STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
REYNALDO VALENTIN, Complainant
CLEAR LAKE AMBULANCE SERVICE, Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 8902551, EEOC Case No. 26G900193
An Administrative Law Judge issued a decision in the above-captioned matter on September 6, 1991. The Complainant filed a timely petition for Commission review. No briefs have been filed.
Based on a review of the entire record, and after consulting with the Administrative Law Judge concerning his impressions as to the credibility of witnesses, the Commission makes the following:
FINDINGS OF FACT
1. Respondent Clear Lake Ambulance Service ("Ambulance Service") is an ambulance and emergency medical care service conducted jointly by the Village of Clear Lake and the Towns of Clear Lake, Black Brook, Forest, and Vance Creek, presumably pursuant to sec. 66. 30, Stats. It is governed by a 12-person board composed of representatives appointed by the member municipalities.
2. Complainant Reynaldo Valentin ("Valentin") was hired by the Village of Clear Lake in the early 1970s to perform services in connection with the Village's emergency health care services. At that time the Village had no ambulance, and relied on use of a hearse which would be loaned to it when necessary by a local funeral director. Valentin organized the Clear Lake Ambulance Service and subsequent to its organization was employed by it as its ambulance coordinator. Thus he ceased to be employed by the Village of Clear Lake. He was subsequently employed by the Village of Clear Lake on a part-time basis at its sewage plant, but that employment is not a subject of this proceeding.
3. Valentin is Puerto Rican and is a member of the Seventh Day Adventist Church.
4. In July 1988 a then-member of the Ambulance Service Board complained to Valentin about his taking several days off and about his going to Madison for some EMT training. Then in August and September 1988 the Ambulance Service Board held two meetings at which Valentin was informed that the other EMTs were unhappy with his performance. These meetings led to Valentin agreeing to stop doing work as an on-call EMT, restricting himself to the coordinator duties of his job.
5. In March 1989 Valentin was told by a then-Ambulance Board member, Alan Libby, that the Board would not approve a pay raise for him because it was dissatisfied with his work.
6. At a meeting of the Ambulance Service Board on July 30 or 31, 1989, the matter of EMT unrest arose again. A number of EMTs came to the meeting, and one of them, Karen Christianson, raised three complaints about Valentin's alleged failure to arrange for adequate training for the other EMTs and about his performance on two emergency calls. Valentin had in fact continued to go out on emergency calls that arose during his normal shift when he was doing coordinator duties; he had been under the impression that his agreement of the previous year to stop doing work as an on-call EMT did not relate to work he might do on calls that came in when he was on duty as Ambulance Service Coordinator.
7. In the summer of 1989, the Ambulance Service Board had been communicating to Valentin that it wanted to cut the budget for the Ambulance Service, while Valentin had been requesting an additional $3,000 in his budget for raises for the EMTs.
8. After hearing complaints from the other EMTs at the meeting in late July 1989, the Ambulance Service Board asked Valentin to resign, and when he would not, the Board met a few days later . and voted to eliminate the position of Ambulance Coordinator. It is inferred that a factor in this decision was the matter of the Board's concerns over the Ambulance Service budget and the fact that EMT Christianson had told the Board that she could do all of the paperwork function involved in the Ambulance Service Coordinator job for $50 a month, working at it only a few hours a month.
9. Around 1975 or 1976, John Campion, who was at some point the Treasurer of the Village of Clear Lake, called Valentin a "renegade advent" and "kimo sabe. " Campion was never employed by or a member of the Ambulance Service Board.
10. In 1975 or 1976 Peter Cogbill, who was then employed by the Ambulance Service Board as an EMT and was thus a co-worker of Valentin, called Seventh Day Adventists "oddballs" and referred to Valentin by terms such a Puerto Rican, sandblasted Negro, Negro, and nigger. Cogbill has continued to call Valentin such names. However, he has not been employed by the Ambulance Service Board as an EMT since 1983 or 1984 and he has never been on the Ambulance Service Board.
11. In 1979 or 1980 Greg Benware, who had come to see Valentin about joining the ambulance crew, referred to Valentin by the terms "chico" and "kimo sabe. " Benware also made a statement to Valentin to the effect that he would have to report him to have him deported and that Puerto Ricans were "not legal" in the United States. Benware was employed by the Ambulance Service Board as an EMT. The last time he referred to Valentin as "kimo sabe" was soon after he met him in 1979 or 1980. Valentin went on only a very few EMT calls with Benware, going on a call with him for the last time more than two years prior to the hearing. Benware was never a member of the Ambulance Service Board. .
12. In 1986 or 1987, Doug Ahrens, who was not then employed by or a member of the Ambulance Service Board, called Valentin a Puerto Rican and asked him "are you a spic?" Ahrens joined the Ambulance Service Board in April 1989 and was on the Board when it voted to eliminate Valentin's position.
13. It was not uncommon for members of the community to refer to Valentin as "chico," "Mexican," or "kimo sabe," when they ran into him.
14. Valentin complained to the Ambulance Service Board on and off, for the last time in 1986 or 1987, that he did not like the nicknames, that it was becoming personal, and that people he did not know were calling him these nicknames. He indicated to the Board that he did not like the slang and nicknames but that he guessed he was going to have to ignore it. The Board's response was to tell Valentin that it was personal between them and Valentin.
