STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
FAE LaFORTE, Complainant
WEST CENTRAL DOMESTIC ABUSE AGENCY
(n/k/a THE BRIDGE), Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 199501600, EEOC Case No. 26G951268
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, it has reviewed the evidence submitted to the ALJ, and it has consulted with the ALJ concerning his impressions as to the credibility of witnesses who appeared before him at the hearing.
Based on the applicable law, records and evidence in this case, the commission now makes the following:
FINDINGS OF FACT
1. Complainant Fae LaForte is an individual residing in River Falls, Wisconsin. She received a Bachelor's Degree from St. Cloud State University, with majors in Communications and English and an emphasis in linguistics and communications disorders, in 1991.
2. In June 1992, LaForte began working at Turning Point, a shelter for domestic abuse and sexual assault victims, located in River Falls, Wisconsin. LaForte ran that agency's children's program and was a family advocate.
3. LaForte's employment with Turning Point ended in May, 1993. Later that year she filed a complaint with the Equal Rights Division alleging that Turning Point had engaged in violations of the Wisconsin Fair Employment Act.
4. In July, 1993 LaForte began volunteering for Respondent West Central Domestic Abuse Agency (1), an agency in Menomonie, Wisconsin which provided referral, counseling and advocacy services for victims of domestic abuse. LaForte's volunteer activities included working on the newsletter, developing a new mailing list, filling in for the legal advocate and women's advocate, and speaking at public meetings.
5. At the time that LaForte began volunteering for Respondent, its executive director was Jill Thomas. Respondent's other paid staff at that time consisted of Sandra Gorden, a women's advocate; Kristina Hendrickson, part-time office coordinator and volunteer coordinator; Brenda Schroeder, women's advocate and legal advocate; and Patrice Taft, part- time children's program coordinator.
6. In early 1994, Jill Thomas left the position of executive director and Sandra Gorden became interim executive director.
7. LaForte applied for the position of executive director and was given an initial interview, but she was not among those who were given a second interview.
8. In March, 1994, a woman named Sharon McVey was hired as executive director of Respondent. At the time of her hire as executive director of Respondent, McVey was the executive director of a domestic abuse shelter in the Tomahawk area, a position she had held for approximately a year. Prior to that time, she had been employed by Western Dairyland, a non-profit organization located in Independence, Wisconsin. McVey had a B.S. in Business Education from UW-Eau Claire.
9. In May, 1994, there were openings for two staff positions at Respondent. One was a full-time position as an advocate/counselor, and the other was a part-time position as a volunteer coordinator. Respondent's Board of Directors gave McVey sole authority to make the hiring decisions for the openings.
10. The advocate/counselor and volunteer coordinator positions were advertised, and Respondent received approximately 20 applications. These included applications from LaForte, who applied for both positions.
11. McVey gave the applications to the three persons on her staff at that time, Sandra Gorden, Patrice Taft, and Kristi Hendrickson, and asked them to provide input on the applicants.
12. In response to McVey's request for input on the applicants, Kristi Hendrickson told McVey that she believed that LaForte was not a good volunteer, that she was unreliable and inconsistent, and that LaForte frequently failed, without calling in, to show up for hours she had signed up for. Hendrickson's input to McVey concerning LaForte was negative.
13. In response to McVey's request for input on the applicants, Patrice Taft told McVey that she did not think Complainant was responsible, that she did not think she was reliable, that LaForte did not have the knowledge that Taft felt was important, and that she did not want to work with LaForte. Taft had been contacted by LaForte shortly after LaForte began her employment at Turning Point, and Taft had been "disgusted" with what she felt was a lack of preparation for her job duties which LaForte showed at that time. Taft also told McVey that LaForte had asked her to help train her for her position and had made 2 or 3 appointments with Taft (whose time was limited) for such training but then did not show up for the appointments. Taft's input to McVey concerning LaForte was strongly negative.
14. Sandy Gorden did not comment to Ms. McVey about the merits of Ms. LaForte's application. However, Gorden was present when Hendrickson made negative comments about LaForte to McVey, and she did not tell McVey that she disagreed with Hendrickson's statements.
15. Following the review of the application materials, McVey decided to eliminate some applicants from further consideration. LaForte was one of the applicants who McVey decided to eliminate from further consideration at this point. After interviews of the remaining applicants in June, 1994, McVey decided to hire Holly McAbee and Janet Slind for the two positions.
