EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
210 MARTIN LUTHER KING, JR. BOULEVARD
RECORDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Case No. 20909
A complaint of sex discrimination in employment was filed by the Complainant, Elizabeth Hagland, with the Madison Equal Opportunities Commission (M.E.O.C.) on February 12,1988 alleging that she was treated differently than male employees of the Respondent, Bancroft Dairy, in the terms, and conditions of employment.
Pursuant to the complaint, an investigation was conducted by an M.E.O.C. Investigator/Conciliator. Following the investigation, an Initial Determination was issued on December 14,1988 wherein the Investigator concluded that there is probable cause to believe that the Respondent discriminated against the Complainant as charged, in violation of the Equal Opportunities Ordinance (E.O.O.), sec.3.23(7), of the Madison General Ordinances (M.G.O.).
The proceedings in this case were delayed and/or temporarily suspended due to M.E.O.C. personnel changes and other complications. Approximately twenty-six months after she filed her complaint, the Complainant was discharged by the Respondent on March 30,1990. She then filed an amended complaint, again alleging sex discrimination by the Respondent and retaliation for filing her February 1988 complaint, in violation of the E.O.O, sec. 3.23(8), M.G.O.
Pursuant to the amended complaint, further investigation was conducted which resulted in the issuance of an Amended Initial Determination dated September 4,1990, wherein the Investigator concluded that there was no probable cause to believe that the Complainant was unlawfully discharged because of her sex. The matter of retaliation was not addressed.
The Complainant timely appealed the Amended Initial Determination of no probable cause and the matter concerning only the Complainant's discharge from employment was reviewed by an M.E.O.C. Hearing Examiner. The Hearing Examiner's decision on review of the Amended Initial Determination was dated November 22,1991 and reversed the no probable cause second Initial Determination by concluding that there is probable cause to believe that the Respondent discharged the Complainant in retaliation for her filing a sex discrimination complaint with the M.E.O.C. on February 12,1988.
The parties were invited to attempt conciliation regarding the issues raised by the Complainant. Nothing was resolved through that avenue, however, and the case was certified for hearing as of the original certification date of January 13,1989.
The hearing was held before a second Hearing Examiner on January 12th, 13th, 14th, and 19th,1993. The Complainant appeared in person and was represented by Attorney Jacqueline Macaulay of Borns, Macaulay and Jacobson. The Respondent appeared by its Personnel Manager, Terri Engel and by Attorney Ann M. Barry of Buchanan and Barry, S.C. The parties filed simultaneous post-hearing briefs.
Having reviewed the hearing evidence and considered the post-hearing briefs filed by the parties, I now make the following Recommended Findings of Fact, Conclusions of Law and Order:
RECOMMENDED FINDINGS OF FACT
RECOMMENDED CONCLUSIONS OF LAW
IT IS HEREBY ORDERED
This is a sex discrimination in employment and retaliation case in which the Complainant has charged that the Respondent treated her differently than male co-workers in the terms and conditions of employment in violation of sec. 3.23(7), E.O.O. She further charges that the Respondent retaliated against her by discharging her for filing an amended complaint against it in 1988, in violation of sec. 3.23(8) E.O.O.
There is no dispute that the Complainant was a competent employee of the Respondent during the five years that she worked in the Respondent's plant. Under the analysis widely used in federal Title VII disparate treatment in employment cases, the Complainant met her burden of establishing a prima facie case of discrimination by showing the probable existence of facts which, if otherwise unexplained, raise a presumption of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S.248,254(1981). The Complainant was ignored by male co-workers when she sought training from them in learning a new job on the yogurt machine. Later she was told that she had to be retrained on the NLL machine although the retraining period included some days of painting the machine with a lead worker. She had difficulty in securing a job on the NIMCO machine for which she was eligible and for which she had seniority until she sought union assistance. When she finally got the job with union help, she was told by the plant superintendent that she would have to prove herself on the machine or else she would be out of a job. There is no evidence that similarly situated male employees were treated in this manner. Finally, the treatment by the Respondent that was the impetus for the filing of an M.E.O.C. complaint in February 1988 was the disciplinary warning letter she received regarding her cleanup practices on the NIMCO machine while her male co-worker, who also was responsible for cleanup on the NIMCO, received only a verbal admonishment for his cleanup practices.
