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

MARY HANSON, Complainant

STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case Nos. 200303172, 200303173, EEOC Case No. 26HA00049


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 June 14, 2005
hansoma . rsd : 110 : 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

This case arises out of two complaints which made allegations of retaliation and race and disability discrimination. There are threshold questions about the scope of the issues that can be considered to be presented for decision.

Scope of Issues Presented --

The threshold questions about the scope of the issues have in significant part to do with the distinction between different kinds of claims that can be made in retaliation cases. For this reason it is important to consider the nature of such claims. Wis. Stat. § 111.322(3) provides that it is an act of employment discrimination to discharge or otherwise discriminate against any individual

because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified or assisted in any proceeding under this subchapter

(emphasis added). Claims that an employer has retaliated "because [the employee] has opposed any discriminatory practice," are referred to as "opposition" claims, and that first clause is referred to as the "opposition" clause. Claims that an employer has retaliated "because [the employee] has made a complaint, testified or assisted in any proceeding," are referred to as "participation" claims, and that second clause is referred to as the "participation" clause.

The distinction between opposition clause claims and participation clause claims is well-established, and it is a substantive one. See, Roncaglione v. Peterson Builders (LIRC, 08/11/93), Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93). A different legal standard governs allegations of retaliation because of "opposition" and retaliation because of "participation:" in order to be protected, "opposition" must actually be engaged in in good faith, while "participation" is always protected whether in good faith or not. See, Roncaglione, Notaro, Osell v. Schedulesoft (LIRC, 10/27/00). In addition, it is an essential element of either kind of retaliation case, that an employer be shown to have been aware of the protected activity the employee engaged in, see, e.g., Cangelosi v. Robert E. Larson & Assoc. (LIRC, 11/09/90), Aken v. Blood Center of Southeastern Wis. (LIRC, 12/23/98), Acharya v. University of Wis. (LIRC, 01/19/82), and to have understood the activity as being related to alleged discrimination, see, e.g., Moller v. Metavante (LIRC, 11/13/03), Fauteck v. Sinai Samaritan Medical Center (LIRC, 11/09/00). For these reasons, a fair opportunity to defend against a claim of retaliation requires that an employer be put on notice of the specific protected conduct of the employee which is alleged to have been the reason that it retaliated against the employee. This is necessary so that it can prepare and present any defenses that may be available to it in connection with the legal principles discussed above.

Complainant Mary Hanson filed her first complaint (#200303172) on March 9, 2000. With respect to its claims of retaliation, this first complaint alleged that the respondent had taken a number of adverse actions against the complainant (filing false allegations against her in July 1999, imposing a punitive reassignment and disciplinary investigation on her in August 1999, and imposing a 5-day suspension on her in January, 2000), in retaliation for her having engaged in certain protected conduct. That protected conduct was specifically described by the complaint as having been statements made by the complainant to her employer, on a number of occasions from 1996 through 1999, objecting to perceived discrimination. Thus, the first complaint raised allegations under the "opposition" clause of the prohibition on retaliation.

Complainant filed her second complaint (#20033173) on August 2, 2000. With respect to its claims of retaliation, the second complaint alleged that the respondent had taken a number of other adverse actions against her (instituting a disciplinary investigation, harassing her, "position[ing her] to be falsely perceived as racist," imposing a 15-day suspension, declaring her probationary employment a failure, and giving her the choice of a voluntary or involuntary demotion and reassignment to a remote location), in retaliation for her having engaged in certain protected conduct. That protected conduct was specifically described by the complaint as having been complainant's filing of a complaint of discrimination with the Personnel Commission on March 9, 2000. Thus, the second complaint specifically raised allegations under the "participation" clause of the prohibition on retaliation.

The first question concerning the scope of the issues presented, has to do with whether the allegations in the first complaint (concerning "opposition" retaliation, race and disability discrimination) were partially or entirely withdrawn.