16. At the time that she made the decision not to consider LaForte further for either of the positions, McVey was aware of the fact that LaForte had filed a discrimination complaint against Turning Point. McVey had been aware prior to that time that a complaint was pending against Turning Point, and she learned of LaForte's role in it through Sandra Gorden telling her that LaForte had filed the claim and that it had something to do with sexual harassment against the director of Turning Point.
17. Sometime in the summer of 1994, after LaForte had been informed that she would not be considered further for the two positions, she telephoned Gorden and asked her if she knew why she had been eliminated from consideration. In response, Gorden said nothing about the negative input which she knew had been given to McVey by Hendrickson and Taft. Instead, Gorden told LaForte something to the effect that she thought the reason she had been eliminated from consideration was because of the discrimination complaint LaForte had filed against Turning Point. However, Gorden said nothing to LaForte at this time about any conversation with McVey in which McVey had supposedly said something to the effect that she had decided not to hire LaForte because she did not want to hire a person who had filed a lawsuit against their employer.
18. McVey never made a statement to Gorden to the effect that she had decided not to hire LaForte because she did not want to hire a person who had filed a lawsuit against their employer.
19. A few months later, on November 1, 1994, McVey fired Sandra Gorden. Prior to that day, Gorden had been repeatedly tardy, and on that day, McVey learned that Gorden had failed to come to work to open the office at 8:00 as she was scheduled to do, and McVey (who had taken the day off) was required to come down and open the office. When Gorden appeared for work, McVey was upset with her and pointed out the provisions of the personnel policies on attendance to her. Later that day, McVey informed Gorden that she was fired.
20. When McVey informed Gorden that she was fired, Gorden became very angry, told McVey that she was "messing with the wrong person," and that she (McVey) "would hear from [her] again."
21. It was not until after LaForte filed her complaint in this matter in April, 1995 and the allegations were being investigated by the Equal Rights Division, that Gorden first made an assertion that in June 1994, before Gorden had her conversation with LaForte about why she had been eliminated from consideration, McVey had told Gorden something to the effect that she had decided not to hire LaForte because she did not want to hire a person who had filed a lawsuit against their employer.
22. McVey's awareness that LaForte had filed a discrimination complaint against Turning Point was not a factor in McVey's decision not to consider LaForte further for either of the positions which were open at Respondent in June, 1994. Rather, McVey decided not to consider LaForte further for either of the positions because she relied on the negative input concerning LaForte provided to her by her staff. McVey accepted their assessment that LaForte was not a good candidate and would not be a good employe, and she made her decision on that basis.
23. Based on the Findings of Fact made above, the commission now makes the following:
CONCLUSIONS OF LAW
1. Complainant Fae LaForte is an individual who made a complaint under the Wisconsin Fair Employment Act, within the meaning of Wis. Stat. § 111.322(3).
2. Respondent West Central Domestic Abuse Agency did not discriminate against Complainant Fae LaForte because she had made a complaint under the Wisconsin Fair Employment Act, within the meaning of Wis. Stat. § 111.322(3).
3. Based on the Findings of Fact and Conclusions of Law made above, the commission now makes the following:
DECISION
The decision of the administrative law judge is reversed. The complaint in this matter is dismissed.
Dated and mailed: October 13, 1998
lafortf.rrr : 110 : 9
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
This case presents the question of whether Respondent West Central Domestic Abuse Agency refused to consider hiring Complainant Fae LaForte because LaForte had previously filed a discrimination complaint against her former employer.
It was not disputed, that LaForte applied for two positions with Respondent in 1994, that Respondent's executive director Sharon McVey made a decision to eliminate LaForte from consideration for those positions, and that at the time she made the decision to eliminate her from consideration for the two positions McVey knew that Complainant had filed a discrimination complaint against her previous employer. However, the Respondent offered evidence of a non-discriminatory reason for McVey's decision, which was that staff members responded to McVey's request for input on the candidates by providing information critical of Complainant and that McVey made her decision in reliance on that information.
As an initial matter, the commission's analysis is dictated by the well-established rule that where an employer has articulated a non-discriminatory reason for a challenged employment action, the question of whether the complainant made out a prima facie case is no longer relevant; the only issue that remains is the ultimate factual question of whether the employer intentionally discriminated against the Complainant. Kurtz v. School Dist. of St. Croix Falls (LIRC, 06/10/93). In such a situation, the employe has the burden of proving by a preponderance of the evidence that the non-discriminatory reasons offered by the employer were not its true reasons, but were a pretext for discrimination. Lyckberg v. First Realty Group (LIRC, 09/25/85). She may attempt to meet that burden directly, by showing that a discriminatory reason is the more likely explanation, or indirectly, by showing that the employer's explanation is unworthy of credence and therefore a pretext for discrimination, or by both methods. Warnke v. DHSS (Dane Co. Cir. Ct., 09/22/81); see also, Miller v. School Dist. of Manawa (LIRC, 02/24/82).
