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

CAROL A JONES, Complainant



ERD Case No. 9122168

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations 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.


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

Dated and mailed April 6, 1995
jonesca . rsd : 110 : 9

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


In her petition for commission review, the Complainant argues that the position of Cook III was a supervisory one until Lynn Gilbert changed Complainant's duties. The Complainant also argues that Jane Ruege intentionally failed to inform Complainant of the possible reclassification of the Cook II: position at the House of Corrections when that position was open, and that later Ruege also intentionally gave Complainant an evaluation when Schweitzer was away and when Complainant was due to take a promotional examination on the following day. , It is quite clear, the Complainant feels strongly that race and sex discrimination played a role in the events of this case. The commission's review of the record, however, leaves it unpersuaded as to these points. As the Complainant herself recognized in her petition for commission review, "[t]he question is really who do you believe?". The Administrative Law Judge, and now the commission, considered a great deal of evidence from both parties prior to arriving at a decision. The Complainant bore the burden of persuasion by a preponderance of the evidence. She failed to persuade the Administrative Law Judge, and the commission agrees with the explanation provided by the Administrative Law Judge as to why the Complainant's evidence was not adequate to demonstrate, to the required burden of proof, that discrimination occurred.

The Complainant asserts that the Administrative Law Judge made a "causal (sic) statement before the hearing started that she didn't think the previous judge handled this hearing correctly." Even assuming that the Administrative Law Judge did make a comment like this, and even assuming that if she did she was referring to the administrative law judge who presided over the hearing on the issue of probable cause rather than to someone else, (1)  the commission does not believe that it reflects any prejudgment concerning the merits of the case or the wisdom of that judge's decision. It seems more likely to the commission that such a comment would have concerned precisely what its literal words address: the way in which the previous administrative law judge handled the hearing. In any event, the commission has conducted its own review of the evidence in this case, without any predetermined view as to the merits, and it has arrived at the same result as the Administrative Law Judge.

The Complainant also objects to the fact that it took the Administrative Law Judge almost two years to issue a decision. (The Administrative Law Judge's decision reflects that the last brief was filed on May 11, 1992, and the decision was issued on February 17, 1994). The commission finds nothing in the file which directly explains this delay, although it does note that there is correspondence indicating that in 1993 the Respondent had contacted the Administrative Law Judge to inform her that settlement discussions were underway, and it appears that the Administrative Law Judge may have placed the matter aside during that time. Perhaps more important, this was a case in which there were three days of hearing, and review of the evidence and preparation of a decision in such cases is time-consuming. Administrative Law Judges of the Equal Rights Division have a full calendar of hearings which they must preside over. It is unfortunate when cases take this long to be decided, but such a delay does not constitute a deprivation of due process, Binder v. Nercon Engineering & Manufacturing (LIRC, 12/18/90), and it also does not in any way suggest that the Administrative Law Judge had already made up her mind. on the contrary, the length of time it took this decision to be issued appears to have been attributable in no small part to the detail in which the Administrative Law Judge studied the record and prepared 'her decision, and these things speak more of scrupulous impartiality. (2)

The Complainant asserts that hearsay was used by the Administrative Law Judge. The Complainant does not specifically identify what hearsay she is talking about, but it may be the testimony of Lynn Gilbert that two Cook I's complained to her that the Complainant was spending too much time in her office rather than assisting the Cook I's in the kitchen. See, Finding of Fact No. 37. If the Administrative Law Judge had relied on this testimony to support a finding of fact that Complainant had in fact been spending too much time in her office rather than assisting the Cook I's in the kitchen, a hearsay issue would have been presented, but this is not what occurred here. The Administrative Law Judge was clearly looking at this testimony not for what it proved about what the Complainant may or may not have been doing, but for what it showed about what Lynn Gilbert knew or believed and what her motivations may have been. Where statements made by third parties are offered in evidence not to prove the truth of their contents, but to prove what the person who heard them believed and relied upon in making an employment decision, they are not inadmissible hearsay. Vandeveer v. Brown County (LIRC, 6/28/93).

The commission wishes to note in closing that the Complainant has misunderstood the decision in this case if she believes that it was intended to (in her words) "paint [her] as a disgruntled, lazy worker whose case has no merit," or that it was the Administrative Law Judge's view that the Complainant was lying. The commission does not question either the Complainant's commitment to her job or the sincerity of her beliefs about the Respondent's actions, and it does not understand the Administrative Law Judge to have done so either.

However, what motivated the agents of the Respondent whose actions are challenged here is a question that no one (except those persons) can have any direct knowledge of. Ultimately, everyone else -- including not only the Administrative Law Judge and the commission, but also the Complainant -- must draw an inference about those motivations from outward signs such as words and conduct. No one who genuinely believes in the inference they have drawn about another person's motivations, is "lying." This does not mean, though, that they are correct. What the Administrative Law Judge decided, was that the Complainant was mistaken in the inferences she drew about what motivated the Respondent. The commission agrees with that decision.

Patricia McManus
Mary Ann Grimes

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(1)( Back ) The commission considers it possible that the Complainant misinterpreted or misheard the remark, and that it was a reference to someone other than the administrative law judge who presided over the hearing on the issue of probable cause. There were other things in this case which were "not handled correctly": the Acting Director of the Equal Rights Bureau erroneously dismissed the complaint at one point, and this had to be corrected by a subsequent order of an Administrative Law Judge acting on behalf of the Administrator.

(2)( Back ) Although it might appear, from the fact that the ALJ's decision was issued over a year ago, that the commission itself has added to the delay in this matter, that is not the case. Despite the fact 'that the Equal Rights Division represented in a March 11, 1994 letter to the parties that "the file is being forwarded to the Labor and Industry Review Commission", the Division did not in fact forward the file to the commission at that point. Rather, it waited until the Administrative Law Judge prepared her Summary of Proceedings. The commission did not actually receive the file from the Division until March 20, 1995.


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