DATED AND FILED
NOTICE
September 18, 1997
Marilyn L. Graves
Clerk, Court of Appeals
of Wisconsin
No. 97-0224
DISTRICT IV
Aldene Kannenberg,
Plaintiff-Appellant,
v.
Labor and Industry Review Commission and
Walker Stainless Equipment Company,
Defendants-Respondents.
APPEAL from a judgment of the circuit court for Juneau County:
JOHN W. BRADY, Judge. Affirmed.
Before Eich, C.J., Vergeront and Deininger, JJ.
VERGERONT, J. Aldene Kannenberg appeals the affirmance of
a
decision of the Labor and Industry Review Commission (LIRC) finding that she was
not sexually harassed in her employment within the meaning of § 111.36(1)(b)
and
(br), Stats., and § 111.32(13), Stats.,(1) and was not subjected to retaliation as
prohibited by § 111.322(3). Stats.(2) She contends that LIRC erred in the legal
standards it
applied to determine whether there was sexual harassment and that the evidence shows that
she was
subject to sexual harassment and retaliation. We conclude that LIRC applied the correct
legal
standards on the sexual harassment claim, and that its decision on that claim is supported by
substantial evidence in the record and is a reasonable application of the law. We conclude
the decision
on the retaliation claim is supported by substantial evidence. We therefore affirm.
BACKGROUND
Kannenberg began work on January 2, 1991, at Walker Stainless
Equipment Company in New Lisbon, Wisconsin, as a second-shift tool room
attendant in the transportation division. She was the only woman working among 20-25 men
on the second shift. Kannenberg's complaints to Walker personnel about
behavior she considered sexually harassing began in mid-February 1993. She filed
a complaint with LIRC's Equal Rights Division (ERD) in November 1993.(3) While
the complaint was being investigated, Kannenberg was disciplined for discourteous
behavior to a supplier and she filed a complaint for retaliation as a result of that
discipline. The ERD issued determinations of probable cause on both complaints in
the summer of 1994. Kannenberg filed a third complaint based on incidents that
occurred in the fall of 1994. Rather than have the ERD conduct an investigation of
the third complaint, the parties agreed to have the allegations of that complaint heard
at the hearing already scheduled on the first two complaints.
Following the hearing, the ERD issued a decision determining that
Walker did not discriminate against Kannenberg, did not engage in sexual harassment,
and did not retaliate. LIRC agreed with the ERD decision and adopted the examiner's
findings and conclusions as its own, after modifying one finding. LIRC's findings of
fact, as modified, are as follows.
Kannenberg's primary responsibility was to issue tools and parts stored
in the tool room to the employees who were assembling the equipment. The
company's rule was that when employees wanted a tool, they had to fill out a
requisition slip and the tool room attendant would then get the tool. However, before
Kannenberg's employment, the employees and the tool room attendant followed these
rules only loosely. Shortly after she was hired, one of Kannenberg's supervisors told
her he wanted her to strictly enforce the rules. At the time Kannenberg was hired,
pictures of nude, scantily clad women had been commonly displayed around the
workplace, including the tool room. After she was hired, however, Walker's
management instructed the pinups in the tool room be taken down, and they were.
Male employees still kept pinups on the inside of their tool boxes, which were about
waist high and had cupboard type doors.
In mid-February of 1993, while on break in the lunchroom, Kannenberg
found a photograph of a man and woman having sexual intercourse. She complained
to her immediate supervisor, Tom Baldwin, who gave the photo back to her without
saying anything. She complained the next day to the shop supervisor, Kevin Klinker.
Klinker spoke with other employees about the photo and concluded that it had not
been left for the purpose of offending her but had been passed around among
employees during the first shift and simply left on the lunchroom table.
