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

ANDREW BARNES, Complainant


ERD Case No. CR200703309, EEOC Case No. 26G200702024C

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.  In the first paragraph of the ALJ's decision, replace the date "October 21, 2008" in the fourth sentence with the date "February 10, 2009."

2.  In Finding of Fact #1, add the phrase "a black man," after the complainant's name in the first sentence

3.  In Finding of Fact #2, replace the word "odd" in the second sentence with the word "off," and add an "s" at the end of the word "dispute" in the third sentence.

4.  Replace Finding of Fact #10 with the following:

Barnes did not allege that Semrad was the individual who covered the picture. McFerrin investigated and discovered from one of Barnes' coworkers, Ken Kornacki, that Kornacki had removed Barnes from the picture because he saw Barnes taking a picture of the picture with a camera. Kornacki told McFerrin that he did not know who put the sticker over Barnes' face. McFerrin told Kornacki that the picture either had to be restored to its original format or be removed from the shop. McFerrin found no evidence that Semrad had been involved with the picture.

5.  Add the following additional Finding of Fact as Finding of Fact #11, and renumber the subsequent findings of fact accordingly:

McFerrin also investigated Barnes' allegations against Semrad, including that Semrad told Barnes that he was going to get Barnes fired. McFerrin interviewed Semrad about the allegations. Semrad denied ever telling Barnes that he would get Barnes fired, and McFerrin could find no other witnesses to that alleged conduct by Semrad, so could not confirm it. McFerrin told Semrad that it was a two-way street, that Semrad needed to avoid Barnes, and that if the allegations were true, that conduct better stop and McFerrin would not tolerate it.

6.  In Finding of Fact #14, replace the word "Monday" with the word "March" and the word "waked" with the word "walked."

7.  In Finding of Fact #15, replace the number "123" with the number "12."

8.  In Finding of Fact #16, after "2007" insert the name "Barnes."

9.  In Finding of Fact #18, replace the word "appropriate" with the word "inappropriate," and delete the duplicative phrase "to a different."

10.  In Finding of Fact #19, replace the word "may" with the word "May" and delete the word "the" in the second to last line.

11. Replace Finding of Fact #24 with the following:

Sheridan informed Barnes that he needed to leave the premises and requested that he turn in his badge and company cell phone. Barnes said that he did not have his company cell phone with him. Sheridan then called Barnes' company issued cell phone number, at which time the cell phone that Barnes had with him rang. Barnes then stated that he did not have the company cell phone with him, but that he had a company SIM (memory chip) on his personal cell phone.

12. Replace the third and fourth sentences in Finding of Fact #29 with the following:

Sheridan also learned during his investigation that Barnes had told the label operator that he was conducting a label study, and had asked the label operator to conduct a special run of labels on Miller Lite bottles, giving the label operator the winning "peel and reveal" labels to use.


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

Dated and mailed May 14, 2012
barnean : 120 : 5


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


In his petition for commission review and supporting briefs, the complainant (by his attorney) argues that the ALJ used an incorrect and high standard to evaluate whether a probable cause case of race and age discrimination had been established. He also argues that the ALJ abused his discretion and denied the complainant due process by becoming a biased witness, by allowing hearsay from the respondent, and by refusing to allow the complainant's attorney to ask specific questions. He asserts that the respondent's witnesses lied repeatedly, and complains that the respondent's attorney asked leading questions of its witnesses and used objections to interrupt truthful answers from its witnesses. He reiterates allegations that the complainant made at the hearing about racist statements made to him and racist actions taken against him by his white coworkers, particularly by one coworker, and asserts that there was a "Caucasian group" at work that wanted to get rid of him and was supported by the respondent's managers. He asks the commission to "keep its focus on the undenied racial harassment to Mr. Barnes from Mr. Sermrad (sic) and his friends and Mr. Semrad's support from Director Sheridan." He also cites case law for the proposition that the use of the term "nigger" is inherently racially hostile.  (1)

However, after a careful review of the transcript of the hearing and the admitted exhibits, the commission does not find support in the record for the complainant's allegations about the ALJ's conduct of the hearing nor does it find that the record supports a probable cause finding of racial harassment of Mr. Barnes by his coworkers, of inappropriate support of Mr. Semrad by human resource manager Sheridan, or of other discrimination as alleged by the complainant. The commission specifically notes that there was no evidence of the use of the term "nigger" in the workplace, other than the complainant's unsubstantiated allegation.

