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

MARY A MERTA, Complainant


ERD Case No. CR200000928, EEOC Case No. 26GA00912

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

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

The last sentence of Finding of Fact #3 is modified to read as follows for purposes of clarification:

She tended, however, to be confrontational and to refuse a directive with a resolute "no" rather than to explain the reason for her position.

Finding of Fact #7 is modified to read as follows in order to more accurately reflect the record:

In response to this meeting, Ms. Merta sent an email to the Human Resources Department deriding them for being unwilling to work cooperatively with her.

The third sentence of the second paragraph of the Memorandum Opinion section is modified to read as follows to correct an error:

The Human Resources manager told her the meeting was mandatory, everyone must attend.

The final sentence of the second paragraph of the Memorandum Opinion section is modified to read as follows to more accurately reflect the record:

With that warning ringing in her ears, Ms. Merta found it appropriate to send an email to Ms. Young in response which can only be described as insolent.


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

Dated and mailed October 30, 2003
mertama . rmd : 115 : 9  

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


The complainant raises many issues in her petition for commission review. The commission has considered them all, but discusses here only those which it regards as the most significant.

The commission first notes that the complainant alleges only three adverse employment actions in her charge of discrimination, i.e., the discipline imposed May 10, 1999; the imposition of the last chance agreement on May 10, 1999; (1)  and the August 12, 1999, termination of her employment. Although other incidents of allegedly disparate treatment may be relevant to the underlying issue, they are not actionable as a part of this case.

It is apparent from the record that Human Resources Manager Young, not supervisor Grutter, made the decisions at issue here, and that these decisions were based on her contacts with complainant, and on information relayed to her which complainant does not dispute here, e.g., complainant's insubordinate challenge to Grutter to "bring your pencil and paper," and complainant's cancellation of EAP appointments without permission from or notice to respondent. The record does not show that Young based these decisions on information which had been filtered through and influenced by Grutter. Complainant concedes that Young had the authority to make these decisions. Complainant also concedes that Young did not discriminate against her on the basis of sex when she decided to terminate her. The commission agrees with the administrative law judge that the complainant failed to sustain her burden to prove she was discriminated against on the basis of sex as alleged in her complaint.

The complainant contends in her petition that it was improper for the administrative law judge to make credibility determinations when the issue here is one of probable cause, not the merits. However, it is well settled that credibility determinations may be made at a probable cause hearing. Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992); Jones v. General Motors Corp., ERD Case No. 199800713 (LIRC July 28, 1999). The commission has carefully reviewed the administrative law judge's credibility determinations, and finds no persuasive reason in the record to overturn them.

The complainant also argues that it was improper for the administrative law judge to rely upon the contents of Young's memo summarizing her meeting with the complainant on January 27, 1999, because Young did not testify at the hearing and the contents of this memo were therefore inadmissible hearsay. This argument is puzzling since the memo at issue was introduced and offered by the complainant (complainant's hearing exhibit #12), not the respondent, and the complainant did not explain that it was being offered for only a limited purpose. Failure to object in a timely fashion constitutes waiver. See, Schlicting v. Schlicting, 15 Wis. 2d 147 (1961) (hearsay testimony received into the record without objection is available to the trier of fact as much as any other evidence, and can be considered to whatever extent the trier of fact finds it to have probative value); Maline v. Wisconsin Bell, ERD Case No. 8751378 (LIRC Oct. 30, 1989). Moreover, the evidentiary concept involved here is that, in an administrative proceeding, although hearsay evidence is admissible, an ultimate or crucial finding of fact may not be based solely on uncorroborated hearsay evidence. See, Village of Menomonee Falls v. DNR, 140 Wis. 2d 579, 412 N.W.2d 505 (1987). It is doubtful that the findings under consideration here would be regarded as ultimate or crucial findings and, even if they would, they are corroborated in substantial part through the testimony of the complainant and Grutter.

Attorney Catherine R. Munkittrick
Attorney David J. B. Froiland

Appealed to Circuit Court. Affirmed May 3, 2004. Appealed to the Court of Appeals. Affirmed February 8, 2005 (unpublished per curiam decision). Petition for Supreme Court review denied.

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(1)( Back ) Although these are discrete employment actions and the complaint was filed more than 300 days after May 10, 1999, it does not appear that a timely filing issue was raised by the respondent, and the commission will not do so sua sponte.


uploaded 2003/11/03