Wis.LIRC ER Decision: Hansen - May 21, 1987 - Procedure - Witness and Exhibit List (DWD 218.17, formerly 218.14 - Exchange of names of witnesses and copies of exhibits) - change of rule from providing that failure to comply "shall" result in exclusion to "may" result in exclusion -- purpose is to prevent prejudice due to surprise and protect fairness and due process

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JEAN M. HANSEN, Complainant

AIRBORNE FREIGHT CORPORATION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8400179, EEOC Case No. 055840929

An administrative law judge of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on May 9, 1986. Complainant filed a timely petition for commission review. Both parties submitted written arguments to the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

FINDINGS OF FACT

1. Complainant herein, a female, began her employment on July 25, 1983 with Airborne Freight Corporation (hereafter Respondent).

2. Respondent first opened its office in Madison in July 1983 and Complainant was hired as an Operations Agent. Some of her duties included general office work and keeping track of shipments through use of a computer.

3. Respondent contracted with independent companies to make the ground deliveries. When Complainant began her employment, Respondent was using Madison Freight Systems for ground deliveries.

4. At the end of October 1983, Respondent replaced Madison Freight Systems with Enterprise Express, Inc. In conjunction with this change, Complainant for the first time had the responsibility of providing drivers with information by using Respondent's radio system.

5. Complainant's supervisor at Respondent was a Joseph D'Amato. A Thomas Walker was the manager of Enterprise Express in the Madison office. D'Amato and Walker were friends and maintained an apartment together.

6. In the summer of 1983, Respondent and Enterprise Express were negotiating a contract between them which became effective in October 1983. It was during these negotiations that Walker began the sexual harassment of Complainant by commenting on her clothes, her figure, and her legs. Walker would put his hands on Complainant's shoulders and waist and would ask her out on both business and social events.

7. Complainant resisted Walker's advances and continually told him she was not interested in him, that she was engaged, and that he was married.

8. Complainant did not complain to D'Amato or any other of Respondent's employes about Walker's sexual harassment of Complainant. Walker's sexual advances toward Complainant ceased by the end of November 1983.

9. On Friday, January 20, 1984, D'Amato told Complainant she would have the following week off with pay and the time would not count against her vacation. During the week Complainant was off, she learned from two friends who had called Respondent's place of business and asked for her, that she was no longer considered an employe of Respondent.

10. D'Amato told Complainant she was being terminated for poor work performance. He never said he was told to terminate Complainant, or that he really did not know what was going on, or statements to that effect.

11. Complainant was terminated for poor work performance. She was unresponsive to customers and this resulted in the loss of customers for Respondent. She was also rude to the Enterprise Express drivers. D'Amato had first-hand knowledge of Complainant's poor work performance from observing her at work. He also received complaints about Complainant's work performance from the customers and Enterprise Express drivers. Additional complaints were brought to his attention by Walker, as the natural person who drivers would complain to because Walker was their supervisor.

12. The Enterprise Express drivers were encouraged to come forward with complaints about Complainant's work performance by Complainant's own witness (Thompson) who solicited those complaints on his own initiative based on his dissatisfaction with Complainant's work performance.

13. Complainant's inability to work with the Enterprise Express drivers and Respondent's customers was not related to sexual. harassment.

14. D'Amato made the decision to terminate Complainant. He did not confer with Walker in making this decision. His decision to terminate Complainant was not related to sexual harassment.

15. Prior to Complainant's termination, D'Amato talked to Complainant about her unsatisfactory work performance. Complainant's performance problems with the drivers did not occur prior to Respondent's contract with Enterprise Express, because Complainant did not have radio contact responsibilities with drivers before that time.

16. D'Amato had no prior supervisory experience. He gave Complainant a week off without pay before the discharge occurred. Such action was not required under Respondent's written termination guidelines. His failure to follow the guidelines, however, was due to his inexperience as a supervisor and his feelings of friendship toward Complainant.

CONCLUSIONS OF LAW

1. Respondent is an employer within the meaning of the Fair Employment Act.

2. Complainant failed to show by a clear preponderance of the evidence that Respondent discriminated against her on the basis of sexual harassment in regard to a hostile working environment and/or discharge.

ORDER

That the complaint in this matter be dismissed.

Dated and mailed May 21, 1987

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

NOTE: Changes were made to the Administrative Law Judge's decision to better conform the findings with the record and to address matters raised by the parties to the Commission. The Commission conferred with the Administrative Law Judge regarding witness credibility and demeanor questions. The Administrative Law Judge concurred with the Commission's witness credibility assessments, as is more fully explained in the Commission's Memorandum Opinion.

