LETA EASTER HENNINGS, Complainant
WISCONSIN PHYSICIANS SERVICE INSURANCE CORP, Respondent
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 conclusions in that decision as its own, except that it makes the following modifications:
1. In paragraphs 6 and 7 of the FINDINGS OF PROBABLE FACT, the references to "Sherry Preez" as the night supervisor are deleted and the name "Shirley Matt" is substituted therefor.
2. In paragraphs 8 and 9 of the FINDINGS OF PROBABLE FACT, the date "August 30, 2002" is deleted and the date "September 30, 2002" is substituted therefor.
3. In paragraph 11 of the FINDINGS OF PROBABLE FACT, the date "October 30, 2002" is deleted and the date "August 30, 2002" is substituted therefor.
DECISION
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed August 31, 2005
hennile . rmd : 125 :
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
Robert Glaser, Commissioner
Leta Hennings was employed in the Imaging Department at the respondent's facility on West Broadway Street in Madison, Wisconsin. All mail received at the Broadway facility goes through the Imaging Department where employees open and prep the mail for processing. Hennings' regular hours of work were from 7 a.m. until 3:30 p.m. Her department consisted of around 30 employees, about half of whom were supervised by Gina Hanson and the other half supervised by Deb Wilson. Hanson was Hennings' immediate supervisor. Hanson and Wilson reported to Mavourneen Dowling, who in turn reported to Julie Anderson, the head of the Imaging Department. The Imaging Department also ran a second shift, which was supervised by Shirley Matt.
Hennings is a black female. Hennings alleges that she was discriminated against on the basis of race with respect to her terms and conditions of employment.
Hennings alleges that Dowling spoke to her more harshly than she did to others. However, the only instance Hennings could recite of Dowling speaking harshly occurred in connection with an incident on April 10, 2002, when Hennings and two white co-workers were discussing Hennings' wedding. Apparently Dowling became upset when informed that the discussion was not work related and commented about this discussion. Hennings admitted that Dowling's comments were directed to the three of them.
Hennings alleges that after she was hired in October 2001, she was moved from her desk to another desk several times and that she was moved more than any other employee in the Imaging Department. Hennings asserts that she was moved to a different desk twice in October 2001, moved again in November or December 2001, then moved in May or June 2002 and again moved in December 2002. Except for the move that took place in May or June 2002 and again in December 2002, however, the office moves complained of by Hennings occurred more than 300 days before she filed her complaint on January 8, 2003 (which was later perfected on February 18, 2003). The Wisconsin Fair Employment Act requires that a complaint charging discrimination be filed with the department no more than 300 days after the alleged discrimination occurred. Wis. Stat. § 111.39(1). Office moves are discrete acts. Lau v. Latec Credit Union (LIRC, 02/07/03). Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. National R.R. Passenger Corp. (Amtrak) v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061 (2002). Accordingly, only the May/June 2002 and December 2002 office moves may be considered.
Hennings testified that desks were assigned, that employees were not seated by seniority, that there was no rhyme or reason to the location of the desks and that prior to May or June 2002 (and apparently after that time as well) desks were not located in lines, in a circle or in any pattern. Hennings was the only first-shift black employee supervised by Hanson in May/June 2002. Hennings admitted that quite a few employees were moved to different desks in the May or June 2002 move, and that there were some employees who were moved in December 2002. With respect to the desk that she was assigned in May or June 2002, Hennings asserted that the "negative consequences" of that desk assignment were that she was completely separated by a partition from the whole group and that she sat next to her supervisor by herself. Hennings stated that when she was moved back with everyone else during the December 2002 move there was nothing about the location of her desk that she thought unusual or problematic. While Hennings undoubtedly believes that her May or June 2002 desk assignment was discriminatory, the evidence fails to provide reason to believe that she was assigned to a desk away from other employees and next to her supervisor because of her race. For instance, in addition to the fact that there was no apparent rhyme or reason to the location of the desks, Hennings has not asserted that she was the only employee to ever be assigned to the desk away from other employees and next to the department supervisor.
Hennings also asserts that in August and September 2002, the second shift supervisor Shirley Matt told her to shut up. Matt's hours of work were apparently from 2 p.m. until 10:00 p.m. Apparently about one-half of the employees on second shift were black. Hennings states that in August 2002, near quitting time, she and several white employees were all talking, and that Matt, whose desk was next to Hanson's and therefore right behind Hennings', hollered over for her to shut up even though she wasn't the only one talking. Hennings states that again in September 2002 when Matt's desk was behind hers she was talking with the same co-workers and Matt said, "Leta, could you be quiet or shut up, I'm on the phone." Hennings claims that she was being singled out and told to shut up because of her race. However, Hennings has not presented evidence sufficient to believe that Matt did this because of her race. Henning's own account of these incidents suggests that it was the location of Matt's desk right behind Hennings' desk that caused Matt to call out Hennings' name to shut up. Hennings was not disciplined for talking.