In his opening statement on the first day of hearing, T. 11 ff, when describing the adverse actions which complainant alleged were taken against her because she had engaged in protected conduct, counsel for the complainant focused solely on the adverse employment actions complained of in the second complaint, making absolutely no mention of the adverse employment actions which had been referred to in the first complaint. He also made no mention of the oppositional activities dating from 1996 to 1999 which were alleged in the first complaint to have been the real reason for those employment actions. This implicit recognition that the allegations of the first complaint were no longer being pursued, was subsequently made explicit. On the third day of hearing, the employer's counsel was cross-examining the complainant about the 1999 involuntary reassignment expressly mentioned as one of the adverse employment actions in her first complaint. Complainant's counsel broke in to object on grounds of relevancy, asserting that the merits of that complaint were "not at issue." (T. 595-96). The objection was overruled and the questioning continued. Shortly thereafter, counsel for the complainant objected again, this time more clearly stating that the first complaint was not being pursued:

MR. EARLE: I'm going to object at this point. I mean what I'm hoping to avoid is by not asserting the first case, 0024, which was the subject in the complaint filed on March 9th, that we would not be litigating that case. . .

(T. 602-03, emphasis added). Asked by the hearing examiner to clarify his statement, counsel for the complainant continued:

MR. EARLE: Yeah, yeah, I think that's -- Yes, 27. I'm sorry. Yeah, that complaint is not being litigated here. We had a scheduling conference in which we -- with Commission Judy Rogers where we narrowed the issues for the hearing here, and that complaint was removed. . . that is a case which we've agreed not to litigate at this point . . .

(T. 603, emphasis added). Eventually, after some further discussion, the hearing examiner again overruled the objection of complainant's counsel. However, the cross-examination had hardly resumed when complainant's counsel renewed his objections again, arguing that if counsel for the employer continued in questioning about the events that preceded the complainant's involuntary reassignment which was the focus of her first complaint, he would be forced to go into the same issue and attempt to prove that the allegations of the first complaint were valid. The hearing examiner then noted that counsel for the employer may have felt compelled to go into the area because of the evidence which the complainant had introduced in her direct testimony, and he asked complainant if to remove this problem she would stipulate to withdraw a part of the record she had made concerning her earlier period of employment. Complainant agreed to this. (T. 607). After further discussion, complainant's counsel acknowledged again that he had stipulated that the case would be narrowed to the second complaint (T. 613).

In view of all of the above, the commission agrees with the conclusion drawn by ALJ Rasche, that the complainant should be treated as having entirely withdrawn her first complaint (#200303172).

The second question concerning the scope of the retaliation issues presented, is whether the retaliation issues which remain extend only to whether the respondent retaliated against the complainant because of her filing of a complaint with the Personnel Commission on March 9, 2000, or if they also extend to whether the respondent retaliated against the complainant because of a statement the complainant made to her supervisor in a meeting on March 14, 2000(1)

As noted above, the protected activity specifically identified in the second complaint as having been the alleged cause of the retaliatory adverse employment actions, was the filing of the first complaint on March 9, 2000. Thus, the second complaint specifically raised allegations under the "participation" clause of the prohibition on retaliation, and only under that clause. It contained no references to any "opposition" conduct and no allegation that the employment actions complained of had been taken in retaliation for any such "opposition" conduct.

The complainant has argued that the second complaint does raise the issue of whether the respondent retaliated against her because of her statement in the meeting of March 14, claiming that "the complaint clearly pleaded the facts related to the events of March 14" in that the meeting of that day was "one of the disciplinary investigations that were instituted without basis in fact." This argument is wholly unpersuasive. The second complaint does not plead the facts related to the events of March 14 at all, much less plead them "clearly".  (2)   That complaint contains no reference whatsoever to the oppositional conduct engaged in by the complainant at the meeting of March 14; indeed, the complaint does not even mention that date or otherwise identify that meeting with any specificity.

Even if the second complaint's mention of "the institution of several disciplinary investigations" is taken as being a reference to the meeting of March 14, it would still not raise an issue of retaliation because of what the complainant said in that meeting. The second complaint does not allege that the respondent retaliated against the complainant because of what she said in that disciplinary meeting. Instead, it alleges that holding that disciplinary meeting was one of the ways in which the respondent retaliated against her because of her filing of the first complaint.

Complainant also argues that "the facts related to March 14, 2000 were clearly comprehended within the scope of the [second] complaint". On the contrary, they clearly were not. The second complaint simply cannot be reasonably understood as including any allegation that the complainant was retaliated against because of a statement made to her supervisor in the March 14 meeting. With respect to retaliation, it clearly alleges simply that the complainant was retaliated against because she filed a complaint with the Personnel Commission on March 9, 2000.

Thus, the complaint in this matter did not put the respondent on notice of any claim that the respondent had taken adverse employment actions against the complainant because of a statement she made to her supervisor in their March 14, 2000 meeting. Furthermore, the respondent was not put on notice as to any such claim at any other point prior to the hearing.

