RICHARD G DEMOYA, Complainant
STATE OF WISCONSIN DEPARTMENT OF VETERANS AFFAIRS, Respondent
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 makes the following:
1. The complainant, Richard deMoya, filed two complaints of discrimination with the equal rights division in 2006-- involving allegations of discrimination based on retaliation and ancestry -- prior to filing ERD Case No. CR 200704350 in November of 2007, and he also made an internal complaint with the respondent in 2005 alleging discrimination based on ancestry.
2. The respondent - State of Wisconsin, department of veterans affairs (WDVA) - is a governmental entity and is an employer doing business in the State of Wisconsin.
3. The complainant was formerly employed by the respondent from sometime in 1994 until on or around November 1, 2006, when he officially ended employment pursuant to a settlement agreement with the respondent.
4. As a result of his employment with WDVA, the complainant became accredited as a service organization representative having access to information from claimant's records under the control of the WDVA.
5. After his employment ended with the respondent, the claimant continued to assist veterans with their claims.
6. In an e-mail dated November 15, 2007, Jim Engel, liaison for the bureau of federal claims at the DVA, who had been working on veterans' claims with the complainant, responded to an inquiry from the complainant as follows:
I informed Mr. [Henry] Simon that the decision was apparently released to him yesterday and may arrive in today's mail. ...
In addition, I have electronically requested the C-file and will give it a thorough review upon its arrival. ...
I cannot provide you notice of the outcome on the claim. It is my understanding that your accreditation with WDVA ended with your retirement. Also, I have been ordered by headquarters to respond to your inquiries only if they pertain to your personal claim. (This directive came out of the blue.) HOWEVER, rest assured that I will give Mr. Simon good service. ...
7. In a memo dated November 19, 2007, the respondent's chief legal counsel, James Stewart, e-mailed the complainant as follows:
I was unaware that you were seeking a response to your current accreditation status with WDVA. Your previous communications dealt with your status with the USDVA, as they maintain the accreditation for handling claims within the USDVA administrative system. WDVA does not certify individuals for claims handing within the USDVA system. The department sponsors individuals for certification under the USDVA regulations and where appropriate, seeks cancellation of such sponsorship.
The requirements for sponsorship are laid out at 38 CFR 14.629 and are fairly straightforward. Those regulations require the sponsor to certify several requirements as being met: ... (2) is either a member in good standing or a paid employee of such organization working for it not less than 1,000 hours annually; ...
Likewise, the ability to seek the cancellation of any accreditation is laid out at 38 C.F.R. 14.633: ... (a) Accreditation may be canceled at the request of an ... organization.
(b) Accreditation shall be canceled at such time a determination is made that any requirement of § 14.629 is no longer met by an agent, attorney or representative. ...
As I have stated in previous communications, you are no longer employed by the department. The department is unable to certify that you are employed and that requirement is part of the sponsorship requirements under either the old or new version of the law. The department is advising the USDVA of this fact and asking that its sponsorship of your accreditation be terminated in order to stay compliant with federal regulations. As the department is not the accrediting agency, it can not revoke your accreditation.
The use of WDVA facilities is not generally available to non-employees. Liability issues, including both bodily harm and access to confidential material governed by both state and federal laws minimize the department's ability to share its limited resources. I am unaware of any individual claiming you are decertified. The general prohibition regarding the use of WDVA facilities by non-employees would prevent the use of WDVA facilities by any non-employee, including you. If you are arguing that there is some inherent right to use the department's facilities as a non-employee, I am willing to review your legal citations and advise the department accordingly. As always, please feel free to contact me if you have any questions.
8. In a letter dated November 20, 2007, acting secretary of the respondent, William Kloster, wrote as follows to Roland Bessette, regional counsel for the U.S. department of veterans affairs (USDVA):
Our department has sponsored a number of agents through the process available under 38 C.F.R. 14.626 to 14.635. In reviewing our records and the requirements of the program, we realized we had failed to forward a list of individuals who had died, ceased working for the department or had stopped working for their county veterans service office. We would request that the individuals on the attached list be decertified as agents sponsored by the State of Wisconsin, Department of Veterans Affairs. We would also appreciate any advice you would offer regarding the frequency you would recommend for addressing this issue in the future (quarterly, semi-annually, or annually). ...
