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



ERD Case No. 200104418, EEOC Case No. 26GA200455

An administrative law judge (ALJ) 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 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 June 14, 2005
stichst . rsd : 115 : 9  

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


Several matters raised by the complainant in his brief merit preliminary mention here.

The case was brought pursuant to the Wisconsin Fair Employment Act (WFEA), not the federal Age Discrimination in Employment Act, and was analyzed accordingly.

Although the complainant argues that the evidence of record supports a conclusion of fair employment retaliation, retaliation was not an allegation raised in the complainant's charge of discrimination, was not the subject of a request to amend the charge, was not investigated by the Equal Rights Division, was not within the scope of the issues noticed for hearing, and was not an issue decided by the administrative law judge, and is not before the commission as a result. Even if the issue of retaliation were before the commission, the record does not support a finding that the complainant made a protected fair employment disclosure, a prerequisite to a conclusion of retaliation. See, Weier v. Heiden, Inc., ERD Case No. 199601631 (LIRC Feb. 5, 1998)(where employee has protested an employment action but has not indicated a belief that discrimination is being opposed, employer's reaction to that protest not prohibited retaliation); Moller v. Metavante, ERD Case No. 200103621 (LIRC Nov. 13, 2003). Although the complainant testified on direct examination that he complained to his supervisor of discrimination in regard to the assignment of duties, he admitted on cross-examination that he never used the term discrimination or stated a belief that the actions were taken because of his age or any other protected basis.

The complainant, relying upon Gentilli v. LIRC, Case No. 89 CV 2004 (Wis. Cir. Ct. Dane Co. March 30, 1990), argues that, at the probable cause stage, the very most a complainant should be required to do is set forth "that which would be required to make out a prima facie case."

It should first be noted in this regard that the circuit court's analysis of the probable cause standard in Gentilli does not establish binding precedent or authority for the commission, but instead may be cited or relied upon for whatever persuasiveness may be found in its reasoning and logic. Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991), aff'd, 166 Wis. 2d 623, 480 N.W.2d 494 (1992).

"Probable cause," for purposes of the WFEA, is "a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the [WFEA] has been or is being committed." Wis. Adm. Code § DWD 218.02(8).

The concept of probable cause set out in this administrative code provision focuses on probabilities, not possibilities (Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992), and lies somewhere between preponderance of the evidence and suspicion (Hintz v. Flambeau Medical Center, ERD Case No. 8710429 (LIRC Aug. 9, 1989)). The concept of the prima facie case, however, focuses on inference and presumption, which are more closely akin to possibility and suspicion than to probability. As a result, the complainant is required to establish more than a prima facie case in order to sustain his burden to show probable cause to believe that discrimination has occurred as alleged. See, also, Josellis v. Pace Industries, Inc., ERD Case No. CR199900264 (LIRC Aug. 31, 2004). Although the complainant established a prima facie case of age discrimination, i.e., while in the protected age category, he was discharged and replaced by a younger person, he did not show that the legitimate, non-discriminatory reason offered by the respondent for his discharge, his repeated inappropriate physical contact with a nursing home resident, was probably a pretext for age discrimination. See, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973).

Finally, the commission notes that evidence not of record, e.g., information which is a part of the ERD investigative file but not a part of the hearing record, was not considered by the commission in reaching its decision here.

Hearsay objections

The complainant objects on hearsay grounds to exhibits R-4 and R-5.

Exhibit R-4 is a handwritten memo prepared by licensed practical nurse Hagen on November 2, 2001, describing an incident involving the complainant which had occurred on October 22, 2001. As of the date of hearing, Hagen was deceased.

Exhibit R-5 is a memo prepared by supervisor Muench on November 1, 2001, summarizing conversations he had conducted that day with Hagen and with the complainant regarding the October 22 incident.

It should first be noted that, pursuant to Wis. Stat. § 227.45, neither the ERD nor the commission are bound by common law or statutory rules of evidence, including the hearsay rule.

Moreover, as relevant to these objections, exhibits R-4 and R-5 were not offered for the truth of the matters asserted therein, i.e., that the incident of October 22 occurred as described, but instead for the purpose of showing that this description of the incident was reported to Muench. See, Kleinsteiber v. Eaton Corp., ERD Case No. CR200103841 (LIRC March 15, 2004)(commission has frequently considered evidence, consisting of an employer's testimony about statements made to them by a third-party declarant, not to prove the truth of the matter asserted by the declarant but as evidence of what the employer believed and thus what motivated them in making a challenged decision); Voelz v. Kimberly-Clark, ERD Case No. 199403271 (LIRC June 6, 1997) (testimony regarding statements by declarants to employer not hearsay when offered only to show how it influenced the employer's beliefs as to what had happened, not to prove the truth of the matter asserted); Roncaglione v. Peterson Builders, Inc., ERD Case No. 9111425 (LIRC Aug. 11, 1993, aff'd sub nom. Roncaglione v. LIRC , Dane Co. Cir. Ct., May 6, 1994) (testimony not hearsay because not offered to prove the truth of what declarants said, but merely to prove that they said these things to the employer, thus tending to establish what his motives were); Jones v. Milwaukee County, ERD Case No. 9122168 (LIRC April 6, 1995) (statements made by third parties not inadmissible hearsay when not offered 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); Vandeveer v. Brown County, ERD Case No. 9020864 (LIRC June 28, 1993) (third party statements, whether or not true, not inadmissible hearsay when offered to demonstrate that respondent relied upon the statements in making challenged decision); Potts v. Magna Publications, Inc., ERD Case No. 199701821 (LIRC Feb. 27, 2001)(where a declarant's statement is offered for the fact that it was said, rather than for the truth of its content, it is not hearsay).