Later that month Kannenberg complained to Klinker about pinups of
naked women that were taped inside the doors of an open tool box belonging to
another employee, Reisenhauer, because she believed the pictures were purposely
being displayed to offend her. Klinker spoke with the employee and ascertained that
the pictures were not being displayed to deliberately offend Kannenberg. Walker's
management responded by ordering employees to keep their tool boxes closed if they
contained pinup pictures. On March 12, 1993, management posted a directive on the
bulletin board next to the time clock that all employees were to immediately remove
sexually oriented pictures, jokes and similar items from the premises. Management
personnel orally publicized the directive as they went through the plant to see if the
directive was being followed. Compliance with the directive was good, and
Kannenberg did not again complain about seeing such items at work.
The male employees commonly spoke foul language in the plant and
although management asked them to watch their language when they were around the
tool room out of consideration for Kannenberg, she overheard foul language from
time to time. At no time, however, did any employee address foul language to
Kannenberg or call her by a vulgar or obscene name. During the summer of 1993
these three incidents occurred, the first of which Kannenberg reported to
management: (1) two coworkers, McCullough and Reisenhauer, yelled "fuck you"
to each other in front of Kannenberg with the intention of provoking her, although the
epithets were not directed toward her; (2) she heard McCullough shout "oh fuck" near
her, and believed that the expletive was intended to offend her, although the
circumstances indicated the employee was not intending to address her; and (3) one
coworker pulled at another's trousers when Kannenberg was retrieving some tools for
them; when she returned, the second coworker, with his back to her, was hitching up
his trousers and saying, "I wonder if this could be considered sexual harassment."
That same summer approximately four obscene drawings or words
appeared on the cardboard covers of the requisition pads kept at the gate to the tool
room including: (1) A cartoon of a mouse with a human phallus and the words "here,
pussy pussy"; (2) a cartoon of a man, penis showing, wearing a mask, and labeled
"southy"; (3) the words "wanna see my penis"; and (4) a drawing of a penis.
None
of the drawings or words were specifically directed at Kannenberg. Through her
attorney, Kannenberg provided copies of these drawings to Walker's management in
August of 1993. Management questioned several employees about the items,
including the one employee who Kannenberg suspected of making one of the
drawings. Everyone questioned denied knowledge of the drawings. The suspected
employee left employment with Walker soon after. There were no more obscene
drawings or words on the requisition pad after that time.
On another occasion that summer, Kannenberg became upset by her
coworkers' practice of cutting out pieces of the cardboard covers of requisition pads
for tool chips. She wrote a message on one of the covers which said: "Do not use this
cardboard for chips." Kannenberg received three written responses on the cardboard
which stated: "OK, thanks," "Yes I will and don't forget it," and "OK Bitch!"
Copies of these responses were furnished to Walker's management in August of 1993,
but none of the authors were uncovered during an investigation into the incident.
In August of 1993, McCullough lost his temper and pounded his fist on
the counter when Kannenberg told him he had to have a tool chip to check out a tool.
Klinker and Joann Bateson, Walker Human Resources Director, spoke to both
employees in an effort to mediate the dispute. McCullough stated that Kannenberg
was not evenhanded in enforcing the tool room procedures and had favorites. At the
conclusion of this meeting, Bateson told them to be civil to each other and shake
hands. McCullough was willing to do so but Kannenberg was not.
Kannenberg's performance evaluations in March 1991, January 1992,
and February 1993 indicate that she was generally a productive employee, but had
some difficulties cooperating and working with fellow employees. At various times,
either through complaints of Kannenberg or complaints of other employees, Walker
management formed the opinion that Kannenberg was impolite and argumentative
with other employees. This opinion was not based on Kannenberg's sex.
In the spring of 1994, Kannenberg received a written warning following
a complaint from a sales representative of a supplier that she had been rude to him
during an after-hours delivery. The issuance of this warning was motivated by
Klinker's understanding of the incident based on the account given to him by an
employee to whom the sales representative spoke. Kannenberg's 1994 evaluation,
completed after this incident, again gave Kannenberg her lowest grade in the category
of "working relationships." This was based on Klinker's understanding of the various
run-ins Kannenberg had with others. Neither the written warning nor the evaluation
was in retaliation for the complaint Kannenberg had filed or because of her sex.