The November 20th correspondence had an attached list of fifty-two individuals, including the complainant, for whom the respondent was requesting decertification as agents sponsored by the WDVA.
9. Even if an individual were no longer eligible to be an agent sponsored by the WDVA, the individual could be accredited to be a service officer representative pursuant to some other means (e.g., being sponsored by a different entity than the respondent).
10. In correspondence dated November 22, 2007 from Henry Simon to Engel, it was indicated as follows:
The purpose of this letter is to inform you that while I choose to retain the Wisconsin Department of Veterans Affairs and you as my official accredited representative, I authorize Richard G. deMoya to assist me in the prosecution of my claims.
Mr. deMoya has my express permission to have access to information in my personal service, medical, and VA records and to discuss matters relevant to the processing of my claim with you.
...
11. Letters similar to Simon's November 22nd correspondence and each also dated November 22, 2007 and addressed to Engel were signed by Michael Schott (regarding the Complainant's access to Schott's records) and by David Smith (regarding the Complainant's access to David Smith's deceased father's records).
12. In a letter dated November 29, 2007, Dennis Bohen, director of the bureau of claims for the respondent, wrote as follows to Simon:
This office is in receipt of your letter dated November 22, 2007 authorizing Richard G. deMoya to assist in the prosecution of your claims before the United States Department of Veterans Affairs (USVA). In order to better serve you, it is requested that you please clarify your intent.
Will you be designating Mr. deMoya as your Power of Attorney (POA)? Should that be the case, you will need to complete a VA Form 21-22 and forward it to the USDVA Regional Office and the service organization Mr. deMoya is associated with at this time. If Mr. deMoya will be acting as your individual representative, VA Form 21-22a must be completed and forwarded. The address for forwarding this action is: ...
Similar correspondence dated November 30, 2007 was also sent by Bohen to Schott and to Smith.
13. In an e-mail to Engel on December 10, 2007, the complainant indicated as follows:
Jim,
Mr. Schott, Mr. Simon, and Mr. Smith have apparently received letters from Mr. Bohen asking them to clarify their representation. In my experience, this is an unprecedented, confusing and seemingly harassing action.
The letters sent by those claimants to you were quite clear that these claimants choose to retain WDVA and you as their accrediting representative. Revocation would only happen should they submit a new 21-22. They have advise [sic] me that they will not be submitting a new 21-22.
I will not be seeking accreditation as a claims agent. I am currently an accredited representative but not the POA for these claimants.
It is my hope that Mr. Bohen's intrusion into processing of Mr. Simon's and Mrs. Smith's claims do not further delay your typical efficiency in coordinating these claimants' actions.
Because he apparently has no background in claims prior to coming to WDVA, perhaps you could advise Mr. Bohen of the legal duties and responsibilities to claimants by an accredited organization as enumerated in Part 14, 38 CFR.
Rick
14. Engel responded to the complainant's December 10th e-mail as follows:
Rick, sorry for the delay in responding to your messages. I have filed an NOD on Mr. Simon's behalf. I am sending him a copy in tomorrow's mail. He may wish to share it with you.
Despite the statements signed by these 3 gentlemen, I remain under orders to discuss no cases with you but your own. This order comes directly from Madison. Please call me at my home ... if you wish tom (sic) discuss this matter in greater detail.
Rest assured that I will continue to do my best in each of these cases.
Jim
15. In an e-mail dated December 26, 2007 to the complainant, chief legal counsel Stewart wrote as follows:
Mr. Perelman has requested I respond to your inquiry. You are not "accredited" by WDVA. You obtained USDVA accreditation through the sponsorship of WDVA, but the accreditation you obtained was due to your status as an employee of the department. While you may still be accredited with the USDVA, such status does not compel the department to allow you access to the files it is obligated to protect where you are not an employee or "duly authorized representative" of a veteran. The department is required to follow both state and federal laws regarding the access it gives to information obtained on veteran clients (see s. 45.04, Stats., and 38 USCS Chapters 57 and 59). The records you seek are records which require specific authorization under both state and federal regulations be met prior to any disclosure by the department.