Finally, given nurse Hagen's unavailability due to her death, even if the relevant content of exhibits R-4 and R-5 constituted hearsay evidence, and ERD and the commission were bound by the hearsay rule, it is at least arguable that it would be appropriate under the circumstances to regard this content as a statement of recent perception, or as one having comparable circumstantial guarantees of trustworthiness, and to invoke the exception to the hearsay rule embodied in Wis. Stat. § § 908.045(2) or (6), or to regard it as a business record subject to the exception stated in Wis. Stat. § 908.03(6).


The complainant's theory here is that Muench was motivated to replace the complainant because of his age, as evidenced by his transfer of certain of the complainant's duties to Hagberg, and, as a result, seized upon, and exaggerated, reports he received as to his conduct in order to terminate him.

However, the record supports a finding that the only duties permanently transferred to Hagberg, a fellow department head, were those of chairing the fire safety committee and of maintaining the laundry equipment located in Hagberg's unit. Otherwise, Hagberg was assigned to perform the complainant's duties in his absence, and was trained accordingly. This minor realignment of duties among department heads is insufficient to establish that the respondent was trying to ease the complainant out of his job and to replace him with a younger person.

As evidence that Muench exaggerated the information provided to him by Scribner, the complainant points to the fact that Scribner's written account of what occurred on October 25 (Exhibit C-2), in contrast to the version of events attributed to her by Muench, does not state that she observed the complainant kissing Georgia several times. However, as the administrative law judge found, the record shows that Scribner reported to Muench when she met with him that, on October 25, she had observed the complainant leaning over Georgia's bed, and the complainant had kissed Georgia on the lips several times. Moreover, the record shows that Muench recognized that the complainant disputed that he had kissed Georgia more than once on October 25 and asserted that this kiss was unintentional, and, on that basis, issued a reprimand to the complainant rather than more serious discipline. These would more accurately be characterized as the actions of an administrator trying to give an employee the benefit of the doubt rather than one trying to manufacture a reason to justify discharging him.

The complainant also disputes that he kissed Georgia intentionally or intimately on October 22. However, given the nature and specificity of Hagen's description of the October 22 incident, and Muench's knowledge that the complainant had already admitted kissing Georgia on the lips three days later, even if the incident had not occurred as described by Hagen, the record supports a conclusion that Muench reasonably formed a good-faith belief that it had. In some cases, such as that here, the question of whether an employer's asserted nondiscriminatory reason is objectively correct can be considered irrelevant, if it appears that the employer genuinely believed it to be true. See, Moncrief v. Gardner Baking, ERD Case No. 9020321 (LIRC July 1, 1992); Turner v. Manifold Services, Inc., ERD Case No. 200000679 (LIRC Jan. 31, 2002); Kleinsteiber, supra. The trier of fact need only determine that the employer in good faith believed in those reasons and that the asserted reasons for the action were not a mere pretext for discrimination. See, Atkins v. Pepsi-Cola General Bottlers, ERD Case No. 199550094 (LIRC Dec. 18, 1996).

The complainant also argues that employees frequently engaged in physical contact with residents, and the fact that he was singled out for discharge on this basis demonstrates age discrimination. It was not established, however, that employees frequently or, in fact, ever, kissed residents on the lips, or that it was acceptable to do so. It was reported to the respondent that the complainant was in the day room on October 22 and in resident Georgia's room on October 25, even though there was no work reason for him to be there, and was observed by two different co-workers kissing Georgia on the lips. The complainant admitted to the respondent that this had occurred. The record shows that Georgia was a vulnerable female who suffered from short-term memory loss. The respondent, as a skilled nursing facility, was required to safeguard the safety, privacy, and dignity of its residents, and was subject to serious penalties for failing to do so. The actions reported to the respondent constituted a serious breach of these requirements which would reasonably justify the complainant's termination.

The complainant also argues that age discrimination is demonstrated by the fact that he was treated less favorably when he violated the respondent's work rules than a similarly situated younger employee, i.e., Scribner. However, the record shows that Scribner reasonably believed that she had the permission of the resident, the resident's family, and the respondent when she took the resident's belongings home with her, offered this explanation to the respondent, and immediately returned the items when she was advised that her actions were improper. In contrast, the record shows that the complainant was aware that kissing residents on the lips was improper at the time that he did so, and communicated this awareness to the respondent. This distinction, as well as the generally more egregious nature of physical violations than property violations, and the fact that, unlike Scribner, the complainant was a supervisor and held to a higher standard as a result, militate against a conclusion of disparate treatment on the basis of age.

The complainant failed to sustain his burden to prove that there is probable cause to believe that the legitimate, non-discriminatory reason offered by the respondent for his discharge, his inappropriate physical contact with a resident, was a pretext for age discrimination.

Attorney Victor M. Arellano
Attorney Allyson B. Handler

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uploaded 2005/06/20