STEPHEN J GUNTY, Complainant
CITY OF WAUKESHA, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter dismissing the complainant's complaint. The complainant filed a timely petition for commission review of the ALJ's decision.
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 Labor and Industry Review Commission makes the following:
1. The respondent, City of Waukesha, is a municipal government located in southeastern Wisconsin.
2. In the spring of 2001 the City of Waukesha offered to employ the complainant, Stephen Gunty, who then resided in Sparta, Wisconsin, as its Human Resources Director. This position entailed a wide range of professional and managerial responsibilities, including representing the City in collective bargaining sessions as principal spokesperson for the City's negotiating team. Gunty accepted the offer. The City Administrator for the City of Waukesha, James Payne, who was instrumental in bringing Gunty to the respondent, confirmed Gunty's acceptance of the offer of employment in a letter to Gunty dated May 22, 2001. Payne's letter outlined the terms and conditions of this employment, which included the following promise:
The city will pay directly or reimburse you for the cost of your move to Waukesha. This will include, but not be limited to, packing and transportation of your household goods and costs associated with selling your home in Sparta and purchasing a home in Waukesha, not including realtor's commission. In addition, the city will pay up to $1,500.00 for temporary housing incurred before August 15, 2001 to accommodate the move.
. . .
The city will reimburse you for the cost of up to three (3) house hunting trips to Waukesha to include mileage and overnight lodging for you and your family.
3. The City's moving expense policy, however, expressly stated that the City shall not pay for relocation expenses, which were defined as including "hotels, motels, rental car, meals consumed during the time of travel, etc."
4. Gunty moved his family to Waukesha about the same time he began employment with the respondent on July 1, 2001. It became apparent that Gunty would be exhausting the $1,500.00 for utilization toward temporary housing before he would be able to obtain permanent housing in Waukesha. Payne therefore verbally agreed to instead pay Gunty for temporary housing for three months.
5. Apparently in late October 2001 the respondent paid Anderson Moving and Storage an invoice amount of $10,710.54 for moving expenses for Gunty.
6. Gunty successfully completed a six-month probationary period at which time his annual salary was increased to $69,240.00. Prior to being hired, Payne had vaguely discussed his vision that at some point Gunty's position would become more than an HR Director position. Sometime during the first few months of 2002 Payne indicated that the position of Assistant City Administrator was the position that he had envisioned for Gunty.
7. Pursuant to Payne's promise to reimburse him for various relocation expenses, Gunty paid the bills for various expenses that he had incurred in relocating to Waukesha. On April 25, 2002, Gunty submitted to Payne an itemization of expenses he had incurred that totaled $13,531.20.
8. In May 2002 Gunty was promoted to the position of Director of Administrative Services. Payne had advised Gunty during the spring of 2002 that there wasn't council support for Payne to get a position as Assistant City Administrator.
9. When Gunty approached Payne about two months after submitting his reimbursement request Payne told him his request was being held up by Alderman John DuPont, the chairperson of the council's Finance Committee. Later in the fall Payne informed Gunty that he was having meetings with any of the aldermen who had issues over his expense request.
10. Payne arranged a meeting for Gunty to discuss his request for reimbursement before DuPont and Mayor Carol Lombardi on November 1, 2002. The outcome of this meeting was that DuPont was going to try to resolve this matter "behind the scenes" by talking with the other aldermen. Also, Gunty agreed to do what he could to eliminate expenses from his reimbursement request that were "sticking points".
11. Sometime after the November 1 meeting Gunty's request for reimbursement of his relocation expenses became public knowledge, both within City government and the community generally. As to how this became a matter of public knowledge, Payne testified that all he knew was that it appeared in the newspaper one day that this was a matter of concern.
12. Vincent Moschella, who was an assistant city attorney for the respondent at the time, testified that Gunty's reimbursement request was "the hot subject in the building at that time and it was what everybody in the building was talking about." Payne testified that he had no reason to doubt that nearly every alderperson came to him with questions about Gunty's request for reimbursement after this became public knowledge.