You are not an employee of WDVA; federal regulations [38 CFR 14.629 (a) (2)] require that any representative or agent, accredited under 38 C.F.R. 14.628, be an employee of the organization (or a member in good standing) for not less than 1000 hours annually. While you may argue that the lack of such employment does not invalidate your federal certification, state law also requires that you be an employee, service officer, or a "duly authorized representative" as the term is defined at s. 45.04 (1) (a), Stats and 38 CFR 1.524. You are not a service officer. You have not presented appropriate qualifications as a duly authorized representative (other than the federal certification based on your prior employment by the department) under either state or federal laws. As you have not demonstrated you meet the requirements elaborated in both state and federal laws for access to these records, the department must continue to deny access to the records it holds in confidence for the veterans we serve.
I regret I was unable to assist you with your request. Should you feel you have appropriate qualifications to be a "duly authorized representative" as that term is defined in state and federal law, please forward the evidence to my attention and I will ensure you receive the same access other duly authorized representatives are given at our claims office. You are always free to discuss your claim with our staff, assuming our staff holds your power of attorney (POA) for claims before the USDVA. ...
16. In correspondence dated September 4, 2008 to the complainant, David Donahue, FOIA officer at the USDVA, wrote as follows:
...
Our records show that you have been an accredited representative with the Wisconsin Department of Veterans Affairs since April 27, 1999. I am enclosing a copy of the information found in the VA website which indicates your accreditation. ...
17. In response to a subsequent inquiry by the complainant, on October 2, 2008, Donahue provided the complainant with a list of "... all service officer representatives accredited by the Department of Veterans Affairs through the Wisconsin Department of Veterans Affairs."
Included on the list provided to the complainant were persons who were currently sponsored by the respondent along with persons, including the complainant, who had been on the list that acting secretary Kloster had sent to the USDVA on November 20, 2007 with a request that they be decertified as agents sponsored by the respondent because they had "... died, ceased working for the department or had stopped working for their county veterans service office."
18. In January of 2008, the respondent completed creation of a form (WDVA 1045) entitled "Request for Release and/or Discussion of Veterans Records" that permitted a veteran to designate a "Party who may receive and/or discuss my records with WDVA". The form was developed at least in part in response to the complainant's desire to help veterans even after the complainant had left the respondent's employment in November of 2006 and the respondent considered him to no longer be a "duly authorized representative" as defined in sec. 45.04 (1)(a) of the Wisconsin Statutes.
19. In January of 2008, Simon, Schott, and Smith (1) signed "Request for Release and/or Discussion of Veterans Records" (WDVA 1045) forms authorizing the complainant to receive and/or discuss their veterans records.
20. Pursuant to the WVDA 1045 authorizations provided by Simon, Schott, and Smith, the respondent permitted the complainant access to privileged and confidential information contained in their veterans records.
21. At the time of the hearing on March 16, 2009, Schott's claim had been resolved in his favor, and claims by Simon and Smith were pending.
22. In denying the complainant access to veterans records in November and December 2007, the respondent was motivated by reasonable concerns about the privacy and confidentiality of the veteran records it maintains and its compliance with federal and state laws and regulations regarding veterans records, and its action were not in retaliation for the complainant's previous filings of complaints of discrimination against the respondent with the equal rights division or his 2005 internal complaint alleging discrimination by the respondent.
1. The respondent is an employer within the meaning of the Wisconsin Fair Employment Act (WFEA), sec. 111.31, et seq., Wis. Stats.
2. The complainant has failed to establish that there is probable cause to believe that the respondent, in violation of the Wisconsin Fair Employment Act, discriminated against the complainant on the basis that the complainant had opposed what he in good faith believed to be a discriminatory practice(s) under the WFEA.
3. The complainant has failed to establish that there is probable cause to believe that the respondent, in violation of the Wisconsin Fair Employment Act, discriminated against the complainant on the basis that the complainant made a complaint under the WFEA.
The complaint in this matter is dismissed with prejudice.
