STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


KRIS POTTS, Complainant

MAGNA PUBLICATIONS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199701821, EEOC Case No. 26G971192


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.

DECISION

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

Dated and mailed February 27, 2001
pottskr.rsd : 125 : 9 

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Kris Potts, was employed by Magna Publications as the editor-in-chief during the period from October 1996, until February 19, 1997, when his employment was terminated. At issue is his claim that his employment was terminated in retaliation for opposing what he believed to be unlawful discrimination by the company's publisher, Richard Perkins. The alleged discrimination by Mr. Perkins involved two applicants for employment and an individual employed by the respondent. With respect to the applicants, the complainant asserts that one was discriminated against on the basis of sexual orientation (Patti Ashford) and the other (Dennis Palzkill) discriminated on the basis of military guard duty (potential). As for the employee (Christine Hartelt), the complainant asserts that she was not compensated for work at the same rate as a male that the complainant believed was performing similar work.

In order to establish a prima facie case of retaliation, a complainant must show that:  (1) the complainant engaged in statutorily protected expression;   (2) the complainant suffered an adverse action by the respondent; and  (3) a causal link exists between the protected expression and the adverse action by the respondent. A prima facie case of retaliation gives rise to a rebuttable presumption that the Wisconsin Fair Employment Act was violated. The respondent may rebut that presumption by articulating a legitimate, nonretaliatory reason for its action. If the respondent meets that burden of production, the complainant must present evidence that the proffered reason for the action was pretextual. That showing may be made by circumstantial evidence from which the trier of fact could reasonably infer that retaliation was a determining factor in the employment decision. Acharya v. Carroll, 152 Wis. 2d 330, 340, 448 N.W.2d 275 (1989). (1)

The ALJ concluded that the complainant failed to show by a preponderance of the evidence that the respondent violated the Wisconsin Fair Employment Act by discriminating against him because of his opposition to what he perceived to be discriminatory practices with respect to Ms. Ashford, Mr. Palzkill and Ms. Hartelt. The commission agrees.

The following quote from the ALJ's memorandum opinion sets forth the basis for his decision:

"It was found that Mr. Potts did oppose what he believed to be discrimination by his boss Mr. Perkins against Ms. Ashford, Mr. Palzkill and Ms. Hartelt. (2)   Although the opposition took place in conversations in which only Mr. Potts and Mr. Perkins participated, and Mr. Perkins denied that Mr. Potts raised any objection on behalf of the three individuals, the balance of the credible testimony supports Mr. Potts' version of events. Some corroboration of Mr. Potts' testimony was found in the testimony of his friends Scott Hainzinger and Neal Kunde. Despite their friendship with the Complainant and the hearsay nature of their testimony, their testimony was sufficiently reliable to be considered under 227.45(1), Wis. Stats., and it supported the conclusion that Mr. Potts really was concerned about Mr. Perkins' possibly discriminatory actions with respect to Ms. Ashford and Mr. Palzkill at the time that he allegedly confronted Mr. Perkins about them. In addition, Mr. Kunde's testimony in particular supported the conclusion that Mr. Potts was not only concerned, but that he expressed his concerns to his boss, Mr. Perkins. Mr. Kunde's testimony also supported the conclusion that in January 1997 Mr. Potts was concerned about the possibly discriminatory nature of Mr. Perkins' decision affecting Ms. Hartelt. Also, Mr. Potts' credibility was enhanced by his memory of details of his conversations with Mr. Perkins, and by the lack of testimony from Mr. Perkins explaining his decisions not to hire Ms. Ashford or Mr. Palzkill.

Mr. Potts' opposition to Mr. Perkins' decisions, however, was not shown to lead to his discharge. As to the opposition that occurred in December 1996 (relating to Ms. Ashford and Mr. Palzkill), there was no allegation of any retaliatory action by Mr. Perkins for nearly two months, when he was told of his discharge; nor was there any evidence that during that two-month period Mr. Potts (or anybody else, for that matter) was keeping the issue alive in Mr. Perkins' mind, giving him any cause to worry about the consequences of Mr. Potts' opposition.

During that two-month period, however, there were substantial reports that Mr. Potts was having ongoing disputes with other employees, and credible evidence that these reports caused concern for Mr. Perkins and Ms. Long, the two individuals who decided Mr. Potts' fate with the company. Although this evidence was all second-hand, it was not offered to prove the truth of the matter, that Mr. Potts was in fact disruptive, but to rebut the contention that the company's articulated reason for terminating Mr. Potts was a pretext. Nothing prohibited Mr. Perkins and Ms. Long from basing their termination decision on reports of acts that occurred outside their presence. Their testimony that they received and believed the reports of Ms. White, Ms. Hartelt, Ms. Santovec, Ms. Sigmond, and others was credible. Ms. White bolstered their credibility with her testimony that she complained to Ms. Long about Mr. Potts' gruff demeanor and about the use of her computer, and the detail provided by Ms. Long and Mr. Perkins about Ms. Hartelt's complaint was credible. Although the Complainant showed that Ms. Long and Mr. Perkins ignored their own employment manual by not engaging in discussions with Mr. Potts about his use of Ms. White's computer or about the reasons for Ms. Hartelt's resignation, and simply fired him without giving him a hearing, that is not enough to show that their proffered reason for firing him was a pretext. There was no evidence that Mr. Perkins or Ms. Long applied the employment policies any more faithfully for any other employee.