LaForte attempted both types of proof in this case. She offered testimony from former staff member Sandra Gorden concerning an alleged statement by McVey directly acknowledging a retaliatory motive; she also attempted to prove that the articulated non- discriminatory explanation was unworthy of credence.
The issues presented are factual. The significant factual issues involve questions of what the three staff members told McVey in response to her request for input on the applicants, and whether McVey made the overtly discriminatory statement attributed to her. (2) Both of these issues turn almost entirely on assessment of credibility, particularly the second issue. The significant credibility conflict in this case is between McVey and Gorden.
Was the Respondent's explanation unworthy of credence? -- The Administrative Law Judge found that while McVey received some negative staff input concerning LaForte's application, the substance of it was not very compelling as a reason to deny Complainant a job interview, and he characterized the negative staff input as "shallow." The commission is not as inclined as the Administrative Law Judge, though, to write off this negative input.
The commission believes that the Administrative Law Judge's finding, that Hendrickson simply told McVey that Complainant "occasionally" failed to show up when she said she would and was therefore unreliable as a volunteer and that she did not comment on the quality of LaForte's volunteer work, does not adequately reflect the evidence. In fact, Hendrickson testified that she told McVey that Complainant was unreliable and inconsistent, and she did not describe Complainant's failure to show up for scheduled hours as "occasional," but said that it happened two to three times a week on average. According to McVey, Hendrickson told her Complainant was not a good volunteer, that she would sign up for hours and then not show up and not call. The commission is persuaded that Hendrickson did indeed give McVey negative input concerning Complainant (as the Administrative Law Judge found), and that the input was unambiguously critical.
The commission believes that the Administrative Law Judge's findings with respect to Taft also fail to fully capture the nature of the evidence on that point. With reference to the "phone call" incident, Taft did not say that she was "annoyed" at the telephone call she got from Complainant; she said she was "disgusted" with the lack of preparation Complainant showed in that incident and that she didn't think there was any excuse for it. Taft also told McVey that she did not think Complainant was responsible, that she did not think she was reliable, that she did not have the knowledge that Taft felt was important, and that she did not want to work with her. Taft's characterization of the input she gave to McVey on Complainant as "negative" and as a "pretty strong statement" are accurate given both her description and McVey's.
Finally, the commission believes that the Administrative Law Judge's finding that Sandra Gorden "did not comment to Ms. McVey about the merits of Ms. LaForte's application," overlooks the testimony of McVey, that Gorden was present on both occasions when Hendrickson relayed negative information about Complainant to McVey, and that Gorden was nodding her head in agreement with Hendrickson. Gorden herself acknowledged that at the time that the decision was pending on the two positions in June, 1994, "there were a lot of conversations going around in the office and there seemed to be some concern about Fae, whether Fae would -- there was some concern about Fae's priorities as a volunteer so that was one of the reasons." Gorden also acknowledged that she was in the office when Hendrickson made negative comments about Complainant to McVey, and Gorden acknowledged that she did not then (or ever) tell McVey that she disagreed with Hendrickson's statements.
Clearly, there was negative staff input to McVey concerning Complainant. Both parties acknowledged this, and the Administrative Law Judge so found. The question is, how much of it was there, how negative was it, and who was involved. The commission believes that both Hendrickson and Taft gave McVey reactions to Complainant which were significantly negative, and that Gorden's failure to contradict them also could not but have been seen by McVey as an indication of concern on her part as well. The negative input to McVey from her staff was by no means shallow, and it gave reasons for McVey to be concerned. Therefore, the commission was not persuaded that the non-discriminatory reason articulated by Respondent in this case was in any sense unworthy of credence.
Was a discriminatory motive more likely the explanation for the decision? -- Gorden testified that shortly after the decision not to consider Complainant further for the open staff positions, she asked Sharon McVey why Complainant wouldn't be considered, and that McVey told her that she didn't want to hire someone that would file lawsuits against other agencies because it could happen there too. McVey expressly and specifically denied that she ever made such a statement to Gorden; indeed, she expressly and specifically denied that Sandy Gorden at any time came to her and asked her why Complainant was not being considered.
