SHERENA N ADAMS, Complainant

WB BOTTLE SUPPLY CO INC, Respondent

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

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

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

Dated and mailed May 30, 2008
adamssh . rsd : 115 : 9 

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The standard of proof is probable cause.  
 

Sexual harassment

The Wisconsin Fair Employment Act (hereinafter WFEA), in Wis. Stat. § 111.36(1)(b), prohibits an employer, in pertinent part, from:

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 employee, other than an employment decision that is disciplinary action against an employee 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 employee's work performance or of creating an intimidating, hostile or offensive work environment. . . . (emphasis added).

This provision sets forth three separate categories of prohibited conduct. The third category, embodied in the language set forth in italics, addresses sexual harassment engaged in by co-workers, who cannot be treated as agents of the employer. This category obliges the employer to take steps to prevent or terminate sexual harassment in the work place, even if the employer is itself not engaging in the sexual harassment, if the harassment engaged in by other employees is enough that it interferes with work or creates a hostile, intimidating environment. See, Rusniak v. Fagan Chevrolet-Cadillac, ERD Case No. CR200000027 (LIRC May 23, 2002).

A respondent is liable for the harassing acts of a complainant's co-worker only if it knew or should have known about the harassment but failed to take adequate measures to prevent or eradicate it. See, Krienke v. Ramada Inn Conference Center, ERD Case No. CR200002246 (LIRC Oct. 29, 2002). A respondent has fairly wide latitude to address allegations of sexual harassment as it sees fit, provided its actions are reasonably calculated to remedy the situation and prevent future harassment. See, Flanagan v. Wisconsin Bistros/Larson Management, ERD Case No. CR200202638 (LIRC Nov. 4, 2004.

Here, respondent WB's actions to address Adams' complaint that co-worker Dawson was sexually harassing her were immediate and, by placing Dawson on notice that such conduct would not be tolerated, intended to prevent future harassment.

Although Adams testified that Dawson continued to harass her, the record does not show that she ever brought this to the attention of WB management.

Adams has failed to sustain her burden to prove that there is probable cause to believe that WB is liable for sexual harassment within the meaning of the WFEA. 
 

Race discrimination

Adams first alleges that she was treated less favorably than her white co-worker Fera when WB provided Adams less training.

However, the record shows, as the administrative law judge (ALJ) found, that the type and extent of training provided Adams and Fera was comparable, but that Fera spent more time with her trainer and with more senior customer service representatives because she asked more questions and sought more assistance than Adams.

Adams next alleges that she was terminated by WB because of her race.

However, WB has articulated a legitimate, non-discriminatory reason for this termination which Adams has failed to show is a pretext for race discrimination.

WB explains, and the record establishes, that, in October 2005, in response to customer complaints, Adams was counseled as to the unsatisfactory quality of her work performance, was removed from the servicing of certain accounts, and was reassigned to import/export duties under the close supervision of Kathleen West, WB's sales manager. The record further shows that, after October of 2005, not only did Adams fail to satisfactorily carry out the import/export duties, including related filing duties, but WB continued to receive customer complaints about her, including more than one from Appleton Papers in the spring of 2006.

Adams asserts that the fact that she passed probation in October of 2005 demonstrates that some factor other than her work performance precipitated her termination in February 2006. The record shows, however, that WB had legitimate concerns about Adams' work performance in October 2005, but, rather than losing the investment it had already made in her training, decided to offer her an opportunity to improve her performance in the customer service area and learn another area which may prove to be a better fit for her skill set. This decision does not demonstrate pretext.

Adams also asserts that the fact that she was not given any warnings prior to her termination, contrary to the process set forth in WB's employee handbook, establishes pretext. However, the October 2005 performance evaluation (Exhibit #1), which details WB's concerns with Adams' performance, including her "lack of cooperation in responding" to customer requests, would effectively constitute such a warning.

Finally, the commission notes that Adams did not prove that she was treated less favorably in regard to her termination than white workers with similar performance histories.

Adams did not sustain her burden to prove that probable cause exists to believe that she was discriminated against based on her race as alleged. 
 

WFEA retaliation 

Adams finally alleges that she was denied training and terminated because she engaged in a protected fair employment activity when she complained of sexual harassment by a co-worker in December 2005.

However, Fera was hired and underwent her initial training in November of 2005. In addition, Adams' termination was based upon her unsatisfactory work performance, including primarily her lack of cooperation in dealing with customers, and WB first expressed significant concerns regarding Adams' performance failings and the customer complaints they had engendered in October 2005. Since Adams did not complain to WB of sexual harassment until December of 2005, which was after Fera's November training and after WB's October expression of concern about Adams' work performance, neither could have been precipitated by Adams' fair employment activity.

Moreover, as discussed above, the record shows that the training provided Adams was comparable to that provided Fera, and that WB's termination of Adams was reasonably justified by her continuing unsatisfactory work performance.

Adams did not sustain her burden to prove that probable cause exists to believe that she was retaliated against for engaging in a protected fair employment activity. 
 

Adams' appeal

In her appeal to the commission, Adams states that, "[t]he judge found that WB...was not able to prove that the company properly terminated me, or that they protected me as an employee when involved in a sexual harassment claim, yet she still dismissed the case."
This statement, however, expresses a misunderstanding of the parties' burdens and of the ALJ's decision.

Adams, the complainant, has the burden of proof. See, Gustavus v. State of Wisconsin Department of Corrections, ERD Case No. 200303640 (LIRC May 8, 2008)(burden of proof remains at all times with the complainant in a WFEA case), citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). As a result, it was Adams' burden to prove that she was sexually harassed, discriminated against on the basis of race, and retaliated against for engaging in a protected fair employment activity, as she has alleged here, and not the respondent's burden to prove that she was not.

Moreover, the ALJ's decision very clearly details how, in her opinion, Adams failed to sustain these burdens.

cc: Kristie Smith, Treasurer

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