Because the series of complaints about Mr. Potts, particularly the ones close in time to the decision to discharge him, appeared in February 1997 to be causing much greater concern for Ms. Long and Mr. Perkins than Mr. Potts' protest two months earlier about the refusal to hire Mr. Palzkill or Ms. Ashford, the causal connection between that protest and the firing was not made. As to Mr. Potts' protest on behalf of Ms. Hartelt, it came about two weeks before the complaint of Ms. White and the resignation letter of Ms. Hartelt, so, like the December protest, it was not as close in time to the discharge as those events were. In addition, even assuming that Mr. Potts' protest on behalf of Ms. Hartelt tempted Mr. Perkins to fire Mr. Potts for fear that he would try to thwart the decision not to equalize Ms. Hartelt's salary with Mr. Steinbach's, it was no longer reasonable to believe that this motivation would be driving Mr. Perkins' (sic) after February 17, 1997, when Ms. Hartelt had submitted her resignation and had laid the blame not on a salary discrepancy with Mr. Steinbach, but on Mr. Potts' intimidating conduct. To Mr. Perkins, the possibility that Mr. Potts' intimidating conduct had caused the resignation of a good employee (Ms. Hartelt) would have provided a much more likely motivation for discharging Mr. Potts than the debate he had had two weeks earlier with him about Ms. Hartelt's salary, especially since that debate had been made academic by Ms. Hartelt's decision to resign."

(ALJ Mem. Op., pp. 6-7).

The complainant's initial brief filed with the commission is 173 pages long. The commission will not attempt to respond to every single assertion raised in the brief. Instead, the commission will address the most salient assertions raised by the complainant.

One assertion the complainant makes is that in concluding that there was no causal connection between his "persistent opposition to discrimination, particularly as regards Ms. Hartelt, and his termination, the ALJ raises the causal bar to a height never before conceived by case law by arguing that 10 to 14 days is not sufficiently close to support a finding of causal connection."

The complainant misconstrues the decision of the ALJ. Clearly, a causal connection between oppositional activity and an adverse employment action may be inferred from the proximity in time between the protected action and the alleged retaliation. Frierson v. Ashea Indus. Systems (LIRC, 04/06/90);  Horton v. Hopkins Chemical Co. (LIRC, 06/08/92), aff'd., Dane Co. Cir. Ct., 04/28/93.  However, as noted above, a complainant's establishment of a statutorily protected expression, an adverse action by the respondent and the existence of a causal connection between the protected expression and the adverse action only presents a rebuttable presumption that the Act has been violated. A respondent may rebut this presumption by articulating a legitimate, nonretaliatory reason for its actions, which then requires the complainant to establish that the proffered reason for the action was pretextual in order for the complainant to prevail. Thus, while closeness in time may indicate the existence of a causal connection between protected expression and an adverse action, the case does not end with that showing.

The overwhelming majority of the complainant's brief, however, is devoted to what appears to be the following alternative argument:  that the respondent failed to meet its burden of producing evidence that he was terminated for nonretaliatory reasons;   or that he has demonstrated that the respondent's proffered reasons for terminating his employment were a mere pretext for retaliatory action.

The complainant's argument that the respondent failed to meet its burden.

One major theme of the complainant is that the respondent failed to meet its burden of articulating a legitimate, nonretaliatory reason for the termination of his employment because the reasons articulated for his termination were mostly based on hearsay. The complainant argues that the ALJ erroneously based his decision on this hearsay evidence while the law says that his decision must be based on direct, firsthand testimony. Testimony by Mr. Richard Perkins and Ms. Susan Long is the focus of the complainant's complaint that the ALJ relied on hearsay. This included testimony by Mr. Perkins and Ms. Long that Ms. Hartelt criticized and complained about him to them and that he was the reason for her submitting a February 14, 1997 letter of resignation. In particular, the complainant focuses on testimony by Ms. Long that she received many complaints from various employees that he was disruptive and interfered with employees' ability to do their assigned duties, that he was intimidating and employees felt uncomfortable working with him, and that one employee was in tears several times because of him.

The testimony offered by Mr. Perkins and Ms. Long did not constitute hearsay. Where a declarant's statement is offered for the fact that it was said, rather than for the truth of its content, it is not hearsay. (3) State v. Wilson, 160 Wis. 2d 774, 779, 467 N.W.2d 130 (Ct. App. 1991). See, also, Wis. Stat., 908.01(3). Ultimately, the question is whether the employer was in fact actually motivated by a good-faith belief in the complaints about the complainant, or instead by prohibited bias. McGee v. Society's Assets et al. (LIRC, 02/13/01), citing, Atkins v. Pepsi Cola Gen. Bottlers (LIRC, 12/18/96) and Salinas v. Crivello Properties (LIRC, 06/05/92). The commission is satisfied that Mr. Perkins and Ms. Long believed in good faith that the complaints being made about the complainant were true and that this is what motivated their decisions to terminate his employment.

A second major theme in the complainant's brief is that the respondent failed to provide any documentation to support its allegations about his conduct. However, documentation was submitted in support of the respondent's allegations. This documentation included the termination letter presented to the complainant, Ms. Hartelt's February 14, 1997 letter of resignation, Ms. Long's notes taken during her meeting with Ms. Hartelt on February 17, 1997, as well as the correspondence submitted to the Unemployment Insurance Division contesting the complainant's eligibility for unemployment insurance. Undoubtedly, however, the complainant's focus is on the lack of documentation to support Ms. Long's testimony about the many employee complaints she received about him. It must be noted, however, that the complainant was a new, high-level management employee whose problems surfaced over a very short period of time during a limited period of employment (about four and a half months). A lack of written documentation under these circumstances is not particularly surprising. In any event, that these problems existed is supported by Mr. Perkins' testimony. Mr. Perkins testified that it seemed that the complainant was having a "continual fight with Susan Long, as well as the graphics department she was responsible for," and that he specifically talked to the complainant about this 4 or 5 times, telling him that "he had to make peace with those people and that he had to treat them with more dignity, and in fact he needed to go down and talk to Susan Long to try to work out some of their differences." (Tr. 269-270)

During the termination meeting that Mr. Perkins and Ms. Long held with the complainant on February 19, 1997, Mr. Perkins gave the complainant a letter of termination, which stated, in part, as follows:

"I came to this difficult decision, because of numerous examples of your poor interpersonal skills and your inability to delegate. In addition, I have become aware of several incidents where you violated the privacy of other Magna employees and the intent of policy # 709 in the employee manual."