This is a very significant issue, as it goes directly to the question of whether a discriminatory reason is the more likely explanation for the decision to eliminate Complainant from consideration for the open staff positions.
The issue is one that turns entirely on credibility. Either McVey made the statement to Gorden, or she did not. There are no other witnesses who can confirm or contradict the version offered by either Gorden or McVey. To resolve the question, a decision must be made as to whether McVey or Gorden is more credible.
The Commission's reasons for differing with the Administrative Law Judge on credibility -- Reviewing the decision written by the Administrative Law Judge, the commission noted that his analysis and resolution of the credibility issues in this case appeared to rest on the content of the testimony (and other statements) given by McVey and Gorden, rather than on anything touching upon their demeanor as witnesses in the hearing. In his consultation with the commission, the Administrative Law Judge confirmed that this was the case. He indicated that there was nothing in the demeanor of any witness which was significant to his assessment of credibility, and that instead it was his analysis of the content of their testimony which led to his decisions on who to believe.
The commission has arrived at a different assessment of the credibility of the witnesses, because its analysis of the content of their testimony differs from that of the Administrative Law Judge in the manner described below.
LaForte has argued at length that the Administrative Law Judge's decision was based on his assessment of credibility of Sandra Gorden as opposed to that of Sharon McVey, and that the commission should defer to that credibility assessment. The commission agrees, that the assessment of the credibility of Gorden and McVey is critical in this case, but it disagrees with LaForte's arguments concerning deference to the Administrative Law Judge's decision on that question. All of the authority cited by LaForte in connection with her argument that the Administrative Law Judge's assessment of credibility should be deferred to, arises from the supposition that demeanor is important to the credibility assessment. (3) However, as noted above, it is clear that demeanor was not a consideration in the Administrative Law Judge's assessment of credibility in this case. He resolved the credibility issue on the basis of analysis of the content of the evidence, and the commission is in just as good a position as the Administrative Law Judge to carry out such an analysis.
The procedural scheme for resolution of complaints under the Fair Employment Act contemplates de novo review by the commission as an independent fact-finder in its own right. The commission has no obligation to defer to the decisions of administrative law judges, but only an obligation (in cases in which it reverses the administrative law judge's decision) to consult with the administrative law judge in order to obtain the benefit of his or her personal impressions of the witnesses, and to include in a memorandum opinion an explanation for any disagreement with the administrative law judge. See, e.g., Hamilton v. DILHR, 94 Wis. 2d 611, 288 N.W.2d 857 (1980). The commission has satisfied that obligation here. Having done so, it retains the complete authority to substitute its views on the weight and credibility of evidence, for those of the Administrative Law Judge. Hoell v. LIRC, 186 Wis. 2d 608, 613, 522 N.W.2d 234 (Ct. App. 1994). Particularly because it is so clear that the Administrative Law Judge's assessment of credibility was not related to the demeanor of the witnesses, the commission is not inclined to defer to the Administrative Law Judge's analysis of the content of the evidence.
McVey's credibility -- It was clear from the Administrative Law Judge's Memorandum Opinion, and he also confirmed in his consultation with the commission, that he arrived at his assessment of McVey's credibility based on the fact that he believed she had made inconsistent statements about the input she supposedly received from her staff concerning Complainant (which input was asserted to be the reason for her decision). Thus, in his Memorandum Opinion, the Administrative Law Judge said, "In her first written response to the complaint, in May, 1995, she said she relied on Ms. Gorden's negative comments about Ms. LaForte. Then in November or December, she learned that Ms. Gorden was denying that she had said anything negative about Ms. LaForte; so, in January 1996, Ms. McVey added the name of Ms. Taft as the person on whom she relied. Then it was not until much later, at the time of her deposition, that she also added the name of Ms. Hendrickson."
However, these earlier statements (4) were not in fact statements by Ms. McVey. Rather, they were letters from the Respondent's attorney, Carol S. Dittmar.
In consultation to discuss credibility impressions, the Administrative Law Judge told the commission that he had drawn the inference that the information in the letters from Attorney Dittmar had been provided to her by McVey, and that for that reason he viewed the letters as statements of McVey. However, the commission does not find the weight of the evidence sufficient to support that inference reliably. The letters do not contain any representation that McVey herself told Attorney Dittmar the facts which Attorney Dittmar asserts in the letters; they simply consist of Attorney Dittmar making factual assertions about the case without describing her sources. Also, McVey was never clearly asked at hearing if she made statements to Attorney Dittmar consistent with the representations contained in Dittmar's letters. (5) It is possible that the attorney obtained some of her information through the Board of Directors or through other staff. It is also possible that the attorney supplemented the information she obtained from her investigation, with what she thought at the time were reasonable inferences, but that her inferences were in fact incorrect, and that she thereby made mistakes in what she represented in her letters to the ERD.