Although the commission has made a number of modifications to the ALJ's findings of fact, these modifications have been made to clarify, not to substantively change, certain findings, and to add one finding supported by the record.

Hearing Process

The attorneys for both complainant and respondent were actively involved in the hearing, posing frequent and various objections, and the ALJ ruled on these objections in an even-handed manner, at the same time maintaining control of the hearing process. He did not permit mischaracterization of previous testimony, nor did he allow irrelevant or repetitious lines of questioning. Due to the frequent interruptions by both attorneys, the ALJ was required to play an active role in moving the hearing forward. Although the complainant may be unhappy with how the ALJ did this, the commission finds nothing in the record to support the complainant's argument that the ALJ was biased in his handling of the hearing, that he became a witness for the respondent during the hearing, or that he treated the complainant or his attorney unfairly during the hearing.

As to the allegation that the ALJ allowed hearsay testimony from the respondent's witnesses, thereby demonstrating an abuse of his discretion and denying the complainant due process, the commission again disagrees. Under the applicable law governing administrative hearings such as this one, per Wis. Stat. § 227.45, neither the ALJ nor the commission is bound by common law or statutory rules of evidence, including the hearsay rule. The law provides that all testimony having reasonable probative value should be admitted, and immaterial, irrelevant or unduly repetitious testimony should be excluded. The ALJ, in the proper exercise of his authority, made rulings consistent with this evidentiary standard.

In addition, testimony offered not for the truth of the matter asserted but instead for the purpose of showing what the employer believed and thus what motivated the employer in making an employment decision is not hearsay, and is frequently utilized in discrimination cases. See, e.g., Henderson v. Polaris Industries, ERD Case No. CR200602617 (LIRC June 9, 2011) (credible firsthand testimony establishing an investigation by employer, plus evidence the employer received during the investigation from employees who did not testify at the hearing led employer to believe complainant engaged in certain behavior); Smith v. Mail Contractors of America, ERD Case No. CR200503742 (LIRC Feb. 15, 2008) (doctor's medical correspondence and records not offered to prove validity of medical opinion therein, but to prove the information was provided to the employer); Stichmann v. Valley Health Care Center, ERD Case No. 200104418 (LIRC June 14, 2005) (exhibits prepared by individuals not present at hearing and not offered for truth of information therein, but instead for purpose of showing the description of an incident reported to the employer are properly admitted), and additional cases cited therein.

The ALJ properly allowed testimony from the respondent's witnesses when such testimony was not offered for the truth of the matter, but was offered as an explanation of what the respondent's witnesses had been told or what they understood had occurred, and thus, what motivated their actions in employment decisions relating to the complainant. The commission does not agree with the complainant that, in so doing, the ALJ reduced the hearing to a "largely meaningless ritual" and a "side show."

Probable Cause Standard

As to the complainant's argument that the ALJ utilized an incorrect standard of probable cause, again the commission disagrees. The complainant, relying on Gentilli v. LIRC, Case No. 89-CV-2004 (Wis. Cir. Ct. Dane County March 30, 1990), argues that in a probable cause case, the very most that a complainant should be required to do is to set forth that which would be required to make out a prima facie case. However, the commission notes, as it has done in previous cases, that the circuit court's analysis of the probable cause standard in Gentilli does not establish binding precedent or authority for the commission, but instead may be cited for whatever persuasiveness may be found in its reasoning and logic. See Stichmann, cited previously; Ford v. Lynn's Hallmark Inc., ERD Case No. CR200301184 (LIRC June 27, 2005).

The Wisconsin Administrative Code sets out, for purposes of the Wisconsin Fair Employment Act (WEFA), the probable cause standard, i.e., "a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the act probably has been or is being committed." Wis. Admin. Code § DWD 218.02(8). In a probable cause case, the complainant has the burden to show this reasonable ground for belief that discrimination occurred. Jacobs v. Lakeland College, ERD Case No. CR200600708 (LIRC June 30, 2011).

In Boldt v. LIRC and General Motors Corp., 172 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992), an appeal from a decision by LIRC that complainant Boldt had failed to show probable cause that he was discriminated against due to handicap, the court noted that, although the standard of proof at a probable cause hearing is low, the burden of showing probable cause rests on the complainant, and even if some evidence of discrimination exists in a case, LIRC might still conclude that based upon all the evidence produced at the hearing, it was not probable that discrimination had occurred. (italics added) The court, citing Pucci v. Rausch, 51 Wis. 2d 513, 187 N.W.2d 138 (1971), noted that the probable cause concept focuses on probabilities and not on possibilities.