Kannenberg reported three incidents to Klinker which occurred,
respectively, in July 1994, September 1994 and October 1994. In the first incident,
an employee who came to order a tool had masking tape on his pants from his crotch
to his belt and, at one point, he grabbed his crotch. Nothing was said between them
about the tape. Kannenberg felt the tape was put on to offend her. Klinker
questioned the employee, who said he had put the tape on to cover up some rips.
Klinker concluded the employee had not intended to offend Kannenberg. In the
second incident, Kannenberg noticed a handwritten advertisement taped to a tool box
with wording changed from "free dog" to "free dong," and believed this was intended
to offend her. Klinker questioned employees and concluded that the letter "n" was
added by someone on the first shift and was therefore not intended to offend
Kannenberg. In the third incident, Kannenberg returned from work after a day of
vacation and found a note in the tool room that read: "Thanks AK, we had a good
night Friday. Take more vac. Night Shift." Klinker investigated and Baldwin
admitted writing the note. At first the company gave Baldwin a written warning but
then terminated him for writing the note. This was the last incident covered by the
complaints.
LIRC concluded that Kannenberg had not established by a
preponderance of the evidence that Walker had retaliated against her, engaged in
discrimination based on sex or engaged in sexual harassment, or permitted sexual
harassment to have the purpose or effect of substantially interfering with
Kannenberg's work performance or creating a hostile or offensive work environment.
In the ERD memorandum opinion, the hearing examiner explained how he reached
the conclusions regarding sexual harassment. Citing federal case law interpreting
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, including
Meritor Sav.
Bank v. Vinson, 477 U.S. 57, 67 (1986), the examiner noted that the
test is whether
the incidents are sufficiently severe and pervasive to alter the complainant's working
conditions and create a hostile work environment. The examiner stated that the
totality of the circumstances must be considered as well as the cumulative effect of
all the incidents. He also noted that courts have considered these factors in deciding
whether there is sexual harassment: the frequency of the conduct; the degree to
which it is sexually graphic as opposed to merely vulgar; the degree to which the
conduct is directed at the complainant; the extent to which any sexually oriented
material complained of is on display and the length of time; and the number of
sources from which the conduct originates.
The examiner stated that this was a "close case" because some of the
drawings would be very offensive to one in Kannenberg's position; the photos and
drawings she saw were sexually oriented and graphic and came from more than one
source; and, on at least one occasion, she was directly addressed as "bitch." On the
other hand, the hearing examiner considered that, with regard to the photos, there
were only three occasions over a twenty-month period, and they were not visible for
an extended period of time. The vulgar language, with one exception, was not
intended to offend Kannenberg, and, with the exception of the "bitch" writing, she
was not addressed in a demeaning manner. The drawings on the requisition pad did
not depict her nor were they directed at her. They had limited effect throughout the
plant because she had control over the pad.
The examiner analyzed each of the sixteen incidents that Kannenberg
alleged over a period of twenty months. He considered that some were not sexual
harassment or were not at all serious, and some were outgrowths of personality
differences and not attributable to sexual attitudes. He considered the drawings on
the requisition pad, the "bitch" note and the exchange of obscenities staged for
Kannenberg's hearing to be serious incidents. Considering the number and severity
of the incidents, their duration, and the degree to which they were directed at
Kannenberg, the examiner concluded the offensive behavior was isolated and
sporadic, rather than pervasive and severe.
STANDARD OF REVIEW
Kannenberg contends that LIRC erred in the legal standard it used to
determine what creates a hostile work environment; in the application of the totality
of the circumstances test; in its interpretation of the motive requirement; and in failing
to take into account the statutory directive of the Wisconsin Fair Employment Act
(WFEA) that its provisions are to be liberally construed. Kannenberg also contends
that LIRC erred in determining that she was not subject to sexual harassment and
retaliation.
In reviewing LIRC's decisions,(4) we
may not substitute our judgment for
that of LIRC as to the weight of the evidence. See § 227.57(6),
Stats. Instead, we
determine whether the findings of fact are supported by substantial evidence, and if they are,
we may
not set them aside. See. Id. Whether
LIRC properly interpreted the statute is a question of law and
we are not bound by the agency's interpretation. UFE Inc. v.