At the hearing Mr. Perkins testified that a culmination of things brought about the termination of the complainant's employment. Mr. Perkins testified that at about the same time, Ms. Hartelt approached him regarding her February 14, 1997 letter of resignation, which he discovered was because she was unhappy with the complainant, and he was approached by Ms. Long who informed him that the complainant had invaded the privacy of Kayla White by accessing her computer without permission. Mr. Perkins testified that another factor in the decision to terminate the complainant's employment was that the newsletters the complainant was responsible for were not getting out on time. Mr. Perkins testified that he talked to several staff people who complained about the complainant's management style and his poor interpersonal skills. Specifically, Mr. Perkins testified that the complaints were that the complainant "was intimidating in his style; that he was trying to do their job for them by looking over their shoulders all the time; changing things that were already completed, particularly in the graphics area where his responsibilities really weren't specifically involved." (Tr. 268) Mr. Perkins testified that Ms. Hartelt told him that the reason for her resignation was that she just couldn't work with the complainant any longer. Mr. Perkins testified that he was very, very disappointed about Ms. Hartelt's resignation letter because she had become a very, very good employee, extremely dedicated and very productive. (4)   Mr. Perkins testified that the comment in the complainant's termination letter about his inability to delegate related to the fact that he spent enormous amounts of time editing and re-editing the newsletters, even though they had already been copy edited by other editors, and that the complainant was changing every little detail of the graphics presentation of the newsletters. Mr. Perkins testified that this was the primary cause for the newsletters to be significantly late. (Tr. 294-295)

Ms. Long testified that her complaint about the complainant was the fact that she was receiving many complaints from other employees about the treatment they were receiving from the complainant. (Tr. 193) Ms. Long testified that she often received complaints from employees that the complainant was very disruptive and very difficult to work with, that he interfered with their performance of their job duties, that he placed demands on employees, and that he was intimidating and employees felt uncomfortable working with him. (Tr. 194-200)

Moreover, Kayla White, who was employed as a graphic artist at the time relevant herein, testified that at times she had difficulty working with the complainant because he "always wanted things done his way, whether it was the right way or not," that the complainant "intimidated me" and he "Tended to shake his finger at you when he wanted something done right now, and was a little gruff." (5)  (Tr. 229) Ms. White testified that she complained about this to Ms. Long. Id.

Thus, contrary to argument by the complainant, the respondent did meet its burden of articulating a legitimate, nonretaliatory reason for his termination of employment.

The complainant's argument that the respondent's proffered reasons for terminating his employment were a mere pretext for retaliatory action.

The complainant argues that the ALJ's conclusion that intimidating conduct by him was responsible for Ms. Hartelt's resignation and the basis for Mr. Perkins' decision to discharge him was soundly refuted by Mr. Perkins' testimony that Exhibits 4 and 5 (Ms. Hartelt's second letter of resignation dated July 14, 1997 and a July 17, 1997 letter retracting that resignation) were not concerns expressed when she resigned while under the complainant's supervision. Ms. Hartelt retracted her second resignation in a letter to Mr. Perkins dated July 17, 1997. In that letter Ms. Hartelt stated, in part, that "The turnover of the past six months has worried me a great deal. After talking to you, I realize my job is more secure than I realized." When asked what Ms. Hartelt's reason for writing her second letter of resignation, unable to recall, Mr. Perkins responded:

"I can't tell you the specific reasons. I can tell you that she, over a period of time expressed concern that there was a fair amount of turnover at Magna Publications. And I think - I know that she was very insecure in her own position at times, particularly while Kris was her supervisor. She also had a - or has a young family, and she was extremely concerned about not spending enough time with that family. And I think one of these resignations points to that, which is why her hours were reduced from five days to three."

(Tr. 290-291).

Immediately after providing this testimony, when asked if the concerns Ms. Hartelt had expressed in Exhibit 5 were similar concerns to the concerns she had expressed when resigning in February 1997, before the complainant's termination of employment, Mr. Perkins stated that they were not. (Tr. 291) Mr. Perkins testified that Ms. Hartelt did not state to him that she felt that she was about to be fired when she resigned in February 1997. (Tr. 291-292)

The complainant contends that Mr. Perkins attributed a reason for Ms. Hartelt's July 14, 1997 letter of resignation (job security concerns over the past six months) to him when he had been gone since February 19, 1997, and that this "destroys" the ALJ's conclusion that "To Mr. Perkins, the possibility that Mr. Potts' intimidating conduct had caused the resignation of a good employee (Ms. Hartelt) would have provided a much more likely motivation for discharging Mr. Potts than the debate he had had two weeks earlier with him about Ms. Hartelt's salary, especially since that debate had been made academic by Ms. Hartelt's decision to resign." But Mr. Perkins' testimony that Ms. Hartelt was at times insecure in her position under the complainant's supervision is consistent with Ms. Long's testimony that on several occasions Ms. Hartelt had expressed concern that the complainant was trying to eliminate her from the company or terminate her employment. (See testimony by Ms. Long below at pages 13-14.) Mr. Perkins' testimony here simply was that during his February 17 meeting with Ms. Hartelt she did not express any concern about job security. Mr. Perkins' initial response clearly indicated that he could not state the specific reasons for Ms. Hartelt's second resignation, but he could recall that she had expressed concerns about job security over time.