Had complainant intended to raise a claim in her complaint that she had been retaliated against because of the statement made to her supervisor on March 14, 2000, she would have had the opportunity to clarify this in the course of investigation of her complaint. Indeed, an investigation was commenced, and on August 10, 2000 an investigator for the Personnel Commission wrote to counsel for the complainant, to request additional information about the complaints, and asking among other things for information about the complainant's retaliation claims. However, no written response was ever filed by complainant's counsel; instead, on November 1, 2000, complainant's counsel wrote the Personnel Commission confirming his request that investigation be waived pursuant to Wis. Stat. § 230.45(1m).

Furthermore, had complainant intended to raise a claim that she had been retaliated against because of the statement made to her supervisor on March 14, 2000, she had the opportunity to clarify this in the course of the pre-hearing conference procedure which was followed in this case. After investigation was waived, the Personnel Commission informed the parties that they would be receiving notice of a pre-hearing conference to be held for purposes including "reach[ing] agreement on the issues." Such a pre-hearing conference was held on July 19, 2001, before Commissioner Judy M. Rogers. The pre-hearing conference report, issued on that date by Commissioner Rogers, stated that at the conference the parties agreed to the following statement of the issues for hearing with respect to the second complaint:

Whether respondent discriminated against complainant because of her race or retaliated against complainant for participating in activities protected under the FEA with regard to the following allegations:

a) Harassment at the Tutonia (sic) office comprised of the following allegations: i) instituting several disciplinary investigations without basis in fact, ii) daily harassment by supervisors and coworkers and iii) management's "positioning" complainant to be perceived as racist.

b) 15-day suspension imposed in August 2000,

c) respondent's decision not to pass complainant off permissive probation in a Transportation Customer Representative 2 - Field (TCR-Field) position at the Tutonia office, effective August l, 2000.

d) constructive demotion claim based on the employment options respondent offered after complainant was not passed off permissive probation and complainant's selected option of a program assistant 1 (PA 1) position in Pewaukee.

In this statement of the issues, the only description of the protected conduct because of which the respondent is alleged to have retaliated, is the general phrase, "participating in activities protected under the FEA." That phrase is completely non-specific as to what protected conduct was alleged to have been the cause of the respondent's retaliation. The commission is persuaded that the reason only this general phrase was used, was that it was understood at the time by the parties and by Commissioner Rogers that the "activit[y] protected under the FEA" referred to here was precisely what had already been specifically described in the complaint: the filing of the earlier complaint with the Personnel Commission on March 9, 2000. The commission sees no reason to believe that the complainant raised this new opposition clause claim during the pre-hearing conference.

Whatever arguments can now be made, about what the general statement of the agreed issues in the pre-hearing conference report could in retrospect be read to cover, the simple fact is that it did not identify any claim that the respondent retaliated against the complainant because of the statement she made in her meeting with her supervisor on March 14, 2000. Had complainant intended to raise a claim that she had been retaliated against because of the statement made to her supervisor on March 14, 2000, she could have attempted to clarify the pre-hearing conference report by notifying Commissioner Rogers and the respondent that she believed that it should specifically reflect such a claim. However, there is no indication in the record that she did so.

Finally, had complainant intended to raise a claim that she had been retaliated against because of the statement made to her supervisor on March 14, 2000, she could have attempted to clarify this at hearing. However, the statements made by complainant's counsel during the hearing concerning the scope of the issues were anything but clear.

The commission recognizes that in his opening statement on the first day of hearing, counsel for the complainant asserted that the adverse employment actions identified in the second complaint were alleged to have been taken against the complainant in retaliation for both the filing of the complaint with the Personnel Commission on March 9, 2000, and the statement by the complainant to her supervisor in their meeting of March 14, 2000. T. 23-24. However, the significance of the assertion of this theory of the case at this point must be considered in conjunction with other statements made during the hearing, that undercut that significance.

In an interchange which occurred on the third day of hearing, complainant's counsel made a statement concerning the scope of the issues which cast the matter into confusion, if it did not in fact directly withdraw the contention made on the first day of hearing about the scope of the issues:

MR. EARLE: I'm going to interpose an objection at this point, I mean, on the grounds of relevancy. I think some information about the phone center and the activities at the phone center may be appropriate for purposes of context and so forth and perhaps even background for the complaint that was filed, but really this is a case about retaliation for the complaint that was filed on March 9th, 2000.

