GARY THOMAS MROCZKOWSKI, Complainant

BELMARK 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, except the commission deletes the Memorandum Opinion attached to that decision.

Dated and mailed April 28, 2005
mroczga . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

A complaint may be dismissed prior to hearing on a motion to dismiss for failure to state a claim for relief when it appears that even if what is claimed by the complainant is true, a decision in favor of the respondent is nevertheless required as a matter of law. Ficken v. Harmon Solutions Group (LIRC, 02/07/03); Jacobs v. Glenmore Distilleries Co. (LIRC, 11/25/92); Tucker v. Rock Co. (LIRC, 07/02/92), Alvey v. Briggs & Stratton (LIRC, 11/27/91).

In determining whether a complaint may be dismissed for failure to state a claim for relief under the Act the commission has stated that generally in such cases the decision will be made by looking to the allegations of the complaint, but other allegations made by the complainant may also be taken as indications of the complainant's assertions as to the facts. Other allegations indicative of a complainant's assertions of the facts include assertions made by the complainant to the Equal Rights investigator, sworn testimony of the complainant given in a discovery deposition, assertions made by or on behalf of the complainant by way of affidavit submitted in response to a motion to dismiss, and assertions made by counsel for the complainant in written argument submitted in response to a motion to dismiss. Tucker. See, also, Jacobs (Making such a determination involves simply looking at what the complainant asserts he will prove. This can be accomplished by looking at what the complainant alleges and to any other assertions by the complainant which provide an indication of the nature of his claim.)

The complainant alleges that he was discriminated against on the basis of age because two co-workers called him "old man" a lot.

Under the WFEA, it is an act of employment discrimination to "discriminate against any individual...in terms, conditions or privileges of employment...because of any basis enumerated in s. 111.321." Wis. Stat. § 111.322. The WFEA provides that "no employer...may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of age..." Wis. Stat. § 111.321.

The complainant is essentially alleging that the age-based name calling he experienced created a hostile work environment. The hostile-environment principle was first recognized in a Title VII action, Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971) and is based on Title VII's prohibition against discrimination with respect to "terms, conditions or privileges" of employment, the same language found in Wis. Stat. § 111.321. The complainant listed his age as 42 in his discrimination complaint. In correspondence to the ERD the complainant has asserted that he is at least 20 years older than the individuals who called him old man. At his deposition the complainant testified that being called old man "makes it kind of hard to work for a place or have a good attitude when people constantly mess with you..." Deposition, p. 87. A complainant alleging a hostile work environment claim could establish a prima facie case of an age-based hostile work environment claim, for example, by showing that: (1) The complainant is age 40 or over; (2) the complainant was subjected to harassment, either through words or actions, based on age; (3) the harassment had the effect of unreasonably interfering with the complainant's work performance and creating an objectively intimidating, hostile or offensive work environment; and (4) the existence of some basis for liability on the part of the employer. Crawford v. Medina General Hospital, 96 F.3d 830, 834-835 (6th Cir. 1996).

Construing the complainant's complaint and his assertions regarding the age-based comments in the light most favorable to him, the primary problem with this claim arises in connection with the complainant's failure to allege any facts in connection with the fourth element of his hostile work environment claim. At no time has the complainant alleged or asserted that he had complained to the respondent about his co-workers calling him old man. Absent such an assertion there is no basis for imposing liability on the part of the employer. The complainant has thus failed to allege or assert facts sufficient to support a claim for relief for age discrimination under the Act.

The complainant also alleges sexual harassment because a supervisor, Tom DeCleene, pulled the complainant's underwear out of his pants, and that on another occasion when the complainant was on the phone with his wife, DeCleene exposed his rear end to him.

Wis. Stat. § 111.32(13) states that " '[s]exual 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." " '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..."

Construing the complainant's complaint and his assertions that he was sexually harassed in the light most favorable to him, the primary problem with this claim is that he has conceded that the incidents complained of were not of a sexual nature. In fact, the complainant has indicated that the incidents complained of were nothing more than horseplay. At his deposition, the complainant admitted that at no time had he been sexually propositioned, asked for a sexual favor or sexually touched. Deposition, p. 54-55. The complainant asserted that DeCleene pulled his underwear out of his pants and then took off. Deposition, p. 27. The complainant asserted that he then saw DeCleene with a female and male co-worker laughing about it. Deposition, p. 67. With respect to DeCleene exposing his rear end, the complainant asserted that he was on the phone talking to his wife when DeCleene did this and that DeCleene then walked away. Deposition, pp. 56, 72. The complainant asserted that DeCleene thought this was a joke. Deposition, p. 73.

Absent any indication that the incidents complained of had sexual implications, this claim fails to support a claim for relief under the WFEA.

The commission also notes that the complainant has attached to his petition for review a letter purportedly written by one Refugio Estrada as support for his discrimination claim. However, the complainant had apparently previously attempted to present this same letter as evidence at the time the parties appeared before the ALJ but it was not considered by the ALJ because it was hearsay. The ALJ properly refused to consider this letter.

Finally, the commission notes that the complainant complains that the respondent has not attached the entire transcript of his deposition testimony with the brief that it sent to him. Apparently, the complainant believes the respondent is attempting to "hide the truth." However, the entire transcript of the complainant's deposition testimony is contained in the case file and the review of this matter has been based on that transcript.

NOTE: In affirming the decision of the ALJ, the commission has deleted the ALJ's Memorandum Opinion because it appears that it incorrectly characterizes the complainant's claims and because it appears that he considered the respondent's written response to the complainant's complaint as support for his ruling on the respondent's motion to dismiss for failure to state a claim for relief under the Act.

cc: Attorney Kirk A. Pelikan

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