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

STEVEN E. AKEN, Complainant


ERD Case Nos. 199551409, 199600710,
EEOC Case Nos. 26G951356, 26G960769

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 December 23, 1998
akenste . rsd : 110 :

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


With respect to the positions of senior donor recruiter which went to Sherrilyn Lynn and Jill Ribneck in December, 1994, Complainant's argument is that there is something suspicious in the fact that he was not considered for either of the positions when he had, over the years, indicated that he wished to be considered for such promotional opportunities.

However, Complainant does not in his Brief refer to any evidence contradictory to the finding of the Administrative Law Judge that Lynn and Ribneck had affirmatively expressed their interest in a promotion to a senior donor recruiter position only a few months before when they sought the position then open (which eventually went to Shea), and that as a result they had been interviewed for the position at that time. Complainant also does not challenge the Administrative Law Judge's finding that at that point earlier in 1994 when the position (which eventually went to Shea) had been announced in a meeting, Complainant had not in any way expressed his interest in the position and had not been interviewed for it. Neither does he make any assertion to the contrary. Furthermore, Complainant does not dispute the finding that he did not make any expression of interest in the positions on the day that they were announced in December; in fact, he asserts affirmatively in his brief that he did not do so until three days later. (1)

Complainant argues that the individuals selected (Lynn and Ribneck) were "not as qualified" as he was. This assertion is not supported by any citation to any evidence in the record, and it is not expanded on to any extent. It is also contradicted by the assertion made immediately thereafter in Complainant's Brief, that the "only" difference between Complainant and Lynn and Ribneck was that he had a handicap and they did not. There is no attempt to dispute the finding of fact made by the Administrative Law Judge, that after interviewing Lynn and Ribneck earlier in 1994, Dobiash had found them to be qualified.

The commission is satisfied that the record establishes, that at the time that the positions arose for senior donor recruiters in December, 1994, Lynn and Ribneck were in a significantly different position from Aken, as they had recently been actively interested in such a position whereas Aken had not. Furthermore, Complainant has not shown evidence of a disparity in the qualifications of the candidates, either in actuality or as perceived by the decisionmaker, such as would give reason to suspect an improper ulterior motive. Complainant's evidence simply does not rise to the level of suggesting, much less proving, that the selection of Lynn and Ribneck was because of consideration of Complainant's handicap.

With respect to the allegation of discharge in retaliation for the filing of a complaint of discrimination, the Complainant's arguments are unpersuasive.

The Administrative Law Judge found that Lisa Entrikin was the person who made the decision to fire Complainant; the Complainant appears to agree with this, as he argues in his Brief that "Mr. Aken was terminated from employment with Respondent by Entrikin". The Administrative Law Judge also found that Entrikin fired Complainant "because of his repeated and numerous errors with the computer system and his failure to follow Respondent's requirements for medical documentation for his absence from work". Complainant appears to not be disputing that the second-mentioned item ("failure to follow Respondent's requirements for medical documentation for his absence from work") was a factor, as there is absolutely no challenge in his Brief to the extensive findings of fact made by the Administrative Law Judge (FOF 10, 17, 18, 19) on this issue. In fact, Complainant's Brief conspicuously fails to even mention this issue, and it just as conspicuously argues that this is a "mixed motive" case in which there were "other permissible factors" which played a part in the decision to discharge. It is a reasonable interpretation of Complainant's Brief, that the matter of "failure to follow Respondent's requirements for medical documentation for his absence from work" is conceded.

Complainant's argument on the termination focuses on the argument that it is not reasonable to believe that Respondent was motivated in part by concern over errors Complainant made in his work, and that the more reasonable inference is that his filing of a discrimination complaint was a factor in the decision. However, entirely apart from the question of whether this is persuasive, there is another, fatal, flaw in Complainant's argument.

As noted above, the Administrative Law Judge found, and Complainant appears to concede, that the discharge decision was made by Lisa Entrikin. However, the ALJ found expressly that Entrikin was not aware that Complainant had filed a discrimination complaint when she decided to terminate him (FOF 21). In his Brief, Complainant never acknowledges this finding, never challenges it, and never asserts that Entrikin knew he had filed a complaint. He simply refers to the fact that the complaint was served on the Respondent by mail on May 3, 1995, and argues that the chronology of his termination in February, 1996 suggests retaliation.

It is undisputed that Entrikin did not become employed by Respondent until May 30, 1995, almost a month after the discrimination complaint was served on Respondent by the ERD. Furthermore, she testified that when she became employed by the Respondent she was not made aware of the fact that Complainant had filed a discrimination complaint against Respondent. She also testified that at the time she discharged Complainant she had never seen the discrimination complaint. She also testified that the first time she became aware that the complaint had been filed was in January, 1997. She also testified that Complainant had never raised any complaint concerning denial of promotion with her at any point in time. On cross-examination she adhered to this testimony, explaining that while she knew prior to Complainant's discharge that several discrimination complaints had been filed within the department, she did not know at the time who had filed them. Complainant himself offered no direct evidence that Entrikin knew he had filed a complaint.

If an employer does not know that an employe has made a complaint of discrimination it obviously cannot be motivated by such knowledge in the conduct it undertakes. Thus, it is an essential element of a claim of retaliation that the Complainant prove that the employer was aware that the Complainant engaged in protected activities. Cangelosi v. Robert E. Larson & Associates (LIRC, 11/09/90).

The evidence that the Respondent had a reasonable concern over errors made by Complainant is substantial, and the evidence that the Respondent had a reasonable concern over Complainant's disregard of Respondent's policies on medical documentation for absence from work is substantial and undisputed. In addition, the fact that Entrikin did not know that Complainant had filed a charge of discrimination is, in and of itself, fatal to Complainant's retaliation theory. The commission therefore affirms the decision of the Administrative Law Judge.

Carolyn H. Delery, Attorney for Complainant
Carolyn C. Burrell, Attorney for Respondent

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(1)( Back ) As support for the assertion in his Brief that after the announcement that the positions were open on November 25, Complainant expressed his interest in the positions on November 28, Complainant's Brief cites to p. 44 of the transcript of the January 13, 1997 hearing. However, Complainant's testimony on that page was actually that he had spoken to Dobiash to express his interest, "the day of the meeting after the meeting" -- and that she had told him he would be considered. This testimony was contradicted by other testimony from Complainant: at pp. 71-72 of the same transcript, he testified that he spoke to Dobiash the next day -- and that she told him the positions were filled. This confusion is consistent with confusion in Complainant's testimony on other aspects of the promotion claim, such as when certain positions were open and who received them. The confusion warrants a belief that Complainant's recollection of the specific details was less than complete


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