762.3 Matters found probative or relevant

Where at the hearing the Complainant was not asked to explain any discrepancies between his testimony and what he wrote on his complaint form, and was not given an opportunity to provide an explanation for any apparent inconsistencies between the two, the Commission would not rely on the complaint form to impeach the Complainant’s credibility. Hopson v. Actuant Corp. (LIRC, 05/8/14).

When an investigation results in a determination of no probable cause and that is appealed to a hearing on the issue of probable cause, and when that hearing results in an ALJ’s decision that there is probable cause and that the matter should proceed to a hearing on the merits, the proceedings on the merits which follow are entirely de novo. The record of the probable cause hearing is not part of the record on which the merits are to be decided, and the decision of the ALJ who presided at the probable cause hearing is of no relevance and of no weight in the merits proceedings. Neither the probable cause hearing record nor the decision resulting from it should be cited as having any significance, or accorded any significance, in the process of trying and deciding the merits of the case. Walker v. City of Eau Claire (LIRC, 03/28/13).

In discrimination cases the important question is the motivation of the person making the challenged decision – specifically, whether that person was motivated by an impermissible factor such as race, sex or age. Evidence about something a decision-maker was told by another person can be important in understanding what the decision-marker’s motive was and it is appropriate for that evidence to be considered for that purpose. Luckett v. Regis Corp. (LIRC, 12/28/12).

Events which occurred outside of the statute of limitations period may be considered at hearing, although the remoteness in time of the events may limit their usefulness. Thobaben v. Waupaca County Sheriff’s Dep’t (LIRC, 12/23/11).

It was within an Administrative Law Judge’s discretion to foreclose the Complainant from further attempts to impeach a witness’s hearing testimony after the ALJ concluded that the Complainant’s prior attempts to impeach the witness’s testimony did not in fact constitute impeachment. Whether what a witness says on the stand is inconsistent with a prior statement lies within the discretion of the trier of fact. Clark v. Plastocon (LIRC, 04/11/03).

The fact that certain allegations in the complaint were untimely, and thus could not in themselves be found to constitute discreet violations of the Wisconsin Fair Employment Act, does not mean that the events cannot be considered as evidence bearing on the question of whether acts which occurred within the 300-day period were discriminatory. The statute of limitations is not a rule of evidence. Clark v. Friskies Petcare (LIRC, 08/16/01).

The risk that irrelevant evidence will have an improper effect on the decision-maker is not particularly significant in an administrative hearing such as those held on complaints under the Wisconsin Fair Employment Act. Administrative Law Judges, who are attorneys experienced in resolution of the evidentiary and other legal issues presented in cases of this nature, are presumably able to disregard evidence which is irrelevant or otherwise improper when the time comes for them to make decisions on the merits of the case. Fauteck v. Sinai Samaritan Med. Ctr. (LIRC, 11/09/00).

The only significant reason for excluding evidence on relevancy grounds in administrative hearings is to avoid unnecessary lengthening of the hearing. An overly stringent approach to questions of relevance can be directly counter-productive to the goal of expediting the hearing. Further, LIRC or a court on review may find certain evidence relevant even though the ALJ may not. For this reason, the proper procedure is to allow parties to submit offers of proof as to evidence which the ALJ concludes is inadmissible. Fauteck v. Sinai Samaritan Med. Ctr. (LIRC, 11/09/00).

Details of a prior conviction may be considered as evidence impeaching credibility where the probative value of the evidence is not outweighed by its danger of unfair prejudice. Sec. 906.09, Stats. In this case, the probative value of the evidence that the Complainant had been convicted of a criminal offense involving dishonesty was highly relevant to the issue of the Complainant’s truthfulness.Urbanek v. Arrowhead Reg’l Distrib. (LIRC, 09/19/97).

Anecdotal evidence provided by former employees as to their own situations and their allegations that they were discharged because of their age, offered to prove a pattern of age discrimination, is generally not helpful. Evidence of such a pattern can more convincingly be shown by statistics that show unexplained disparities in treatment of classes of employees apparently distinguished by age. Erickson v. DEC Int’l (LIRC, 01/18/90).

Consideration of an applicant’s recent gaps in teaching experience is not evidence of age or sex discrimination, unless it is shown that such a consideration actually has a disparate impact on women or people over the age of 40. Chandler v. UW-La Crosse (Wis. Pers. Comm’n, 08/24/89).

The reasonableness of the employer’s reasons for its decisions may be probative of whether they are pretext. The more idiosyncratic or questionable the employer’s reason, the easier it would be to expose it as a pretext, if indeed it is one. Leick v. Menasha Corp. (LIRC, 08/17/89).

Evidence of other cases in which insubordinate behavior similar to the Complainant’s was tolerated was found unpersuasive, where the other incidents occurred before the tenure of the general manager who discharged the Complainant, and were unknown to him. McKiernan v. Madison Metro Bus Co. (LIRC, 02/12/87).

Sec. 904.04, Stats., does not preclude the admission, in a proceeding concerning allegations of sexual harassment, of evidence that the accused harasser engaged in sexual harassment towards others on other occasions. Schwantes v. Orbit Resort (LIRC, 05/22/86).

Evidence of how a Complainant’s replacement performed after he replaced the Complainant was not relevant. In determining whether there was a prohibited motivation in removing the Complainant from the position, the Commission looks only to the motivations leading up to that decision, not to what happened afterwards, since what happened after has no bearing on whether the decision was based on a discriminatory intent. Lyckberg v. LIRC (Dane Co. Cir. Ct., 03/25/86).

Because promotion decisions were made at the divisional level, it was not error for LIRC to consider the pattern of supervisor promotions outside the plant where the employee worked. If there were varying “local factors” that led to covert discrimination, these factors should have been established. Bidlack v. LIRC (Sola-Basis Indus.) (Walworth Co. Cir. Ct., 03/25/81).

Proof of a general atmosphere of discrimination is not direct proof of discrimination against an individual, but will be considered with other evidence to determine whether race discrimination occurred. Stonewall v. DILHR (Wis. Pers. Comm'n, 05/30/80).

Adverse employment recommendations, while admissible into evidence and probative of the employer's state of mind in making its hiring decisions, are hearsay with respect to the applicant's work performance and do not of themselves constitute a legitimate, nondiscriminatory reason for refusing to hire a black applicant. Jackson v. Wingra Redi-Mix (LIRC, 06/07/78).

A denial by DILHR of the unemployment compensation claim of an employee with rheumatoid arthritis because she was unavailable for work was not probative of her inability to perform her job duties at the time of her discharge. J.C. Penny v. DILHR (Mitchell) (Dane Co. Cir. Ct., 03/22/76).