MARILYN CHAMPLIN, Complainant
WONEWOC CENTER SCHOOL DISTRICT, Respondent
An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
1. In paragraph three of the administrative law judge's FINDINGS OF PROBABLE FACT the date "1995" is deleted and the date "1985" is substituted therefor.
2. The following paragraph is inserted after paragraph seven of the administrative law judge's FINDINGS OF PROBABLE FACT:
"On or about March 15, 2001, the complainant received a notice from the Department of Employee Trust Funds indicating that she was not eligible for disability retirement benefits because the respondent had not certified that her termination was due to disability. The respondent did not affirmatively certify that the complainant's retirement was due to disability because it took the position the complainant was not disabled. The complainant ultimately did secure disability benefits and, as of the date of the hearing, she had received all of the benefits to which she was entitled."
3. The remaining paragraphs in the administrative law judge's FINDINGS OF PROBABLE FACT are renumbered accordingly.
The decision of the administrative law judge (copy attached) is modified and, as modified, is affirmed.
Dated and mailed March 22, 2005
champma . rsd : 164 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
In her petition for commission review and supporting briefs the complainant argues that, although the hearing notice indicated the hearing would not be rescheduled for attorney convenience, the administrative law judge rescheduled the hearing for the respondent's attorney's convenience, due to the proximity of the due date of her motion for summary judgment in a related discrimination case. The complainant contends that the delay impaired her emotional and mental competency and caused her considerable anxiety and confusion. She states that during the hearing she suffered severe panic attacks, impaired memory, word-finding difficulties, and confusion, all associated with her disability. The complainant maintains that she was unable to correctly follow the legal procedures in presenting her case and was unable to complete the hearing, so that closing arguments had to be submitted in written form. The commission interprets this argument as a request for further hearing. However, the commission sees no compelling reason to reopen the record in the matter. Neither the case file nor the hearing record contain anything to indicate that the complainant opposed the respondent's request for postponement, and the commission does not believe that the one-week postponement which the administrative law judge granted the respondent resulted in any prejudice to the complainant. Moreover, correspondence in the case file indicates that the hearing was postponed a second time at the complainant's own request. Thus, any stress related to the postponement of the hearing date appears to be partially attributable to the complainant's own actions. The commission also notes that the complainant did not request any special accommodations prior to the hearing, and although it does appear from the record that the complainant had difficulties presenting her case, the record suggests that the administrative law judge attempted to be accommodating to the complainant's needs by ordering a break to provide her with an opportunity to compose herself and by permitting the complainant to submit her closing statement in written form. For the foregoing reasons, and because the complainant has failed to explain what evidence she would have presented had she been in a calmer and clearer state of mind or how such evidence would have made a difference in her case, there is no basis to conclude that any further hearing is warranted.
Next, the complainant contends that her witnesses concurred that the respondent's actions were retaliatory for her participation in the complaint process. The complainant argues that, since this was a probable cause hearing, she was only required to raise the inference of discrimination. The complainant is apparently suggesting that her witnesses' testimony was sufficient to meet her burden of proof in this case. The commission disagrees. The complainant's first witness, Deborah Byers, testified that she felt the respondent's attitude towards the complainant changed after she filed her complaint in 1998, and that it became more adamant about not putting the complainant back on her former work schedule. However, because the respondent's failure to restore the complainant to her original work schedule is not a subject of this complaint, Ms. Beyer's opinion on that point has no bearing on the outcome of the case. The complainant's second witness, Gerald Roethel, testified that, although he could not recall the respondent saying anything about the complainant's discrimination complaints, he felt the respondent's actions in delaying payment of her back wages was due to her having filed the complaints. However, while Mr. Roethel may have formed an opinion as to the respondent's motivations for delaying the payment of the complainant's back pay award, such speculation is outweighed by the firsthand testimony of the respondent's superintendent, Michael Manning, who was able to provide a legitimate, nondiscriminatory explanation for the respondent's failure to immediately make the complainant whole for her back pay. Lacking any reason to believe that the respondent's explanation was a pretext for discrimination, the commission agrees with the administrative law judge that the complainant failed to establish probable cause with respect to this issue.
The complainant's witnesses offered no testimony with regard to the most significant issue presented in this case--whether the respondent discriminated against the complainant based upon her age or disability when it failed to consider her for a staff position in the 2001-2002 school year--and the commission agrees with the administrative law judge that the complainant failed to demonstrate probable cause to believe she was discriminated against as alleged. At the hearing the complainant conceded that she failed to apply for the position, but contended that the respondent had a legal obligation to notify her of the vacancy. However, the complainant acknowledged that there is nothing in the collective bargaining agreement that required the respondent to inform her of a vacancy, nor does the evidence demonstrate that the respondent had a past practice of notifying former employees, other than those on lay-off status, when positions became available. The respondent's decision to post the job opening internally and with the Department of Public Instruction (1) appears to have been consistent with its usual practice, and the record contains nothing to suggest that its actions were designed or intended to keep the complainant from learning of the vacancy.
Finally, in her brief to the commission the complainant makes arguments about the ways in which the complaint and hearing procedures could be altered to better protect the rights of employees. However, the commission lacks the authority to consider or implement the changes the complainant proposes. The commission is obligated to follow the procedures in the statute written by the legislature and in the administrative rules promulgated by the Equal Rights Division.
The commission has considered the remaining arguments raised by the complainant in her petition and supporting briefs, but finds them similarly unpersuasive. Because the evidence failed to demonstrate probable cause to believe the complainant was discriminated against in the manner alleged, the dismissal of her complaint is affirmed.
NOTE: The administrative law judge's decision contains conclusions of law regarding the respondent's failure to certify that the complainant's termination was due to a disability, but contains no findings of fact on that issue. The commission has modified the decision to include such findings and to correctly set forth the date on which the complainant began her employment with the respondent.
cc:
Attorney Lori M. Lubinsky
Appealed to Circuit Court. Appeal dismissed, June 3, 2005.
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