ERD Case No. 8702277, EEOC Case No. 26G880190

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 July 17, 1990. Complainant filed a timely petition for review by the Commission and both parties subsequently submitted written arguments.

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:

Delete Finding of Fact paragraph 18 and substitute therefor the following:

"18. Crawford compares himself to a Monte Barnes, a white custodian, who Crawford had seen leaving early after midnight. Barnes had been assigned to work two hours of overtime after midnight that night. Crawford told Fruzen about seeing a custodian leaving early when he spoke with Fruzen on September 4, 1987, but he did not tell Fruzen at that time who the custodian was. On September 9, Fruzen issued a memorandum to all custodial staff which reminded them generally that they were obliged to work the full overtime assignments they had signed up for. On September 10, 1987, Crawford told Fruzen that the custodian involved was Monte Barnes. Fruzen thereafter immediately contacted Barnes to determine what had occurred, and Barnes confirmed that he had left the building when Complainant said he had, but reported further that he had only been leaving the building to get a cup of coffee and that he had in fact returned and worked the assigned two hours of overtime. On the basis of this information from Barnes, which Fruzen credited as accurate, Fruzen took no further action against Barnes."

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

Dated and mailed November 8, 1991

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner



Transcript -- After the Administrative Law Judge prepared and issued his decision, a petition for Commission review had been filed, and a briefing schedule had been established and then twice extended, Complainant submitted to the Commission a transcript of the hearing, prepared from copies of the tapes of the hearing which he obtained from the Equal Rights Division. Complainant requested the commission to consider this transcript in its review; Respondent objected to this request.

The Commission's general rules provide, at Wisconsin Administrative Code LIRC 1.04, that review by the Commission is on the record of the case including the synopsis or summary of the testimony prepared by the Administrative Law Judge, and that consideration of a transcript is discretionary with the Commission except as provided under LIRC 4.02(2).  Under LIRC 4.02, it is specified that transcripts may be obtained "according to [Wis. Admin. Code] s. Ind 88.17," and that review by the Commission "shall be based on the record of the case, including a transcript of the testimony, where the record has been transcribed before the Administrative Law Judge prepared a decision, under s. Ind 88.18(5)." (1)

Ind 88.17 dates to a time when the Equal Rights Division itself saw to the preparation of transcripts through a transcription firm with which it contracted, and the language of that section anticipates such an arrangement. However, although Ind 88.17 continues in effect, the Division no longer follows this procedure. Instead, it merely provides copies of hearing tapes to parties who request them and those parties are essentially free to have anyone they care to prepare a "transcript" from those tapes. The Division has no rule establishing any standards for what constitutes an acceptable transcript.

By virtue of the Division's suspension of Ind 88.18(5), the reference to that rule section in LIRC 4.02(2) no longer has any significance. However, LIRC 4.02(2) still conditions the Commission's obligation to consider a transcript on its having been prepared before the Administrative Judge issued the decision. Where, as here, the transcript has not been prepared before the Administrative Law Judge issued the decision, the general provision in LIRC 1.04 governs rather than the specific provision in LIRC 4.02(2), and consideration of the transcript is therefore "discretionary with the commission."

The Commission will not consider the transcript in this case. A comparison of selected portions of the transcript to the tapes of the hearing prompted considerable doubt on the part of the Commission as to the reliability of the transcript. In section after section as to which this comparison was made, it became apparent that the transcript is not verbatim. Some of what appears is in the nature of paraphrasing. Parts of answers, apparently considered unnecessary by the transcriptionist, are sometimes omitted. In a number of places, extended discussions between counsel and the Administrative Law Judge on procedural matters are omitted altogether. Most troubling of all, are the occasions on which outright inaccuracies change the substance of what a witness testified to. Thus, Adolphus Williams did not say, as the transcript reports, that a white co-worker "was always telling some curse of death about black people and how they lived," but instead that the co-worker "was always telling some incident or some story about black people and how they lived." Furthermore, Complainant's supervisor did not testify, concerning Complainant's attitude in September 1987, that "He'd be welcome to accept changes," as the transcript reports, but instead that he "seemed to be reluctant to accept changes." In the face of these kinds of inaccuracies, the Commission lacks confidence that the transcript is a verbatim record of the testimony given at the hearing, and it has therefore not considered it in its review.