In contrast, the concept of the prima facie case focuses on inference and presumption, which are closer to possibility and suspicion than to probability. Therefore, the complainant is required to establish more than a prima facie case in order to sustain the burden of showing probable cause to believe that discrimination has occurred as alleged. See Stichmann, cited previously; Ford v. Lynn's Hallmark Inc., cited previously.

As to the complainant's allegations that the respondent's witnesses frequently lied, the commission notes that the ALJ had an opportunity to observe the demeanor of the witnesses for both sides and was, therefore, in a good position to make a determination as to credibility. He did not credit the complainant's accounts of various events during his employment, and the commission, having carefully reviewed the record of the hearing, agrees with the ALJ's credibility judgment. In this regard, the court in the Boldt case, cited previously, specifically stated that it is appropriate for credibility determinations to be made at probable cause hearings.

Finally, it is important to note that it was not the respondent's burden to establish the lack of discrimination in this case, nor was it the respondent's obligation to present the testimony of each and every person who may have interacted with the complainant at work. The complainant had the option of issuing subpoenae to the complainant's coworkers and subjecting them to examination on their actions toward the complainant or observations about relevant incidents, but did not do so. The complainant cannot blame the ALJ or the respondent for the lack of evidence of discrimination, other than the complainant's allegations, during the hearing.


Simply put, the complainant did not make out a "reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe" that the respondent probably violated the WFEA by discriminating against the complainant in terms and conditions of his employment or in his termination due to his race or his age or because he opposed a discriminatory practice under the Act.

Although the complainant and his attorney may sincerely believe that Manager Sheridan "would lie to support Mr. Semrad," would "appease white workers," tried "to demonize the docile Mr. Barnes," is "utterly biased and incredible," and so on, these allegations made in complainant's brief are not based upon credible evidence. The commission finds Mr. Sheridan's testimony about his actions in investigating both Mr. Semrad's and Mr. Barnes' allegations against each other to be reasonable, credible, and without discriminatory animus, as was his decision to suspend them both at the same time for their ongoing and petty actions against one another, after previous warnings, and to warn them about the consequences should their behavior continue.  (2)

It is noteworthy as well that the respondent's employee relations manager, Christopher McFerrin, a black man, testified during the hearing. He had worked in the same location with both Mr. Semrad and Mr. Barnes from May 2005 to September 5, 2006, was aware of their conflicts, and had investigated various allegations made by each one about the other, including a claim substantiated by another worker that Mr. Barnes would stare at Mr. Semrad while at work, making Mr. Semrad uncomfortable. McFerrin had advised them both to avoid contact with the other, hoping to resolve the problems that way since he could not confirm most of the allegations due to the lack of witnesses. He also issued a warning letter to Mr. Barnes over a year before Mr. Barnes' discharge, expressing concern about his professionalism and judgment.

In addition, Mr. Sheridan's decision to discharge Mr. Barnes was reasonable, given the credible information available to him at the time, the complainant's unconvincing explanations for his actions, and the repeated warnings he had been given. There simply was no evidence presented that Mr. Sheridan had any bias against Mr. Barnes due to his race and/or age, or that Mr. Sheridan's decision to discharge or to suspend Mr. Barnes was motivated in any part by Mr. Barnes' reports of discriminatory actions taken against him by Mr. Semrad or other coworkers.

Finally, although the complainant may have been unhappy with events at work and may have had conflicts with a coworker, he has not established probable cause to believe that the respondent allowed a racially hostile work environment to exist. His allegations in this regard were not substantiated at the hearing, and the credible evidence established that the respondent investigated the allegations that he made, but was not able to find any witnesses to corroborate his allegations.

Attorney Rocky Coe
Attorney Ely Leichtling

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(1)( Back ) The complainant raises other issues in his petition for commission review, and makes numerous arguments in support of his position. The commission has considered them all, but discusses here only those issues and arguments that it regards as the most significant.

(2)( Back ) The commission notes that the radio and banana sticker incidents, having occurred more than 300 days before the complaint was filed, were dismissed as untimely. However, they can be used as background evidence, and the commission has considered them in this manner.


uploaded 2012/06/15