Fred Kleuver, a union steward during the period in question, testified at the hearing that he heard Dave Arnold, the plant superintendent, state that there would never be a female manager in the plant as long as he was there. When a male co-worker of the Complainant threw a ladder at her during an argument, contrary to union rules, she complained to management personnel about the incident, without result. The result of an altercation between two male employees was an action to discharge one of the males.
Although in his testimony Dave Arnold denied that he made discriminatory remarks about women as workers in the Respondent's plant and, in particular, about the Complainant, that testimony was sparse and, to a great degree consisted of repeated statements of "I don't remember." Overall credibility was lacking and there is sufficient evidence in the record to find that the Complainant was treated differently than her male co-workers in the terms and conditions of her employment because of her sex.
With respect to the Complainant's amended complaint charging the Respondent with retaliation against her when she was discharged on March 30, 1980, two factors militate against the Complainant's charge. First, the passage of approximately two years between the filing of the Complainant's initial complaint and the filing of her amended complaint strongly negates an inference of a retaliatory motive of the Respondent. Clark v. Chrysler Corp. U.S. Court of Appeals, 7th Circuit, March 5,1982. Second, the Complainant has acknowledged in her brief that the Respondent has met its burden under Burdine by offering a legitimate, nonretaliatory reason for discharging her in 1990. At the same time, she maintains that the reason proffered -"stealing time"- was pretextual, in light of the disparate treatment by the Respondent over a five year period during which she filed several grievances through her union and acted assertively to claim her job rights.
Notwithstanding the Complainant's credible evidence of disparate treatment over a period of several years, she did not present witnesses or supportive evidence other than her own testimony to confirm that she was present and working in the plant between midnight and 4:21am on Night 1. The corroborative statement by co-worker Roger Thomson that he had coffee with the Complainant at about 4:30am on Night 1 does not account for the hours before 4:30 am that her supervisor tried but was unable to locate the Complainant in the plant despite paging her and physically searching for her. As to Night 2, the Complainant did not adequately reconcile her assertion that she forgot to punch out when she left the plant at 12:15am and the fact that her time card was punched out at 3:41am. Finally, the allegedly jocular conversation initiated by the Complainant in the break room in which she suggested that she and others trade time card punch outs to secure pay for overtime not worked, undermines her testimony regarding her presence in and absence from the plant on Nights 1 and 2. Accordingly, I find that the evidence, on the whole, does not support a conclusion that the reason given by the Respondent for its discharge of the Complainant was pretextual. and was in retaliation against her for filing an M.E.O.C complaint of sex discrimination in 1988.
The E.O.O provides that where the Commission finds that discrimination has occurred "it shall order such action by the Respondent as will redress the injury done to the Complainant in violation of this ordinance . . .", sec.3.23(9)(c)2.b., M.G.O. E.O.C. Rule 17 expressly authorizes compensatory damages for discrimination as follows:
Compensatory losses, reasonable attorney fees and costs may be ordered along with any other appropriate remedies where the Commission finds that a Respondent has engaged in discrimination.
This rule does not - by express reference to compensatory losses, attorney fees and costs - limit in any way the Commission's authority to order any other remedies permitted or required under sec 3.23, Madison General Ordinances.
An award of compensatory damages for emotional distress is considered to be within the broad language of the E. O.O.'s relief provision along with awards for housing discrimination, Chomicki v. Wittekind,128 Wis. 2d,188(1985). In Chomicki, the testimony of the victim of housing discrimination alone was sufficient to establish emotional distress. Id. at 201.