MEMORANDUM OPINION

1. Procedural Matter

In its response to Complainant's petition for Commission review, the Respondent contended the Administrative Law Judge erred in not allowing its witnesses to testify at the hearing. The Commission agrees with Respondent.

Pursuant to IND 88.14 of the Wisconsin Administrative Code, Respondent was required to exchange its list of witnesses 10 days prior to the scheduled hearing. Respondent filed its exchange document 4 days prior to the hearing. However, the witnesses listed in Respondent's exchange document were identical to the witnesses listed in Complainant's exchange document.

At the time of hearing in this matter, the administrative code section cited above provided that a party's failure to timely exchange the names of its witnesses "shall result" in the exclusion of the witnesses' testimony. Subsequently, the rule was amended, effective July 1, 1986, to provide that the Administrative Law Judge "may exclude" a party's witnesses if the 10-day exchange requirement is not met.

The purpose of the rule has always been to protect parties from surprise and to protect the fairness and due process of the proceedings. In a recent case, the Commission held that the purpose behind the rule was the paramount consideration even under the rule's language prior to the 1986 amendment. In Camilo Dominguez and Victor Ferrer v. Dennis Lawrence d/b/a Sawdust Factory, (LIRC 4/16/87), the Commission held that it was error to exclude Respondent's witness from testifying because even though Respondent failed to comply with the exchange requirement under the pre-1986 amended rule, the Complainants would not have been surprised or prejudiced from allowing the witness to testify because the Complainants included the same witness in their exchange document.

Even though the Commission agrees with Respondent that the Administrative Law Judge improperly excluded its witnesses, the Commission has not remanded the case for further testimony. The Commission determined that such action was not needed because Complainant failed to meet her burden of proof at the hearing already held in this matter.

2. Credibility Questions

The resolution of several key findings of fact depended upon the assessment of the credibility and demeanor of the witnesses. As is cannon under these circumstances, the parties focused upon this issue in their written arguments. The two key findings based on credibility are discussed below.

The first key question presented was whether Complainant informed Respondent of Walker's sexual advances or harassment. Complainant said she complained to D'Amato twice about Walker's advances, once before the contracts with Enterprise Express were signed and then again after they were signed. D'Amato denied that Complainant ever spoke to him about Walker's advances. D'Amato was a more credible witness than Complainant on this factual dispute. In reaching this decision, the Commission was influenced by two problems with Complainant's testimony. First, the Complainant had a tendency to embellish her story. Her first description of the alleged conferences with D'Amato are contained in the transcript at pp. 25-26. On redirect examination she embellished her description by stating for the first time that D'Amato told her in the second conference that he had already talked to Walker once. (TR 151-153) Complainant's tendency to provide overbroad or exaggerated statements regarding Respondent's knowledge of the alleged harassment was shown by other evidence in the record as well. Complainant testified she spoke to D'Amato about Walker's sexual advances, but she did not speak to Mike Locke (D'Amato's supervisor) about Walker's sexual advances. On cross-examination, it was pointed out to Complainant that her testimony conflicted with information she provided in her charge of discrimination (complaint) in which she wrote she "had talked to Mr. Locke about Tan Walker on 1 occasion and to Mr. D'Amato several tines." Complainant's attempts to explain the discrepancy as to information imparted to Locke were not persuasive.

The second key question presented was whether D'Amato told Complainant he really did not know why Complainant was being terminated, and whether he made certain similar statements to Complainant. Complainant said she met with D'Amato on January 25, 1984. She said he made two damaging statements at the meeting. Complainant said D'Amato told her he did not understand what was going on and that he received a call from Locke wondering why Complainant had not been fired yet. Complainant further testified that she met again with D'Amato on January 26, 1984, at which time D'Amato said he really did not know why Complainant eras being terminated and that he was told to terminate Complainant. On cross-examination, it was pointed out to Complainant that the above-recited version of events conflicted with the statement in her charge of discrimination in which she wrote that D'Amato told her she was discharged because she was rude to the Enterprise Express drivers. Complainant's attempt to explain this discrepancy was not persuasive. She argued that the statement in her charge of discrimination was consistent with her hearing testimony that D'Amato never complained about her being hide to drivers until the last day when he let her go. She further argued that any discrepancy is explained by the fact that she had several conversations with D'Amato between January 22 and 27, 1984. These explanations were not persuasive because the last conversation described by Complainant occurred at the meeting on January 26, 1984. The Commission found it incredible to believe that D'Amato stated during the January 26 conference both that he really did not know why Complainant was being terminated and that Complainant was being terminated for being rude to the drivers.

Other findings were also resolved on credibility matters. As to those findings, the Commission notes it found D'Amato more credible than Complainant and further found Complainant's witness Thompson incredible.

140

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2001/02/15