Dated and mailed
June 28, 2012
demoyr2 : 120 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission has rewritten the ALJ's decision, retaining many of his findings of fact but revising his conclusions of law and deleting his memorandum opinion, to reflect the proper standard of review and analysis. In this case, the ALJ granted the respondent's motion to dismiss made after the complainant had presented his case-in-chief. The commission notes that, although it generally disfavors the granting of such motions, its concern in such instances is based upon the inadequacy of the evidence existing to support the motion to dismiss. That concern is not present in this case in which there was a fully developed evidentiary record, including witnesses involved in the alleged discriminatory actions, as well as other persons employed by the respondent. Through its own examination of these witnesses, the respondent was able to establish its legitimate reasons for the alleged discriminatory actions, reasons that the ALJ found credible and supported by the evidence in the record, which included over 50 exhibits, including at least a dozen offered by the respondent (2).
However, the ALJ reviewed the evidence by construing disputed facts in the light most favorable to the complainant. That is not the proper standard to apply in this case given that there is an established and developed hearing record upon which the ALJ may rely. See Josellis v. Pace Industries Inc., ERD Case No. CR 199900264 (LIRC Aug. 31, 2004). This is not a ruling on a prehearing motion to dismiss, in which the fact finder relies on written pleadings rather than testimony. It is a ruling in which the ALJ should resolve disputed facts in the same manner he would in any completed hearing, including assessing the credibility of the various witnesses. He is not confined to determining whether the complainant has made out a prima facie case, but can reach a decision on probable cause. For that reason, the commission has rewritten the decision, applying the proper standard and specifically making its findings of fact and conclusions of law on probable cause.
Based upon its review of the hearing record, including a review of the digital recording to evaluate the complainant's procedural allegations, the commission concludes that the complainant failed to establish probable cause to believe that the respondent discriminated against him on the basis that he had opposed a discriminatory practice under the Wisconsin Fair Employment Act ("WFEA" or "the Act") or on the basis that he made a complaint under the WFEA (3).
Procedural issues
Before addressing the merits of his complaint and substantive issues raised in his petition for review, the commission wishes to respond to several allegations the complainant has made regarding the adequacy of the hearing and the ALJ's conduct of the hearing. After the first three days of hearing (September 5, November 13, and November 14, 2008) and several days prior to the fourth day of the hearing (March 16, 2009), he requested, by written motion, that the ALJ disqualify himself from hearing the case. He alleged that the ALJ had a personal bias and conflict of interest in the case based upon (1) a former professional and current personal relationship with respondent's legal counsel, who had previously served as deputy secretary of the Wisconsin department of workforce development and administrator of the equal rights division while the ALJ served as a subordinate ALJ, (2) a personal relationship with respondent's key witness, Mr. Perelman, with whom he exchanged personal comments about their respective families during hearing recesses, (3) a verbally abusive attitude toward the complainant during his examination of witnesses and presentation of motions, even though the complainant had advised the parties of his heart condition and the impact of stress upon that condition, and (4) a failure to permit postponement of the fourth day of hearing so that the complainant could secure counsel to advise him on several issues of legal interpretation, including ensuring the personal appearance of a federal witness working out of the area.
The ALJ responded to each of these allegations at the beginning of the hearing after denying the complainant's request for a postponement, and refused to disqualify himself. The record of the hearing reflects that the ALJ stated that he saw nothing that would suggest a bias on his behalf for the respondent simply because Mr. Diaz had been connected with the equal rights division in the past, and the fact that Mr. Perelman's daughter and the ALJ's niece may have known one another at some point did not create a conflict of interest. He noted that the fact that the complainant did not like some of the rulings the ALJ made in the case did not give the complainant the right to attack the credibility of the forum.
The complainant now alleges that the equal rights division failed to forward this request for disqualification to LIRC with the record of the case, and asserts that the ALJ's denial of this motion prejudiced his rights, negatively affected his ability to present his case, and compromised his ability to get a fair and impartial hearing.