LIRC, 201 Wis.2d 274, 284, 548
N.W.2d 57, 61 (1996). However, we defer to the agency's interpretation of a statute in
certain
situations. Id. We give great weight when:
(1) the agency was charged by the legislature with the duty of
administering the statue; (2) the interpretation of the
agency is one of long-standing; (3) the agency employed its
expertise or specialized knowledge in forming the
interpretation; and (4) the agency's interpretation will
provide uniformity and consistency in the application of the
statute.
Id. We also give great weight to an agency's
interpretation if it is intertwined with
factual determinations or with value or policy determinations. Bernhardt
v. LIRC,
207 Wis.2d 294, 305, 558 N.W.2d 874, 878 (Ct. App 1996). We give a lesser amount
of deference--due weight--when the agency has some experience in the area but has
not developed the expertise that necessarily places it in a better position than the court
to make judgments regarding the interpretation of the statute.
UFE, 201 Wis.2d at
286, 548 N.W.2d at 62.
Under the great weight standard, we uphold an agency's reasonable
interpretation of the statute if it is not contrary to the clear meaning of the statute,
even if we conclude another interpretation is more reasonable.
Id. at 287, 548
N.W.2d at 62-63. However, under the due weight standard, we uphold the agency's
reasonable interpretation if it comports with the purpose of the statute and we
conclude there is not a more reasonable interpretation.
Id.
Kannenberg argues that we should give no weight to LIRC's
interpretation of the statute, employing a de novo standard of review. This is the
standard of review appropriate when the issue before the agency is one of first
impression or the agency's position has been so inconsistent as to provide no real
guidance. UFE, 201 Wis.2d at 285, 548 N.W.2d at
262. LIRC responds that we
should give great weight to its interpretation of the statute. We agree with LIRC.
LIRC is charged with adjudicating appeals from the hearing examiner's
decision on complaints under the WFEA, § 111.39(5), Stats., which includes
complaints under § 111.36, Stats., for sexual harassment. Discrimination based
on
sex under the WFEA has included sexual harassment since at least 1981.(5) LIRC has
developed experience and expertise in deciding claims of sexual harassment under the
WEFA, using the standards from federal cases decided under Title VII. See, e.g.,
Olson
v. Servpro of Beloit et al., (LIRC Aug. 4, 1995);
Roden v. Federal Express, et al., (LIRC, June 30,
1993). By according great deference to LIRC's determinations of whether sexual harassment
occurred, we will promote greater uniformity and consistency than if we did not do so.
Whether particular conduct constitutes sexual harassment as defined in
the statute is intertwined with factual determinations. It also involves value and
policy judgments about what conduct is and is not acceptable in the workplace. In
these respects, the nature of the determination of sexual harassment is similar to that
of misconduct under the unemployment compensation statute, see
§ 108.04(5),
Stats., a statute under which LIRC is also charged with adjudicating claims. We
have held that LIRC's decisions on whether misconduct has occurred are entitled to
great weight because they are intertwined with fact and value determinations.
Bernhardt, 207 Wis.2d at 305, 558 N.W.2d at 878.
For all these reasons, we
conclude that LIRC's interpretation of the statute defining and prohibiting sexual
harassment is entitled to great deference.
DISCUSSION
Sexual harassment includes "unwelcome verbal or physicial conduct
directed at another individual because of that individual's gender" that has "the
purpose or effect of creating an intimidating, hostile, or offensive work environment."
Section 111.36(1)(br), Stats. Such an environment is established "when the conduct
is such that a reasonable person under the same circumstances would consider the
conduct sufficiently severe or pervasive to create such an environment."
Id.
The first error Kannenberg alleges is that LIRC used the wrong standard
in determining what constitutes a hostile work environment. Kannenberg agrees with
LIRC that it appropriately looked to federal law for guidance in interpreting
§ 111.36(1)(b) and (br), Stats. See Marten Transport, Ltd. v
DILHR, 176 Wis.2d
1012, 1020, 501 N.W.2d 391, 394 (1993) (given the identical purposes of WFEA and
Title VII, it is appropriate to consider federal decisions). However, she argues that
LIRC incorrectly used the higher standard employed in Baskerville v.