While Complainant's counsel attempted to establish that McVey herself was in a sense chargeable with the representations made in these letters, this attempt was limited to establishing that she had been copied when Dittmar sent the May, 1995 letter to the ERD and that after she had read her copy she did not contact the ERD to make it aware of any inaccuracies. In the commission's view, this is not enough to establish that McVey "adopted" the statements, given the context. Ultimately, Respondent is governed by a Board of Directors. At the time McVey received her copy of Attorney Dittmar's letters, that attorney had been retained to deal with the Equal Rights Division investigator on behalf of Respondent, and it is not self-evident that McVey would have felt entitled to take it upon herself to bypass the representative selected by the Board of Directors in order to deal with the ERD directly.
The commission has previously confronted situations such as this, in which an employer representative tells an ERD investigator something about what motivated an employer witness, and many months later at hearing the employer witness testifies differently. (6) There are two possible explanations for these kinds of situations. It may be that the employer witness in fact changed his story; but it may also be that employer representative misunderstood the facts in the early stages of his investigations. While these situations may be relevant for other purposes, the commission does not believe that they provide a good basis for finding an employer witness incredible based on a theory of inconsistency between earlier and later statements, unless there is a good basis for finding that the employer witness actually was the source of the earlier statements by the employer representative. Here, there is not. For these reasons, the commission did not agree that McVey was not a credible witness.
Gorden's credibility -- There are three things that suggest very strongly that Gorden may have fabricated her story about McVey's supposed statement that she did not want to hire someone who had sued their employer. The first is the fact of her discharge, under negative circumstances, by McVey in November, 1995. The second is that Gorden had a conversation with Complainant about McVey's reasons for her decision prior to the discharge, in which she did not tell Complainant about McVey's supposed inculpatory statement, and that she first told Complainant about this supposed statement only after she had been discharged. The third is that Gorden signed a letter to the ERD investigator which contained an admittedly incorrect statement concerning this critical conversation with McVey.
Personal bias arising from her discharge -- Where allegations of direct evidence of discriminatory intent on the part of the employer come from a witness who has been fired by that employer under circumstances of conflict, that can be a legitimate basis for questioning the credibility of the allegations. See, Albright v. Steenberg Homes (LIRC, 09/20/90). The circumstances of the discharge of Gorden by McVey present a classic case in which it seems quite likely that the discharged employe could have developed a simmering resentment against the employer, and particularly against the person who discharged her. Gorden was terminated by McVey on November 1, 1994. She acknowledges having been late that day, and that McVey was upset with her about that, told her it was unacceptable, brought out the personnel policy, and pointed out some things in it, and later that day gave her her last check and told her she was terminated. Gorden says she was "traumatized," and she conceded telling McVey that she thought McVey was "discriminating" against her, and that McVey was "messing with the wrong person." Considering this, the commission has no difficulty in also accepting McVey's testimony, that Gorden was angry and also said that McVey "would hear from her again."
The commission believes that Gorden's continuing resentment about her discharge is reflected in her unwillingness to answer questions about the circumstances of it fully and honestly. In her Witness Questionnaire submitted to the ERD in early 1996 (Ex. C), Gorden stated that she was "given no reason" when she was fired by McVey in November, 1994, and she also so testified at hearing, claiming that she had "no idea" why she was being terminated. However, testimony which was subsequently elicited from her on cross-examination as to the details of the discharge, demonstrate that the claim that she was "given no reason" for her discharge was a half-truth at best. Any employe in Gorden's situation would have realized that, even if the employe thought it was an invalid reason, the employer's reason for the discharge probably was related to the tardiness issue. Her assertion that she had had "no idea" why she was being fired was clearly disingenuous.
