ERD Case No. 9050520, EEOC Case No. 26G900668

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on November 26, 1991. Complainant filed a timely petition for review by the Commission.

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


The decision of the Administrative Law Judge (copy attached) is modified as follows:

In Finding of Fact paragraph 7 delete "Onadaga" and substitute "Onondaga."

As modified, the decision of the Administrative Law Judge shall stand as the FINAL ORDER herein.

Dated and mailed at Madison, Wisconsin this 19th day of June, 1992.

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


Complainant's claim of wage discrimination rested on his assertion that two employes, Tony and Carl, told him that they were being paid $7.00 per hour, more than the $6.00 per hour which Complainant testified he was being paid. The Administrative Law Judge ("ALJ") rejected this evidence as "not probative". She also noted that there was in any event no evidence that, if there was in fact such a wage differential, it was based on race.

While the ALJ's discussion of and citation to Levanduski v. Visiting Nurse Association of Sheboygan (LIRC, February 10, 1988), might be taken as indicating that she simply declined to even consider the evidence because it was hearsay, the Commission will not assume that this happened. Levanduski concerns hearsay which is objected to but nevertheless received into the record pursuant to the wide latitude allowed in administrative hearings. Where, however, hearsay evidence is not objected to (as it was not here, since the Respondent did not appear), it may be used by the trier of fact as a basis for findings to whatever extent it is viewed as having probative value. Maline v. Wisconsin Bell (LIRC, October 30, 1989), see Schlichting v. Schlichting, 15 Wis. 2d 147, 160, 112 N.W.2d 149 (1961). The Commission assumes that the ALJ referred to Levanduski simply by way of general reference to her authority to receive evidence into the record, and that her comment that she found the evidence "not probative" is actually more reflective of why she did not give significant weight to the hearsay evidence she received. A degree of unreliability is present in all hearsay, whether it is objected to or not. Thus here, for example, even if this hearsay testimony of Complainant was given by him in good faith based on his recollection, there remains a question as to whether his recollection might be faulty or he might have misunderstood what he was told, and there also remains a question of whether these things, even if said by the co-workers, were actually true. These questions all go to the reliability of the testimony as a basis for a fact-finding, and thus to its probative weight. The ALJ evidently considered the testimony but ultimately found it not to be reliable enough to justify giving it weight, i.e., not probative. In any event, this is how the matter is viewed by the Commission, which sits as the trier of fact at this point in the process.

Complainant argues that the investigator's findings (which include her recitation that one of the Complainant's co-workers told her that he was paid $7.00 per hour) qualify as probative evidence. He is incorrect. The Initial Determination was neither offered nor received as evidence at the hearing. The ALJ, and the Commission in its turn, must decide the case based on the evidence introduced into the record at hearing. If the Initial Determination is not received into the hearing record, it should not be considered in making factual findings. Joseph v. Central Parking (LIRC, August 20, 1990). In any event, the hearsay indication of the investigator that a co-employe told her something would have no greater reliability than the hearsay testimony of the Complainant that the co-employe told him something.

Complainant objects that while the hearsay he relied upon was ignored, the ALJ deprived him of due process by permitting "non-relevant" hearsay to prevail, and by relying on hearsay evidence. It is not clear to the Commission what Complainant refers to here. The only hearsay which was offered, was offered by Complainant himself. The Commission does not believe that any of the findings are premised on evidence, hearsay or otherwise, that was not relevant. Both the ALJ, and the Commission in its adoption of the ALJ's findings, have resolved this case on the basis of the most reliable parts of the evidence offered by Complainant.

Finally, Complainant objects that the Respondent's non-appearance left him unable to question him under oath. However, Complainant had the opportunity to compel by subpoena the attendance at hearing of any witness from whom he thought he could elicit testimony that would be helpful to his case. If he needed testimony of the employer it was his responsibility to take steps to insure that he could present it. See, Mazzara v. Endata, Inc. (LIRC, January 9, 1987).

The Commission shares the ALJ's doubts about the reliability of Complainant's testimony, and for the reasons she identifies, i.e., its internal inconsistency and indefiniteness in a number of material respects. Like the ALJ, the Commission was not persuaded that the evidence offered by Complainant served to carry his burden of proving discrimination in wages, assignment of duties and hours, or termination of employment.

110 / A

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