The merits of the complaint itself that was filed on March 9th are not at issue and also the opposition clause claims based on what was said in the March 14th, 2000 meeting. So the details of the operation of the phone center are really not relevant and I -- so I make this objection based on relevancy given the fact that there's been some discussion about the press of time and how long this hearing is taking.

(T. 595-96, emphasis added). The assertion that this "really . . . is a case about retaliation for the complaint that was filed on March 9th, 2000," and the further statement about the opposition clause claim relating to March 14 which can be understood as a representation that it was "not at issue," undercut the significance of the statement which had been made on the first day of hearing, which had for the first time introduced the idea that an opposition clause claim would be advanced as to the statement made in the March 14, 2000 meeting.

Other statements by complainant's counsel during the hearing, further confused the matter:

MR. EARLE: I'm going to object at this point. I mean what I'm hoping to avoid is by not asserting the first case, 0024, which was the subject in the complaint filed on March 9th, that we would not be litigating that case. And I would -- You know, I'm -- I'm concerned that Mr. Lepeska's going to convert this case into a case about that. This is a participation clause case.

The existence of the complaint and some background for context regarding the complaint is appropriate, but going into -- going into all the predicates that led to the issuance of that complaint could bog us down unnecessarily, and it's not really material or relevant to the question of whether or not there was retaliation because of the filing of the complaint on March 9th.

(T. 602-03, emphasis added). Again, counsel's statements tended to undercut any significance that might be seen in the mention of the opposition issue on the first day of hearing, by suggesting that the case was "a participation clause case" presenting the question of "whether or not there was retaliation because of the filing of the complaint on March 9th."

It is true that there was some examination of witnesses about the facts relating to the March 14, 2000 meeting, the claimant's statement, and her supervisor's reaction to it. However, the commission does not find the fact that there was some litigation of this issue, to be dispositive.

Holding that a decision could be rendered on an issue which was raised for the first time by being litigated at hearing, would in effect create a right to a de facto "amendment of the pleadings to conform to the evidence" procedure. This would not be appropriate, for a number of reasons.

Initially it is important to note, that the provisions of Wis. Stat. § 802.09(2), "Amendments To Conform To The Evidence," do not apply to hearings on complaints under the Fair Employment Act. The provisions of Chs. 801 to 847 of the statutes are applicable only to proceedings in circuit court. Wis. Stat. § 801.01(2). With respect to proceedings before the Equal Rights Division arising under the Fair Employment Act, the rules of the Equal Rights Division provide, at Wis. Admin. Code § DWD 218.18(1), that "hearings shall be conducted in conformity with the act and the provisions of ch. 227, Stats.:" In Chapter 227, the legislature "intended to provide . . . a single procedure to which the statutes relating to practice in civil actions are inapplicable" Wisconsin Environmental Decade v. PSC, 79 Wis. 2d 161, 170, 255 N.W.2d 917 (1977).

Another reason that the concept of "conforming the pleadings to the proof" can not be imported into administrative litigation under the Fair Employment Act, is that it simply does not fit with the required preliminary procedural pathway (involving investigation to determine whether there is probable cause, and efforts at conciliation if probable cause is found), which must be followed before an allegation can finally be submitted to hearing and decision on the merits. Where an issue is not raised in a complaint, there is no authority for that issue to heard and decided. See, James v. Associated Schools, Inc. (LIRC, 11/27/91), Yarie v. The Pumphouse (LIRC, Sep. 14, 1990). There is also no authority for a decision to be made on the merits of an allegation where it is never submitted to investigation and there is thus never a determination as to whether probable cause exists to credit the allegation. Yarie, supra(3)

A related reason that the concept of "conforming the pleadings to the proof" can not be imported into administrative litigation under the Fair Employment Act, is that rules of the Equal Rights Division limit the amendment of pleadings after a case is at the hearing stage. See, Wis. Admin. Code § DWD 218.03(6), providing that a complaint may not be amended less than 45 days before hearing unless good cause is shown for the failure to amend the complaint prior to that time. That provision reflects the necessity of submitting issues to investigation, by providing for remand of the complaint for investigation and an initial determination on probable cause if amendment less than 45 days before hearing is allowed.