During the five years that she was employed by the Respondent the Complainant, in her testimony, indicated that she often felt frustrated and "picked on" by by male management personnel as well as by certain male co-workers. She struggled to gain access to jobs in the plant for which she was qualified. She felt she was treated unfairly at times, particularly when she received the disciplinary warning letter in January, 1988. In consideration of her emotional distress over a period of five years, an award of $5,000 as compensatory damages is appropriate.
Signed and dated this 15th day of April, 1993.
EQUAL OPPORTUNITIES COMMISSION
Sheilah O. Jakobson
MADISON EQUAL OPPORTUNITIES COMMISSION
Elizabeth Hagland vs. Bancroft Dairy
MEOC Case No. 20909
Recommended action to the MEOC on the appeal of the Hearing Examiner's decision pertaining to discrimination on the basis of sex in the terms and conditions of employment.
This matter was brought before the Equal Opportunities Commission on appeal from the Hearing Examiner's Recommended Findings of Fact, Conclusions of Law and Order issued on April 26, 1993. The Hearing Examiner, Sheilah O. Jakobson, ruled, in part, that the Respondent discriminated against the Complainant because of her sex in the terms and conditions of her employment. The Hearing Examiner also ruled that the Respondent did not discriminate against the Complainant in retaliation of her filing a complaint with this agency when they terminated her employment with them.
At its November, 1993 meeting the Commission voted to remand the retaliation issue. The termination part of the case was incorrectly before the Commission. The procedural background on the termination issues is confusing, hence a brief explanation is in order.
On March 30, 1990, the Respondent terminated the Complainant. The Complainant timely filed an amended complaint alleging that the Respondent terminated her because of her sex and in retaliation for filing the sex discrimination complaint with this agency.
An amended Initial Determination was issued on September 4, 1990 concluding no probable cause to believe that the Complainant was unlawfully terminated because of her sex. The retaliation issue was not addressed.
The Complainant filed a timely appeal of the amended Initial Determination of no probable cause. The Hearing Examiner issued a decision on November 22, 1991 reversing the amended Initial Determination of no probable cause, but not based on sex, which was the issue addressed by the amended Initial Determination, but on retaliation. Hence, the Hearing Examiner erred in two ways: 1) a reversal was made on an issue not properly before him because the Investigator made no conclusions of law on the retaliation issue; and 2) the Hearing Examiner failed to address the no probable cause because of her sex, which was properly before him.
Nevertheless, a public hearing was held on January 12, 13, 14 and 19, 1993 on the termination issues because of the Complainant's sex and in retaliation for filing her initial complaint.
Neither termination issue was properly before the Hearing Examiner. The only appropriate issue was sex discrimination in the terms and conditions of employment. Consequently, on November 11, 1993, this Commission remanded both termination charges and ordered the Investigator to issue an amended Initial Determination on the retaliation claim, and ordered the Hearing Examiner to review the sex discrimination no probable cause decision.
On November 11, 1993 oral arguments were heard by the Commission on the terms and conditions claim. The Commission adjourned from their meeting without discussing the merits of the appeal and set discussion for its December 9, 1993 meeting.