Persons who serve as decision-makers in state administrative proceedings enjoy a presumption of honesty and integrity. Vaisman v. Aldridge, Inc., ERD Case No. 8751142 (LIRC Oct. 21, 1991), citing Guthrie v. WERC, 111 Wis. 2d 447, 331 N.W.2d 331 (1983); State ex rel. DeLuca v. Common Council, 72 Wis. 2d 672, 242 N.W.2d 689 (1976); Eastman v. City of Madison, 117 Wis. 2d 106, 342 N.W.2d 764 (Ct. App. 1983). A party seeking to prove either actual bias or an impermissibly high risk of bias bears a heavy burden to overcome this presumption. DeLuca, 72 Wis. 2d at 684; Eastman, 117 Wis. 2d at 114. The complainant has not met this heavy burden.
The complainant's affidavit of disqualification is contained in the record of the file, so the commission cannot address the complainant's allegation in this regard. If it was omitted at some point, that omission has been remedied, and there is absolutely no evidence of wrongdoing by the equal rights division.
As to complainant's allegations about the respondent's attorney, the complainant waited until several days before the fourth day of hearings to assert his claims. Wis. Admin. Code § DWD 218.16 provides that an administrative law judge shall determine whether to disqualify himself because of personal bias or other reason upon a timely and sufficient affidavit filed by a party. The complainant knew, or had reason to know, about the ALJ's previous work relationship with the attorney when the hearing began in September 2008, but waited months to make this allegation. Such a request was untimely. In addition, without more, this cannot serve as a reason for the ALJ to disqualify himself, as every ALJ in the division who worked during Mr. Diaz's tenure with the program would be equally affected.
As to the ALJ's relationship with Mr. Perelman, it cannot be said that mere pleasantries exchanged at the beginning of a hearing between persons who know one another constitute a conflict of interest. The complainant argues that Mr. Perelman should have been sequestered along with other witnesses, but he was permitted to stay in the hearing room because he was appearing on behalf of the respondent, with the attorneys serving as the respondent's legal representatives. The commission notes that this is the process that is routinely followed in these hearings, pursuant to Wis. Admin. Code ยง 218.18(3), (4) and the ALJ's ruling allowing Mr. Perelman to remain in the hearing room was entirely appropriate.
Although the complainant alleged verbal abuse by the ALJ in his affidavit of disqualification, he has not raised that allegation in his brief in support of his petition for review. Nevertheless, the commission notes that its review of the record and the digital recording does not substantiate allegations of verbal abuse by the ALJ. The record does indicate a level of hostility between the parties, but the ALJ throughout the hearing appeared patient with and responsive to the complainant, who was unrepresented.
As to the complainant's postponement requests, again the commission sees no error or bias in the ALJ's rulings. Wis. Admin. Code § 218.18(2) requires that all requests for postponements shall be filed with the ALJ within 10 days after notice of the hearing, expect where emergency circumstance arise after the notice is issued but prior to the hearing. The complainant submitted a written request to the ALJ for a postponement of the March 16th hearing; that request was received by the equal rights division on March 12th, months after notice of the hearing and only four days before the hearing. As justification for his request for a postponement, the complainant argued that he must seek legal counsel in accordance with the ALJ's advice in a March 5th letter to the parties, and due to the refusal of a subpoenaed witness to appear at the hearing in person and related issues of court procedures.
In fact, in the ALJ's March 5th letter he responded to questions received from the complainant relating to allegedly false statements made by witnesses and respondent's counsel during the three previous days of hearing. The ALJ told him that he should advise the ALJ at the hearing of any false statements made by witnesses or respondent's counsel, and that it would not be appropriate for the ALJ to give him legal advice as to which agencies have jurisdiction for alleged false statements by witnesses and counsel or when such allegations should be reported, but that he could research that issue himself or seek legal advice from an attorney of his own choosing.
The complainant had been aware of statements made by witnesses and respondent's counsel since the time of the previous hearing four months earlier. In addition, he had over a year's time - since the no probable cause decision was issued by the division's investigator on February 21, 2008 - to seek legal counsel who might be able to respond to any issues that might appear during his appeal of that decision, including during the days of the hearing, but he did not do so. These allegedly false statements do not constitute emergency circumstances justifying a postponement of the hearing.