For the foregoing reasons, the commission concludes that there is no right to "amendment of the pleadings to conform to the evidence" in proceedings under the Fair Employment Act.  (4)   An issue not otherwise properly presented for decision cannot be addressed based simply on the fact that it has been litigated at hearing. The fact that there was some litigation of the facts concerning the claimant's statement in her March 14, 2000 meeting with her supervisor and her supervisor's reaction to it, does not provide authority for a decision to be made on a claim that the respondent retaliated against the complainant because she made that statement, where that claim was not made in the complaint or otherwise formally identified as an issue in the case.

The commission has considered the argument raised by complainant based on Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir., 2005) in which the court said:

"A plaintiff may pursue a claim not explicitly included in an EEOC complaint only if her allegations fall within the scope of the earlier charges contained in the EEOC complaint." Cheek v. Peabody Coal Co., 97 F.3d 200, 202 (7th Cir. 1996). In determining whether . . . allegations fall within the scope of the earlier charges, we look to whether the allegations are like or reasonably related to those contained in the EEOC complaint. If they are, then we ask whether the current claim reasonably could have developed from the EEOC's investigation of the charges before it. Cheek, 97 F.3d at 202. Claims are reasonably related if there is a factual relationship between them. Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1118 (7th Cir. 2001). At a minimum, this means that the EEOC charge and the complaint must describe the same conduct and implicate the same individuals. Kersting, 250 F.3d at 1118. This limitation gives the employer some warning of the conduct about which the employee is aggrieved and affords the EEOC and the employer an opportunity to attempt conciliation without resort to the courts.

It is important to bear in mind that this discussion concerns a procedurally different scheme arising in a different jurisdiction under a different law. There is a significant difference in the procedural scheme under Title VII and under the WFEA, as in the former case there is both an initial "charge" filed with the EEOC by the complainant and then a subsequent "complaint" filed by the EEOC against the respondent, whereas under the WFEA the only pleading is the complaint filed by the complainant. Further, even assuming arguendo that the same legal principles govern the question of what issues may be heard at hearings on complaints under the WFEA, as govern the question of what issues may be heard in federal court trials on complaints under Title VII, the commission would not be persuaded by complainant's argument. As described above, the claim that the respondent retaliated against the complainant because of a statement she made to her supervisor in their meeting of March 14, 2000, is significantly different from the claim that it retaliated against her because of her filing of a complaint with the Personnel Commission. The complaint here, which alleged only the latter, did not provide sufficient warning that a claim like the former would also be pursued.

The question of what protected conduct or status an adverse action was taken because of, is the question of what actually motivated the respondent, which is one of the most significant issues in any discrimination case. It is certainly a significant enough issue, that it needs to be clearly pleaded. See, Hoyer v. LIRC (Milw. Pub. Library) (Dane Co. Cir. Ct., 11/10/83) (allegation that a discharge was because of complainant's previous filing of a charge of discrimination, not sufficient notice of a claim that the same discharge was also because of sex).

The commission recognizes the teaching of Hiegel v. LIRC, 121 Wis. 2d 205, 359 N.W.2d 405 (Ct. App. 1984), to the effect that a complainant who was unrepresented when filling out her complaint should not have that complaint read narrowly so as to prevent her from introducing evidence on issues which are closely related to those raised in the complaint. However, the commission does not believe that the allegation that respondent retaliated against the complainant because of a statement she made in a March 14, 2000 meeting with her supervisor, and the allegation that respondent retaliated against her because she filed a complaint with the Personnel Commission on March 9, 2000, are "closely related" in the sense contemplated in Hiegel. As discussed above, the two allegations are not only factually distinct claims about different motives, but also present distinct legal issues. There would be no basis for expecting a respondent to somehow infer from the making of the latter claim, that the former claim was also being made. Furthermore, the complainant was not unrepresented when she filed her complaint. It is evident that she had the assistance of counsel in its drafting, if it was not in fact drafted entirely by complainant's counsel. Had a claim of retaliation because of a statement she made in a March 14, 2000 meeting with her supervisor been recognized and intended at the time, there is no reason that it could not have been stated in the complaint -- or, for that matter, at the various points thereafter at which it could, as noted above, have been raised.

In summary, the issue of whether the respondent took adverse employment actions against the complainant because she made certain statements to her supervisor in their meeting of March 14, 2000, was never raised by a complaint in this matter, was not described as an issue in the pre-hearing conference report or understood as being contemplated by the description of the issues in that report, and was not clearly identified at hearing as an issue which the complainant wished to amend her complaint to add, was thus not an issue that the respondent had clear notice was going to be adjudicated. Because the issue had not been alleged in the complaint, investigated, or identified in the pre-hearing conference report that served as the notice of hearing, the ALJ acted properly in declining to address it in her decision. 
 

