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August 22, 1983


Appeal from a judgment of the Circuit Court for Racine County: James Wilbershide, Judge.

Petition to Review Granted.

Scott, C.j., Voss, P.j., and Brown, J.

The opinion of the court was delivered by: Brown

Ilene Crear claims an employer fired her due to racial bias. She asserts the social workers with whom she worked were prejudiced toward her. We uphold the LIRC's decision that the social workers were not supervisors in fact or law. Therefore, it cannot be said that her employer was a party to the racial animus, if it existed at all. We further hold that an employer cannot be held responsible for the racial bias of co-employees absent knowledge.

In 1976, Crear became employed by the Racine County Department of Social Services as a social service aide. She was required to serve a six-month probationary period before attaining permanent status. Crear was placed in the unit supervised by Lamon McPheron, where she assisted the social workers by performing tasks they individually requested. Crear's assignments included helping clients move, helping them obtain Medicare and Medicaid services, and completing tasks which ordinarily would be performed by the social workers.

Upon his return from a vacation, McPheron learned that Crear had refused to perform part of her normal duties as requested by one of the social workers. Aware that Crear was approaching the end of her probation, McPheron then spoke with the other social workers to see if they had any complaints about Crear's job performance. These conversations revealed a series of instances of Crear's failing or refusing to perform her normal duties. McPheron then met with the director of the Department who instructed McPheron to write down his concerns about Crear's job performance and present this report to the director and to Crear. Five days after Crear was given McPheron's report, she was notified by the director that her employment would be terminated at the end of the probationary period.

Crear filed a complaint with the Department of Industry, Labor and Human Relations (DILHR) alleging racial discrimination by two social workers, Judy Berndt and Richard Davis, which affected the conditions of her employment and her discharge. *fn1 Crear concedes that she never mentioned Davis' alleged racist comments to McPheron. She and McPheron differ regarding whether she discussed Berndt's remarks with him. Berndt testified that she had discussed racial subjects with Crear on a few occasions but that she had not made derogatory remarks about blacks. Berndt also denied that Crear had ever expressed discomfort with any of their conversations. The DILHR hearing examiner decided the Department had discriminated against Crear on the basis of race. The Labor and Industry Review Commission (LIRC) reversed the examiner, and the circuit court affirmed the LIRC's decision and order in all respects.

The Wisconsin Fair Employment Act (WFEA) in effect at the time of Crear's dismissal states: "It is unlawful for any employer . . . to discriminate against any employe . . . ." Sec. 111.325, Stats. Section 111.32(5) (a), Stats. (1975), stated: "'Discrimination' means discrimination because of . . . race . . ., by an employer . . . against any employe . . . in regard to his hire, tenure or term, condition or privilege of employment . . . ." *fn2

Crear does not argue that the employer directly discriminated against her. Nor is there any allegation that McPheron, Crear's official supervisor, was in any way involved in the purported racial harassment. Rather, Crear contends that the social workers were her de facto supervisors and that the employer is therefore responsible for the alleged racially biased conditions under which she worked. In support of this argument, Crear asks this court to adopt the definition of "supervisor" found in the National Labor Relations Act, as interpreted in Ohio Power Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949).

2(11) of the National Labor Relations Act as amended by the Labor Management Relations Act of 1947, . . . reads as follows:

" The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

This section is to be interpreted in the disjunctive. . ., and the possession of any one of the authorities listed in § 2(11) places the employee invested with this authority in the supervisory class. [Emphasis added.]

Id. at 386-87.

Crear claims that since the social workers had authority to assign her to specific daily tasks, this factor alone, considered in the disjunctive, proves that the social workers were supervisors as a matter of law. We decline to follow the rule stated in Ohio Power because the nearly identical statutory language contained in Wisconsin's Municipal Employment Relations Act (MERA), sec. 111.70, Stats., *fn3 has been interpreted differently by our supreme court. The MERA is found in subchapter IV of the Employment Relations chapter. Crear brings her suit under the Fair Employment Act, which is subchapter II of the same chapter. As such, the definition of ...

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