The Administrative Law Judge reasoned that any inference of bias that was created by the fact that Gorden had been discharged by McVey, was undercut by the fact that Gorden did not subsequently seek out Complainant to try to damage Respondent by disclosing the information, but only shared it many months later when Complainant sought her out and requested additional information about what Gorden had told her shortly after the decision was made. The commission does not find this persuasive. It is perfectly plausible that an employe discharged by a supervisor in an emotionally "traumatic" incident in which the employe felt abused, might well form a very strong and lasting resentment towards that employer and that supervisor, but still might simply "nurse" their grudge and not take any affirmative steps on their own to express that resentment. Nevertheless, they might be perfectly capable of taking such steps if some situation arose from some other source or initiative, which presented them with the opportunity to do so. A perfect such opportunity is a third party's pursuit of some sort of claim against the employer in question. Complainant's proceeding against Respondent could well have been a case of opportunity arising to match and provide an outlet for Gorden's motive.
In her brief to the commission, Complainant argued that it was undisputed that as of the time of the hearing there was no longer any animosity between McVey and Gorden. This argument mischaracterizes the evidence. It must be recognized that given the circumstances of McVey's discharge of Gorden, the question of possible bias had mostly to do with Gorden's personal animosity specifically towards McVey. The fact that at the time of hearing Gorden could testify that she had a very friendly and open relationship with "The Bridge Agency," does not address that question, nor does her testimony that she "has interactions with everybody there." Gorden in fact testified that the majority of her interactions were with Patrice Taft, in connection with Taft's service on a panel Taft coordinates for UW-Stout, and that her other interactions with Respondent were connected with the fact that it is a member organization in a state-wide organization Gorden works with, and Gorden did not say who at Respondent was involved with that organization. Furthermore, Gorden never actually provided any testimony about her personal feelings towards, or her personal contacts (if any) with McVey. And while Complainant cites McVey's testimony that she has had contacts with Gorden "in a professional manner" since the time of the discharge, nothing in her testimony persuaded the commission that Gorden had gotten over her animosity towards McVey. McVey's testimony on her present relationship with Gorden seemed distinctly unenthusiastic to the commission, and in any event it said more about McVey than about Gorden.
The Administrative Law Judge, in his consultation with the commission concerning credibility, stated that it was his impression from observing the "cordial" interactions of Gorden and McVey at the hearing that there was no residual hostility connected with the discharge. The commission does not believe that the presence of cordiality in such a context is necessarily very informative. Bias of a witness arising from hostility towards a party is not going to be "effective" (from the standpoint of the biased witness) if it is so obvious from their behavior at hearing, that the decisionmaker can discern it. If Gorden did feel hostility which predisposed her to try to damage the interests of McVey and Respondent by her testimony at hearing, she might well have been endeavoring not to show it; thus, absence of demonstrative hostility in the interactions at hearing does not prove a great deal.
Beyond that, the commission does not believe that whether there was animosity between McVey and Gorden at the time of the hearing is really the most important question. The hearing was held in December 1996. The question, however, is whether Gorden felt personal bias against McVey when she first made her assertion about McVey's supposed statement, which was in August 1995. The commission sees nothing in the evidence or circumstances of this case to dispel the obvious and compelling inference that McVey, who in November, 1994 was "traumatized," angry at and threatening towards McVey, still bore some personal animus towards McVey in the following August -- when the intervention of Complainant's case provided her an opportunity to act on it.
Failure to mention the incriminating statement prior to her discharge -- Gorden's failure to mention the alleged inculpatory statement by McVey when she told LaForte about a supposed discussion with McVey about her reasons, and her mentioning of that alleged statement for the first time only after her discharge, is also strong evidence both that the statement was not in fact made, and that the claim concerning it is related to hostility prompted by the discharge.
Evaluating this objection to Gorden's credibility requires a careful examination of what Gorden told LaForte about McVey's reasons before her discharge, compared to what she told Complainant about McVey's reasons after her discharge. The Administrative Law Judge made no express finding of fact about what Gorden said in the earlier of these conversations, but only addressed that question in his Memorandum Opinion, in which he described it this way:
"Ms. Gorden vaguely stated her feeling that Ms. LaForte's suit with Turning Point was an obstacle to getting a job. Ms. Gorden testified credibly that she did not want to fully implicate Ms. McVey in the summer of 1994 because of a feeling of loyalty toward her employer."
However, Gorden testified that when she spoke to Complainant shortly after she had been eliminated from consideration for the staff positions, she did not disclose the overt comment McVey had supposedly made to her, not only because of a sense of "loyalty" to the employer, but also because she was a "tactful" person and did not want to hurt Complainant's feelings. In addition, Gorden testified that in this conversation, she said to LaForte that she was not being considered because of "the River Falls matter," (7) that "the River Falls thing" (by which she meant the "Turning Point thing") was "following her," and that Sharon McVey didn't want her there and the Board, or Board member Andy Boe, didn't want her there, and that "there's certain people here that don't like you. You [sic] not, you're not wanted because you're a troublemaker there because of the discrimination complaint."