Merits - Retaliation For Filing First Complaint, Race Discrimination -- 

As described above, the second complaint in this matter alleged that the respondent took certain adverse employment actions against the complaint, because of the fact that she had filed the first complaint with the Personnel Commission on March 9, 2000. The second complaint also alleged that the adverse employment actions allegedly taken in retaliation for the filing of the first complaint, were also motivated by the complainant's race.

The commission has carefully reviewed the entire record, and has considered the arguments made on behalf of the complainant. The commission is satisfied that the detailed findings of fact made by the ALJ are fully supported by the greater weight of the evidence and are correct.

The complainant asserts, in her brief in chief to the commission, that the agents of the respondent who discriminated against her were complainant's immediate supervisor, LaToya Abrams (Clark)(5),   Abrams' supervisor Hazel Wills, Jane Czeshinski (Zarada)(6),  the Deputy Administrator of the Division of Motor Vehicles, and Dennis Nussbaum, Deputy Director of the Bureau of Field Services of the Division of Motor Vehicles. See, Complainant's brief in chief, p. 3.

The ALJ found that Abrams became aware "at some point in time" that the complainant had filed a complaint against the Milwaukee Phone Center of the DOT involving the complainant's earlier employment there, but was not informed of the specifics of that complaint (Finding of Fact 8). The ALJ also found, that Abrams did not know that complainant had filed a complaint with the Personnel Commission alleging discrimination. (Finding of Fact 25). Based on its review, the commission is satisfied that evidence in the record supports this finding and that it is correct. The complainant disputes this finding, pointing to testimony at pp. 282ff of the transcript. However, that testimony tends at most to establish that Abrams knew only that some kind of complaint had been filed with the Personnel Commission, and that she did not know that it alleged discrimination. That is understandable, since the jurisdiction of the Personnel Commission extended to a number of other kinds of employment issues besides discrimination.

The ALJ found that Wills learned that complainant had filed a complaint with the Personnel Commission, but that she never saw the complaint. (Finding of Fact 8). Based on its review, the commission is satisfied that evidence in the record supports this finding and that it is correct. The complainant has not pointed to any evidence that Wills had any more knowledge of the complaint than what is described by this finding.

Czeshinski knew of the filing of the discrimination complaint, and saw it, within days of its being filed with the Personnel Commission. Czeshinski was also involved in the decisions to impose a 3-day suspension on complainant for the events of March 14 and 17 and a 15-day suspension on her for the events of May 31. In her brief in chief to the commission, the complainant places great stock in a couple of pieces of Czeshinski's testimony which she apparently believes are in the nature of a direct admission that protected activities by the complainant were a factor in the decision. See, complainant's brief in chief pp. 17-18. The commission does not agree that this testimony is that important. The first section of testimony, at T. 818, simply reflects Czeshinski's acknowledgement that at the time of the decision to impose the 3-day suspension on the complainant, she knew that complainant had filed her complaint with the Personnel Commission. It is in the nature of a post hoc ergo propter hoc argument, to assert that this somehow proves that her knowledge of the complaint was the cause of her subsequent disciplinary decision. The other section of testimony relied on by the complainant reflects Czeshinski's agreement with the proposition (reflected in a question from counsel) that

[Czeshinski] had the questions and discussions about the allegations of Tina Hanson that she was discriminated against by LaToya Abrams because she's white and because of what had happened at the phone center before [Czeshinski] made that decision to impose that three-day discipline.

Complainant's brief in chief to the commission, p. 18, quoting T. 825. However, it is evident that this involves the claim of retaliation for the "oppositional" statement on March 14, a claim which the commission has concluded is not properly before it. In any event, the commission also does not find this argument persuasive. It is not an admission that the complainant's statement was a factor in the decision, but simply a statement that at some point prior to that discipline decision, Czeshinski "had questions and discussions about" complainant's statements. This is not, as complainant argues, an "admission" or "direct evidence" that Czeshinski made the discipline decision because of that statement by the complainant.