Commissioner Booker Gardner has considered all the appropriate and relevant parts of the record in this matter as well as the oral arguments made, and makes the following recommended action to the full Commission:
That the Hearing Examiner's conclusions of law finding that the Respondent discriminated against the Complainant because of her sex in the terms and conditions of her employment is hereby:
Further, that the Hearing Examiner's Recommended Order awarding the Complainant damage for emotional distress and reasonable attorney's fees and cost is hereby:
The above recommendations are based on the following recommended findings and legal conclusions, after a thorough examination of the transcript, documents and briefs submitted herein:
Amended Finding: The Complainant's first job as an employee of the Respondent was to fill in on the yogurt machine for a male employee who was on disability leave. While in that position she sought training from two male co-workers in the same unit on cleaning the machine but was refused, as was her request for training to Tim Noll, her supervisor at that time. In general, the two male co-workers refused to work with the Complainant in any way or to give her direction upon her request so that she could adequately perform her job duties in the yogurt department. (See Tr. at 460-63, 472, 630, 952-53, 1077-80, 731-33)
Amended Finding: ... bidding rights at that time under the Union Contract. Arnold asserted that the male employee to whom he wanted to offer the job was more qualified than the Complainant. He had attempted to ignore the Union Contract regarding bidding rights. However, Arnold reluctantly assigned... (See Tr. at 434-35, 460-66; Compl. Ex. 16)
Amended Finding: Complainant requested the NIMCO job after the employee she had been replacing on an emergency relief returned to work. She sought the job because Jesse Madrigal had heard from other co-workers that the hours of work on that job would be changing, from 7:00 a.m.-3:00 p.m. to 12:00 p.m.-8:00 p.m. The NIMCO job was part running of the NIMCO buttermilk machine and part processing (pasteurizing). Dave Arnold did not want her to take the job. The processing part of the job involved heavy work, written calculations and working with a difficult co-worker (Brian Santos). Arnold said he'd never had a woman in processing. After the job was offered to two males with less seniority than the Complainant, she was offered the job, but with union assistance. (See Tr. at 474-79, 632-33, 753-54; Compl. Exs. 11C, 16 and Kleuver's notes)
Amended Finding: When Complainant started on the NIMCO job, but not before, she discovered that the hours were noon-8:00 p.m., not 7:00 a.m.-3:00 p.m. as it had been for Madrigal (Compl. Ex. 11D). The job transfer notice had listed the work hours as "variable" (Compl. Ex. 11C). That shift made child care arrangements difficult for her after her child was born. The Complainant continued on the noon-8:00 p.m. shift, however, but when an earlier shift NIMCO job opened up she requested a transfer to it, which was denied. A male was offered the job. When she left the NIMCO job, and also when she was on pregnancy leave, both of her replacements, who were males, worked the 7:00 a.m.-3:00 p.m. shift, different from the Complainant's noon-8:00 p.m. shift. Shift Supervisor, Bruce Langhoff, states the hours were changed to noon-8:00 p.m. when she held the job "for organizational reasons". However, eventually, she was able to effect an informal change to an earlier starting and leaving time, without any objection from management. (Compl. Exs. 11C, 11D; Tr. 475, 480, 483-85, 625, 634, 700, 734-35, 853-855, 885)
Amended Finding "...on the clean-up matter." Thompson thought that both he and the Complainant were equally responsible for the dirty o-ring because he was primarily responsible for cleaning the machine on that day. After the o-ring was discovered, Thompson and the Complainant removed and cleaned it when doing clean-up thereafter, as instructed by Ward on January 14, 1988. (See Compl. Exs. 3, 11D, 14, 18, 13A, 13C, 13D, 13E, 15, 19, 10, 24; See Tr. at 14, 15, 145, 147-50, 101-113, 163, 170, 273, 301, 492-507, 553, 639-40, 663-677, 699-703, 736-755, 769-802, 848, 887-900, 954-55)
Although there was some conflict in the testimony as to the circumstances surrounding the o-ring and subsequent discipline, the record contains sufficient evidence for a reasonable person to determine that Thompson and the Complainant were equally responsible for cleaning the NIMCO machine on 1/14/88; that the o-ring in the float valve was not removed and cleaned by either person; that Thompson was treated differently than the Complainant with respect to discipline; that other male employees did not remove and clean o-rings, and "talked back" at Ward but were not disciplined as was Complainant; and that the reason offered by the Respondent for the difference in treatment was pretextual and discriminatory.
Finding: No male in the buttermilk dept. was promoted to a "blue hat" position during the relevant time in question, nor did any "blue hat" opportunities occur. (See Tr. at 173-74, 91, 409-13, 683, 729, 867-72, 950-51)
3. ... with respect to disciplining her more severely than a male co-worker under similar circumstances; by creating a hostile work environment for not only the Complainant, but also other females; by not providing training to the Complainant which was offered to male employees;
3a. The Respondent did not discriminate against the Complainant because of her sex in the terns and conditions of employment regarding promotional opportunities, i.e. "blue hat" The Complainant has failed to establish a prima facie case on this issue in that no promotional opportunities as a "blue hat" ever existed in the buttermilk dept.