Culligan Int'l
Co., 50 F.3d 428, 430 (7th Cir. 1995), rather than the standard
established in Meritor
Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), and
Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993). Since neither the hearing examiner's decision nor LIRC's
decision mention Baskerville, we understand
Kannenberg's contention to be that,
although the challenged decisions do not mention
Baskerville, the higher standard of
that case was, in fact, employed in deciding that the conduct here did not constitute
sexual harassment. We do not agree with Kannenberg's reading of
Baskerville. We
conclude that the court in Baskerville employed the
Meritor/Harris standard and that
LIRC employed the Meritor/Harris standard.
Meritor established that a claim for "hostile
environment" sexual
harassment was actionable under Title VII if it was "sufficiently severe or pervasive
'to alter the conditions of [the victims'] employment and create an abusive working
environment' [cites omitted]." 477 U.S. at 67. In
Harris, the Court addressed the
question whether, to be actionable, the conduct had to seriously affect the
complainant's well-being or lead the complainant to "suffer injury." 510 U.S. at 21.
In concluding that such a showing was not necessary, the court reaffirmed the
standard established in Meritor,
Id. at 23 and elaborated on it. The Court held that
when determining whether an environment is hostile or abusive, all circumstances
must be considered, and these may include: "the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating or a mere
offensive utterance; and whether it unreasonably interferes with the employee's work
performance. Id. at 21.
In Baskerville, the Seventh Circuit wrote of
the
difficulty "in drawing
the line" between conduct that is sexual harassment and conduct that is not. 50 F.2d
at 430. It described one side of the line as "sexual assaults, other physical contact,
whether amorous or hostile for which there is no consent express or implied;
uninvited sexual solicitations; intimidating words or acts; obscene language or
gestures; pornographic pictures," and cited Meritor
and Harris, among other cases
for this category. Id. The court described the other
side of the line as "the occasional
vulgar banter, tinged with sexual innuendo, of coarse or boorish workers," citing
Meritor and other cases.
Id. The court in
Baskerville concluded that the offensive
comments of the complainant's boss were not sufficiently frequent or severe to cross
the line from vulgarity to harassment. Id. at 431.
In support of her argument that Baskerville
employs a more rigorous
standard than Meritor and
Harris, Kannenberg focuses on the court's statement
that
the prohibition of sexual harassment "is designed to protect working women [and
men] from the kind of male [and female] attentions that can make the workplace
hellish."(6) 50 F.2d at 430. A "hellish"
workplace, Kannenberg contends, is worse
than that which Meritor and
Harris require. We conclude that the court in
Baskerville uses
"hellish" as shorthand for a hostile work environment as defined in
Meritor,
Harris, and other cases
following them, and contrasts that with "vulgar conduct [which the prohibition against sexual
harassment] is not designed to purge [from] the workplace."
Id. The
Baskerville court is not
deviating from the standard of hostile environment established in
Meritor and
Harris.
LIRC employed the standard established in
Meritor--sufficiently severe
or pervasive to alter the conditions of the victim's employment--and reaffirmed in
Harris. At bottom, we view Kannenberg's objection
on this point as an objection to
LIRC's conclusion that the conduct complained of did not meet the
Meritor/Harris
standard, and we address that objection later in this opinion.
Kannenberg next argues that LIRC did not apply the "totality of the
circumstances" test correctly but instead improperly considered each incident in
isolation. We disagree and conclude that LIRC correctly stated and applied this test
as developed in the federal case law. Again, we consider the core of Kannenberg's
objection here to be to the result LIRC reached after applying this test to the evidence.