As noted above, the complainant identifies Nussbaum as one of the decision makers. However, he is then hardly mentioned again throughout the complainant's briefs to the commission. Specifically, he is referred to exactly once, in a mention of the fact that he concluded that the statement by the complainant about killing her supervisor was not a serious threat. This is argued to be evidence that the statement thus was probably not the real reason for the 15-day suspension. The commission finds this argument unpersuasive. A supervisor could reasonably conclude -- indeed, the commission believes that most reasonable supervisors would conclude -- that a statement about killing a supervisor would warrant a significant sanction even if not seriously intended as a threat to kill. The commission sees no reason to draw the inference that, if a supervisor concludes that a statement about killing a supervisor was not a serious threat to do so, they would therefore not impose discipline on the person making the statement. On the contrary, it is likely enough that discipline would be imposed on an employee making such a statement, whether seriously or in "jest," that it would be very difficult to draw an inference that it was not the reason for discipline that did occur.

The points last discussed above bear emphasis because they are equally applicable to the question of the intent of the other agents of the respondent identified by the complainant as the bad actors here. While the evidence of what they knew and when they knew it could be taken to raise the possibility that they were motivated by a desire to retaliate against the complainant because of her filing of her complaint, the other evidence about the other things which the complainant did which would have provided them with an understandable and lawful motive for their decisions, was more powerful and persuasive.

The decision in this case, turning as it did on an assessment of the bona fides of the testimony by the respondent's agents about what motivated them in the challenged decisions, necessarily involved consideration of the credibility of the witnesses. The commission notes the indication by the ALJ who issued the decision in this matter, Pamela Rasche, that she consulted with Commissioner Anthony J. Theodore, before whom the hearing was held, regarding the credibility of the witnesses. ALJ Rasche's findings, particularly including (but not limited to) those in Findings of Fact numbers 26 and 40, which directly concern the genuineness of the motives of the respondent's agents, presumably reflect the credibility impressions of the trial examiner. Based on its review of the record, the commission finds no reason to disagree with these findings; on the contrary, it believes that they are consistent with and supported by the evidence in the record as to what the respondent's agents knew of the complainant's conduct and statements. The commission finds and concludes, in agreement with ALJ Rasche, that the most persuasive explanation for the various disciplinary actions meted out to the complainant was that they were the result of the respondent's dissatisfaction with the complainant's acts of misconduct at work, and were not motivated by the fact that the complainant had filed a complaint with the Personnel Commission.

With respect to the allegation of race discrimination, the complainant argues that she was treated differently than a non-white employee (Marie Pinion) who had been accused of having called a customer a bitch but who was not subjected to a disciplinary investigation. She also argued that she was treated differently from a Black employee (Mattie Thomas) against whom there had been some customer service complaints but who was not subjected to a disciplinary investigation. The complainant also alleged that Mattie Thomas had been given certain training opportunities that had been denied to the complainant. Finally, the complainant argued that employees of other races had been assigned to work at the information desk together, which was the staffing that position required, while the complainant was assigned to work the information desk alone. This, the complainant argues, established that she had been treated differently from other similarly situated employees of other races. However, the record supports the findings and conclusions of the ALJ, that the complainant was not similarly situated to Pinion and Thomas in that neither of them were on permissive probation and subject to quarterly evaluations, as the complainant was, at the time the accusations were made against them. The commission also agrees with the ALJ's rejection of the complainant's allegations about differential treatment regarding training, based on the fact that there were differences in the complainant's situation (her initial assignment on a temporary basis, and availability of the training in question once her assignment was made permanent) and that of the other employee she compared herself to.

For all of the foregoing reasons, the commission concludes that the complainant failed to establish that the adverse employment actions she complained of in her second complaint (now ERD Case No. 200303173) were motivated either by the fact that she had filed an earlier complaint with the Personnel Commission, or by her race.


NOTE: Even assuming arguendo that the issue of retaliation because of the statement made in complainant's March 14 meeting with Abrams was one which could appropriately be reached in this case, the commission would still arrive at the same outcome.

The complainant argued that there was a connection between complainant's statement to Abrams that she thought she was being picked on because of her race, and Wills' conclusion that the complainant "did not accept diversity in the workplace", and a connection between Wills' conclusion that the complainant "did not accept diversity in the workplace," and Wills' decision to suspend the complainant for 15 days. However, the commission believes that the weight of this evidence is not sufficient to overcome the other, much more compelling explanation for what happened here.

