STEVEN BURDELL MAEL, Complainant
STATE OF WISCONSIN
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, except that it makes the following modifications:
1. The third sentence in paragraph six of the administrative law judge's FINDINGS OF FACT is deleted and the following sentence is substituted therefor:
"On that same day, Mael interrupted a conversation that the Lieutenant Governor was having with her aide."
2. In the first sentence in paragraph eighteen of the administrative law judge's FINDINGS OF FACT the name "Mael" is deleted and the name "Merdler" is substituted therefor.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed january 29, 2009
maelst . rmd : 164 : 9
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Petition for Review
In his petition for commission review the complainant does not specifically challenge any of the administrative law judge's findings of fact as unsupported by evidence in the record, nor does he argue that the legal conclusions drawn from those findings cannot be sustained. Rather, the complainant devotes most of his petition to arguing that the administrative law judge was biased against him and in favor of the respondent and did not give fair consideration to the evidence on his behalf. However, the mere fact that the administrative law judge arrived at a decision in favor of the respondent is not evidence of bias on her part, and the commission sees no reason to believe that the administrative law judge was not objective or afforded the complainant anything other than a full and fair hearing. The commission has conducted an independent review of the same evidence that was presented at the hearing before the administrative law judge and, based upon that review, it arrives at the same conclusion as did the administrative law judge; the evidence is overwhelming that the complainant was reassigned from his assignment in the "Dignitary Unit" based upon concerns expressed by the governor's office and not due to his age, and that any changes in his salary thereafter (1) were a result of his own decision to become a represented employee and, again, not because of age.
In his petition the complainant argues that another employee, Marc Schmidt, had performance problems and that, although former Governor McCallum asked that he be removed from the Dignitary Unit, Schmidt was not removed. The complainant wonders why the administrative law judge's decision contains no findings on this point. However, while the hearing record established that on one occasion Schmidt was late providing transportation for the former governor, it contains no evidence establishing that there was a request he be reassigned. Moreover, given that Schmidt is several years older than the complainant, evidence demonstrating that he was treated more favorably than the complainant would not strengthen the complainant's argument that he was discriminated against based upon his age.
The complainant also argues, as he did at the hearing, that the respondent wanted him off his position so it could assign David Davis, a younger worker. This argument fails, for several reasons. First, the record establishes that the respondent had seven officers on the Dignitary Unit at the time Davis was assigned, five of whom were in the protected age group, and at least two of whom were older than the complainant. The two older individuals were the governor's primary drivers. Consequently, the commission sees no reason to presume the respondent had a bias in favor of younger officers. Second, Marc Schmidt testified, credibly and without rebuttal, that Davis would have been put on the Dignitary Unit whether or not the complainant was removed, and that the original plan was to have both of them. Thus, it does not appear that the complainant was removed from the Dignitary Unit to make room for Davis. Finally, the evidence established that, after Davis decided he no longer wanted to work on the Dignitary Unit, the position went unfilled for lack of any interested employee. If, in fact, the reason the complainant was removed from the position was to make room for a younger employee, as he alleges, it stands to reason the respondent would have reinstated the complainant to the position after the younger employee chose to leave, rather than remaining short-staffed for lack of interested workers. The fact that the respondent did not do so lends credence to its assertion that the decision to remove the complainant from the Dignitary Unit was based solely upon performance concerns unrelated to his age.
Finally, the complainant makes an argument that the respondent "acted with
disparate impact." The complainant maintains that, even where an employer is not
motivated by discriminatory intent, Title VII (2) prohibits it from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. This argument fails. Disparate impact must be proved by statistical evidence comparing the effect of an employer's policy or standard on employees in the different groups being compared.
See, Allen v. State of WI (LIRC, Feb. 12, 2007), and cases cited therein. The complainant has presented no statistical evidence, and, moreover, it is hard to imagine how the respondent's policy of reassigning officers at the request of the governor's office's -- a request which would tend to be based upon subjective factors relating to the governor's level of comfort with a specific driver -- would have an adverse impact on any one specific class.
Motion to Dismiss
The respondent has moved that the commission dismiss the complainant's petition based on the fact that it contains comments which the respondent describes as "defamatory, scurrilous and/or inappropriate." The respondent requests that, in the alternative, the commission address the "very inappropriate" conduct on the part of complainant. The complainant's petition for review is, indeed, replete with personal insults against the administrative law judge. The commission agrees that the complainant's comments are inappropriate and have no place in a legal filing. Moreover, they do nothing to enhance the complainant's arguments or to strengthen his case on appeal. However, the commission does not have the authority to dismiss a petition as a sanction for inappropriate language. The respondent's motion to dismiss the petition is therefore denied. Because, as noted above, the commission finds the complainant's arguments unpersuasive, the administrative law judge's dismissal of his complaint is affirmed.
cc: Attorney David J. Vergeront
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