The complainant argues that the ALJ ignored Ms. Long's testimony that concerns over the relationship between him and Ms. Hartelt had absolutely nothing to do with respondent's decision to terminate him. The source for this argument by the complainant appears at pages 218 and 219 of the transcript. The following exchange occurred between the complainant's counsel and Ms. Long about the February 19, 1997 termination meeting held with the complainant:

Q. .Did Kristine (sic) Hartelt's name even come up except for Mr. Potts trying to bring up the subject?

A. I don't recall Mr. Potts bringing up the subject.

Q. You don't recall it coming up at all, do you?

A. I don't recall. It could have.

Q. Okay. And you have an employee two days earlier who you claim was saying Mr. Potts caused her depression and to lose sleep; is that right?

A. That's correct.

Q. And you don't even discuss that with the person who is her supervisor that she's claiming did these things to her?

A. Oh, I'm sure I discussed it with him.

Q. You -

A. With Rich Perkins, certainly.

Q. You never discussed it with Mr. Potts, did you?

A. That wasn't the reason he as (sic) being terminated.

(Tr. pp. 218-219)(Emphasis in bold text added)

Based upon the details Ms. Long provided about the many employees who had come to her complaining that the complainant was difficult to work with, intimidating, and interfered with their job duties, however, it appears more likely than not that the testimony by Ms. Long here was simply a statement that whether or not Ms. Hartelt was actually depressed and lost sleep, was not the reason for the complainant's discharge.

The complainant argues that because Mr. Haight, Mr. Perkins and Ms. Long agreed that he had not acted angry or exhibited negative behavior in his interactions with them, this proves that he did not have poor interpersonal skills. But this assertion ignores the fact that Mr. Haight was the owner of the company, Mr. Perkins was his immediate supervisor and that Ms. Long's position of operations director was equivalent to that of his, plus she also performed the human resource functions for the company. Surely the complainant does not believe that he could have gotten away with the use of intimidating conduct in his interactions with these individuals.

The complainant argues that even assuming Ms. Hartelt expressed dismay about him, this still precluded the ALJ from finding that the respondent established a credible, nonretaliatory reason for discharging him. As reason, the complainant asserts that the wealth of credible evidence still contradicts the ALJ's conclusion that to Mr. Perkins the possibility that his intimidating conduct caused the resignation of a good employee provides a much more likely motivation for discharging him than the debate he had two weeks earlier about Ms. Hartelt's salary. As alleged evidence, the complainant refers to a letter dated October 6, 1997, that Ms. Hartelt apparently wrote to the respondent's then editor-in-chief, Ms. Judith Clayton. On appeal the complainant apparently contends that this letter by Ms. Hartelt refers to a January 28, 1997 meeting that reveals Mr. Perkins was not being forthright with Ms. Hartelt about her actual job title, that is, Mr. Perkins was referring to her as a managing editor when she had been hired as a staff writer. Thereafter, either at the end of January or beginning of February 1997, Ms. Hartelt was actually promoted to the position of managing editor, and the complainant suggested that she also be paid $29,000, the rate of pay that Mr. Steinbach received, but Mr. Perkins refused. It is also clear that at some point, although it is not clear if it was when Ms. Hartelt was first hired or when she was promoted, that the complainant inquired of Ms. Long if Ms. Hartelt and Mr. Steinbach should be receiving equal pay if they are doing equal work.

From this, the complainant argues that based upon his "persistent and strong advocacy to Mr. Perkins on behalf of Ms. Hartelt," that this caused Mr. Perkins to fear that he had told Ms. Hartelt about the pay disparity, that this possibly led Ms. Hartelt to resign, and that in an effort to get rid of "the person whose difficult stand for ethical business operations apparently had overwhelming control over Mr. Perkins (sic) thoughts about a real, pervasive and growing legitimate legal threat to his own employment," Mr. Perkins terminated his employment.

The complainant's argument suffers from several difficulties, however. To begin with, the October 6, 1997 letter the complainant speaks about on appeal was never made a part of the record at the hearing. Second, the evidence fails to support his claim of "persistent and strong advocacy on behalf of Ms. Hartelt." Third, Mr. Perkins learned of the reason for Ms. Hartelt's resignation a full two days prior to his termination of employment. And the reason given had nothing to do with Ms. Hartelt's salary at all; the reason given for her resignation was the complainant's intimidating conduct. Fourth, the evidence shows that the complainant never made any complaint to Mr. Perkins about Ms. Hartelt's salary, either before or when he was advised of his termination of employment on February 19, 1997. In short, as found by the ALJ, "To Mr. Perkins, the possibility that Mr. Potts' intimidating conduct had caused the resignation of a good employee (Ms. Hartelt) would have provided a much more likely motivation for discharging Mr. Potts than the debate he had had two weeks earlier with him about Ms. Hartelt's salary, especially since that debate had been made academic by Ms. Hartelt's decision to resign."

Additionally, the complainant argues that the ALJ ignored credible evidence that he "vigorously attempted to address Ms. Hartelt's resignation and Mr. Perkins' illegal acts three times on the very day that he was discharged." While the evidence does show that the complainant attempted to address Ms. Hartelt's resignation, again, there was no evidence that he ever made it known to Mr. Perkins on February 19, 1997, that he was "attempting to address with Mr. Perkins' his (Mr. Perkins' ) alleged illegal acts."

