WANDA KRUEGER, Complainant
WISCONSIN DEPARTMENT OF TRANSPORTATION, Respondent A
WISCONSIN STATE PATROL, Respondent B
The Examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on November 10, 1981. Respondent filed a timely petition for review by the Commission and both parties subsequently filed written arguments with the Commission. An amicus curiae brief was also filed by the Wisconsin Department of Employment Relations after its petition to intervene was denied.
Wanda Krueger was hired by the State Patrol in the spring of 1975 and commenced her training at the State Patrol Academy in Tomah on March 3, 1975. She was part of the first group of women ever to be enrolled at the Academy. Of the 27 members of the recruit class, nine were women.
Krueger successfully completed her training at the Academy and sometime in June 1975 was assigned to the Madison District as a Motor Vehicle Inspector I. She continued in that position until January 1976 when she was promoted to Trooper I and assigned to District 5, headquartered in Tomah, Wisconsin. Her immediate supervisor was Sgt. Harold Spurgin, and her commanding officer was Capt. Goetsch. One other woman had already been assigned to District 5, Krueger's classmate at the Academy, Mary Ebben (nee Brockman). On her arrival Krueger was apprised of rumors then circulating that Sgt. Spurgin did not welcome the presence of women troopers and that he was concerned that two women had been assigned to his troop. When Krueger arrived at District 5 she and Ebben expressed a desire to live together but were informed by Sgt. Spurgin that they could not do so since Capt. Goetsch considered it improper. However, when Krueger received a commendation from Capt. Goetsch for apprehending a carload of violators by using her patrol car as a moving roadblock, she was told by Sgt. Spurgin that it was permissible for her to move in with Ebben. At least two male troopers were living together at the time Krueger and Ebben were denied permission to live together.
Both Wanda Krueger and Mary Ebben received an evaluation from Sgt. Spurgin dated March 7, 1976, covering the period from February 6. Both received generally good ratings except that for Category 8--"Social Sense" -- Sgt. Spurgin expressed concern that inter-troop conversations at troop meetings were tending "to get risqué and off-color at times and might be interpreted the wrong way by some individuals and if not discussed and remedied could possibly cause trouble within the organization." Both Krueger and Ebben questioned Spurgin's comment since neither was responsible for initiating the risqué talk, and neither participated in it directly. Spurgin's response was that Krueger and Ebben should have made it known to the male troopers that they were offended by such ribaldry, because that would have nipped it in the bud. He also reminded Trooper Ebben that the men were married. Troopers Krueger and Ebben felt that it was more important for them to fit in and that such squeamishness on their part would have been coldly received. Spurgin testified (see Jt. Ex. 6, p. 65, transcript of his testimony in Krueger's arbitration proceeding) that there "was a noted change in my troop, which was reasonable (sic) and for some reason the male troopers started acting kind of foolish at the troop meetings and were doing more off-color conversation and swearing and things they never did before."
Krueger and Ebben also noticed during that time that Sgt. Spurgin would frequently drive by their house slowly, which was noteworthy behavior on his part since he would have had to go out of his way to go by their house on his way to and from work. On one occasion Sgt. Spurgin asked Krueger what Ebben did with her nights and once asked whose car had been parked in their driveway one evening.
On another occasion Capt. Goetsch joined Trooper Krueger in her cruiser and asked her whether she often used her CB radio. Capt. Goetsch remarked that all of the truckers were talking about her on the CB and they seemed to know a lot more about her physical attributes than casual contact on the road would give them.
Trooper Krueger distinguished herself during her time in Tomah by being chosen district photographer and winning a marksman award in the district in September 1976.
In June 1976 Trooper Krueger, who was unmarried, had an abortion in Madison
On October 1, 1976, while she was assigned to patrol the interstate somewhere between Tomah and Black River Falls, Krueger had a minor accident in her unmarked cruiser. She had left her sector for a period of approximately 15 minutes for the purpose of viewing a piece of property which she was thinking about purchasing. As she was leaving the area where the property was located she struck a post, putting a dent low on the left front fender and scratching off some paint. The damage was eventually repaired for about $51.
Because Trooper Krueger was out of her sector on personal business at the time the accident occurred, she did not report it immediately. Instead, she acquiesced in her boyfriend's offer to fix the dent by the use of a plunger. His endeavors only made the damage more noticeable because he inadvertently bent the chrome strip. Ms. Krueger decided then to contact an auto body and parts store in Eau Claire. Using an alias, she ordered a new chrome strip for the vehicle on October 4, 1976. She was on vacation from October 8 through October 16, 1976 and on October 19, 1976 she obtained the chrome strip which her boyfriend put on the patrol car the next day.
On October 21, 1976 Ms. Krueger told Sgt. Lind that she had been involved in an accident in which damage had resulted to her cruiser. Sgt. Lind instructed her to make a written report of the accident. Her written report was submitted on the same day and stated not only that the accident had occurred on October 7, 1976, rather than October 1, but also that she had incurred the damage while turning into a farm field entrance for the purpose of reversing her direction in order to pursue another vehicle being operated erratically. She further recited that she did not notice that any damage had occurred to her vehicle until the morning of October 21 when she picked it up from Kisslinger's in Black River Falls where she had taken it for a speedometer problem. Sgt. Lind wrote a memo to Capt. Goetsch dated October 22, 1976 in which he stated that the damage to Trooper Krueger's cruiser was very minor, being only a scratch about 10 inches long located behind the left front wheel, along with a small dent about the size of a half dollar near the scratch. In his opinion, repair was unnecessary, but Capt. Goetsch directed that the damage be repaired.
On or about December l or 2, 1976, Sgt. Spurgin, who had been reassigned in place of Sgt. Lind as Krueger's supervisor, talked to Ms. Krueger about her assigned patrol car having been at the repair shop in Black River Falls an inordinate length of time. He directed her to see about getting the car back in service.
At the same time Sgt. Spurgin inspected the car and noticed what appeared to be a new chrome strip in the damaged fender area. Sgt. Spurgin then asked the District Office in Eau Claire to determine whether or not a similar chrome strip had been purchased from any dealer in the area prior to that date and within the time period covered by the approximate reported date of the accident.
On December 14, 1976 the Patrol learned that the chrome strip had been purchased from a Dodge dealer in Eau Claire, Wisconsin, by a person named Sharon Roberts on October 4, 1976, three days before the date Trooper Krueger indicated to Sgt. Lind, in her October 21 memo, that the accident had occurred.
Krueger was ordered to attend a conference at 8:00 a.m. on December 14, 1976, involving Capt. Goetsch, Sgt. Spurgin, Lt. School and Krueger's union representative, Trooper Singleton. The meeting lasted approximately 2-1/2 hours and focused primarily on Trooper Krueger's rumored abortion, although approximately, one-third of the time was spent on her fleet accident. Trooper Krueger had no notice as to the topics to be discussed at the December 14 conference. During the course of the meeting, Trooper Krueger informed Capt. Goetsch that she had not slept since 7:00 a.m. the previous morning, December 13, as a result of having had a change in shifts.