As to the subpoenaed witness, who worked for the United States department of veterans affairs, the complainant was aware that her agency asserted that she was not required to appear at administrative hearings of non-federal agencies and was resisting her subpoena. There had been a telephone conference with two federal attorneys about this matter during the hearing on November 13, 2008, and the complainant had participated in that discussion. The issue was not resolved, so the complainant knew at that time that legal counsel might be helpful. Nevertheless, he failed at that time to secure legal counsel. His request for a postponement for that purpose four months later cannot be considered an emergency circumstance.
In any case, the ALJ obtained approval from the federal agency for the federal witness to testify by telephone, which she did. However, the complainant argues in his brief that her failure to appear in person and certain unexplained pauses between his questions and her answers indicate that her attorney was providing verbal and written counsel to her during the questioning. After review of the digital recording of this section of the record, the commission disagrees. Although the attorney representing the federal witness objected frequently to questions raised by the complainant, the ALJ overruled most of those objections (5) and the witness responded, at times talking over the attorney's objection. Pauses that did occur appear to have been appropriate for the witness to consider her answer. Finally, given that this witness did not begin her work for the agency until January 2008, and the events at issue occurred in November and December of 2007, it is unclear precisely how the witness's testimony would be relevant to the events at issue.
The complainant also argues in his brief that the ALJ's refusal to allow him to recall a witness, William Kloster, adversely affected his opportunity to make his case. He states that evidence in the record indicates that Seth Perelman influenced Mr. Kloster to take adverse action against him. The complainant wanted to question Mr. Kloster again on that issue, and argues that the ALJ initially stated that he could recall Mr. Kloster, but then reversed himself. Again, the commission disagrees. Its review of the record does not support the complainant's position. The ALJ indicated that he would consider the complainant's request, and denied the request at the end of the hearing based on the fact that the complainant had had ample opportunity to question Mr. Kloster earlier, had questioned Mr. Perelman twice, and the ALJ did not see the value of continuing the hearing to a fifth day for that purpose. The commission agrees with the ALJ's ruling, noting in addition that the file shows that the complainant also deposed Mr. Kloster prior to the hearing. It is also unclear what additional evidence the complainant was seeking, since Mr. Kloster testified that he asked Mr. Perelman to research the matter of the complainant's access to veterans' claims information, and relied on information Mr. Perelman provided to him in his subsequent actions.
In sum, the complainant has alleged numerous procedural defects affecting his right to a fair and impartial hearing. The commission has reviewed his allegations carefully, and finds them to be without merit.
Retaliation claims
In his brief in support of his petition for review, the complainant argues that he has established a prima facie case of retaliation which has not been rebutted by the respondent's evidence. The commission disagrees.
In his complaint signed on November 23, 2007, the complainant asserts that a WDVA employee, Jim Engel, told him on November 16, 2007 that Mr. Engel could not communicate with him on a veterans disability claim because Mr. Engel had been told by his supervisory chain of command that he could not talk to the complainant and because the complainant's accreditation to assist veterans had been terminated. He asserts that this action was taken in retaliation for his having filed two discrimination complaints against the respondent with the equal rights division in 2006 and one internal complaint alleging discrimination against the respondent in 2005. (6)
The commission notes that the complainant alleges no other adverse actions by the respondent in his complaint, such as Mr. Kloster's letter to the regional counsel of the USDVA, dated November 20, 2007, providing the names of fifty-two individuals who had died, or ceased working for the WDVA or their county veterans' service office, including the complainant. However, the commission's findings of fact include this event as well as other events occurring after the complainant filed his complaint in so far as they are relevant to the respondent's motivations and intent during the relevant period of time. In Cangelosi v. Robert E. Larson & Associates, Inc., ERD Case No. 8821554 (LIRC Nov. 9, 1990), the commission cited the court of appeals in Hiegel v. LIRC, 121 Wis. 2d 205 (Ct. App. 1984) for the proposition that "it may be unfair in some circumstances to read the scope of a complaint narrowly against a complainant so as to preclude the complainant from presenting evidence on certain issues."