The examiner's decision, adopted by LIRC, correctly states that under
Meritor the "totality of the circumstances "must be
considered in deciding whether
the work environment would reasonably be perceived as hostile." See
Meritor, 477
U.S. at 69. The decision also correctly stated that the cumulative effects of all the
incidents alleged must be considered. See 29 CRF § 1604.11(6)
(1996); Id. Finally,
the decision accurately listed the factors that federal courts have considered in similar
cases in determining whether all the incidents alleged constitute evidence of a hostile
work environment. See, e.g., Harris,
510 U.S. at 21; Alvey v. Rayovac Corp., 922
F. Supp. 1315, 1330 (W.D. Wis. 1996).
In considering all the relevant circumstances, it is necessary to analyze
the nature of each incident with reference to such factors as severity, sexually graphic
nature, who it is directed at, source, duration, and so on. Kannenberg is correct that
the incidents must not be viewed in a "vacuum," because "what may appear to be
legitimate justification for a single incident of alleged harassment may look pretextual
when viewed in the context of several other incidents." See Andrews v.
City of
Philadelphia, 895 F.2d 1469, 1484 (3rd Cir. 1990) In addition, the
incidents must
be viewed all together because frequency is one of the relevant considerations. See
Harris, 510 U.S. at 21. The examiner analyzed the nature of
each of the incidents,
applying the stated relevant factors, considered them in context, and considered the
frequency of the incidents. The examiner expressly considered "the totality" of all
the circumstances in determining that the instances of sexual harassment were
"isolated and sporadic," rather than "pervasive and severe," as required to establish
a hostile work environment. See Meritor, 477 U.S. at
67.
Kannenberg argues that LIRC also deviated from established federal
case law with respect to the assessment of the other employees' motives. She points
to the examiner's evaluation of the incident in which McCullough lost his temper
when Kannenberg asked him for a tool chip and of the incident of Baldwin's sarcastic
note urging her to take more vacation time. The examiner determined that these two
incidents demonstrated these employees' hostility toward Kannenberg but the
hostility was "not shown to be based on her sex." Rather, the examiner stated,
"[t]here was considerable evidence of arguments between Kannenberg and several
other employees that were rooted in personality differences, not sexual attitudes.
There was ample support in the evidence to conclude that Kannenberg was accurately
cited by Walker for being worse than average at cooperating with her coworkers."
Kannenberg argues that although the motives of the other employees is a question of
fact, the examiner applied an incorrect legal principle. She relies on
Zabkowicz v.
West Bend, 589 F. Supp. 780, 784 (E.D. Wis. 1984), which rejected the
employer's
argument that no sexual harassment occurred because, given the complainant's
personality, Zabkowicz would have "suffered equally brutal harassment, even if in a
different form," had she been a male. However, a complete understanding of the
record in Zabkowicz and the court's ruling makes
clear that the examiner's
determinations on motive do not employ a legal principle inconsistent with
Zabkowicz.
In Zabkowicz,
the incidents that were evidence of a hostile work
environment were directed at Zabkowicz and were sexual in nature: One employee
asked her if she wore a bra; at least two coworkers exposed their buttocks to her
numerous times; one employee grabbed his crotch and addressed comments to her;
employees used sexually offensive language directed at her in her presence; sexually
explicit and demeaning drawings were posted, often with her initials on them, and
coworkers understood the drawings were depicting her. It was in this context that the
court ruled that the nature of the harassment directed at Zabkowicz was because of
her sex, since "the sexually offensive conduct and language used would have been
almost irrelevant and would have failed entirely in its crude purpose had the plaintiff
been a man." Id. at 784.
In contrast, the two incidents the examiner discussed in this case
showed hostility directed at Kannenberg but not in sexual terms. These two situations
were not ones in which the language and conduct directed at Kannenberg would have
been irrelevant had she been a man. Therefore, if there is substantial evidence to
support a finding that the hostility of these two employees--expressed as it was in
non-sexual terms--had origins in personality clashes rather than in their attitudes
toward Kannenberg because of her gender, the ALJ may properly so find as a fact,
after considering all the circumstances.