Capt. Goetsch began the December 14 interrogation of Krueger by informing her that rumors had reached him "through the grapevine" that Krueger had had an abortion. He asked her to respond. Krueger refused to answer until given a direct order to do so by Capt. Goetsch. Goetsch had informed Krueger that the Patrol was not interested in the abortion itself but in the possible violation of the state law against fornication and the consequent violation of Patrol rules requiring troopers to obey all state laws. He disavowed any intention to proceed criminally. After asserting her constitutional right to remain silent, Krueger in response to Capt. Goetsch's order, admitted having an abortion in May or June, 1976, though she could not remember the exact date. Goetsch ordered her to check her records and provide the exact date of the abortion to Sgt. Spurgin. Goetsch asked her whether the sexual relations which resulted in the abortion had involved another Bureau employe, to which Krueger responded in the negative. Before turning the questioning over to Lt. School and Sgt. Spurgin, Goetsch asked her whether she wished to make any comment about the abortion itself. Krueger declined. Lt. School and Sgt. Spurgin then proceeded to ask Krueger where the abortion was performed, what hospital, how it was paid for, the approximate age of the fetus, and, when Kreuger professed not to remember the age of the fetus, whether her inability to recall the age of the fetus was a result of a faulty memory or because the persons performing the abortion had neglected to tell her.
At the conclusion of this questioning Capt. Goetsch ordered Krueger to affirm in writing the responses she had just made. He then told her that there was a very high probability that disciplinary action would result from the reports they would send in to Madison.
Krueger was then questioned about the fleet accident. She gave the responses as detailed in her memo dated December 14, 1976. In this, her second memo--which she was ordered to write before leaving the building on December 14--she recited that the accident occurred as stated previously by turning around in a farm field driveway to pursue another vehicle. She stated that her friend offered to pull out the dent by using suction but bent the metal strip causing irreparable damage to the strip. Trooper Krueger further stated that she became frightened at this point and went to Eau Claire to buy a replacement strip, and further, that she did not originally report the accident because she did not think it was noticeable but became frightened at the possible consequences and reported the dent immediately after.
After the conference on December 14, wherein Ms. Krueger had expressed some doubt as to the exact date of the accident, Trooper Krueger told Lt. School that she had made a mistake regarding the date of the accident, to which Lt. School responded by saying that he didn't believe anything she said at this point and that they would have another meeting. Thereupon, Trooper Krueger prepared another memo, the third, on December 15, which appears in the file as Ex. 13. (Ex. 13 is dated December 14, 1976 but all parties agree that it was submitted on December 15.) In Ex. 13 she admitted that the accident did not occur on October 7 as she had originally stated but that it occurred the week before, on September 30 or October 1. She further recited that she had identified the date of the accident to be about one week later because she was afraid she would be disciplined for being off highway when she was scheduled for interstate. She explained that she did not identify the correct date at the December 14 interrogation because she was tired from lack of sleep after just getting off midnight shift and was still frightened.
In a memo dated December 16, 1976, to Major Sterba, Capt. Goetsch requested the Major to "do everything possible to have Trooper Krueger's position with the Enforcement Bureau terminated as soon as possible." The recommendation was based on Krueger's "conduct leading to the abortion of a fetus."
Another interview was set up for December 21, 1976. On December 20, 1976 Capt. Goetsch and Lt. School examined the area in question from Sgt. Lind's residence to I-94 on CTH "B." He and Lt. School discovered that no field driveway existed in this area where the accident could have happened as described by Trooper Krueger except about one-tenth of a mile east of the junction with CTH "G". However, because the eight-inch post located at this driveway showed no marks to indicate that it had been recently struck, Capt. Goetsch and Lt. School agreed that this driveway could not have been the site of Trooper Krueger's accident.
The same parties were present at the December 21 conference as attended the December 14 conference. After being confronted with the results of the investigation by Capt. Goetsch and Lt. School regarding the location of the accident, Krueger admitted that the accident had not occurred on CTH "B" but on a town road near an 80-acre piece of property that she was interested in purchasing. She had struck a post on the left side of the driveway at the entrance to the 80-acre property.
Trooper Krueger reasserted that she had not told the truth immediately because she was afraid of what would happen to her and that she had not told the truth at the December 14 conference because she was suffering from lack of sleep and had a difficult time recalling the facts.
Capt. Goetsch's conclusion was that Krueger "is a pathological liar and would not hesitate to lie to cover up any such incidents in the future as well as the possibility of lying while testifying in order to win a case." Capt. Goetsch recommended to Major Sterba that Trooper Krueger's position with the State Patrol be terminated as soon as possible. In Capt. Goetsch's December 23 memo to Major Sterba, he made no mention of Krueger being questioned about her abortion at either the December 14 or the December 21 conference.
At the December 21 interrogation Capt. Goetsch again asked Trooper Krueger about her abortion, specifically, if her conception of a child leading to her abortion in June 1976 occurred because she had been raped or if she had been artificially inseminated. She replied "no" to both questions. Goetsch noted this fact at the bottom of his December 16 memo in a note dated 12/22/76. Goetsch again ordered her at the December 21 conference to tell Spurgin the exact date of the abortion by December 25, because she had not yet done so in spite of his previous order. In accordance with that order, Trooper Krueger phoned Sgt. Spurgin on December 25 and informed him that she would not divulge the information. on December 29, Sgt. Spurgin requested Trooper Krueger to write a memo stating that she refused to give the date of the abortion.
At the December 21 conference Capt. Goetsch went off the record (i.e., turned off the tape recorder) and stated to Krueger: "Well, you seem to be remorseful or sorry for the fleet accident but not for the other matter." Ms. Krueger replied: "Sir, I don't think I have to be remorseful for the other matter."
Goetsch's two memos recommending Krueger's termination were passed on to Department of Transportation Personnel Director Roslak on December 28, 1976. All disciplinary actions beyond a written reprimand had to be cleared with his office. Roslak did not pass on to Secretary Rice's office Goetsch's request for Krueger's discharge for "conduct leading to the abortion of a fetus." As early as February, 1976 Secretary Rice had made it known that private, sexual activity not directly affecting the image of the State Patrol would not be considered an appropriate basis for disciplinary action against state troopers. Secretary Rice's decision was made in a case involving a male trooper whose sexual conduct was the subject of a disciplinary report by Lt. Klug to Major Lacke dated February 13, 1976. This policy directive, which according to Roslak was not a policy change but a clarification, was communicated shortly thereafter by Deputy Secretary McGown to Personnel Director Roslak and by Roslak to the director of the State Patrol, Colonel Versnik.
In late December 1976, after Capt. Goetsch had submitted both of his memos recommending Krueger'sdischarge, Sgt. Spurgin was ordered, presumably by either Capt. Goetsch or Lt. School, to investigate the "nasty rumors that were going around" concerning Ms. Krueger's off-duty activities. (Jt. Ex. 6, p. 67) Sgt. Spurgin thereupon contacted Osseo Chief of Police David Frederick. Sgt. Spurgin asked Chief Frederick what he knew about Trooper Krueger, to which Chief Frederick responded, "Nothing." (Jt. Ex. 5, p. 3) Spurgin asked Chief Frederick about Trooper Krueger's reputed involvement with an officer of the Osseo Police Department, about which Chief Frederick professed to know nothing other than that he had heard rumors. Spurgin requested Chief Frederick's assistance in ferreting out the truth of these rumors, but Chief Frederick preferred not to render such assistance. Sgt. Spurgin then asked Chief Frederick's permission to talk with Officer Davy of the Osseo Police Department, which Chief Frederick extended. Further, the sergeant inquired of Chief Frederick whether officer Davy's wife was the type who might assist the investigation by giving a statement, and further whether Chief Frederick would ask Officer Davy's wife for such a statement, which Chief Frederick refused to do. (Jt. Ex. 5, p. 6)
Sgt. Spurgin met with Officer Davy on an unspecified date in early January, 1977. He indicated a desire to talk to Officer Davy in general about the female troopers who lived in town, that is Wanda Krueger and Mary Ebben, though he mentioned only Wanda Krueger by name. He wanted to know if officer Davy had heard any rumors or if he knew anything about the behavior of Wanda Krueger. Officer Davy told Sgt. Spurgin that he knew nothing about the rumors. Sgt. Spurgin then asked Officer Davy if he had been over to Wanda Krueger's house, to which Officer Davy responded that he had not been except to pick up a police scanner. Spurgin then told Officer Davy that if he could get somebody to say one thing for sure against these "girls," that it would really help them out, and further that if he could just get one thing pinned on Wanda Krueger that he would be done with it. Spurgin confided to Davy that Krueger was giving him a lot of trouble. He added that he had heard that a lot of men were going to see her and that they had experienced a lot of trouble with her and the men at the Academy during training. On leaving he asked officer Davy to relay any names of troopers or other law enforcement officials that he might see going in or out of Wanda Krueger's house.
