STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


CHERYL HAYES, Complainant

CAMPAIGN FOR A SUSTAINABLE MILWAUKEE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199803500, EEOC Case No. 26G990111


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

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

Dated and mailed April 16, 2001
hayesch . rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review and supporting briefs the complainant makes numerous arguments in support of her position that the administrative law judge's decision should be reversed. The commission will address these arguments chronologically, in roughly the order they are raised.

First, the complainant argues that there are problems with the hearing record. She contends that there appears to be a part of the testimony missing on Tape 2, because little beeps can be heard on the tape and because a few minutes into the tape a male voice can be heard saying the word "then." However, the complainant has failed to explain what, if anything, she believes is missing from the tape, nor has she alleged that the possible omission contained any material relevant to her case. The complainant also argues that there are exhibits that are not listed as having been received at the hearing, are incomplete, or which are not in the file. However, while the complainant correctly identifies two documents that were referenced at the hearing but omitted from the list of exhibits, these documents were apparently not entered into the record as exhibits by the complainant's attorney. Moreover, the complainant has not explained how the consideration of these documents or of the second page of her resume, which she also contends was improperly eliminated from the record, would alter the outcome of her case, and the commission does not believe they would do so. Consequently, the commission sees no reason to question the accuracy or completeness of the hearing record, and is satisfied that it is sufficient to permit a meaningful review.

Turning to the merits of the case, the complainant argues that the respondent failed to produce records to substantiate some of its claims. For instance, she maintains that the respondent did not present documentation showing her attendance problem, but relied upon the testimony of Ms. Odoms and Mr. Dempsey. However, the respondent's witnesses were competent to testify about the issues presented in this case, including the question of the complainant's attendance record, and the complainant failed to offer any compelling evidence in rebuttal. The complainant had the burden of proof in this matter and, if she felt that further documentation was necessary to her case, it was her responsibility to obtain that documentation and present it at the hearing.

Next, the complainant argues that Ms. O'Neil and Mr. Toran, both of whom are black, testified about verbal promises made by Mr. Dempsey that were not honored. However, while Mr. Toran indicated that the respondent failed to provide him with a vehicle as promised, he did not contend that this was based upon his race or other protected status. Regarding Ms. O'Neil, her complaints about the job were not shown to relate to her race or gender, notwithstanding her unproven assertion that Mr. Dempsey "pitted blacks against whites." Thus, the testimony of these witnesses does nothing to advance the complainant's claims of discrimination.

The complainant then makes an argument that Mr. Dempsey had a pattern of using "high profile" African-Americans over age 40 to recruit their contacts in the community, then alienating them so that they would quit or be terminated. The complainant contends that Mr. Dempsey would then recruit new people with no affiliations or background in organizing so that he could have total control of the organization without any opposition. The complainant apparently believes that Ms. Odoms and Ms. Landry are two such individuals. While the complainant's theory is interesting and novel, it is without evidentiary support, as there is nothing in the record to suggest that the respondent deliberately drives out its most qualified people. Further, even assuming that the respondent did have a master plan to lure black workers over age 40 in order to exploit their connections to the community, it is not clear to the commission how this would be in violation of the Act. Hiring minorities over age 40, only to replace them with less qualified minorities, some of whom are over age 40, and who are paid as much or more than the original employees, certainly sounds like a poor business practice, but it does not appear to be a discriminatory one.

Next, the complainant takes issue with the administrative law judge's observation that Ms. Odoms, who allegedly harassed the complainant based upon her age, sex, and race, is herself a black woman over age 40. The complainant explains that Ms. Odoms was recommended for her position by two white males and was hired without competition. The complainant also contends that Ms. Odoms was willing to do anything Mr. Dempsey directed her to do, and "loved her role of power." However, none of these factors, even if proven to be true, explain why Ms. Odoms would have been biased against the complainant based upon characteristics that she herself shared. Further, and more importantly, the evidence presented at the hearing simply does not warrant a conclusion that the complainant was harassed or otherwise mistreated by Ms. Odoms. The complainant testified that she considered the mere fact that Ms. Odoms supervised her and monitored her performance to be harassment. However, virtually all employees are subject to some level of supervision, and the fact that Ms. Odoms exercised her supervisory authority of the complainant cannot reasonably be viewed as harassment.

The commission has considered the remainder of the arguments raised by the complainant in her petition and briefs, but finds them similarly unpersuasive. While the evidence in the record indicates that the complainant did not get along with everyone at the respondent and was dissatisfied with many aspects of her job, there is absolutely nothing in the record to suggest that any of the complainant's career disappointments were related to her age, race, or gender. Consequently, the dismissal of her complaint must be affirmed.

cc: Richard Saks


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uploaded 2001/04/17