JOYCE M. HINTZ, Complainant

FLAMBEAU MEDICAL CENTER, Respondent

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 August 26, 1988. 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 issues the following:

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

1. Delete paragraph 4 of the FINDINGS OF FACT and substitute the following:

"Petrashek scheduled a meeting for October 30, 1985, with the dietary department employes. Petrashek and Complainant attended the meeting at which employes were encouraged to identify problems they perceived in the dietary department. At the meeting, Complainant became angry and refused to speak to the other employes."

2. Delete the last two sentences in paragraph 10 of the FINDINGS OF FACT, and substitute the following:

"However, Respondent's health insurance premiums were based on utilization of health coverage, not on the number of employes in the 'high risk' category. There is no showing that Complainant's use of Respondent's health insurance was unusually high."

3. Delete the last two sentences in paragraph 12 of the FINDINGS OF FACT and substitute the following:

"Nevertheless, Respondent has no policy regarding the marital status of its employes and there is no evidence that married employees were treated less favorably than unmarried employes."

4. Delete paragraph 2 of the CONCLUSIONS OF LAW and substitute the following:

"2. There is no probable cause to believe that Respondent discriminated against Complainant because of her age, marital status or handicap with regard to discharge or demotion."

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

Dated and mailed August 9, 1989

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

Complainant argued that the Administrative Law Judge assessed the wrong burden of proof to Complainant when he decided there was no probable cause to believe Respondent discriminated against her. The Commission agrees.

IND 88.01(8), Wis. Adm. Code, provides that "'Probable cause' means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that discrimination . . . has been . . . committed."

The burden of establishing probable cause is less than the preponderance of evidence burden required to establish discrimination on the merits. Winters v. Dept. of Transportation (Wis. Personnel Commission, 9/4/86) characterized probable cause "as being somewhere between preponderance and suspicion."

In this case, the Administrative Law Judge improperly used the preponderance of the evidence standard. The Commission reviewed the case with the appropriate lower standard in mind. However, even with this lower standard, the Commission cannot find that the Complainant has shown probable cause to believe that Respondent unlawfully discriminated against her.

Complainant has not shown more than a suspicion that Respondent fired Complainant because of her marital status. She claims that Respondent discouraged spouses from attending hospital functions. However, she admitted that Respondent paid for spouses' meals at the annual Christmas party.

Complainant further claimed that Harold Geller made insulting remarks about her husband. However, even if Geller did not like Complainant's husband as she claimed, it does not follow that he discharged or demoted her because she was married. There is no showing that married employes were treated less favorably than unmarried employer. Both Geller and Petrashek were married. The Commission does not find Complainant's claim that Respondent discharged her because of her marital status plausible.

Complainant has not shown more than a suspicion that Respondent fired or demoted her because of age. Although Complainant claims that she was replaced by a younger employe, there is no basis for her testimony. Complainant showed no foundation to establish that she was in a position to know who replaced her as a dietary supervisor. On the other hand, Respondent presented competent evidence that Complainant was replaced by someone three to four years older than she was.

Complainant failed to establish more than a suspicion that the Respondent had a pattern of firing older employes. She admitted she knew nothing about the maintenance supervisor's job performance or the central supplies supervisor's job performance. Further, she provided no foundation to show that she was in a position to know whether they were fired, and if they were, why they were fired. Geller, who was in a position to know, said that the maintenance supervisor was fired because of his job performance and the central supplies supervisor quit.

Complainant offered vague testimony that older aides were laid off rather than younger ones. However, she gave no specifics and offered no foundation that she was in the position to know which aides were laid off. Geller, who was in a position to know, testified that all layoffs were based on seniority.

The only competent evidence as to age discrimination was Complainant's testimony that she was present when Geller fired Annabelle Brant. Complainant claimed Geller said basically the same things to Brant that he said to Complainant when he fired her. Even if one believes that Geller fired Brant after telling her that she was incompetent and "not with it anymore," that hardly establishes a pattern of firing older employes.

Complainant has not established more than a suspicion that she was fired or denoted due to handicap. She claims that Respondent had a motive to get rid of "high risk" employes because it had to pay higher health insurance premiums for employes who were in the "high risk" group. However, Geller testified that the hospital premium was based on utilization of health coverage, not on the number of employes in the "high risk" category.

Complainant's testimony is implausible. First, there is no foundation to show the Complainant was in a position to know on what basis Respondent's health insurance premiums were set. Further, it would make no sense for an insurance company to base premiums on the result of a voluntary health screening since many of the highest risk employes might of participate. Complainant has not shown that her use of Respondent's health insurance was unusually high so as to affect Respondent's insurance premiums.

Complainant argues that the Administrative Law Judge improperly admitted testimony and exhibits in violation of section IND 88.14, Wis. Adm. Code. However, Complainant has not shown that she was in any way prejudiced by the admission of that testimony and those exhibits.

Complainant alleges that she observed the Administrative Law Judge napping during a portion of the hearing. The Commission has reviewed the tapes of the hearing in this matter. At no time during the hearing did the Complainant object to the Administrative Law Judge's inattentiveness. Nevertheless, the Commission has based its finding in this case on a review of the tapes of the hearing, not upon the Administrative Law Judge's synopsis.

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