Sgt. Spurgin told Krueger at a meeting between the two of them on January 9, 1977 that other troopers did not like her and none wanted her to back them up in an emergency. Further, he told her that everyone from Green Bay to Madison to Eau Claire was talking about her abortion and that she was notorious. He also told her that she was "digging a hole for herself."
Roslak approved Krueger's discharge on the fleet accident and cover-up and sent the file, absent any information about the investigation into her private life, and hence any information about the intertwining of the two investigations on December 14 and December 21, to Secretary Rice for his approval.
The letter of termination, drafted by Col. Versnik on January 10, 1977 and approved by James Peterson (Administrator of the Division of Motor Vehicles and the civilian head of the State Patrol) and by Secretary Rice, on January 18, 1977, was given to Krueger on January 19, 1977. The letter stated as reasons for her discharge that she had attempted to cover up an accident which she initially failed to report to her supervisor and which occurred while she was out of her sector without permission for the purpose of using a state-owned vehicle for personal business.
Krueger grieved her discharge. Following a February 23, 1977 hearing, Arbitrator Robert J. Mueller issued an award and opinion dated June 13, 1977 (Ex. 89) wherein he determined that the employer had just cause for the termination of Trooper Krueger. On April 21, 1977 Examiner Peter Zeeh issued an Appeal Tribunal Decision denying Wanda Krueger unemployment compensation benefits on the grounds that she had been discharged for misconduct connected with her employment.
The policy of the State Patrol was that each trooper was required to check with the dispatcher when leaving his or her assigned sector if he or she would be gone for more than 15 or 20 minutes. The trooper was also required to check with the dispatcher on returning to the sector. Troopers did leave their sectors for 10 or 15 minutes for personal reasons which was not considered improper.
On the evening of January 22, 1976 Trooper Wyss was at the wheel of a 1969 green Toronado registered in his wife's name, in which Trooper Singleton, Black River Falls Police Officer Mark Holmgreen, and Jackson County Deputy Sheriff James Haldeman were passengers. The four were heading back to Black River Falls after having attended a traffic law institute at State Patrol Headquarters in Tomah. At 9:48 p.m. Trooper William Humphreys clocked that same green Toronado cruising down I-94 in excess of 80 miles per hour. Trooper Humphreys gave chase in his marked squad and soon accelerated to 132 miles per hour in an effort to overtake the vehicle. It appeared to him that the vehicle was trying to "run."
During the chase Trooper Humphreys radioed for assistance (the nearest trooper, who was 40 miles away, was ordered to proceed to Humphreys' location) and also for a 1028 (motor vehicle registration check). The vehicle left I-94 by going up the Highway 54 exit ramp, at the top of which the vehicle failed to obey the stop sign, according to the information Humphreys radioed in. With Trooper Humphreys in pursuit, the green Toronado finally pulled into the driveway of Perkins Restaurant and Trooper Humphreys, "surmis[ing] that he had a car full of native Americans heading for the Winnebago Indian Mission" (see Sgt. Spurgin's Feb. 7 Resume of Interview with Trooper Humphreys), approached the vehicle "cautiously with his hand on his revolver," whereupon he recognized Trooper Wyss behind the wheel. Trooper Humphreys commented to Trooper Wyss "Christ, Dick, you were speeding." When Trooper Humphreys told Trooper Wyss that he had requested a 1028, Trooper Wyss swore at him. Trooper Humphreys then went back to his squad and radioed to the dispatcher to cancel the 1028 because he had stopped the wrong vehicle and had lost sight of the vehicle on which he requested the 1028. The dispatcher, P.C.O. Lynn Butner, had meanwhile received the information on Trooper Humphreys' 1028 and noted that the vehicle belonged to Trooper Wyss's wife. Humphreys was suspended for 13 days for not revealing the incident until questioned by Sgt. Spurgin and for omitting from his first report his cancellation of the 1028.
Trooper Wyss was terminated on the recommendation of Capt. Goetsch for the high speed chase and subsequent attempt to cover up the incident, as detailed in Capt. Goetsch's memo to Major Sterba dated February 7, 1976 entitled Request and Justification for Disciplinary Action Against Richard Wyss. Two distinctive disciplinary breaches are identified: "(1) The intentional, preplanned 'sucking out' of Trooper Humphreys and the subsequent high speed chase, and (2) the planned withholding and falsification of information and cover-up attempt following the incident:" (Memo, p. 3) Specifically, Trooper Wyss was charged with having threatened and interfered with Trooper Humphreys by directing abusive language at him for his having been so "stupid" as to call in a registration check on his vehicle. Wyss was also charged with having attempted to minimize or prevent possible disciplinary action by telephoning the dispatch officer, Butner, at about 12:30 a.m. on January 23, just following the incident, and questioning him about what was on the radio communication log and whether his license number was on the log. Wyss asked the dispatch officer if anybody had looked at the log and if anyone would know what had happened without checking the tape of the radio communications. Wyss further commented to Butner that if they didn't hear anything by the following Monday they would probably be in the clear and if they heard nothing for 30 days, the tape of the communications would have been disposed of and they could then lie like hell. (See P.C.O. Butner's Incident Report- to Capt. Goetsch dated January 26, 1976.)
Trooper Wyss also inquired of Butner's relief person, Kenneth Stubbs, later in the morning of January 23, whether he thought Butner was going to say anything. Wyss further inquired of Stubbs if his license number was on the radio log and Stubbs said yes. (See Stubbs' Incident Report to Capt. Goetsch dated January 30, 1976.) Trooper Wyss also wrote two memos on the incident, both dated January 30, 1976, one to Sgt. Spurgin and one to Capt. Goetsch. Wyss was interrogated on January 27. In the resume of that interview Capt. Goetsch concludes that Trooper Wyss did not tell the truth in many instances, and omitted much of the pertinent information relating to the incident by "not remembering." Throughout the interrogation Wyss did not admit any attempt to cover up the incident. He stated that he had told the truth to the best of his knowledge and had not knowingly omitted anything.
Following the incident Wyss and Singleton went to Singleton's residence where a call was placed to the house of P.C.O. Butner, and a message left for him to return the call when he got home. Because Butner surmised the purpose of the call, he got in touch with Capt. Goetsch for instructions before returning the call at 12:30 a.m. Butner first talked to Singleton who inquired whether a duty sergeant had been present when Humphreys reported the incident on the radio.
Singleton was interrogated about the incident on January 27, 1976. According to Capt. Goetsch's report, Singleton professed not to recall a conversation at the District Headquarters in Tomah that immediately preceded the incident, in which police officer Holmgreen remarked to their training class instructor that it would take the four of them only 15 minutes to get back to Black River (normally about a 40-minute drive from Tomah). Nor could Singleton recall that a warning was then issued by the instructor to the effect that they could not afford to get into trouble.