Hennings asserts that on August 30, 2002, which was a half day of work for employees, Wilson's assistant, Barb Rowley, was distributing flats (bulk envelopes) from a large bucket and that instead of giving her a flat out of the bucket from which she had been passing out the flats, Rowley went into another bucket and picked out bulky envelopes for her. Hennings described the flats she was given as garbage mail. Hennings accused Rowley of giving her garbage mail, and Rowley denied having done so. The situation between them escalated, apparently interrupting Matt and Wilson and causing them to require Hennings and Rowley to report to Julie Anderson's office. Hennings explained to Anderson what she believed had occurred. She also stated that she was wrong for getting loud. Hennings asserts that Anderson got real loud, banged on her desk and stated, "I'm not going to have this in my department." Hennings was apparently instructed to apologize to Rowley, Matt and Wilson if she wanted to keep her job, which she did.
With respect to the flats she was given on August 30, it is apparent that the ALJ and Hennings were not communicating during the ALJ's attempt to elicit the facts regarding this issue. See transcript, pp. 101-104. It is apparent, however, that Hennings admitted that other than the alleged August 30 incident with Rowley, she had not observed Rowley's distribution of flats enough to know how Rowley distributed flats. Hennings also claims that on August 30 Anderson talked to her more harshly than to others. However, Hennings provided no evidence from which it could be inferred that her race had anything to do with Anderson's manner of speaking to her. Indeed, Hennings admitted that she had not been in a position to see how Anderson had responded in similar circumstances involving other employees.
Next, Hennings asserts that on September 30, 2002, Matt sent an email to Wilson that falsely stated she was out of her seat for 45 minutes in another area. First of all, what the email actually stated was the following:
I'm sure that you will be hearing from Leta first thing Tuesday morning. My first problem is dealing with flats = she did not finish her flats so put them back (which is fine, a lot of people didn't finish theirs), but most of what she put back on the table was taped shut. I did not bother to check and see if they were icky or not, I just had someone do them.
She did nothing after 4:45 but walk around or sit at her desk and play with changing things on her PC. I told her I didn't think that she was supposed to be doing that on overtime, and of course that didn't sit well with her. She started sputtering that she had been here for 11 hours today and hadn't taken a break all day.
She then said she was leaving at 5:15 but putting in that she was leaving at 5:30. I tried to explain that she couldn't do that because of liability and she just [started] going off, she would talk to Deb, I don't have to take this, etc, etc. She did leave at 5:15. (Emphasis added.)
Hennings asserted at the hearing that at 4:45 she was not doing anything away from her desk, but admits that she was changing the screen saver on her computer when Matt came by and told her she was not supposed to be doing that. Hennings responded, "Fine, I'm on overtime anyway, I'm going to go home." Hennings asserted that "where all the mess came from with Matt" that day was due to the fact that her desk was located by the supervisor's desks and when some of the night employees signed in for work in the book behind her desk, they would talk to her and she would talk to them. Hennings testified that the next morning she told Wilson (as Hanson was out of the office) that when Matt said she couldn't change her screen saver she cut her computer off and went home. Hennings testified that she told Wilson that she had put down that she was going to stay until 5:30, but when Matt told her not to change the screen saver on her computer, she left at 5:15. Hennings testified that she told Wilson that Matt and she did not get along. Hennings apparently learned about Matt's email later that day during a meeting with Dowling and Wilson in which she was asked to explain what happened the previous day. Hennings denied that she was up walking around the previous day. She admitted that when the night people signed in for work that "they stopped and said hello to me or something, no more than a minute or two and that's all the talking that was [done]." Hennings also testified that Dowling and Wilson said "okay, and that was it."
Hennings has provided no reason to believe that she was discriminated against in her terms and conditions of employment on the basis of her race as a result of Matt's email. While Hennings has asserted that Matt and she did not get along, she has not provided any reason to believe that this was due to her race. The concerns expressed in Matt's email were legitimate concerns, and Hennings' account of what transpired is not significantly different than what is stated in the email. There is no indication that Hennings was disciplined as a result of Matt's email.
Finally, apparently referencing an October 2003 investigation undertaken by Beth Bruml in employee services that included an inquiry into Hennings' claims that Matt had told her to shut up, Hennings asserts that Bruml lied and stated no one recalled these incidents and that she had sworn statements from witnesses who would testify that they told Bruml that Matt had singled her out to tell her to shut up. The ALJ apparently gave no consideration to this claim by Hennings because she had no witnesses present at the hearing to testify as to what they said during the investigation and therefore could not meet her burden of proof on this issue. T. pp. 30, 43-44 and 124.
In her petition for review, Hennings apparently argues that the ALJ was totally biased because he disallowed her evidence that documented some of her claims, consisting of a letter from her union steward, two notarized letters from co-workers and the witness questionnaire forms the ERD had sent to two witnesses, and that she has filed a complaint against the ALJ with the ERD for this reason. However, the ALJ's refusal to receive such evidence fails to indicate that there was any bias on the part of the ALJ. The documents Hennings sought to have admitted as evidence constituted hearsay evidence. While the ALJ may consider hearsay to which no objection has been made to the extent it has probative value, the respondent did object to the admission of Hennings' documents on the grounds that they were hearsay. Further, the record indicates that the ALJ's reasons for excluding Hennings' documents were because her witnesses needed to be present in order for him to make credibility determinations and to determine the basis for their assertions. The ALJ's failure to allow Hennings' hearsay documents into evidence was neither improper nor evidence of any bias on the part of the ALJ.
NOTE: The commission has modified the findings of the administrative law judge as shown above to make those findings conform to the evidence of record.
cc: Attorney Michele D. Miller Hayes
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