Two things are notable about this.
First, if by her reference to "loyalty" Gorden was trying to say that she did not want to accuse her own employer of discriminating against LaForte, her explanation is completely untenable. According to her own testimony, Gorden did tell LaForte, directly, of her belief that the Respondent had denied LaForte the job because of her discrimination complaint at Turning Point. The only thing Gorden did not tell her, was that she had evidence of that. The fact that Gorden accused her employer of discrimination without disclosing any evidence of that fact is not consistent with loyalty to the employer; however, it is consistent with the fact that the accuser had no evidence.
Second, the reference to not wanting to hurt LaForte's feelings does match what Gorden did, in that she completely avoided any mention of what she knew of the significantly negative input that had been given to McVey by Hendrickson and Taft.
Weighing all of these factors, the commission believes it is most likely that when LaForte contacted her, Gorden decided not to tell LaForte about the negative input from the other staff in order to spare her feelings, and that she instead offered up a theory about a discriminatory motive for which she had no evidence. Her assertion after her subsequent discharge, that she had been aware of "smoking gun" evidence at the time of the earlier conversation with LaForte but had not disclosed it out of "loyalty," is unbelievable. What is believable is that after her discharge, her motive to strike back at McVey found an opportunity when LaForte contacted her to have her expand on the unsupported charges of discriminatory intent she had originally made.
Inaccurate statement to the ERD -- In addition to the likelihood of personal bias arising from her firing, and the fact that Gorden did not disclose the supposed statement by McVey until after McVey had fired her, Gorden acknowledged that at least one thing in the letter she signed for submission to the ERD Investigator was inaccurate. That letter stated, clearly and unmistakably, that when McVey made her alleged inculpatory statement, Gorden "openly disagreed with [the] statement and responded [to McVey] that it was her right or anyone else's right to take such action." (Ex. A). At the hearing, though, Gorden acknowledged that this was not true. She explained the different version which appeared in the letter by saying that when she talked to Complainant she was not clear that she had expressed what she was thinking and that it got written up as something she had actually said at the time and she (Gorden) then "did not notice it when she signed it."
The Administrative Law Judge frankly acknowledged that this made it difficult to say that Gorden was "a completely credible witness;" however, he stated that "[w]hether she truly had misread the statement or had intentionally embellished the part she played," he did not consider it a significant enough retraction to throw the remainder of her testimony in doubt, when examined in the context of the other evidence. However, the commission does not believe that this is likely to have been a "misread[ing]" on Gorden's part. It is notable that the statement in the letter in question was not only clear and unambiguous, but also very close to the signature line of the letter. It would have been very difficult for Gorden to "not notice it" when she signed the letter.
If this was not a knowing decision by Gorden to submit a representation which she knew was incorrect, then at very least it represented a decision on her part to not even look at what LaForte had typed up for her to sign for submission to the ERD. Either situation, the commission believes, is significant to assessment of her credibility. The description in the letter is directly related to the "smoking gun" conversation which Gorden asserted she had with McVey. It purports to describe a part of the conversation immediately after McVey is supposed to have made her inculpatory statement. Its description is subscribed by Gorden. She now acknowledges, however, that it is not accurate. Her explanation for how she came to sign this inaccurate description of the supposed conversation is not credible. The inference which can be drawn from all of this, is that Gorden had difficulty distinguishing between "accurate" and "inaccurate" versions of the alleged conversation because the entire conversation never occurred at all.
Conclusion -- This case turned on questions of fact: whether Sharon McVey really made the decision not to hire Fae LaForte for the reasons she testified to at hearing (negative input from staff), and to a greater degree, whether Sharon McVey really made a statement which Sandra Gorden claimed she made, that she did not want to hire LaForte because LaForte had filed a complaint against her former employer. Those questions of fact turned on questions of credibility; specifically, the credibility of witnesses Sharon McVey and Sandra Gorden.
The commission has concluded that there is no significant reason to question the credibility of McVey; and in particular, that the differences between her testimony and earlier statements made in letters from Respondent's attorney are not so clearly a reflection of inconsistent statements by McVey, that her truthfulness should be doubted.