Trooper Singleton admitted participating in six meetings with others involved in the incident in the days following for the purpose of discussing what was to be done. He did not, however, reveal his meeting with Trooper Humphreys at Humphreys' residence on Sunday, January 25, for the purpose of discussing a plan of action, nor did he admit any knowledge of the substance of Wyss' conversation with P.C.O. Butner on the night of the incident. In the opinion of Capt. Goetsch, Singleton deliberately tried in the interview to minimize the severity of the incident.
Trooper Singleton submitted two memos on the incident, the first ordered by Sgt. Spurgin on January 25, 1976 and the second, dated January 30, 1976 ordered by Capt. Goetsch. Trooper Singleton's first memo contains only one paragraph providing substantive details about the incident. Trooper Singleton states therein that he believes Trooper Wyss was above the speed limit at the time they passed Humphreys' squad car, but he professes not to know exactly how fast he was traveling. The January 30 memo is slightly more than a page long but contains few additional details. He admits therein that he noticed Wyss was traveling in the mid-70's. He does not mention Wyss' comments to Humphreys when they got stopped. About the call to P.C.O. Butner he says only that he heard Wyss tell Butner not to lie. He does not mention anything about Wyss' attempt to elude Humphreys. On February 6, 1976 Singleton was given a chance to elaborate on his two previous memos and his oral statements at the conference. He declined to add any further details.
In his memo to Major Sterba dated February 7, 1976 entitled Request and Justification for Disciplinary Action to be Directed to Trooper II John D. Singleton, Capt. Goetsch notes that Trooper Singleton had committed two distinctive disciplinary breaches:
"(1) The intentional failure to act to stop the continuing statutory violations on the highway and the 'horseplay' situation that exposed Trooper Humphreys, other highway users and the other occupants of the Trooper Wyss auto to extremely hazardous personal injury/fatal risks . . .
(2) The planned withholding and falsification of information and cover-up attempt following the incident." (p. 3)
Although Capt. Goetsch recommended that Trooper Singleton be discharged, he ultimately received a four-week suspension after Personnel Director Roslak refused to approve Goetsch's recommendation.
At the hearing, Roslak, after agreeing that Singleton had been involved in a cover- up, asserted that a distinction should be made between an actual cover-up, as in Krueger's case, and Singleton's conduct of merely assisting in a cover-up. He drew a further distinction in discussing Humphreys' behavior between distorting the facts and not revealing the facts. He could not recall whether or not Singleton had ever fully revealed the facts within his knowledge.
Secretary Rice's only involvement in the Wyss/Singleton/Humphreys matter was to review the discharge decision regarding Wyss.
1. Trooper Pugens
In July of 1969 Trooper Pugens hit a delineator pole on the highway with his cruiser. He damaged the left front fender and scraped some paint off the cruiser. He had a friend do a touch-up job where the paint had been scraped off. He did not report the accident at that time. During a monthly squad inspection Sgt. Collins noticed the damage and brought it to the attention of Pugens. Since the car had been assigned to a few other people after the accident, Trooper Pugens denied any knowledge of the accident when it was brought to his attention. When Trooper Pugens received a 30-day suspension he resigned from the State Patrol because he felt that the penalty was too severe.
When former Trooper Adolph Czechowicz, the fleet safety officer who was assigned to investigate the damage to Pugens' cruiser, contacted Trooper Pugens about the damage, he first denied any knowledge of it. Then he responded that it might have happened at May's Restaurant while he was eating and the car was parked in the lot. Pugens speculated that someone had accidentally backed into it and used Black Magic on the fender and sprayed blue paint over the area where the paint had been scratched off. Pugens then told Czechowicz that possibly his brother could have moved the squad car while it was parked in the driveway at his home, but again Czechowicz was unconvinced. According to Czechowicz, Pugens told a similar story to his superiors, Capt. Jorgenson and Sgt. Collins.
Czechowicz finally told Pugens that he was going to be filing his report and it would be better for him to tell the truth now. Czechowicz held his accident report back a week because he knew Pugens was not telling the truth. Finally Czechowicz was instructed to send in the report and he told Pugens that if he would tell him the truth he would submit it as the first story and forget about the other two false statements. Czechowicz sent his report into Madison relating Pugens' story about May's Restaurant.
Two or three nights after Czechowicz submitted his report Pugens contacted him about the accident but Czechowicz told him to talk to Sgt. Collins. Pugens admitted to Sgt. Collins that he had struck a steel post in a median strip on I-94 and had it fixed up on his own. A period of two to three weeks passed between the time he was assigned to investigate the accident and the time Pugens finally admitted the facts.
Pugens never filed any false written reports himself because he was not asked to submit any.
2. Sgt. Lovas
Sgt. Robert Lovas, stationed at District 2, was given a 20-day suspension from duty without pay on January 16, 1974. for his involvement in, and subsequent cover-up of, a cruiser accident which occurred on the morning of November 12, 1973 while he was returning to Camp McCoy from the oasis Supper Club, where he had one brandy old-fashioned before dinner and four more brandy old- fashioneds after dinner, all of which were consumed during a period from 8:00 P.m. to 12:30 a.m. Sgt. Lovas was charged by Major Litkey with the following acts of misconduct (Major Litkey's memo to Col. Versnik dated November 27, 1973):
"The chain of events beginning with his drinking at Oasis Supper Club, accident, failure to report from scene or to check accident scene, entrance onto Ammo Road to check damage to cruiser when most lighted area was at main gate, falsification of accident location, leaving Academy to attempt to locate accident scene, subsequent departure from Academy without properly notifying duty sergeant and use of cruiser he was advised not to take . . ."
Major Litkey further charged that Sgt. Lovas had also attempted to cover up the incident the next morning when he removed the wooden guard post he had struck with his cruiser. The post was found "hidden behind a pine tree well away from the accident scene . . ."
Further, Major Litkey did not believe Lovas' story that a deer on the road caused the accident: "When I informed Sgt. Lovas that no deer tracks were located by the accident investigators he made no issue of it." Major Litkey concluded that Lovas' drinking had caused the accident.
As a basis for recommending to Col.Versnik that Sgt. Lovas be given a suspension as opposed to some other type of discipline, Major Litkey urged the following reflections on Col. Versnik:
"We certainly can't condone the drinking and driving by the Sergeant which in turn apparently created all of the other problems. By the same token we have every right to expect more from a sergeant, especially one on probation. Everything being considered it appears that a demotion is justified. However, I have a feeling that we can salvage Sgt. Lovas and not destroy him as a demotion might do. My recommendation is that he be given a 20-working day suspension for his involvement in this incident." (p. 6)
The Commission will deal first with the procedural arguments raised by the Respondent Department of Transportation (DOT) and the Department of Employment Relations (DER) which submitted an amicus curiae brief arguing that Examiner Doll's decision should be reversed.
DER argues that the Equal Rights Division of the Department of Industry, Labor and Human Relations (DILHR) and the Labor and Industry Review Commission (LIRC) have no jurisdiction over Ms. Krueger's complaint, because she was a represented employe covered by a collective bargaining agreement containing a binding and exclusive grievance arbitration procedure to which she resorted and which resulted in an arbitrator's award establishing that just cause existed for her discharge. DER argues as follows:
1) Section 111.92, Wis. Stats. -- which provides that collective bargaining agreements between the Department of Administration and state employe unions are to be enacted as session laws by the Legislature -- and
2) Section 111.93, Stats. -- which provides that if a labor agreement exists between the state and the union, the provisions of such agreement shall "supersede such provisions of civil service and other applicable statutes related to wages, hours and conditions of employment whether or not the matters contained in such statutes are set forth in such labor agreement" (emphasis added) -- along with
3) The provisions of the collective bargaining agreement in effect at the time of Trooper Krueger's dismissal -- which provide that an arbitrator's decision will be final and binding on both parties and that the grievance procedure set out in the agreement shall be exclusive and "shall replace any other grievance procedure for adjustment of any disputes arising from the application and interpretation of this agreement" --
when read together can only be interpreted to mean that the Legislature has not consented to the jurisdiction of DILHR and LIRC over a discrimination complaint by a represented employe such as Wanda Krueger.