The complainant asserts that the claim that Ms. Hartelt's February 14, 1997 resignation was the reason for his discharge is prextextual because if that was the real reason for the decision the decision to discharge would have been made on February 17 or 18, 1997, and the respondent would have been prepared to discharge him the moment he walked into work on February 19, 1997, not later that afternoon. (6)    But Mr. Perkins (and Ms. Long) first learned of the reason for Hartelt's resignation on February 17, 1997. And after Mr. Perkins learned about the reason for Ms. Hartelt's resignation, he testified that he requested that Ms. Hartelt "please give me a day or two to see if there was anything I could do to resolve the situation, and she did." (Tr. p 275)

The complainant also asserts that Mr. Haight's testimony that he first learned of the decision to discharge him within hours of the decision is almost conclusive evidence that the proffered reason for discharge is fabricated or an "overblown pretext" that was created on the very day he was discharged in response "to his final efforts to oppose discrimination by Mr. Perkins against Ms. Hartelt." In view of the testimony that Mr. Perkins and Ms. Long first learned of the reason for Ms. Hartelt's resignation on February 17 and that on that date Mr. Perkins asked Ms. Hartelt for a day or two to see if he could resolve the situation that caused her to resign, the fact that the decision to terminate the complainant's employment was not made until February 19 presents no evidence of pretexuality. Moreover, there was no evidence that on February 19, 1997, the complainant had opposed any alleged discrimination against Hartelt by Mr. Perkins. Instead, the evidence indicates that what had surfaced and was at the forefront of the minds of Mr. Perkins and Ms. Long were the complaints about the complainant's conduct, particularly the fact that it had caused Ms. Hartelt to submit a letter of resignation, leading Mr. Perkins and Ms. Long to conclude that the complainant was just causing too much turmoil and interruption in workflow to justify his continued employment.

The complainant argues that in view of the similarity of language Mr. Perkins, Ms. Long, Ms. White and to some extent that Mr. Haight used to convince the ALJ that there was a legitimate reason to discharge him because of Ms. Hartelt's expressed concerns, this is evidence of a conspiracy. But typically, similar or consistent testimony by witnesses, especially sequestered witnesses as was the case in the hearing in this matter, would indicate reliability of testimony. Further, the complainant argues that even if no conspiracy existed, Ms. Hartelt's letters (apparently referring to both her July and October 1997 letters) demonstrate that Mr. Perkins, Ms. Long and Mr. Haight intentionally misapplied criticism of Mr. Perkins and/or Mr. Muth (Mr. Perkins' successor) to him in order to create a defense for his termination. These arguments fail for the reasons previously stated above.

The complainant argues that strangely, the respondent places so much weight on Ms. Hartelt for its motivation but the respondent never introduces her at the hearing. He argues that the respondent's decision not to call Ms. Hartelt seems to be probative of the relative credibility of the respondent versus him. But the complainant himself had subpoenaed Ms. Hartelt as a witness, and he released Ms. Hartelt from the subpoena without ever calling her to testify. (Tr. 288-289)

The complainant asserts that he has demonstrated pretext since the respondent made no effort to determine whether alleged complaints about his accessing other employees' computers were credible or consistent with language of its policies (i.e., policy no. 709). The commission has carefully considered this argument but finds it unpersuasive. The evidence shows, as found by the ALJ, that the primary motivation for Mr. Perkins' decision to terminate the complainant's employment was to eliminate what he perceived as the complainant's intimidating manner and tendency to interrupt others' work with his own demands. Further, Mr. Perkins was not very familiar with the employment handbook and did not use it as a guide to his decision-making. (See Finding no. 24 and footnote no. 4 contained therein; Tr. 282-283). As for Ms. Long, her primary motivation to terminate the complainant was to eliminate the source of the complaints she had been receiving, and, in her readiness to get rid of the complainant, she did not competently investigate the computer problem or carefully read policy no. 709. (See Finding no. 25; Tr. 181-182).

Similarly, the complainant argues that in spite of the respondent's "General Employment, Policy No. 110" (regarding the importance of full discussion in resolving misunderstandings and preserving good relations between management, employees and staff), Mr. Perkins and Mr. Haight "conspired" to terminate him without allowing him the opportunity to hear the alleged complaints against him. The commission also finds this argument unpersuasive. First, as previously noted, Mr. Perkins had spoken to the complainant about his behavior with graphics personnel on 4 or 5 occasions prior to his discharge. Second, as noted by Ms. Long, the major reason for the complainant's discharge was that Mr. Perkins felt that he "was causing total disruption within the office, and that that was causing some real inefficiencies and lack of productivity in other departments for an entire organization, because there was so much disruption." (Tr. 208) Ms. Long testified that based on her observations, the complainant's overall job performance and the effect that he was having on the staff justified the termination of his employment. (Tr. 214) Third, Mr. Haight testified that Mr. Perkins told him "that he just didn't see that there was any other way other than to terminate Kris simply because the staff was just . too disrupted." (Tr. 248)

