WILLIAM J. BUSKA, Complainant
CENTRAL BUILDING MANAGEMENT LTD, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations ("Division") issued a decision in this matter on February 23, 1994. A timely petition for review was filed with the Division, which then forwarded the file to the commission on March 30, 1995. On April 14, 1995 the commission remanded the matter to the Division for the taking of testimony on certain issues pertaining to the interpreter for the deaf who was present at the initial hearing. Testimony was taken on July 12, 1995, and the matter is now before the commission for decision.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the Administrative Law Judge at the original hearing of February 23, 1994 and the remand hearing of July 12, 1995. Based on the applicable law, records and evidence in this case, the commission makes the following:
1. Respondent Central Building Maintenance ("CBM") is a company engaged in providing cleaning and maintenance services.
2. Complainant William J. Buska ("Buska") is deaf.
3. In December 1991, Buska applied for a job with CBM and was hired.
4. Buska communicated with co-workers and superiors in writing. CBM was aware that Buska was deaf.
5. Approximately a month after he was hired, Buska was assigned to work at two locations referred to as "Super 29 East" and "Super 29 North". Buska would begin his shift at "Super 29 East" at midnight, and then he would go to "Super 29 North" after several hours.
6. On at least one occasion Buska had difficulty gaining admittance to his worksite because the doors were locked and the only way to contact those inside was by telephone, which Buska was unable to use effectively. On this occasion Buska walked around the building and pounded on the door with a can.
7. Buska explained his difficulties in gaining admittance to the worksite to CBM and expressed a preference for working only at one site instead of going back and forth so that he would not face these difficulties.
8. Subsequently, Buska was told by CBM that he would not be working any more because there were too many people.
9. After being told by CBM that the reason he would not be working any more was that there were too many people, Buska observed advertisements from CBM in the newspaper seeking help.
10. There is reason to believe that Buska's deafness was a factor in the decision by CBM to terminate him.
Based on the Findings of Fact made above, the commission makes the following:
1. There is probable cause to believe that Central Building Maintenance discriminated against William J. Buska because of his handicap, deafness, when it terminated his employment, in violation of sec. 111.321, Stats.
Based on the Findings of Fact and Conclusions of Law made above, the commission makes the following:
This matter is remanded to the Equal Rights Division for further proceedings.
Dated and mailed September 28, 1995
buskawi . rrr : 110 :
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ David B. Falstad, Commissioner
Adequacy of the interpreter at the initial hearing -- In his petition for commission review, Buska claimed that the interpreter for the deaf who interpreted for him at the original hearing was not skilled in and was not able to communicate effectively in American Sign Language (ASL), as a result of which the complainant was deprived of an opportunity for a full and fair hearing.
The transcript of the remand hearing discloses that the interpreter who was present at the original hearing was Cheryl Bauer.(1) Ms. Bauer was trained at the National Technical Institute for the Deaf in Rochester, N.Y., in 1974-1976, was certified by the National Registry of Interpreters for the Deaf since 1977, which certification is in good standing and has never lapsed, and has subsequently attended further training and workshops. She has interpreted for universities and technical colleges and in various medical, legal and mental health counseling appointments from 1976 to the present. Except for a couple of years when she stayed home to raise her daughter, and for four years when she worked in a different profession, her interpreting work has averaged between 20 and 40 hours per week during that time. From fall 1993 through summer 1994 she was employed half-time by Southeastern Wisconsin Center for Independent Living (SEWCIL) as an interpreter; since the summer of 1994 she has performed similar interpretation services for SEWCIL as an independent contractor.
This evidence about the interpreter's training, experience and qualifications leads the commission to infer that she would have been qualified to interpret accurately for Buska at the initial hearing.
There is little if anything to counter the weight of this inference. While it is true that the commission's mandate for the remand hearing was limited, Buska was allowed an opportunity to make an offer of proof at the remand hearing on the question of what the inaccuracies in the interpreter's performance were, and he also had the opportunity in his original petition for review to make an assertion or an offer of proof as to that point. However, Buska has made only a general claim that the interpretation was inaccurate. (2) Neither in his petition for review nor in his offer of proof at the remand hearing, has Buska made an assertion about even a single specific example of any point on which something said by the interpreter supposedly varies from what he told her.
In these circumstances, the commission believes that it is reasonable for it to rely on the record before it. Therefore, the commission proceeds to the underlying question of whether the evidence in the record of the November 17, 1993 hearing justifies a finding of probable cause to believe that discrimination was committed.
Probable cause -- The record in this case leaves no doubt that CBM knew that Buska was deaf. Furthermore, it establishes that his deafness caused problems which he brought to the attention of CBM. Finally, the evidence is uncontradicted that CBM told Buska that he was no longer needed because there were too many people there, but that following this Buska observed that CBM was advertising for help.
The standard of proof at a probable cause hearing has been described as "low," see, Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992). It is somewhere between preponderance and suspicion. Hintz v. Flambeau Medical Center (LIRC, 08/09/89). It is a burden to show a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that discrimination occurred. Herling v. Dealers Office Equip. (LIRC, 02/18/87). Where an employer has become aware that an employe's deafness is causing problems, and subsequently terminates the person based on a claim that there is not enough work while still seeking employes, there is reasonable ground for belief that discrimination has occurred. Therefore, the commission finds probable cause.
NOTE: The commission wishes to emphasize that it may well be that the record is uncontradicted on the points which led it to find probable cause, only because the Administrative Law Judge dismissed the complaint at the close of the complainant's case. The complainant would be well advised not to make any assumptions about his chances of success on the merits which do not take into account that evidence may be offered against him this time.
In addition, the identity of any interpreter should be noted on the record at the time that they are sworn in. The commission recommends that Buska satisfy himself as to the qualifications of the interpreter by examination of the interpreter as to those qualifications, prior to the commencement of his testimony.
cc: Attorney Wm. C. Stewart, Jr.
[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]
(1)( Back ) Prior to the original hearing, Buska had contacted the Division concerning his need for an interpreter and he had identified SEWCIL as a source. The Administrative Law Judge contacted SEWCIL and asked it to make an interpreter available for the hearing, and they sent Bauer.
(2)( Back ) Buska's counsel asserted that Buska would testify that "he does not believe [the] transcript [of the November 17, 1993 hearing] reflects his statements to the court" (T. 23).