DER has neglected, however, to discuss the relevance of what the Commission considers to be the most significant provision of the collective bargaining agreement covering Ms. Krueger. (See Jt. Ex. #7 -- Agreement Between AFSCME, Council 24 and State of Wisconsin, September 14, 1975 -- June 30, 1977) Article XI, Section 1 -- Discrimination, par. 123, p. 45, of that agreement states as follows: "Employes covered under this agreement shall be covered by Wis. Stats. ss. 111.31-111.37 (State Fair Employment Act) as amended by Ch. 31, Laws of 1975."
This paragraph of the agreement does not distinguish between the substantive provisions of the Fair Employment Act and the procedural provisions. This provision seems to be a clear statement that the represented employes covered under this particular collective bargaining agreement can indeed invoke the jurisdiction of the Equal Rights Division of DILHR and LIRC. In the face of this provision the Commission cannot agree with DER's assertion that the parties intended to rule out resort to the Equal Rights Division by the covered employes, or that the Legislature intended to do the same when it enacted this agreement as a session law pursuant to s. 111.92. In the face of this specific provision, the more general statement contained in s. 111.93 cannot be considered controlling.
DER also urges LIRC to accept the arguments put forth by DOT that Alexander v. Gardner Denver Co., 415 U.S. 36 (1974), is not compelling on the issue of whether the Legislature intended to restrict resolution of disputes of this type to the grievance arbitration process rather than the equal rights process. Further, DER would have the Commission accede to DOT's argument that the doctrines of res judicata and/or collateral estoppel require a decision by the Commission that no discrimination occurred, in view of the findings and conclusions of both the arbitrator and the unemployment compensation hearing examiner. The Commission will take up each of these arguments separately.
DER is quite correct in arguing that the U.S. Supreme Court's decision in Alexander v. Gardner Denver is not binding on the courts and administrative agencies of the State of Wisconsin. Whether or not the Commission chooses to follow the Alexander decision will depend on the persuasiveness of the Supreme Court's opinion and the presence or absence of any distinguishing factors. In Alexander the Court held that an employe's statutory right to a trial de novo under the Equal Employment provisions of the Civil Rights Act is not foreclosed by prior submission of the claim to final arbitration, even where the collective bargaining agreement in effect contains a nondiscrimination clause. DER argues that because the Alexander case involved a contract between a labor organization and a private employer and did not involve any statutes or other legislative action that restricted the jurisdiction of the court or agency charged with administering the equal rights act, the principles of Alexander do not apply. The Commission is not persuaded by this argument because the Commission does not believe, as discussed above, that the jurisdiction of DILHR or LIRC has in fact been so restricted by any statutes or other legislative action.
DOT's brief suggests that the Alexander decision should not be applied in the Krueger case to avoid the doctrines of res judicata and collateral estoppel, because the Alexander decision rests on the U.S. Supreme Court's interpretation of the structure of Title VII and the legislative history of the federal act, neither of which can have any relevance for an interpretation of Wisconsin's Fair Employment Act. DOT's brief neglects to mention, however, the many other reasons given by the Court for its conclusion that an arbitrator's prior finding of just cause does not foreclose an employe from obtaining a trial de novo in federal court on a discrimination claim. Those reasons are in brief: (1) the doctrine of election of remedies is inapplicable in this context, which involves statutory rights distinctly separate from the employe's contractual rights under a collective bargaining agreement, regardless of the fact that violation of both rights may have resulted from the same factual occurrence; (2) by merely resorting to the arbitral forum the petitioner has not waived his cause of action under the fair employment law, because the rights conferred thereby cannot be prospectively waived and form no part of the collective bargaining process; (3) an arbitrator's authority is confined to resolution of questions of contractual rights, regardless of whether they resemble the rights conferred by the fair employment statute; (4) in instituting an equal rights action, the employe is not seeking review of the arbitrator's decision but is asserting a right independent of the arbitration process based on the fair employment law; (5) a policy of deferral by the court or agency to arbitral decision would lead to an undue emphasis on the law of the shop rather than the law of the land.
Based on these reasons, all of which are relevant to the issue facing the Commission herein, the Commission finds the Alexander decision persuasive and therefore must reject DOT's argument that the arbitrator's decision in the Krueger matter precludes DILHR or LIRC from examining de novo the issue of whether or not Ms. Krueger was the victim of disparate treatment. (1) The Supreme Court did state in Alexander that it is proper in considering an employe's equal rights claim to admit the arbitral decision as evidence and to accord it such weight as may be appropriate under the facts and circumstances of each case.
In Becton v. Detroit Terminal of Consolidated Freightways, 22 PEP 1655 (E.D. Mich. 1980), the district court interpreted Alexander as carving out only a narrow exception to the general rule finality of arbitral decisions: "It refuses to accord finality to an 'arbitrator's' decision on the ultimate issue of discrimination when that issue is presented to a court under Title VII." 22 FEP at 1658. Because the district court did not set out the facts of the case in Becton with any specificity, it is difficult to assess the persuas veness of the court's opinion. The plaintiff apparently did not present any evidence of dissimilar treatment but was claiming that his discharge must have been racially motivated because he had not violated any company rules for which discharge was a possible penalty. The court considered the arbitral finding of just cause to be binding on this claim by the plaintiff. Krueger does not frame her discrimination claim in the same manner. She does not challenge any of the arbitrator's findings of fact relating to the fleet accident and cover-up. She concedes that her conduct may well have justified her discharge, if other male troopers had not been treated less severely for acts against the employer of comparable seriousness. She thus mounts a different kind of attack than that rejected in Becton.
The Commission has carefully considered Arbitrator Robert J. Mueller's Award and Opinion. (Ex. 89) The commission has taken especial note of two of his findings: (1) that the Krueger discharge contained no reference to any matters relating to the investigation concerning Krueger's private life (p. 12); and (2) that none of the examples presented by the Union concerning discipline meted out to other employes were comparable to the fact situation in Krueger's case. (p. 13) Both of these findings are at the very heart of Krueger's discrimination claim. Were the Commission to accord final and binding effect to them, there would be nothing left to decide. In Becton the court recognized that the plaintiff must be permitted, under the doctrine of Alexander v. Gardner Denver, an opportunity to show that the employer's presumably valid reason for discharge of the plaintiff was a pretext for illegal discrimination. Since Arbitrator Mueller's above two findings go directly to the issue of pretext, and are conclusory in nature rather than strictly factual, the Commission does not believe that they must be given binding effect, even under the Becton rule.
Although it is true that the discharge letter ultimately issued to Krueger makes no reference to the investigation concerning her private life, the arbitrator's Award and Opinion contains no mention whatsoever of the intertwining of the two investigations in the Krueger case -- the one into her private life and the one into the fleet accident and cover-up. The tapes of the December 14 and December 21 conferences reveal that the investigations were being pursued simultaneously. Capt. Goetsch wrote two memos recommending discharge, both of which reached Roslak for his review on the same date. Moreover, the investigation into Krueger's private life was pursued by Sgt. Spurgin right up to the date Col. Versnik drafted the discharge letter of January 10, 1977.