The complainant argues that Mr. Perkins and Ms. Long gave inconsistent testimony regarding the reason for the termination of his employment. The complainant argues that Mr. Perkins claimed that Ms. Hartelt's February 14, 1997 letter of resignation and the reason therefor played a role in his decision to terminate him, while Ms. Long denied that Ms. Hartelt's resignation had anything to do with his termination. However, this alleged inconsistency in testimony is based upon the complainant's erroneous interpretation of Ms. Long's testimony at pages 218-219 of the transcript as shown above. Citing Ms. Long and Mr. Perkins' respective testimony at pages 213 and 277 of the transcript, the complainant argues that Mr. Perkins and Ms. Long "disagree" over whether they communicated about his "concern about Mr. Hartelt's inequitable salary." All this testimony shows, however, is that Ms. Long "believed, although she did not recall specifically" that she sent Mr. Perkins an e-mail saying that the complainant had "questioned whether Ms. Hartelt and Mr. Steinbach had the same position and the same responsibilities," while Mr. Perkins testified that he did not recall "ever hearing that Mr. Potts discussed Kristine (sic) Hartelt's pay with anybody else." The complainant also argues, at page 133 of his brief, that Ms. Long and Mr. Perkins gave contradictory reasons for Ms. Hartelt's resignation while under his supervision. The complainant contends that Ms. Long included as reason for Ms. Hartelt's resignation that she "felt that Kris was constantly trying to eliminate her from the company or terminate her," while Mr. Perkins denied that Ms. Hartelt said anything about feeling that she was about to be fired by him. He cites Ms. Long's testimony at page 199 of the transcript and Mr. Perkins' testimony at page 291 of the transcript as evidence of this alleged contradictory testimony. Again, the complainant is mistaken. Ms. Long's testimony at page 199 was about what Ms. Hartelt had conveyed to her during about six different discussions prior to Ms. Hartelt's resignation, not about her discussion with Ms. Hartelt after her February 14, 1997 resignation. Ms. Long took notes of the reasons Ms. Hartelt gave for her resignation during their February 17, 1997 meeting, and there is no mention of Ms. Hartelt feeling that the complainant was trying to eliminate her from the company or terminate her. These notes were admitted as page two of Respondent's Exhibit A. The complainant also argues that Ms. Long and Mr. Haight gave inconsistent testimony. He argues that while Mr. Haight claimed that Ms. Long complained to him (Mr. Haight) about him, Ms. Long contradicted Mr. Haight's testimony. But the testimony in question was simply that Mr. Haight said that Ms. Long had complained about the complainant to him, while Ms. Long did not recall whether or not she had. See transcript, pages 29-30, 186.

The complainant also contends that Mr. Haight, Mr. Perkins, Ms. Long and Ms. White had reason to be biased against him and that this "colored" their testimony. The complainant argues that Mr. Haight remains as the company's president and is liable for his employees' acts. He argues that Mr. Perkins has been accused by himself and others of committing numerous illegal acts, that Mr. Perkins' employment was terminated by the respondent, and that Mr. Perkins is still searching for employment and needs to "redeem the circumstances of his employment with the respondent" to increase his marketability to potential employers. The complainant argues that Ms. Long would be biased because he sought her assistance in opposing Mr. Perkins' alleged discrimination but she did not assist him. Further, the complainant argues that Ms. Long has been accused of illegal discrimination in his charge of discrimination for not assisting him in insuring legal treatment of Ms. Ashford, Mr. Palzkill and Ms. Hartelt, so she has to protect herself for having engaged in illegal action. The complainant argues that Ms. White had plenty of reason to "shade" her testimony to the benefit of the respondent because she was a current employee of the respondent. These could be possible bases for these individuals not to be truthful in their testimony; however, the complainant has not established that their testimony was shaped in any way based on these reasons. (7)

The complainant argues that Mr. Perkins and Ms. Long were not credible witnesses. For example, the complainant argues that because Mr. Perkins claimed to have followed his recommendation to give Ms. Hartelt a raise but her personnel file shows he did not, this damages his credibility about his concerns for Ms. Hartelt's well-being. Apparently, Mr. Perkins' concerns for Ms. Hartelt's well-being that the complainant is referencing is Ms. Hartelt's complaints about the complainant that caused her to submit a letter of resignation and Mr. Perkins' decision to terminate his employment. This argument fails. At most, this lends support to the complainant's belief about Mr. Perkins' alleged possible discrimination against Ms. Hartelt.

The complainant argues that Ms. Long was not credible because the respondent's witness, (8)  Kayla White, denied that she had complained about him to Ms. Long on any more than one occasion while Ms. Long asserted that Ms. White had complained to her at least a dozen times. Further, the complainant argues that Ms. White "decimated" Ms. Long's claims that he had been disruptive and too demanding on Ms. White's time, stating that Ms. White testified that: 1) he never asked her to "take on a project that was not part of her job as a graphic artist"; and 2) she never complained to Ms. Long that he "was too demanding." While Ms. White did testify that the complainant never "ask(ed) (her) to take on a project that was not part of (her) job as a graphic artist" (Tr. 227), this does not contradict Ms. Long's testimony that Ms. White complained that "she was unable to do her assigned duties because of the interference she was receiving from Kris, the demands that Kris was putting on her." (Tr. 195)(Underlining emphasis added) Indeed, Ms. White testified that the complainant "Always wanted things done his way, whether it was the right way or not." (Tr. 229)(Underlining emphasis added) Further, while Ms. White may not have specifically complained that the complainant was "too demanding" to Ms. Long, Ms. White did testify that the complainant "Tended to shake his finger at you when he wanted something done right now, and was a little gruff." Id. And, Ms. White testified that she complained to Ms. Long "about this." Id. The complainant's contention that Ms. White denied that she had complained about him to Ms. Long on any more than one occasion is apparently made because when Ms. White was asked if she recalled her deposition testimony that she never complained to Ms. Long that he was "too demanding" she responded, "I don't recall. The only thing I really remember complaining to her about was when he broke into my computer." (Tr. 236) Again, this argument fails since the real issue is not whether Ms. White uttered the magic words "too demanding" when she complained about the complainant.

The complainant also argues that "in delivering to the Complainant his termination letter and to the UCD (i.e., the Unemployment Insurance Division) various statements regarding that termination, the Respondent never claimed that the complainant had, among other absent, specious allegations: 1. 39 alleged complaints against him; 2. broken into Mr. Magnan's computer; 3. had any sort of troubling professional relationship with Ms. Hartelt; or 4. had any problems meeting deadlines." This argument also fails. The complainant's termination letter and the information that the respondent supplied to the UID was reasonably specific enough to show the basis for his termination.