Respectfully submitted on this 3rd day of December, 1993 by:
Booker Gardner, President
Madison Equal Opportunities Commission
EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
210 MARTIN LUTHER KING, JR. BOULEVARD
DECISION AND ORDER
Case No. 20909
The Madison Equal Opportunities Commission (Commission) met on December 9, 1993 to consider the Petitioner's and Respondent's cross-appeals of the Hearing Examiner's Recommended Findings of Fact, Conclusions of Law and Order in the above-captioned matter. Present and participating in the Commission's decision were: Commissioners Anderson, Gardner, Houlihan, Miller, Rodriguez, Sowatzke, Verridan and Washington.
The Complainant, Elizabeth Hagland, filed a complaint of discrimination with the Commission on February 12, 1988 against the Respondent, Bancroft Dairy. The Complainant alleged that she had been discriminated against because of her sex in the terms and conditions of her employment. A Commission Investigator/Conciliator investigated the allegations of the complaint and issued an Initial Determination on December 14, 1988 concluding that there was probable cause to believe that discrimination had occurred. The parties were offered the opportunity to conciliate the complaint. Conciliation either failed or was declined.
The Complainant filed an amended complaint of discrimination with the Commission on April 10, 1990 alleging that she had been terminated from her employment by the Respondent on the basis of her sex and in retaliation for filing the initial complaint with this agency. A Commission Investigator/Conciliator investigated the amended allegations and issued an amended Initial Determination on September 4, 1990 concluding that there was no probable cause to believe that the Respondent discriminated against the Complainant because of her sex by terminating her. The Investigator/Conciliator did not address the retaliation claim in her conclusions.
The Complainant filed a timely appeal of the no probable cause decision based on sex. The Hearing Examiner issued a Decision on November 22, 1991 reversing the Investigator/Conciliator's conclusion of no probable cause. However, the Hearing Examiner did not base his decision on the sex discrimination claim. Rather, he inappropriately ruled on the retaliation claim and did not address the sex discrimination claim. The parties were offered the opportunity to conciliate the retaliation complaint. Conciliation either failed or was declined.
The entire complaint, including the claim of discrimination in the terms and conditions of employment and the termination because of retaliation claim, was transferred to the Hearing Examiner for the holding of a public hearing. A Notice of Hearing and Scheduling Order were issued and a public hearing was held on January 12, 13, 14, 19, 1993.
The Hearing Examiner issued her Recommended Findings of Fact, Conclusions of Law and Order on April 26, 1993, concluding that the Respondent discriminated against the Complainant because of her sex in the terms and conditions of her employment. The Hearing Examiner further concluded that the Respondent did not discriminate against the Complainant in retaliation for filing her complaint by terminating her. Both parties timely appealed the Hearing Examiner's Decision.
On November 11, 1993 the Commission remanded the termination part of the complaint: the retaliation claim was remanded to the Investigator/Conciliator for a finding of whether there was probable cause to believe that the Respondent discriminated against the Complainant by terminating her; the Commission Ordered the Hearing Examiner to consider whether there was probable cause that the Respondent terminated the Complainant because of her sex. Thereafter, the Commission heard oral arguments on the terms and conditions complaint. Parties were represented by their respective counsel and were present.
DECISION - APPEAL
The Commission, after fully considering oral arguments and the entire record, adopts the Hearing Examiner's Recommended Findings of Fact, Conclusions of Law and Order, as amended (see attached), as its own. The record adequately supports the Hearing Examiner's decision both as to liability and as to remedy, except where indicated by the attached.
The Respondent's appeal is dismissed and the Hearing Examiner's Recommended Findings of Fact, Conclusions of Law and Order, as amended, are entered as the final order of the Commission.
The above Commissioners all join in entry of this Order.
Signed and dated this 15th day of December, 1993.
EQUAL OPPORTUNITIES COMMISSION
Paul B. Higginbotham
Acting Executive Director