Civil Case REVISED

Judge Affirms Lower Court Ruling,
Not Enough Evidence to Support Sexual Harassment Case

MILWAUKEE, WISCONSIN – Power in numbers was deemed irrelevant in a January 25 federal court ruling involving a corporate sexual harassment suit filed against the Child Support Division (CSD) of Racine County, Wisconsin.

After nearly one year, the United States Court of Appeals for the Seventh Circuit upheld a lower court’s decision granting Racine County’s motion for a summary judgment based on the failure of four female CSD employees to provide any admissible evidence that supported their claims.

Brenda Jackson, Sherri Lisiecki, Patricia Birchell-Sielaff, and Linda Schultz, who passed away before the suit was filed, claimed to be the victims of sexual harassment by former CSD Division Manager Robert Larsen, throughout the duration of his October 1, 2000 to June 26, 2001 employment with CSD under this position.

Larsen is accused by each woman to have “engaged in inappropriate conduct” toward them, and “on several occasions”, he stuck his wet finger in Jackson’s ear and blew on it and insinuated the possibility of a promotion for Lisiecki if he could “take liberties with her,” though no such promotion existed. He also made frequent comments of sexual nature and engaged in inappropriate touching on a daily basis.

Within the first month of Larsen’s appointment to the position, Birchell-Sielaff reported Larsen’s behavior to the County’s Human Resource Manager, Marta Kultgen, but never indicated a concern about sexual harassment.

In fact, according to Kultgen, it was not until a February 14, 2001 phone call from Birchell-Sielaff, at which time she also mentioned complaints made by Jackson and Lisiecki that Kultgen was first alerted to the possibility that sexual harassment had taken place.

Acting promptly on these claims, Kultgen contacted Jackson and Lisiecki, who both declined the option to file a formal complaint against Larsen. The county also responded on behalf of the Anti-Harassment Committee by personally counseling Larsen about sexually inappropriate behavior as well as holding a training session for the employees about the state’s sexual harassment policy.

Though no formal charges were filed, complaints against Larsen continued, compelling the Anti-Harassment Committee to conduct a full investigation of Larsen’s management of the CSD. After gathering statements from 21 employees throughout the course of the investigation, the committee concluded that Larsen should be fired based on his inappropriate conduct as a manager of the CSD. This decision was later appealed by County Executive Jean Jacobsen, who decided demotion was instead an adequate punishment.

Unhappy with the County’s conclusion, all four women - Jackson, Lisiecki, Birchell-Sielaff, and Schultz - filed lawsuits based on Title VII of the Civil Rights Act of 1964, a law created to protect workers from a discriminatory or abusive work environment based on such factors as sex, race, age, or nationality.

The parties later decided to consolidate their cases.

Based on the evidence, district court Judge Aaron E. Goodstein concluded that Larsen’s questionable conduct toward the plaintiffs was not serious or pervasive enough to create an actionable hostile work environment, and granted to the County its motion for summary judgment. As decided in the 2000 federal court ruling of Schneiker v. Fortis, “summary judgment is proper only if there is no disputed issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law,” which according to federal judges, was the scenario in this case.

After considering the sustainability of the ground on which the lower court relied – the absence of disputed facts on the question whether sexual harassment existed with respect to any of the plaintiffs, Circuit Judge Diane P. Wood, writing on behalf of the panel states the concern about the district court’s disposition of all four cases involving Larsen’s “inappropriate touching and sexual comments” as isolated incidents, where as the plaintiffs testified that he engaged in this type of behavior on a daily basis. The County supported this claim by citing the 2004 Seventh Circuit Court ruling of Lucas v. Chicago Transit Authority, but this same court deems this to be unhelpful. In this case, the plaintiff fails to provide any examples of the discrimination which he experiences in the workplace, whereas all four plaintiffs in the current case provided some form of evidence in their examples, Judge Wood wrote.


Justice Wood acknowledged the need for a basis of employer liability, citing the 1998 Supreme Court rulings of Burlington Industries Inc. v. Ellerth and Faragher v. City of Boca Raton. In those cases, the Court distinguished those situations in which a supervisor’s harassments resulted in a “tangible employment action, such as discharge, demotion, or undesirable reassignment,” from those in which it did not.

If, however, the harassment does not result in any tangible employee action, then, according to Ellerth, the employer will win if it shows not only that the employer exercised reasonable care to prevent or correct promptly any harassing behavior, but also that the employee reasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.

Here, the only party bringing significant evidence was Lisiecki ,but even so, the courts concluded that the record does not create a genuine issue of fact about the alleged lost promotion.

The court agreed that neither the county, nor the Anti-Harassment Committee, nor Kultgen could be criticized for their attempts to resolve the existing condition between the employees and Larsen. They deemed the investigation thorough and despite the plaintiffs’ dismay, as stated in their reply brief, stated its belief that Larsen has received just punishment in the form of a demotion and all of its attendant disadvantages.

Despite several attempts, attorneys for neither party were able to comment in time for this edition.