P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. 200500165

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 conclusions in that decision as its own, except that it makes the following modifications:

1. The second sentence in paragraph 1 of the FINDINGS OF FACT is deleted and the following sentence is substituted therefor:

"Zebrowski's duties as custodial worker included cleaning the club's dining rooms and bathrooms, and helping to set up for parties."

2. In the third line of paragraph 2 of the FINDINGS OF FACT, the word "to" that first appears on this line is deleted and the word "of" is substituted therefor.

3. In the third line of paragraph 9 of the FINDINGS OF FACT, the phrase "incident that occurred on December 2, 2004" is deleted and the phrase "incidents that occurred on December 2 and 3, 2004" is substituted therefor.

4. In the second line of paragraph 13 of the FINDINGS OF FACT, the date "December 2, 2004" is deleted and "December 2 and 3, 2004" is substituted therefor.


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

Dated and mailed November 28, 2007
zebrocl . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


Clayton Zebrowski, employed by the respondent as a custodial worker and parking lot attendant, alleges that the respondent violated the WFEA by terminating his employment on the basis of sexual orientation and because he opposed a discriminatory practice under the Act.

The evidence indicates, however, that the respondent's general manager, Valerie McDonald, terminated Zebrowski's employment effective on December 17, 2004, because of his behavior towards a supervisor, Ron Ramm, on December 2 and 3, 2004. In a letter to Zebrowski setting forth the basis for his termination, McDonald states: "On December 2, 2004, you asked your supervisor to assist you in the parking [lot] and after he agreed and went out and asked you for direction, you responded by angrily stating 'fuck this' and 'fuck that'-'I'll do it myself.' The following day, December 3, 2004, you appeared for work and again angry and in a threatening and disruptive manner confronted your supervisor regarding the situation the prior day. When your supervisor asked you to tone it down or leave the building, you refused. Accordingly, the supervisor told you that he would call the police to have you removed, to which you replied, 'I don't give a fuck.' " McDonald's letter states that this behavior alone warranted Zebrowski's termination, and that nothing in his employment history mitigated that result as he had been previously warned about similar incidents of inappropriate conduct towards his supervisors and other co-workers. Further, Zebrowski provided no evidence that McDonald was aware of his sexual orientation.

Zebrowski contends that during his employment Ramm harassed him on the basis of sexual orientation and that he complained about this but nothing was ever done about it. However, Zebrowski admits that he had not complained to McDonald, who had been at the respondent for two weeks, about being harassed by Ramm. For McDonald to have discharged Zebrowski for complaining about being harassed by Ramm she would have had to have known about these complaints, but Zebrowski admits that he did not know if McDonald was aware of his complaints about Ramm. Furthermore, Zebrowski admits that he had no evidence of any bias on the part of McDonald.

On appeal, Zebrowski asserts that he feels that he was not given a "real chance" to tell his side since he did not have a lawyer. Further, Zebrowski apparently asserts that the ALJ would not allow him or his witnesses to state the facts on his behalf and that he had letters from people who saw how he was treated. However, while Zebrowski was not represented by an attorney, according to the Summary of Proceedings the ALJ asked Zebrowski questions in order to elicit his side in this matter. Zebrowski has not identified what facts the ALJ would not allow him to state. With respect to witnesses and documents, the case file indicates that Zebrowski had not complied with administrative rule § DWD 218.17, which requires that no later than the tenth day prior to the hearing that parties file with the Division and serve upon all other parties, a written list of the names of witnesses and copies of the exhibits the parties intend to use at the hearing. This rule permits the ALJ to exclude the testimony of witnesses and the exhibits not identified in a timely fashion pursuant to this rule.

Further, Zebrowski asserts he feels that the ALJ was only taking the side of the respondent and its law firm. However, given Zebrowski's lack of evidence to show that McDonald was aware of his sexual orientation, plus his admissions that he did not know if McDonald was aware of his alleged complaints of harassment by Ramm and that he had no evidence of any bias on the part of McDonald, it is difficult to see how the ALJ was only taking the side of the respondent.

Zebrowski also states that he cannot understand why it took some eleven months for the Division to send a decision to him. That it took this long for a decision to be issued in this matter is regrettable. However, as the court has noted, the Fair Employment Act contains no mandatory time limits within which decisions must be filed, and absent a mandatory requirement, administrative delay in issuing a decision is not reversible error. Chicago & N.W. R.R. v. LIRC, 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979).

cc: Attorney Sean M. Scullen

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uploaded 2007/11/30