot of things that I'm sure you'd like to put on but it's got to be relevant to this complaint.
MS. PAUL: He said that he would be the first one to tell me if my job was ever in jeopardy.
ADMINISTRATIVE LAW JUDGE: Objection sustained (sic) - I'll sustain it to relevance. Move on.
T. 2, 141-142.
Paul's line of questioning was clearly relevant to her complaint. In correspondence responding to additional questions by the Division that Paul sent to the Division dated July 10, 2003, Paul had asserted that on February 8, 2002, Richard Stangl "told Bob and I both that our jobs (hers and Bode's) were secure and if ever they were in jeopardy we'd be the first to know. He told us that if we were down to a handful of employees we would still be with the company because we are cross-trained." (Emphasis added.)
Moreover, on several occasions during the hearing the ALJ immediately sustained relevancy objections to Paul's questions of witnesses without ever asking or allowing Paul to explain the relevancy of her question. See T. 1, 48, 86, 89; T. 2, 95, 138.
In addition, there were instances where the ALJ prevented Paul from eliciting relevant testimony from witnesses by sustaining counsel for respondent's objections on the basis of foundation without explaining what this meant and when he very easily could have directed her as to how she could go about laying a foundation for the witnesses' testimony. See, for example, T. 2, 94-95, 103-104, 115 and 129.
Furthermore, the ALJ also frequently allowed the respondent's counsel to intervene in Paul's direct examination of a witness and limit or direct that witnesses' testimony. See T. 1, 20, 35, 47, 58-59, 67, 70, 75, 80, 91; T. 2, 109, 112 and 116.
As noted by Paul, while the ALJ is not to act as the attorney for a party, a multi-factor test has been employed on judicial review to determine whether an ALJ adequately protected the rights of a party not represented by counsel, including:
whether there was a full opportunity for the unrepresented party to develop their case on direct and cross examination; whether a full and fair hearing were provided; whether it was clear that a party had notice of the issues to be considered at the hearing and an opportunity to present evidence on the those issues; whether the unrepresented party understood and was able to hear and participate in the hearing and understand the evidence offered; and whether the examiner was unrelated to any of the parties presenting evidence, and thereby, impartial. Ramada Inn v. LIRC (Case No. 02CV802, Eau Claire Co. Cir. Ct., June 3, 2003), citing Kropiwka v. DILHR, 87 Wis. 2d 709, 275 N.W.2d 881 (1979); Pruno v. Industrial Comm., 187 Wis. 358, 203 N.W. 330 (1925).
The record herein does not show that the ALJ adequately protected the rights of the unrepresented complainant.
Despite the obstruction that Paul incurred in attempting to show probable cause to believe that the respondent retaliated against her for filing a wage complaint against the respondent, the evidence of record contains sufficient evidence of facts and circumstances strong enough in themselves to warrant a prudent person to believe that the respondent retaliated against her for filing a wage complaint against it. For instance, Paul testified that three months after filing her wage claim, the respondent physically removed her from the Purchasing Department, which she had been assisting, without giving her any reason for doing this. T. 2, 152-153. Paul testified that before she filed the wage claim Richard Stangl spoke to her, he would look her in the face and personally instruct her without going through another person, but after filing her wage claim Stangl stopped speaking to her even though she was performing all of her job duties and her attitude had not changed. T. 2, 164. Paul gave undisputed testimony that every year up until she filed the wage complaint she had received raises and bonuses but she did not receive a raise or bonus after filing the wage claim. T. 2, 151. Paul testified that her performance had not changed after filing the wage complaint. Id. Furthermore, when Holowitz was asked why she was not given a raise in 2002, Holowitz's only response was "I guess I would say that not everybody received raises, that's just a - that's just a fact...You didn't receive a rate change and others didn't as well." T. 1, 47-48. The evidence also shows that it was customary for Richard Stangl to send birthday greeting cards to employees on their birthday but one was not sent to her on her birthday in December 2002. T. 2, 113-114, 133. The evidence shows that on December 11, 2002, the same date that bonuses were given out (but not to Paul), Julie Brown was directed to remove Paul's name from the management column in the telephone exchange list, where it had been for 10 years, and moved to the administrative column. T. 2, 118-119. The evidence shows that as the Office Manager Paul had a company credit card to make company purchases but after filing the wage complaint she was not given a new credit card when the respondent switched to another credit card company. T. 2, 117-118. Furthermore, Paul testified that on May 2, 2003, when she was called into a meeting with Holowitz and Daniel Stangl and told of her termination, that other than the statement, "we've had to make some hard decisions" (after which they immediately began discussing a severance agreement and release she was presented), she was not given any reason as to why her employment was being terminated. T. 2, 158-160.