As previously noted, the termination letter Mr. Perkins presented to the complainant as reason for his termination stated, in relevant part, "I came to this difficult decision, because of numerous examples of your poor interpersonal skills and your inability to delegate. In addition, I have become aware of several incidents where you violated the privacy of other Magna employees and the intent of policy # 709 in the employee manual." (See Complainant's Exhibit 3, p.7) Similarly, Ms. Long's February 25, 1997 letter to the UID included the following as information regarding the complainant's termination of employment:

"2. Reason for discharge - unsatisfactory job performance and non-compliance to company policy #709 - `Employee Privacy' (copy enclosed)
. . .
4. Describe any prior incidents - On several occasions Mr. Perkins spoke with Mr. Potts regarding job performance. Specifically, failing to meet important deadlines, creating additional work for co-workers by making unauthorized changes to publications and creating a hostile environment by making unreasonable demands on other employees."

(Complainant's Exhibit 3, p. 3).

The complainant also argues that the respondent's handling of a former employee named Bob Magnan is evidence that retaliation was the most likely motive for his termination. Apparently Mr. Magnan had been abusive to other employees in the graphics department and was a difficult person to get along with. A short while after beginning employment with the respondent, the complainant terminated Magnan's employment. As alleged evidence of a retaliatory motivation, the complainant argues that he received disparate treatment versus that of Mr. Magnan because not only had the respondent not fired Mr. Magnan despite a long history of abuse to coworkers and supervisors, Mr. Haight argued at the hearing that he (complainant) was wrong in terminating Mr. Magnan's employment. However, as Mr. Haight testified, Mr. Magnan had been a valuable long-term employee versus the complainant who had only been employed a short while. Further, Mr. Haight's objection to Mr. Magnan's termination was that he felt that a long-term employee deserved a longer period of time to correct his behavior than what was provided by the complainant. It only stands to reason that after just enduring an employment relationship with an individual who was abusive and difficult to get along with, the respondent would not want to start down that road again, especially with a high-level management employee such as the complainant. Moreover, it was not Haight, but Perkins and Long who made the decision to fire the complainant.

The complainant argues that several circumstances coalesce to demonstrate that there was discriminatory animus on the part of Mr. Perkins and Mr. Haight and that the reasons proffered for his termination were pretextual. The complainant contends the following evidence supports this: Mr. Haight's "comprehensive dismissal" of the allegations of a discrimination complaint (Mary Burnell's) filed against the respondent at a staff meeting; Mr. Perkins' alleged discriminatory acts against Ms. Ashford (and appeal to him to join in this discrimination against her), and alleged discriminatory acts against Mr. Palzkill and Ms. Hartelt; Mr. Perkins' failure to meet with him regarding Ms. Hartelt's resignation; Mr. Perkins' alleged constructive discharge of Elizabeth Carroll for mild opposition to his treatment of one of her subordinates; Mr. Perkins' alleged discriminatory acts against a black woman candidate for a managing editor position; and Mr. Haight's stated belief that Mr. Magnan's disruptive and unprofessional behavior should have been allowed to continue.

These arguments fail. The ALJ correctly allowed consideration of testimony regarding Mary Burnell's complaint only as support for the complainant's claim that he had a reasonable belief that discrimination occurred with respect to Ms. Ashford, Mr. Palzkill and Ms Hartelt. It was ruled inadmissible to prove that the complainant himself was discriminated against, however, because of Wis. Stats., 904.04(02) and the fact that use of this complaint for that purpose did not come within any listed exception. That statute section reads: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." But even assuming for purposes of argument that the testimony regarding Ms. Burnell's complaint should have been received, the record in this case fails to support a showing that the complainant's employment was terminated in retaliation for opposition to statutorily protected expression.

As shown above, the fact that Mr. Perkins possibly discriminated against Ms. Ashford, Mr. Palzkill and Ms. Hartelt does not prove retaliatory animus on the part of Mr. Haight or Mr. Perkins against him, or that the reason for his discharge was pretextual, given the substantial evidence that the complainant's intimidating manner and interruption of others' work with his own demands was causing total disruption of the office and lack of productivity. Further, Mr. Haight did not make the decision to terminate the complainant's employment.

Based upon the record in this case, the reason that Mr. Perkins failed to meet with the complainant regarding Ms. Hartelt's resignation on February 19, 1997, appears to be either because Mr. Perkins was still gathering information from other employees to see if there was anything that he could do to resolve the situation (see Tr. 275; 276; 273-274), or Mr. Perkins had already come to the conclusion "that he just didn't see that there was any other way other than to terminate Kris simply because the staff was just . too disrupted." (Tr. 248)

The complainant contention that Elizabeth Carroll was "constructively discharged" by Mr. Perkins pertained to Ms. Carroll's decision to resign over some unknown "things" that Mr. Perkins had allegedly stated to an employee under Ms. Carroll's supervision. Ms. Carroll testified that after talking about what Mr. Perkins had said to Mr. Haight, Mr. Perkins (and another individual) met with her. Ms. Carroll stated the following occurred: ".they offered me a contract to continue my work. I was told that -- by Rich that they didn't have any problem with my performance and wanted me to continue doing some work, but that -- I guess there was more of a concern that I had -- I was questioning my supervisor or questioning -- I didn't have faith in my boss or upper management, and that that was going to make it difficult for us all to reach the goals the company was trying to reach." (Tr. 143) The evidence does not indicate that Ms. Carroll was constructively discharged. Ms. Carroll admitted that when he had gone to talk to Mr. Haight that she did not say that she could not work with Mr. Perkins anymore. In fact, Ms. Carroll testified that she had told Mr. Haight that "even though I was questioning what he (Mr. Perkins) had said to this employee, I'd have to work with lots of different kinds of people, and I felt that I could continue to work with him." (Tr. 144-145) Ms. Carroll indicated that the reason she left the respondent was "I was concerned that if I brought another employee into the situation, tried to get them up to speed and train them, and if that person would run into some problems with Rich I'd be in the same boat all over again. But I never said that I couldn't work with him." (Tr. 145) Moreover, the complainant himself admitted that he took complaints from employees Tami Cook and Kayla White about interpersonal conflicts that they had with Mr. Perkins to Mr. Perkins and that there was no retaliation against them that he was aware of. (Tr. 106-107)