Further undercutting the Commission's confidence in the first arbitral finding noted above, is the arbitrator's statement that an investigation into an employe's private life, where it is not shown "to have been made in other than good faith by the employer . . . should be allowed." (p. 11). Leaving aside for the moment the question of the Patrol's good faith in conducting the investigation into Krueger's private life, the Commission questions the arbitrator's general assertion, especially in view of the Wisconsin Supreme Court's recent decision in Oddsen v. Board of Fire and Police Commissioners, 108 Wis. 2d 143 1982). For these and other reasons that will become apparent, the Commission has not deemed it appropriate to give overriding weight to Arbitrator Mueller's decision.
DOT argues that Krueger failed to establish a prima facie case in that she did not show that she was replaced by a male trooper. As Professor Larson points out, "In discharge cases, whether the plaintiff must show that he was replaced by a person not a member of the same minority or sex has been a major source of controversy." Section 50.31(f), p. 10-26, Vol. 2, Employment Discrimination. The Wisconsin State Patrol does not hire persons for particular assignments but rather hires a class of recruits and then assigns them to various districts throughout the state according to the needs of the Patrol. Since there is no suggestion that Krueger was discharged because her job was eliminated, the Commission does not regard this element as crucial to her establishment of a prima facie case. The crucial showings have been made by Krueger, namely that she was in fact discharged even though in general she was performing her duties as a State Trooper satisfactorily, and further that male Troopers Singleton and Humphreys, among others, had only been suspended for attempted cover-ups whereas she was discharged under apparently similar circumstances.
Once Krueger established a prima facie case the burden shifted to DOT to articulate a legitimate nondiscriminatory reason for her discharge. Texas Dept. of Community Affairs v. Burdine, 25 FEP 113 (Sup. Ct. 1981). DOT met its burden by the introduction of evidence tending to show that Krueger was discharged because she was engaged in a cover-up attempt and persisted in that cover-up by lying to superiors when questioned about the underlying incident, to such a degree that her credibility as a trooper was irreparably damaged.
At this point the burden shifted back to Krueger to prove by a preponderance of the evidence that the reasons articulated by DOT for discharging her, and not other male troopers, were a pretext to conceal the fact that sex was a factor in her discharge. McDonnell Douglas v. Green, 5 FEP 965 (Sup. Ct. 1973); McDonald v. Santa Fe Trail Transp. Co., 12 FEP 1577 (Sup. Ct. 1976).
Some of the ways of proving pretext were set out by the U. S. Supreme Court in McDonnell Douglas v. Green, supra. Relevant evidence to any showing of pretextuality would include facts as to the employer's treatment of complainant during his or her term of employment, and the employer's general policy and practice toward members of complainant's class. Especially relevant to such a showing, the Court noted, would be evidence that employes not of the same protected class as the complainant, were retained in spite of being involved in acts against the employer of "comparable seriousness."(2) Additionally, a showing that the evidence to support the employer's articulated reason was not advanced until "after the fact" would also be relevant, as would a showing that actions taken against the complainant were not a matter of regular policy. See Foster v. Simon, 467 F. Supp. 533 (W.D. N.C. 1979); Herrington v. Abington School District, 19 FEP 1096 (E.D. Pa. 1979); Johnson v. Univ. of Pittsburgh, 359 F. Supp. 1002 (W.D. Pa. 1973 . See also Larson, Employment Discrimination, Vol. 2, s. 50.33, p. 10-39. And certainly, any direct evidence of bias might also be considered relevant in showing pretext. See Larson, supra, s. 50.73(c), p. 10-88.
Initially, the Commission notes with regard to the employer's general policy and practice toward female troopers, that Krueger was part of the first recruit class to include women. Although the Commission has not drawn any inference directly from that fact, the Commission does regard it as important evidence to be considered when finally weighing the evidence in its entirety.
The entire matter of the employer's investigation into Krueger's private life constitutes, in the view of the Commission, notable evidence that sex was a factor in the decision by the employer to discharge Krueger. The Commission considers that Krueger has presented evidence of bad faith on the employer's part in the investigation of her private life. Not only was the investigation pursued through early January 1977 solely on the basis of rumors from unidentified sources, but more significantly, it was commenced some nine months after Secretary Rice had let it be known that a trooper's private, sexual life was definitely not an appropriate basis for discipline as long as the image of the Patrol was not directly affected. In spite of that clear policy, a memorandum recommending her discharge "for conduct leading up to the abortion of a fetus" was submitted for Personnel Director Roslak's approval.(3) Nowhere in Capt. Goetsch's memo is there even a hint that Krueger had engaged in sexual relations with a Bureau employe, or a local law enforcement officer, or while on duty, or in uniform, or in her cruiser. Nor was there any evidence to suggest that Krueger conducted her private life in a manner that would likely bring discredit on the image of the State Patrol. Nevertheless, Capt. Goetsch recommended her discharge. Apparently realizing that the evidence was lacking to support his discharge recommendation (which could hardly be described as tentative) under Secretary Rice's new policy, Capt. Goetsch directed Sgt. Spurgin to investigate further by contacting members of the Osseo Police Department. Surely such an "after the fact" investigation carried out against the Secretary's announced policy, raises the spectre of bad faith on the part of the Bureau.
In the Commission's view the questions raised by Krueger's superiors at the December 14 conference regarding the details of her abortion, reveal a sexual bias. There was no conceivable legitimate purpose for these questions. Krueger had already admitted that the abortion took place in May or June of 1976. Considering that she had joined the Patrol in March 1975, there should have been little doubt in their minds that the "conduct leading up to the abortion" had occurred while she was a member of the Patrol. The unmistakable intent was to browbeat her. The same can be said of Capt. Goetsch's remark at the December 21 conference about her seeming lack of remorse.
The bulk of Krueger's case consists of comparative evidence. Comparative evidence is crucial in most disparate treatment cases because as courts have noted "direct evidence of discrimination... is virtually impossible to produce." Gates v. Georgia- Pacific Corp., 2 FEP 978, 979 (D. Ore. 1970), aff'd. 7 FEP 416 (9th Cir. 1974). See also Grossman and Schlei, Employment Discrimination Law, 16. The use of comparative evidence "is based on the concept of similarly situated persons..." which "generally means that the persons who are being compared are so situated that it is reasonable to believe they would receive the same treatment in the context of a particular employment decision." Grossman and Schlei, id.
In McDonald v. Santa Fe Trail Transp. Co., supra at 1581, n. 11, the Supreme Court made it clear that the concept of similarly situated persons does not depend on "precise equivalence in culpability between employes . . ." Evidence that an employe of a different sex was involved in an act of comparable seriousness against the employer but nevertheless received a lesser punishment is sufficient to express the problem of dissimilar employment discipline. McDonald v. Santa Fe Trail Transp. Co., supra; Sullivan v. Boorstin, 22 FEP 528 D. D.C. 1978). The more distinct the situations of two employes of different sexes who are treated differently, the less compelling is the inference that sex played a role in the disparate treatment. Boyd v. U.S. Steel Co., 20 FEP 727 (W.D. Pa. 1979).