The respondent has asserted that it terminated Paul's employment "because of lack of work for her to do coupled with performance deficiencies." Complainant's Exh. #1. At the hearing, Holowitz asserted that Paul's employment was terminated because "There was not a position for [her]", that the office manager position "had kind of evaporated through progression of other employees in different...areas" and that "it got to the point there just wasn't - there was nothing we could - we could find meaningful for [her] to do." T. 1, 17, 19. However, except for reasons connected with having filed a complaint against the respondent, it is hard to imagine why the respondent would have no need for an employee who during the course of her lengthy employment had continually taken on more responsibility and received a number of promotions, who had received raises and bonuses for her work performance right up until the year prior to the filing of her complaint, and whose contention is that only 14 or 15 months before her termination she had been told by the company president that if the company was down to a handful of employees she would still be with the company because she was cross-trained.
Furthermore, some of the alleged performance deficiencies on the part of Paul appear to be false, or, at the very least, suspect, which raises a question about the validity of other alleged performance deficiencies. For example, Paul's August 9, 2002, performance review contains the comment, "Other managers don't feel comfortable going to Pam are (sic) not sure job will be done right and without extensive instruction." Exh. R-3, p. 2. However, the respondent's warehouse manager, David Bode, testified that he felt comfortable going to Paul and denied ever feeling that a job that he had asked Paul to do would not get done right without extensive instruction. T. 2, 94. Furthermore, contrary to what is stated in Paul's August 9, 2002, performance review, in her February 10, 2003 performance review her supervisor's comment that one of Paul's "strengths" is "Willingness to assist, people willing to go to her." Exh. R-1. (Emphasis added.) It is also interesting to note that listed as the first example on Paul's August 9 performance review under the comment "Need to be more accountable at Times" is the statement that she had arrived late with desserts at the company picnic. In addition, listed in Paul's February 10 performance review is the comment, "Professional attire lacking-use Julie B. as an example (not clerk-like)". However, Julie Brown testified that Paul had always dressed within the respondent's dress code guidelines. T. 2, 123. Further, Holowitz was unable to state what it was about Paul's attire that was unprofessional. T. 1, 23-26. In fact, Richard Stangl agreed that he thought Paul was always professional in her dress. T. 2, 139.
Moreover, Paul was prevented from eliciting relevant testimony about a number of her other alleged performance deficiencies listed in her 2002 and 2003 performance reviews. As previously noted, listed as an alleged example of Paul's need to be more accountable in Paul's August 9, 2002 performance review is the comment that she took way to long gathering competitive pricing. However, Paul was precluded from asking Holowitz if this was something that was out of her control. T. 1, 63-64. Further, Paul's February 10, 2003 performance review contains a negative comment about her being on vacation during the installation of a HVAC system but she was precluded was questioning Holowitz about this matter on the grounds that it was not relevant. T. 1, 88-89.
In addition to what is stated above, Paul testified that she had signed her 2002 and 2003 performance reviews without ever getting a chance to read them and without receiving a copy. T. 2, 175. See also, Exhibit R-2, p. 3. In fact, Paul testified that it was only when Dan Stangl "mumbled, almost with his hand over his mouth, something about termination" at the end of the February 10 review as they were getting up to leave, that had prompted her to write a letter to the respondent requesting copies of her 2002 and 2003 reviews. T. 2, 174-175.
For the reasons stated above, the commission concludes that there is probable cause to believe that the respondent violated the Act by discriminating against Paul in her terms and conditions of employment, compensation and termination of employment because she filed a complaint against the respondent under s. 103.02, Wis. Stats. Accordingly, the commission has ordered that a hearing on the merits be held on these issues.
Unlike Paul's retaliation claim, however, the evidence of record (in particular because of Paul's testimony, or her lack of testimony, and the admissions she makes) fails to provide reason to believe that the respondent discriminated against her in violation of the Act on the basis of her age or sex with respect to compensation, or that the respondent discriminated against her on the basis of marital status with respect to her terms or conditions of employment, compensation or termination.
For instance, apparently the basis for Paul's claim of marital status discrimination is that she was "married with six dependents", that is, she was married and had six children who received insurance coverage under the respondent's insurance program. T.2, 156-157, 161-162. The respondent apparently did or was seeking to make changes in its insurance program which possibly may have affected the insurance coverage for Paul's dependents. In any event, after acknowledging that one could have been single and had six dependents, Paul indicated she no longer viewed her marital status as a basis for her complaint. T. 2, 157, 162. With respect to Paul's claims of age and sex discrimination, nothing in her complaint allegations and nothing she adduced at the hearing suggests that she was treated differently with respect to compensation because of her age. Accordingly, the commission has affirmed the ALJ's decision on these issues.