Merits -- Complainant alleges that Fruzen engaged in much closer scrutiny of his allegedly poor performance than he did of Monte Barnes' alleged "skipping out" on two hours of scheduled overtime. The Commission does not agree. According to Fruzen's credible testimony, upon hearing Barnes identified as the person involved on September 10, he immediately checked with Barnes and satisfied himself based on Barnes' statements to him, that Barnes had simply left the building to get a cup of coffee and had returned and worked the scheduled overtime. While it is possible that Barnes engaged in a technical violation of a policy that custodians were not to leave the building during breaks except for the lunch break, the situation is still distinguishable from one involving poor performance of the substance of a job by a probationary employe. While Complainant claimed that Fruzen's failure to check Barnes' timecards to confirm his story is suspicious, the commission does not find this persuasive in view of the credible testimony that Respondent did not require its custodial employes to punch in and out when they left on breaks or lunch. Therefore, Barnes' timecards would not have disclosed anything to Fruzen anyway, so his failure to check them is not suggestive of any intention to overlook wrongdoing on Barnes' part.

Complainant alleges that there was unequal treatment in that he was disciplined for poor performance while Barnes was not disciplined for allegedly making racial remarks to another employe. This argument is found unpersuasive, for two reasons. First, the evidence as to the "racial remarks" is vague. All that was elicited about them, was that Barnes allegedly told about incidents or stories concerning black people, and that Adolphus Williams found these statements to be derogatory. Because there was no evidence presented as to what was actually said, there can be no independent evaluation of whether the statements (assuming they were made) have met any particular standard for offensiveness or unreasonableness. Second, there was credible testimony by witnesses for Respondent that a complaint was never made about this alleged conduct by Barnes. If the explanation for the fact that Barnes was not disciplined is that Respondent was not aware of his wrongdoing, this does not suggest unequal treatment.

Finally, Complainant argues that it is significant that Glen Weidemann testified to the effect that he saw no difference in the cleanliness of the areas serviced by Complainant and Barnes. In making this argument, Complainant relies on a citation to the transcript which the Commission has determined not to rely on. Assuming for the sake of discussion only that a reliable verbatim transcript would disclose that Weidemann had in fact given such testimony, the Commission would not find it persuasive of the existence of bias against Complainant. The testimony cited by Complainant seems ambiguous to the Commission in respect to the time period to which it has reference. There was no dispute that Complainant's performance prior to the beginning of the school year was adequate. Additionally, the statement is ambiguous in that it is unclear exactly what kinds of work by Complainant and Barnes are being compared. The record demonstrates that Barnes had no assigned responsibilities for cleaning in the cafeteria and kitchen. Contrasted to this, one of the most significant criticisms of the Complainant's performance was his failure to clean adequately in these areas. If Weidemann's comment reflected merely a comparison of the work by Complainant and Barnes in cleaning types of areas for which they both had responsibility, such as classrooms, then the statement is not inconsistent with genuine concern on the part of Respondent for Complainant's performance in the kitchen and cafeteria area.

The parties' disputes as to the basic facts in this case presented questions of credibility, and the Administrative Law Judge obviously resolved those questions of credibility against the Complainant. Based on its review of the record, the Commission found no reason to disagree with the Administrative Law Judge's assessment of credibility in this matter. For this reason, and for the reasons discussed above, the Commission has affirmed the decision of the Administrative Law Judge.

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(1)( Back ) The Equal Rights Division has, by emergency rule, suspended Ind 88.15, its rule calling. upon administrative law judges to prepare summaries of proceedings. Notwithstanding the absence of a rule in this area, the Division's current practice is that administrative law judges nevertheless prepare such summaries in cases in which a petition for Commission review is filed and no transcript has earlier been prepared. Such a summary was prepared in this case.


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