LA VERNE WATSON, Complainant

ONCE UPON A CHILD, 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, except that it makes the following modifications:

The following sentence is added to numbered paragraph 3. of the FINDINGS OF FACT section:

During her employment, Watson's personal telephone calls while on work status did not exceed the scope of her agreement with the Gerings either in number or length.

The following sentence is added to numbered paragraph 5. of the FINDINGS OF FACT section:

Watson was not offended by the "jungle bunny" comment.

The words "and Greg Gering" are inserted after the word "Lucas" in numbered paragraph 6. of the FINDINGS OF FACT section.

Numbered paragraph 8. of the FINDINGS OF FACT section is renumbered 9.

The following is added as new numbered paragraph 8. of the FINDINGS OF FACT section:

Watson removed items from inventory only after receiving permission from Tammy Gering to do so.

The MEMORANDUM OPINION section is deleted, and the following substituted:

The statutory prohibition which is usually described by the shorthand term "retaliation," is found in the Wisconsin Fair Employment Act (WFEA) in Wis. Stat. § 111.322(3), and provides that it is an act of employment discrimination:

...to discharge or 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.

It has been recognized that this language has two separate elements, an "opposition" element ("...opposed any discriminatory practice under this subchapter ..."), and a "participation" element ("...made a complaint, testified or assisted in any proceeding under this subchapter"). The "opposition" clause covers actions taken by a complainant on her own to protest discrimination. The "participation" clause relates directly and exclusively to the filing of charges with the agency or to assisting or participating in the investigation of a filed complaint. The complainant does not allege that she was retaliated against for participation activities.

A claim of retaliation, like other cases of alleged discrimination, follows the same burden shifting framework that was initially determined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973). First, the complainant must establish by a preponderance of the evidence a prima facie case of retaliation. Secondly, if the complainant succeeds in proving the prima facie case, the burden then shifts to the respondent to articulate a legitimate, nondiscriminatory reason for its conduct. Third, should the respondent carry this burden, the complainant must then have an opportunity to prove by a preponderance of the evidence that the reasons offered by the respondent for its conduct were a mere pretext for retaliation. See, Matthews v. Bassett Bedding, ERD Case No. 8902772 (LIRC Oct. 27, 1993).

To establish a prima facie case of retaliation for opposition, a complainant must initially prove that (1) she engaged in statutorily protected opposition, (2) the respondent took an adverse action against her, and (3) a causal connection exists between the protected opposition and the adverse action. Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989).

In order to prevail here, the complainant would have to show, preliminarily, that she engaged in a protected fair employment activity.

Opposition conduct is only protected under the WFEA if it is supported by a belief on the part of the complainant that discrimination in fact occurred. See, Roncaglione v. Peterson Builders, ERD Case No. 9111425 (LIRC Aug. 11, 1993), aff'd. sub nom. Roncaglione v. LIRC (Wis. Cir. Ct. Dane Co., May 6, 1994). It is not necessary that the complainant have been objectively correct about her belief that an action opposed was prohibited discrimination, but it is necessary that the employee have had a good faith belief that the action she opposed was prohibited discrimination. See, Osell v. Schedulesoft Corp., ERD Case No. 199800073 (LIRC Oct. 27, 2000).

Here, the complainant is essentially alleging that Lucas engaged in racial harassment when she made reference to "jungle bunny" music. Whether or not illegal harassment has occurred is evaluated on both an objective and a subjective basis, i.e., would a reasonable person find the conduct offensive and unwelcome (objective test), and did the complainant actually do so (subjective test). See, Olson v. Servpro of Beloit, ERD Case No. 9204149 (LIRC Aug. 4, 1995); Anderson v. MRM Elgin Corp., ERD Case No. 199804070 (LIRC Jan. 28, 2004). Here, the complainant concedes in her charge that she did not find the "jungle bunny" comment offensive. Although the result could have been different had another individual overheard the conversation between the complainant and Lucas and found it objectionable, that is not what the record here shows. These circumstances support a conclusion that the complainant has failed to show that, at the time she engaged in the subject opposition activity by telling Lucas she should find some other term for rap and hip hop music, she believed that discrimination in the form of racial harassment had occurred. As a result, although Lucas's comment could satisfy the objective reasonable person racial harassment test, it does not satisfy the subjective test.

Consequently, the commission agrees with the ALJ that the complainant failed to prove that she engaged in a protected fair employment activity, and, as a result, failed to prove that she had been retaliated against in violation of the WFEA.

DECISION

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

Dated and mailed June 29, 2007
watsola . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

In regard to the first, it appears from the file that respondent's owner, Greg Gering, failed to appear for a properly noticed deposition on July 21, 2006. The file does not, however, indicate that the complainant, who was represented by counsel at all times relevant here, filed a motion pursuant to Wis. Stat. § 804.12(4) to request sanctions for this failure.

In regard to the second, the respondent failed to respond to the complainant's June 30, 2006, written interrogatories and requests for admission during the 30-day response period. When counsel for complainant raised this failure as it related to the requests for admission at the August 1, 2006, hearing, the administrative law judge (ALJ), rather than implementing Wis. Stat. § 804.11(b) and holding that the subject of each of the requests was deemed admitted, instead reviewed each request for admission with the respondent's owners and permitted them to admit or deny it. Counsel for complainant, however, apparently failed to object at hearing to the ALJ's handling of the discovery issue in this manner, and failed to raise this discovery issue before the commission.

As a result, the commission does not address these discovery issues here because the complainant did not raise them in her appeal.

cc: Attorney Axel F. Candelaria

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