The probable cause notice of hearing appears to have attempted to set forth as issues two forms of alleged sex discrimination: gender discrimination with respect to compensation and termination; and sexual harassment.
The sexual harassment issue centers around Paul's assertion that one evening Company President Richard Stangl, once referred to the women employees as "clerical cunts", after which the term "cc" was coined and "everyone on (sic) the office just calls it CC." T. 2, 155. Apparently, Stangl's alleged comment was made at some point during or before 1999 because Paul attempted to question a former vice president who last worked in 1999 about hearing Stangl's comment. T. 1, 8, 15. Further, although Paul had not been considered a clerical employee-at least not until December 11, 2002, when her name was removed from the management column in the telephone exchange list-Paul believes that Holowitz and Dan Stangl were referring to her as a "clerical cunt" by stating that her attire was "clerk-like" in her February 10, 2003 performance review (T. 2, 154), and she attributes gender discrimination to her termination on May 2, 2003, because the term "clerk-like" had been used in her February 10 performance review. T. 2, 159-161.
Unfortunately, the ALJ has unnecessarily complicated this aspect of Paul's claims because of his interrupting and cutting her off when she was attempting to explain her basis for sex/sexual harassment claims (T. 1, 15), and by preventing Paul from asking Holowitz if use of the term "clerk-like" in her performance review was an innuendo that she was a "clerical cunt". T. 1, 27.
Paul states the following in her discrimination complaint:
The comment about clerk-like I found especially distasteful given that years ago Dick referred to some of the women employees as "clerical cunts" (this conversation was overheard after hours by Robert Lengh and myself and forever after Robert would just refer to it as "cc" and we would both immediately understand the meaning. (3) I can't say for sure that the reference to my dress as clerk-like had this meaning, but it didn't mean that I dressed like our clerical help since most of them usually wear slacks and leggings. I didn't ask for an explanation of "clerk-like" as I was mortified by the comment."
To the extent Paul is claiming Richard Stangl's comment constituted sexual harassment, in addition to a timeliness issue, as described by Paul, overhearing the company president once make a degrading comment about women would not amount to sexual harassment under the WFEA. Under the WFEA sexual harassment means:
"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 employee's work performance or to create an intimidating, hostile or offensive work environment."
Wis. Stat. § 111.32(13).
However, Paul's claim also includes the allegation that after the "clerical cunt" comment by Stangl, the term "cc" was coined and used in the office as a reference to Stangl's comment. Further, it is her belief that the comment in her performance review that her attire not be "clerk-like" was a reference to her being a "clerical cunt", and she cites the "clerk-like" comment as evidence that she was terminated on the basis of her gender.
The commission finds this to be problematic. Based on the record herein, it is not known who in the office was allegedly using the term "cc", or how frequently this occurred because the ALJ interrupted and cut Paul off when she was attempting to talk about this. T. 1, 15. Evidence as to these matters is critical in a sexual harassment claim. Also, Paul was prevented from asking Holowitz if use of the term "clerk-like" in her performance review was an innuendo that she was a "clerical cunt". T. 1, 27. Paul cites this as evidence that she was terminated on the basis of her gender. Accordingly, the commission has set aside the ALJ's decision on these issues and remanded them for a new probable cause hearing.
Finally, the commission acknowledges that at the hearing when the ALJ asked Paul if she had any evidence to show that she was treated differently in her terms and conditions of employment on the basis of age, she responded "No." T. 1, 156. However, the commission also notes that in Paul's complaint and at the hearing a significant aspect of her claim seemed to focus on an assertion about her attire. Specifically, Paul's assertion that following a February 10, 2003 performance review the respondent's Executive Assistant, who had been asked to speak to her about her work attire, told her that the respondent "didn't like my shoes, my socks and my 'Little House on the Prairie' dresses and the same sweater every day". The commission notes that the reference to Paul wearing "Little House on the Prairie" dresses, because of the time period referenced by this comment, raises age-animus implications regarding what she was permitted to wear to work. Given this and the obstruction that Paul incurred in attempting to present her evidence on her complaint allegations, the commission is not inclined to accept as accurate Paul's statement that she had no evidence to show that she was treated differently in her terms and conditions of employment on the basis of age. Accordingly, the commission has also set aside the ALJ's decision on this matter and remanded it for a new probable cause hearing.
cc:
Attorney Lynn M. Novotnak
Attorney Michael J. Cieslewicz
[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]