DOT argues that what distinguishes Krueger's cover-up from the cover-ups engaged in by male troopers who were not discharged is that she persisted even after being questioned directly, and further that she actually lied about the underlying facts as opposed to merely pleading a loss of memory. Moreover, according to DOT Krueger was discharged because she did not tell the complete truth until it became clear to her that the State Patrol already possessed enough information to prove that she was not being forthright. Ultimately, according to DOT, the Patrol had no choice but to conclude that Krueger could no longer function as a trooper, because she was not trustworthy and could not be relied on to tell the truth either to her superiors or to a court of law in the event she was called as a witness in connection t with her employment.
Trooper Singleton admitted taking part in at least six different meetings to discuss what to do about the affair in which he and Troopers Wyss and Humphreys were involved. He was questioned on two occasions by his superiors (January 27 and February 6) but failed each time to reveal fully his knowledge of the events. He wrote two memos concerning the incident, neither of which fully disclosed all the facts. He did not fully and completely reveal all the facts prior to the time his superiors concluded that he had deliberately withheld information.
The Commission is hard pressed to find any significant distinction between his conduct and that of Krueger. That Singleton was covering up for a fellow officer, and Krueger for herself, is a distinction that exists, but it is hardly a significant one where the ultimate concern, according to DOT, is the trooper's credibility as a witness in court. And can one reasonably conclude that a trooper who covers up a flagrant violation of the traffic safety laws, albeit by a fellow trooper, has engaged in an act against this employer that is not comparably serious to a cover-up of a concededly minor "fender-bender" which involved no other persons and brought no danger to the public at large? That Krueger was out of her sector on private business does not materially add to the seriousness of her conduct, considering the apparent policy of the Patrol to condone short absences from the assigned sector, or to issue at most a reprimand or short suspension. Certainly it was no more serious than the charge against Singleton of failing to act to stop Wyss from leading Humphreys on a high speed chase. The Commission must conclude that Troopers Singleton and Krueger were similarly situated as that phrase is defined in the above-mentioned cases, and further that their dissimilar treatment is substantial evidence of pretext on the part of the employer.
The incidents involving Sgt. Lovas and Trooper Pugens are accorded less weight by the Commission in judging the Krueger case, because of the remoteness in time of the Pugens incident and the difference in districts and supervisors in both instances.(4) Both matters are relevant nonetheless, because they show that the withholding and fabrication of evidence to cover up a fleet accident ordinarily did not impel the State Patrol to conclude that the guilty trooper's credibility, and worth to the Patrol, was irretrievably lost, as the Patrol concluded in the case of Trooper Krueger. (5)
Witnesses for DOT attempted to distinguish the Krueger case from the cases of Singleton, Lovas and Pugens on the ground that her cover-up was written, not merely verbal. This distinction, which does not even exist between Singleton and Krueger, was clearly made "after the fact," and indeed finds no sanction in the rules of the Bureau. Article I -- Conduct, Section 3 of the State Patrol Rules and Regulations (see Ex. 95) makes no distinction between verbal and written reports: "Employes shall not manufacture, withhold or destroy evidence in any case, or falsify or withhold any information from an official report whether verbal or written." (emphasis supplied)
Similarly the distinction between withholding and fabricating or destroying evidence, which DOT witnesses raised at the hearing, does not appear in the Bureau's rules.
The Commission finds a sufficient array of facts in this case to persuade it to go behind the Department's stated reasons for discharging Krueger and to conclude that her sex was a factor in the Department's decision to discharge her. Accordingly, the Commission concludes that the Complainant has proved by a preponderance of the evidence that the employer, a covered employer under the Wisconsin Fair Employment Act, discriminated against her on the basis of sex in discharging her and in conditions of employment, and further that the employer thereby violated the provisions of the Act.
1. The Respondent cease and desist from discriminating against Complainant on the basis of sex.
2. That Respondent reinstate Complainant with all increases in pay, promotions, seniority and benefits that she would have had had she not been discharged.
3. That Respondent give back pay to Complainant commencing with the date she was discharged and continuing down to the date` of reinstatement, less any statutory setoffs.
4. That Respondent within 30 days of the expiration of time within which an appeal maybe taken herein, submit a Compliance Report detailing the specific action taken to comply with the Commission's Order. The Compliance Report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708.
Dated and mailed October 4, 1982
/s/ David A. Pearson, Chairman
/s/ Virginia B. Hart, Commissioner
PAMELA I. ANDERSON, COMMISSIONER (dissenting).
I am unable to agree with the Findings of Fact and Conclusions of Law reached by the majority herein.
The question to be answered is: Did the Department of Transportation and the State Patrol discriminate against Wanda Krueger on the basis of sex when she was discharged? The Department discharged Krueger for the cover-up of a fleet accident and other rule violations related to the cover-up.
Krueger has shown that she was a member of a protected class, that she was fired, and that prior to the incident for which she was fired that she was qualified for the job. The Department and the Patrol have expressed a nondiscriminatory reason for discharging Krueger. It is then Krueger's burden to show that this reason was a pretext for sexual discrimination. That, I believe, she has failed to do.
I am in agreement with the majority that the Labor and Industry Review Commission is not bound by the findings of the arbitrator because just cause is a different standard than sex discrimination.
The record shows the following series of rule violations:
1. Leaving her area to engage in personal business;
2. Failure to report an accident.
3. Attempted cover-up by securing repair parts for the patrol car through use of a fictitious name, address and telephone number;
4. Filing a false report;
5. Filing a second false report with corrections being made to those matters which the Patrol indicated to Krueger were believed to be false based upon facts and evidence that had been revealed by their investigation;
6. Filing a third false report that was also corrected only as to those facts of which Krueger had been advised were untrue based upon investigative evidence uncovered by the Patrol.
The arbitrator found "the integrity and honesty of a state trooper in that capacity is extremely important and necessary for the proper and efficient performance of the duties as a state trooper. The integrity and honesty of the grievant has been irreparably damaged as a result of this series of events."
Krueger at no point denies the facts but she only alleges that a male trooper would not have been fired in similar circumstances. She denies that her credibility should suffer because of the cover-up.
It is most disturbing that Krueger not only continues to file false reports but even claims that she is now being "completely honest." She goes on to say "I believe that credibility is important for a peace officer and have seldom as an officer or as an individual been questioned on my credibility. It is important to me to be honest, therefore, in reference to this fleet accident, I apologize for the extra paperwork and the need for investigation at all. I hope this clarifies any points of question in this matter." (Exhibit 13)
In this third report, she still claims falsely that the accident took place on CTH "B" at 6:30. She also invents a reason for being in the area. She alleges that she was going to talk to Sgt. Lind about attending night classes but changed her mind. I am reluctant to draw the parallel but Krueger's comments remind me of a former U. S. President who was forced to resign after he had lied about the Watergate cover-up. I realize that there is a difference in the underlying event that caused the cover-ups but repeated false reports can cause one to question, is there more to this event than meets the eye?
Krueger was terminated for an act which the Patrol and the Department, rightly or wrongly, considered had destroyed her integrity and honesty. She was discharged because in the eyes of the Patrol she was no longer qualified for the job. They believed that she could not be depended upon in the future to tell the truth and that her honesty as a witness in Court would be questioned.
The underlying problem, the accident and damage to her fleet car while being out of her area, would probably not have merited discharge. Krueger's repeated attempts to cover-up damaged her credibility to the point that everything she said about the accident had to be checked before it could be believed. The Patrol accepted her first accident report without question until they noticed that her fleet car had a new chrome strip.
At this point there are some additional questions that must be asked:
1. Were male troopers treated differently under comparable circumstances?
2. Was the cover-up only a pretextual reason for discharge and was sexual misconduct really the reason for discharge?
3. Was Krueger treated differently than male troopers in investigating private sexual conduct?
4. If Krueger was treated differently, then who was responsible for that discrimination?
I believe that it is appropriate to limit the cases involving possible comparable treatment to District 5 at the time Capt. Goetsch was in charge. Therefore, I would eliminate Pugens as both too remote and also out of the district.