Andrews v. City of Philadelphia, 895 F.2d
1469, 1485 (3rd Cir. 1990),
and Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415
(10th Cir. 1987), do not
indicate otherwise. Rather, these two cases point out what we have already noted
above: in determining whether the evidence establishes a hostile work environment
based on gender, the decision maker must consider all the alleged incidents in context,
including incidents of violence and hostility that do not have a sexual expression.
These cases require consideration of such incidents and the examiner considered
them. These cases do not, however, require that the examiner find such incidents to
be motivated by Kannenberg's gender.
Kannenberg also argues that LIRC erred in failing to consider the
provision of § 111.31(3), Stats., that the "chapter shall be liberally construed"
to
accomplish its purpose, which is to "encourage and foster to the fullest extent possible
the employment of all qualified individuals regardless of sex." According to
Kannenberg, the examiner's and LIRC's failure to mention this provision shows LIRC
did not take it into account, and, since the examiner described this as a "close case,"
the result would have been different had LIRC done so. This argument mixes
principles of statutory construction with the concept of burden of proof, and is not
persuasive.
When statutory language is ambiguous and a choice must be made
between two reasonable interpretations, one of the factors to consider in making this
choice, if the statute is remedial in nature, is that it is to be liberally construed to
effectuate its remedial purpose. See Butzlaff v. Wisconsin Personnel
Commission,
166 Wis.2d 1028, 1034-35, 480 N.W.2d 559, 562 (Ct. App. 1992). We have already
concluded that in giving meaning to the statutory term, "intimidating, hostile, or
offensive work environment," LIRC correctly applied the federal cases that
Kannenberg asserts should be applied. We do not understand Kannenberg to argue
that LIRC must apply a more liberal standard than the federal cases, as that would be
completely inconsistent with her other arguments. Rather, we understand her to say
that because of the "liberal purpose" provision, when LIRC applies the standards
established in the federal cases to the facts of a particular case, LIRC must find a
violation of § 111.36(1)(b) or (br), Stats., in a "close case." The effect of such
a rule
is to establish a lower burden of proof for the complainant. Kannenberg cites no
authority for employing the "liberal construction" language of a statute in such a
manner. For these reasons, we reject this argument.
Having concluded that LIRC used appropriate standards from federal
case law to decide the sexual harassment claim, we now decide whether the decision
that Kannenberg did not establish sexual harassment is based on factual findings that
are supported by substantial evidence and is a reasonable application of the law to the
facts. After reviewing all the evidence, we conclude that it is. There is substantial
evidence that some of the incidents that were non-sexual in expression were
motivated by hostility unrelated to Kannenberg's sex. The findings on the nature and
frequency of the other incidents are supported by substantial evidence. We cannot
say that LIRC's conclusion--that a reasonable person under the same circumstances
as Kannenberg would not consider these incidents sufficiently severe and pervasive
to create a hostile work environment--is unreasonable. Looking to federal cases to
see where they have "drawn the line," we observe that the evidence presented here
is more like those in which no sexual harassment was found, see, e.g.,
Baskerville,
50 F.3d at 431 (nine incidents of sexual or vulgar comments directed at complainant
by her boss over seven months did not create a hostile work environment), than those
in which sexual harassment was found. See, e.g.,
Zabkowicz, 589 F. Supp. at 785
(conduct described earlier in this opinion was repeated and frequent over three to four
years). We are not condoning the behavior of some of Kannenberg's coworkers.
However, we conclude that LIRC could reasonably decide that the number, severity
and frequency of the offensive incidents did not establish a violation of
§ 111.36(1)(b) or (br), Stats.
Finally, we address LIRC's decision that Walker did not retaliate
against Kannenberg for complaining about sexual harassment. To show unlawful
retaliation under the WEFA, the employee must show that he or she engaged in
protected activity, was subject to adverse employment decisions, and that there was
a casual connection between the two facts. Acharya v.
Carroll, 152 Wis.2d 330, 340,
448 N.W.2d 275, 280 (Ct. App. 1989). If the employee makes this showing, the
employer may rebut the claim of retaliation by articulating a legitimate,
nondiscriminatory reason for its action. Id. If the
employer meets that burden, the
employee may prevail by presenting evidence that the proffered reason was a pretext.