The question of whether disciplinary decisions were made concerning the complainant because of her statement on March 14 that she thought she was being picked on because she was white, must be evaluated in the context of the whole series of events and interactions that occurred from March 14 onward. Because of her decision that the "opposition" issue concerning the March 14 statement was not presented for decision, ALJ Rasche did not make any express findings that the discipline imposed on the complainant was not motivated by that "opposition." However, she did make a number of express findings as to what the discipline was motivated by. As noted above, the commission agreed with the finding of ALJ Rasche that Abrams had a good faith belief that the complaints of security guard Zigler and other individuals about the complainant's conduct on March 14 were true, that she genuinely believed that the complainant had been rude and discourteous to her, and that she acted on that basis. The commission also agreed with the finding of ALJ Rasche that respondent's management had a good faith belief that the complainant had called a customer a "bitch," and had made remarks about killing her supervisor, and that they acted on that basis. It is so much to be expected, and so entirely reasonable, that discipline would be imposed in such a situation, that the speculation that the discipline was instead actually motivated by the single stray comment of the complainant to her supervisor is simply not persuasive to the commission.

cc:
Attorney Peter Earle
Attorney Allyn Lepeska



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Footnotes:

(1)( Back ) In a meeting between them on March 14, 2000, complainant made a statement to her supervisor LaToya Abrams, to the effect that she believed she was being "picked on" because she was white. Complainant now seeks to rest her claim of retaliation significantly on the theory that she was retaliated against because she made this statement.

(2)( Back ) The narrative portion of the second complaint states, in its entirety, the following:

This is an amended complaint alleging retaliation for having filed a complaint of discrimination with the Personnel Commission on March 7, 2000. This amended complaint also alleges continuing disparate treatment on the basis of race with regard to the terms and conditions of employment. It is alleged the respondent has retaliated as follows:

A. By the institution of several disciplinary investigations without basis in fact;
B. That the complainant was subjected to ongoing, day-to-day harassment by her supervisor and coworkers;
C. That management positioned her to be falsely perceived to be a racist by her coworkers thereby polluting the workplace atmosphere;
D. That these issues were repeatedly brought to the attention of Allyn Lepeska and also to Jane Czeshinski on May 5, 2000.

On July 26, 2000, a conference was held between Allyn Lepeska, counsel for the complainant and Julie Eckenwalder of the Personnel Commission. During this conference Mr. Lepeska represented that the respondent had developed a settlement proposal designed to resolve all matters in dispute between the parties. Mr. Lepeska requested that the status conference be adjourned in order to allow the parties to meet in person on July 31, 2000 so that the respondent could present complainant with the settlement proposal.

On July 31, 2000 at the so-called settlement conference, the respondent unilaterally imposed a 15-day suspension for the alleged disciplinary infractions, declared the probationary employment of the complainant a failure and gave the complainant the choice of either a voluntary or involuntary demotion and reassignment to an unreasonably remote location. The formal letters of notification were dated July 25, 2000, one full day prior to Mr. Lepeska's representation. The underlying incidents upon which the imposition of discipline were based are without merit and grounded on false accusations. Similarly, the declared failure of the probationary assignment was without legitimate basis in fact.

All decision makers involved in imposing the discipline and demotion, including Jane Czeshinski, Allyn Lepeska, LaToya Abrams and Hazel Wills, know that the allegations upon which the discipline was based are without merit.

The foregoing conduct constitutes retaliation and disparate treatment with regard to terms and conditions of employment on the basis of race.

(3)( Back ) While it might be argued that this last-described principle does not apply here since investigation was waived, as was permitted under then-applicable 230.45(1m), there is a fatal flaw in any such argument. That flaw is, that the allegation had never been made in the first place. As described above, the second complaint was very specifically about retaliation for the filing of the first complaint with the Personnel Commission, and it cannot arguably be construed to encompass any allegation that respondent retaliated against complainant because of the statement she made to her supervisor. Therefore, such an allegation not having been made, there could have been no waiver of investigation of that allegation.

(4)( Back ) Accord, Kalsto v. Village of Somerset (LIRC, Oct. 3, 2000).

(5)( Back ) As the ALJ noted, Abrams' married and changed her surname to Clark after the events in this case. The transcript thus refers to her as "Clark," as does complainant in her briefs, while in its briefs the respondent refers to her as "Abrams".

(6)( Back ) As the ALJ noted, Czeshinski married and changed her surname to Zarada after the events in this case. The transcript thus refers to her as "Zarada", as does complainant in her briefs, while in its briefs the respondent refers to her as "Czeshinski."

 


uploaded 2005/06/20