15. Valentin's creed or religion was not a factor in the conditions of his employment, his compensation, or the termination of his employment.
16. Valentin's Puerto Rican race or national origin was not a factor in the conditions of his employment, his compensation, or the termination of his employment.
Based on the FINDINGS OF FACT made above, the commission now makes the following:
CONCLUSIONS OF LAW
1. Clear Lake Ambulance Service is an employer within the meaning of the Wisconsin Fair Employment Act.
2. Clear Lake Ambulance Service did not discriminate against Reynaldo Valentin because of his creed or religion, or because of his Puerto Rican race or national origin, in terms and conditions of employment, compensation, or termination of employment, within the meaning of the Wisconsin Fair Employment Act.
Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission now makes the following:
That the complaint in this matter be dismissed.
Dated and mailed at Madison, Wisconsin, February 26, 1992.
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ James R. Meier, Commissioner
The Commission agreed with the Administrative Judge that Valentin failed to prove discrimination with respect to denial of pay increases or termination. However, based on a review of the actual hearing tapes, it had questions concerning the ALJ's conclusion that there was racial harassment of Valentin by various members of the Ambulance Service's Board throughout his employment. For this reason, it consulted with the Administrative Law Judge to obtain his impressions as to the credibility of witnesses. He indicated that it was his recollection that there was testimony that Peter Cogbill had subjected Valentin to racial harassment and that he had been a member of the Ambulance Service Board, and that it was to this that his finding was principally referring. The Commission's review of the record, however, left it persuaded that the ALJ was in error. Even assuming that all of the Complainant's testimony was correct, it failed to support the ALJ's findings or his recollection in his consultation with the Commission. Cogbill was never on the Board, had last been a co-worker of Valentin in 1983 or 1984, and had last harassed him in 1975 or 1976. Campion was never on the Board and was never a co-worker of Valentin, and last harassed him in 1976. Benware, although a co-employe of Valentin, was never on the Board, and last harassed Valentin in 1979 or 1980. Doug Ahrens, the only person who allegedly harassed Valentin and who was also on the Board, had last subjected Valentin to harassment in 1986 or 1987 and then only became a member of the Ambulance Service Board in April 1989. Other allegations of harassment clearly related to members of the community at large with absolutely no connection to the Ambulance Service Board. Apart from these matters of alleged direct harassment, Valentin's testimony with respect to his complaints to the Ambulance Service Board about being subjected to harassment by others was inadequate to support a finding of liability on the part of the Board. He last complained to the Board of harassment in 1986 or 1987, and his complaint was so vague that it cannot be determined if the Board would have understood that it related to alleged harassment by co-employes as opposed to the use of offensive nicknames by members of the community.
The harassment described by Valentin is deplorable, and the Commission in no way wishes to be understood as condoning it. However, an employer cannot be found responsible for racial or religious harassment unless it is carried out directly by the employer or, if carried out by co-employes, the employer knows or should reasonably know of it and fails to take reasonable action to prevent it. Crear v. LIRC, 114 Wis. 2d 537, 542, 339 N. W. 2d 350 (Ct. App. 1983). It is also well established as a matter of law that the occasional and sporadic use of racial slurs, albeit deplorable, may still not rise to the level of a violation of law. See, Saltarikos v. Charter Wire Corp. (LIRC, July 31, 1989). In this case, the harassment was very remote in time, was sporadic, and was carried out by persons with little or no connection to the Ambulance Service or its Board. The ALJ's finding that "various members of the board" harassed Valentin "throughout [his employment] and as late as 1989" is clearly not supported by the record, and his conclusion that there was discrimination in conditions of employment is therefore unwarranted.
The Commission is fully cognizant that its decision on the harassment issue in this case creates the unusual result, that the Complainant is worse off for having filed his petition for review than he would have been had he allowed the ALJ's order to become final. In the usual case, this would not occur, because while the Commission has held that a petition for review from any party on any issue has the legal effect of giving it the authority to review the entire matter, Krenz v. Lauer's Food Markets (LIRC, 9/27/90), it has also held that it will generally not be inclined to exercise that plenary review authority as to particular issues which have not been the subject of a petition for review, Dude v. Thompson (LIRC, 11/16/90). But for the somewhat unusual circumstances of this case, the Commission would therefore not have been inclined to review the harassment issue present in this case, since the Respondent had not sought review of the ALJ's ruling on that issue and the Complainant's petition sought review only on other issues. However, the unusual circumstances of this case were that the Commission found it necessary to review the race harassment issue because of its connection to the issue of discrimination in pay and termination. The ALJ's finding, that the Board did not discriminate against Valentin because of race in denial of pay increases or termination, was in striking contrast to the ALJ's finding that "various members" of the same Board had subjected Valentin to racial harassment "throughout" the time of his employment. In reviewing the case to determine whether the ALJ's finding on the issue of discrimination in pay and termination was in error, as Valentin had requested it to do, the Commission was thus inevitably led to inquire into the validity of the ALJ's finding on the race harassment issue, and in the course of this review it determined that the finding on that issue was not supported. It could not leave that finding of the ALJ intact while affirming the rest of the findings, and it was therefore compelled to exercise its plenary review authority to make the necessary correction in the ALJ's findings.
NOTE: The Commission has removed reference to Village of Clear Lake in the caption of this matter as it is not a party at this point in the proceeding.
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