Id.
Kannenberg challenges the conclusion of no retaliation because LIRC
made no finding of fact that the discipline over the incident with the supplier took
place during the investigation of the first ERD complaint. Although there is no
express finding, it is clear from the dates stated in the decision that the incident and
discipline took place after Kannenberg filed the first ERD complaint. This fact is not
in dispute. However, the timing of a complaint and discipline does not in itself
establish retaliation. Juarez v. Ameritech Mobile Communications,
Inc., 957 F.2d
317, 321 (7th Cir. 1992). The determination that the discipline was not motivated by
Kannenberg's protected activity but that Walker had a legitimate, nondiscriminatory
reason for the written warning is supported by substantial evidence: that Walker had
identified two years earlier in evaluations that Kannenberg had difficulty in
cooperating with others and that the discipline was prompted by a supplier's
unsolicited comment to an employee and a good faith consideration of the incident
by Walker. Kannenberg points to evidence she believes supports a contrary finding,
but we must affirm LIRC's findings because they are based on substantial evidence.
By the Court.--Judgment affirmed.
Recommended for publication in the official reports.
1 Section 111.36, Stats., provides in part:
(b) Engaging in sexual harassment; or implicitly or explicitly
making or permitting acquiescence in or submission to sexual
harassment a term or condition of employment; or making or
permitting acquiescence in, submission to or rejection of sexual
harassment the basis or any part of the basis for any employment
decision affecting an employe, other than an employment decision
that is disciplinary action against an employe for engaging in sexual
harassment in violation of this paragraph; or permitting sexual
harassment to have the purpose or effect of substantially interfering
with an employe's work performance or of creating an intimidating,
hostile or offensive work environment. Under this paragraph,
substantial interference with an employe's work performance or
creation of an intimidating, hostile or offensive work environment is
established when the conduct is such that a reasonable person under
the same circumstances as the employe would consider the conduct
sufficiently severe or pervasive to interfere substantially with the
person's work performance or to create an intimidating, hostile or
offensive work environment.
(br) Engaging in harassment that consists of unwelcome verbal or
physical conduct directed at another individual because of that
individual's gender, other than the conduct described in par. (b), and
that has the purpose or effect of creating an intimidating, hostile or
offensive work environment or has the purpose or effect of
substantially interfering with that individual's work performance.
Under this paragraph, substantial interference with an employe's
work performance or creation of an intimidating, hostile or offensive
work environment is established when the conduct is such that a
reasonable person under the same circumstances as the employe
would consider the conduct sufficiently severe or pervasive to
interfere substantially with the person's work performance or to
create an intimidating, hostile or offensive work environment.
Section 111.32(13), Stats., provides:
"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 employe's work
performance or to create an intimidating, hostile or offensive work
environment.
2 Section 111.322(3), Stats., provides:
To discharge or otherwise discriminate against any individual
because he or she has opposed any discriminatory practice under
this subchapter or because he or she has made a complaint, testified
or assisted in any proceeding under this subchapter.
3 This complaint alleged discrimination based on age and sex,
but the initial determination
on the age complaint was that there was no probable cause with respect to age
discrimination. The
age issue is not involved in this appeal.
4 We review the decisions of LIRC, not that of the circuit
court. Bunker v. LIRC, 197
Wis.2d 606, 611, 541 N.W.2d 168, 170 (Ct. App. 1995).
5 The current versions of §§ 111.32(13)
and 111.36(1)(b) and (br), Stats., were enacted by
1993 Wis. Act 427. The prior versions of § 111.32(13) and 111.36(1)(b) did
define and prohibit
sexual harassment. They were was enacted by 1981 Wis. Act 334, §§ 9,
22.
6 The full paragraph makes clear the court in
Baskerville v. Culligan Int'l Co., 50 F.3d 428,
430 (7th Cir. 1995), is not intending to exclude the possibility that sexual harassment consists
of
conduct by women toward men or men toward other men or women toward other women.
STATE OF WISCONSIN
IN COURT OF APPEALS