Assuming for the sake of argument that the complainant has made out a prima facie case of retaliation based on his opposition to a discriminatory practice by the respondent and/or his previous filing of a discrimination claim against the respondent, the law is clear that, once an employer presents evidence of a legitimate, nondiscriminatory reason for its adverse actions, the presumption of discrimination arising from a prima facie case falls away, and the employee must establish that the reasons offered by the employer were not its true reasons, but merely a pretext. See Kovalic v. DEC International, Inc., 161 Wis. 2d 863, 469 N.W.2d 224 (Ct. App. 1991); Spearman v. Beloit Convalescent Center, ERC Case No. 9102345 (LIRC Sept. 19, 1995).
In this case, as noted by the ALJ, the respondent had legitimate nondiscriminatory reasons for advising Mr. Engel not to discuss veterans' matters with the complainant. The complainant had received his accreditation as a service organization representative as a result of his employment with the WDVA, the service organization. Once he left employment with the WDVA, that basis for his accreditation no longer existed. Several witnesses, (7) including Mr. Engel, testified at the hearing that, as a result of his retirement, they did not believe that the complainant retained his accreditation as a service organization representative, and that without such accreditation, he would not be permitted access to claimant information. Both claims officers the complainant called as witnesses testified that loss of accreditation would impact the ability of a claims officer to handle claims.
In addition, although the complainant argued that he remained accredited for a period of time after his retirement, there is no evidence that any of the respondent' s decision makers were aware that he remained accredited at that time or could be considered accredited once the basis for his accreditation expired. Dennis Bohen, the director of the bureau of claims, WDVA, testified that he made the decision to deny the complainant access to veterans' records. He checked the complainant's accreditation with the USDA, and staff at that agency were not able to tell him. There was no online list at that time, and a December 2006 list was the only list available. In addition, he did not believe that the complainant was eligible to retain his accreditation because he was no longer an employee of WDVA. In this regard, since the respondent's intent and motivation are critical inquiries in a discrimination/retaliation case, if the respondent genuinely believed that the complainant was not accredited, and therefore could not be permitted to access claimant's records, it is irrelevant whether the complainant actually was accredited at that time. See, e.g., Engen v. Harbor Campus, ERD Case No. CR200400475 (LIRC Feb. 22, 2008); Ford v. Lynn's Hallmark, Inc., ERD Case No. 200301184 (LIRC June 27, 2005).
In support of his position, and perhaps to cast doubt on the credibility of the respondent's reason for denying him access to veterans' records, the complainant argues that he had been involved in assisting veterans with their claims ever since he left employment with the respondent, officially in November 2006, without interference by the respondent. Given that fact, he questions why the respondent acted as it did, and alleges that the reason for the respondent's change in position in November 2007 was its retaliation for his complaints in 2005 and 2006. However, if that were true, why did the respondent permit him to assist claimants between November 2006 and November 2007? The respondent was aware of the complainant's previous complaints at that time, and yet no action was taken by the respondent during that period of time.
Given the evidence in the record, the commission concludes that the reason that the respondent took the action it did in November 2007 was because individuals in the supervisory chain of command became aware at that time that the complainant was involved in accessing claimant's records and believed, in good faith, that he was no longer accredited as a service organization representative and should not be permitted to access those records. (8) That reason also explains the decision to send information to the USDVA updating that agency on the status of those individuals who previously secured their accreditation through employment with the WDVA but who had died or no longer worked at the WDVA.
Finally, although the complainant believes that the respondent developed the form (WDVA 1045) as a means to minimize the legal consequences of its initial discriminatory denial of access to him, the commission does not agree. Instead, the commission is persuaded by the evidence that the respondent's motivations for creating the form were to enable the complainant and any other individuals in the same situation (9) to help veterans in the claims process, at the same time including safeguards for the WDVA relating to potential liability issues.
Therefore, the commission concludes that the complainant has not established probable cause to believe that the respondent, in violation of the Wisconsin Fair Employment Act, discriminated against the complainant on the basis that the complainant opposed a discriminatory act under the Act and/or made a complaint under the Act.
cc:
Attorney Micabil Diaz Martinez
Attorney James Stewart
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