The complainant's allegations about Mr. Perkins' alleged discriminatory statements involving a black female candidate for a managing editor position also fails due to Wis. Stat., 904.04(2). The complainant contends, however, that he also wanted to use testimony about Mr. Perkins' alleged statements in this instance to impeach Mr. Perkins' testimony that he "knows the relevant employment laws and would not and/or did not break them, and that he would not make such a pronouncement of a `plan' to break the law to people who are not, to him, extremely close, long-term friends and trusted confidantes." Again, however, even assuming for purposes of argument that Mr. Perkins' alleged testimony involving the black female candidate should have been received, the record in this case fails to support a showing that the complainant's employment was terminated in retaliation for opposition to statutorily protected expression.

Also, as noted previously, Mr. Haight believed that Mr. Magnan should have been allowed to continue only because he believed that a valuable long-term employee should have been given a longer period of time to correct his behavior than had been allowed by the complainant.

The complainant also appears to argue that the evidence shows that the respondent's decision to terminate his employment was at least motivated in part by his oppositional activity. A finding that the respondent terminated the complainant's employment in part for retaliation for engaging in protected activity falls under the category of cases designated as "mixed motive" cases. A mixed motive case is one in which the adverse employment decision resulted from a mixture of legitimate business reasons and a prohibited discriminatory motive. Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994). The fact that an employer's action was based in part on a prohibited basis makes such action an unlawful employment action. The commission has held that there is nothing unique about retaliation issues, as opposed to conventional discrimination issues, that suggests that the "in part" test of causation should not be applied in those types of cases. Horton v. Hopkins Chemical Co. (LIRC, 06/08/92). The commission is satisfied, however, that no showing has been made by the complainant that the respondent terminated his employment in part based on any statutorily protected activity engaged in by him.

Finally, the complainant has argued that there was an abuse of discretion on the part of the ALJ in that he inappropriately excluded relevant, admissible evidence. The alleged relevant, admissible evidence that the complainant cites, however, involves the Mary Burnell complaint and Mr. Perkins' alleged discriminatory act with regard to the black candidate for a position as managing editor. The reasons for the exclusion of this evidence have been previously discussed above.

For all of the above-stated reasons, the Labor and Industry Review Commission has affirmed the administrative law judge's determination that the complainant has failed to show by a preponderance of the evidence that Magna Publications violated the WFEA by discriminating against him because of his opposition to what he perceived to be discriminatory practices with respect to Patti Ashford, Dennis Palzkill and Christine Hartelt.

cc: Paul S. Curran


Appealed to Circuit Court. Appeal dismissed for failure to prosecute, November 20, 2001. Appealed to Court of Appeals.  Dismissal affirmed in unpublished decision, November 14, 2002.

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Footnotes:

(1)( Back ) Acharya involved a claim arising under Title VII. As a general principle, however, Wisconsin courts look to federal decisions interpreting Title VII for guidance in applying the state Fair Employment Law. Moore v. LIRC, 175 Wis. 2d 561, 570, 499 N.W.2d 289 (1993).

(2)( Back ) With respect to hiring Ms. Ashford, the ALJ found that Mr. Perkins commented to Mr. Potts that "I' m not a homophobe or anything but I am not willing to deal with the problems we're going to have if we hire her," and that Mr. Potts responded stating that it would be illegal to refuse to hire someone based on a perception that the person was homosexual. With respect to hiring Mr. Palzkill, the ALJ found that Mr. Perkins told Mr. Potts that he did not want to hire him because he did not want to deal with the possibility that he would ask for time off in the summer for "guard duty," and that Mr. Potts responded stating that it would be illegal to refuse to hire someone because of that person's participation in the armed forces. As for Ms. Hartelt, the ALJ found that Mr. Potts wanted to pay Ms. Hartelt the same salary ($29,000) when she began working (December 31, 1996) that Mr. Perkins had offered Paul Steinbach for work as a managing editor but Mr. Perkins disagreed. The ALJ also found that in late January or early February 1997, when Mr. Potts recommended promoting Ms. Hartelt to the position of managing editor with a raise to $29,000, Mr. Perkins would only agree to the promotion, prompting Mr. Potts to state that it would be illegal to pay Ms. Hartelt and Mr. Steinbach differently if their jobs were the same.

(3)( Back ) Also, some of the testimony that the complainant claims to be hearsay actually goes to a question of the witness's personal knowledge of the matter he or she is testifying about. For example, the complainant includes as alleged hearsay Mr. Perkins and Ms. Long's testimony that they met with Ms. Hartelt after she submitted her February 14, 1997 letter of resignation. This is not hearsay. Mr. Perkins and Ms. Long would have firsthand knowledge of whether or not they had met with Ms. Hartelt.

(4)( Back ) Ms. Hartelt subsequently rescinded her resignation, apparently on February 20, 1997.

(5)( Back ) Ms. White also testified that she complained to Ms. Long that the complainant broke into her computer, and that she also talked to Mr. Perkins about this. (Tr. 230-231)

(6)( Back ) The complainant was home sick on February 17 and 18, 1997.

(7)( Back ) With respect to the complainant's contention that he requested Ms. Long's assistance in opposing alleged discrimination by Mr. Perkins, Ms. Long's testimony contradicts that contention. See transcript, pp. 186-187, 191-193.

(8)( Back ) The complainant called Ms. White as an adverse witness during his case-in-chief, however.


uploaded 2001/03/01