The commission has also concluded, that there is significant reason to question the credibility of Gorden, since it was established (1) that she was fired by McVey in circumstances which made Gorden very angry and in which she made vague threats; (2) that Gorden raised her claim about the supposed discriminatory statement by McVey only after she was fired, and did not mention that statement in a conversation before her firing when it would have been expected that she would mention it if it had been made, and (3) that Gorden signed a letter which contained a statement about the supposed conversation which she now acknowledges is inaccurate.
For all of these reasons, the commission believed McVey, and it did not believe Gorden. Because the believable evidence thus established that McVey's explanation of her reasons for not hiring LaForte were reasonable, and because no believable evidence raised any suggestion of a discriminatory motive on her part, the commission has concluded that LaForte did not carry her burden of proving that she was discriminated against.
Given its resolution of the issues described above, the commission does not reach the other issues argued by the parties, concerning what remedy if any would have been appropriate if a discriminatory motive had played a part in the decision, and whether the attorneys fee award was appropriate.
cc:
Aaron N. Halstead, Attorney for Complainant
Carol S. Dittmar, Attorney for Respondent
Appealed to Circuit Court. Affirmed July 22, 1999.
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Footnotes:
(1)( Back ) Since the time that the complaint was filed, West Central Domestic Abuse Agency has changed its name to "The Bridge."
(2)( Back ) Another set of factual issues in the case concerns the decision not to hire Complainant as executive director of Respondent in early 1994. While this issue was no longer presented in the case as a separate cause of action, since it had been dismissed as untimely, Complainant attempted to demonstrate retaliatory intent or motivation in connection with that decision for whatever value it might have as evidence bearing on the timely charges relating to non-hire for staff positions in June, 1994. Complainant's theory centered on the part played by at least one member of the Respondent's Board of Directors (Andrew Boe), and there was some evidence about a conversation at or around that time in which Boe was alleged to have made a statement demonstrating such a motivation. Notably, the Administrative Law Judge included nothing in his Findings of Fact on anything relating to these issues (except to mention that the position had been open and that Complainant applied and was interviewed but was not hired), and he also did not discuss (or even mention) those factual issues in his Memorandum Opinion. The commission takes this as an indication that he believed that the evidence was so inconclusive as to not be worthy of mention. The commission agrees. The evidence that Board member Boe was motivated not to hire Complainant as executive director was very weak, resting as it did on a conversation that was only recalled vaguely by the witnesses who described it. More important, the evidence that Boe had anything to do with the challenged June, 1994 hiring decisions was also extremely weak. The person who all of the evidence tended to show was the decisionmaker on the June, 1994 hiring decisions, Sharon McVey, was obviously not involved in the earlier decision on hiring for the executive director (as she was the one who was hired as executive director at that point). The commission believes that the whole matter of the executive director hiring is of no significant value in helping to unravel the ultimate question of whether there was discrimination by McVey in the June, 1994 staff position hirings.
(3)( Back ) The Wisconsin Supreme Court has observed that `[w]here, as here, witnesses have directly contradicted each other, the impression the factfinder has of their demeanor is likely to be the decisive factor in determining who is telling the truth.' Hoell v. Narada Production, Inc. (LIRC, Dec. 18, 1992), citing Braun v. Industrial Comm., 26 Wis. 2d 48, 57, 153 N.W.2d 81(1967); "[T]he administrative Law Judge observed the demeanor of all the witnesses and was in a good position to make a determination as to credibility...," Roberge v. School District of Stanley-Boyd (LIRC, Feb. 5, 1992); Walker v. McCrory's (LIRC, Dec. 10, 1997) (ALJ had opportunity to observe testimony of key witnesses).
(4)( Back ) Exhibit 15, the "first written response to the complaint, in May, 1995," and Exhibit N, the January, 1996 communication to the ERD Investigator.
(5)( Back ) In the course of asking her about the contents of the May, 1995 letter (Ex. 15), Complainant's counsel asked McVey questions about what "you" and "your agency" said in May, 1995. The same kind of confusion about what "you" did or said occurs in questions by Complainant's counsel concerning the January, 1996 letter (Ex. N). These questions, where he speaks of what "you" said, are mixed in with questions about what "your agency" said, such that it is not clear in what sense (singular or plural) he was using "you," or in what sense Ms. McVey understood it. It could well have been intended, or understood, as the collective "you," synonymous with "your agency."
(6)( Back ) See, Geske v. H. C. Prange (LIRC, Dec. 9, 1993), Tassotti v. LIRC (Kenosha Co. Cir. Ct., Feb. 23, 1988).