The case of Sgt. Lovas is also out of the district. I would like to point out that the fleet safety program has been revised. The July 1, 1976 revision, page 3, now requires dismissal of any employe found to have been operating under the influence of intoxicants. (Exhibit 94) This policy would presumably have meant that Sgt. Lovas would have been discharged had the policy been in effect.
The only case to consider for comparable treatment is the Wyss, Singleton, Humphreys case. Wyss was fired for violation of the Law Enforcement Code of Ethics including "the planned withholding and falsification of information and cover-up attempt following the incident." (Exhibit 22) He was not treated less severely than Krueger.
Capt. Goetsch recommended that Singleton be discharged but that was reduced to 30 days by Deputy Secretary McGowan. Capt. Goetsch recommended that Humphreys receive a two-day suspension which McGowan increased to 30 and which then was reduced to 13 days through the grievance procedure. Clearly there were varying degrees of responsibility for the speeding and cover-up. Wyss was the driver and controlled the speed even if Singleton would have asked him to obey the speed limit. Singleton and Humphreys did not cooperate as they should have but they were not covering up an act that they had been primarily responsible for as Krueger was. Singleton and Humphreys did not destroy evidence as Krueger did with the metal strip. Singleton and Humphreys did not use an assumed name as Krueger did. Singleton and Humphreys were understandably reluctant to divulge evidence against a co-worker but Krueger had no such circumstance related to her cover-up. I do not find Singleton and Humphreys to be equivalent to Krueger.
Was the cover-up only a pretextual reason for discharge and was sexual misconduct the real reason for her discharge. The argument seems to go that since Krueger had an abortion and because only women can have abortions, therefore it must have been true that the Patrol recommended discharge for a discriminatory reason. Goetsch's recommendation for her discharge on the morals ground is worded "the conduct leading to the abortion of a fetus." (Emphasis added. It is obvious from the recommendation as well as from the questioning that Goetsch was disturbed about the violation of the fornication statute. In fact, after Krueger writes her memo (Exhibit 11) saying "I have not been convicted of violating a state law nor has there been any proof that consentable fornication ever occurred," Goetsch then questions her if she was raped or artifically inseminated. It was not the abortion that was the cause of the other discharge recommendation, it was the violation of the fornication statute. She had been warned while at the academy that violation of the fornication statute could cause her to be discharged from the Patrol.
If Krueger had been discharged for violation of the fornication statute, the discrimination would have occurred at the Department level. The Patrol seems to have a long standing tradition of invading a trooper's right to privacy in matters involving sexual conduct. The trooper whose forced resignation was rescinded because of Secretary Rice's policy not to discharge for private sexual conduct, was still disciplined. He was suspended for 58 days (Exhibit 85). I do not believe that Krueger was treated any differently than male troopers in investigations of sexual conduct. The Patrol was willing and ready to investigate rumors and discipline male troopers for conduct
far short of clear and convincing proof. Exhibit 35 shows discipline of a trooper for having his personal car in a married woman's driveway and for socializing with her. The Patrol admits that they cannot prove even that he engaged in necking, petting, etc. The fact that this trooper was also observed visiting with her at her parents home for 35 minutes and then left in her car unchaperoned, shows how seriously the Patrol investigated cases against male troopers.
I believe that a major problem with this case is the cloud of outrage that hangs over the Patrol for their willingness to invade the individual trooper's private life. What happens when one first reads the case is to be appalled that the Patrol would question Krueger or any trooper about their sexual conduct in the manner that they do. I believe that once that is pushed aside, then one can decide that Krueger was treated no differently than male troopers were in monitoring private sexual conduct.
The majority has found discrimination but have not placed the responsibility for this discrimination. While I do not find discrimination, let's look at who was possibly responsible. Sgt. Spurgin was said to be prejudiced against women troopers because his son was not accepted at the Patrol Academy because of women candidates. The Law cannot eliminate all prejudice in the minds of people, it can only eliminate discrimination. Spurgin evaluated Krueger and Ebben. Those evaluations (Exhibits 3, 6, 80 and 82) rate them well and recommend that they pass probation. Spurgin's comments about his troop's conversation being more risqué and off-color seem to indicate the novelty of women in the troop more than anything else. Spurgin did not rate them down on their evaluations for that social sense. Spurgin did not have the authority to discharge.
Capt. Goetsch wanted to discharge Singleton as well as Krueger but was overruled. Goetsch seemed to consider himself the keeper of the Patrol's morals but he is just as zealous in attempting to enforce the fornication statute against male troopers as women. Goetsch could only recommend discharge; he could not discharge
Roslak did not forward the recommendation to discharge Krueger for the morals charge so Rice and McGowan did not know about that when deciding to discharge Krueger for the fleet accident and cover-up. Rice, McGowan and Roslak were a neutral review process for any discharge that was recommended by the Patrol. A separate investigation by people independent from the Patrol would have served no useful purpose because it is not the facts that are in dispute. The Department reviewed the cases with an eye to was there just cause to discharge and would it hold up. I believe that should be sufficient. The record indicates that Secretary Rice was committed to recruiting women for the Patrol, so it would be absurd to assume he would have a motive to discharge on the basis of sex without some proof.
Therefore, I dissent.
/s/ Pamela I. Anderson, Commissioner
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(1)( Back ) Additionally, the Commission notes that the Supreme Court has made it clear that an employer may have a valid business reason for firing an employe (just cause) and yet still be found to have violated the prohibition against disparate treatment. See McDonnell Douglas v. Green, 5 PEP 465 (1973), and McDonald v. Santa Fe Transp. Co., 12 PEP 1577 (1976). As to the finding of misconduct by the unemployment compensation appeal tribunal, the Commission considers that a finding of misconduct does not constitute a bar to de novo consideration by DILHR and the Commission of an equal rights claim. The issues are simply not the same in the two proceedings.
(2)( Back ) Courts have recognized that a plaintiff may present evidence as part of her prima facie case which also supports her argument with respect to pretext. See Wade v. N.Y. Telephone Co., 25 FEP 1298 (S.D. N.Y. 1980).
(3)( Back ) Although Roslak testified that he told the Bureau sometime before December 21 (when the fleet accident investigation was completed) that no discipline would follow from the morals charge against Krueger, either he is mistaken about the date of his intervention or the Patrol chose simply to ignore his statement, since Goetsch's recommendation was not sent to him until December 28.
(4)( Back ) Col. Versnik was, however, the Bureau director during both the Lovas and Krueger matters.
(5)( Back ) The Commission feels compelled to comment on one other aspect of the comparative evidence adduced by the Complainant. Of the numerous examples in the record of disciplinary action taken against state troopers, only a very few, three by the Commission's count (Wyss, Guy and Krueger), involved the discharge of the trooper at fault. Though the Commission is cognizant of an employer's undeniable right to consider all the facts and determine the measure of punishment for employe misconduct, the Commission is struck by the less severe treatment of several male troopers -- for acts that seem serious when considering the nature of a trooper's duties -- as compared to the treatment of Krueger. For example, the trooper who took a hammerhead from a restaurant without the owner's consent, the trooper who changed the labels on two differently priced cans of peanuts, the trooper who used intoxicants in a marked cruiser, scuffled and broke a window at a service station, and finally Sgt. Lovas, who not only covered up a fleet accident but operated a motor vehicle while intoxicated. None of these troopers was discharged.