13. On December 12, 2002, Gunty submitted a memo to Payne to which he attached a slightly reduced reimbursement request which totaled $12,378.32. In his memo Gunty expressed some concerns, including a concern that referenced an article in the newspaper which quoted an alderman as characterizing his reimbursement request as taxpayer abuse. On this matter Gunty stated:
I'm further concerned over the tone taken by some to the point of characterizing this reimbursement request as taxpayer abuse. Perhaps there's a better way of handling Council member concerns than shooting the suspects (sic) via media attention and investigating later. As a result of that approach, despite the compromises and conciliatory gestures I've offered to create a win-win situation and to help expedite a claim that I believe to be rightfully mine, I've been subjected to personal notoriety that seems disproportionate to the issue.
14. In a memo to the Finance Committee that same day, with Gunty's revised reimbursement request attached, Payne stated reasons as to why he supported Gunty's reimbursement request. Payne also indicated that he was possibly at fault for not following the written policies of the City.
15. On December 17, 2002, the Finance Committee held a special meeting, which Gunty attended. A meeting of the Common Council followed the special meeting of the Finance Committee.
16. After some finance members characterized his reimbursement request in a rather negative tone at the special finance meeting, Gunty stated, "It might not look good if the City's chief labor spokesman issued a complaint against the City."
17. On December 17 the Finance Committee went on to approve Gunty's reimbursement request by a vote of 3-2, but later that evening the Common Council rejected his request by a vote of 11-4. Gunty testified that an alderman, whom he believed to be either Alderman Charles Betker or Emanuele Vitale, stated at either the Finance meeting or later at the Council meeting that he perceived Gunty's comment "as a threat." (1)
18. Gunty testified that during a further conversation with Payne about his reimbursement request on January 20, 2003, when he asked Payne what we do from here, Payne indicated that what he was hearing was that if he (Gunty) would "eat the loss on the reimbursement request and move on, that there would be no consequences." (2)
19. Gunty testified that that same day, January 20, 2003, Payne advised him to see Assistant City Attorney Moschella. Gunty testified that he then saw Moschella, who advised him of the statute that regulated filing of a claim against a municipality. Because the ALJ sustained an objection on the basis of attorney-client privilege, Gunty was required to present as an offer of proof, testimony that Moschella then proceeded to warn him that "If I were to do that, I should have a job in hand because he had overheard a conversation between the City Attorney, Curt Meitz, and an Alderman who said that 'we'll fire that mother fucker if he files that claim.' "
20. Gunty testified that prior to January of 2003, no one from the City had ever told him that his job was or might be in any kind of jeopardy.
21. Gunty testified that within a two or three week period after Moschella told him an alderman had stated he'd be fired if he filed a claim, he told Payne what Moschella had said and that Payne responded that he had also heard that from Moschella.
22. On March 25, 2003, Gunty sent an email to Mayor Lombardi, Finance Chairman DuPont and Council President Joel Hoelkinger notifying them of his intent to pursue legal action regarding his reimbursement request. Subsequently, on April 17, 2003, Gunty filed a Labor Standards Complaint with the ERD.
23. On May 7, 2003, Mayor Lombardi called an emergency staff meeting of all department directors to announce that on the previous evening Council President Hoelkinger had stated he wanted to create an organization known as the Organizational Structure Review Committee (OSRC) "for the purpose of flattening the organization and reducing the pension fund by eliminating staff."
24. Gunty testified that shortly after May 7, 2003, in a conversation with Payne regarding Hoelkinger's statement about forming the OSRC to flatten the organization and eliminate staff he stated, "I think the handwriting is on the wall. This seems to be referring to me", and that Payne responded, "You can interpret it to mean that."
25. Gunty testified that about two weeks later after the actual formation of the OSRC he started seeking other employment in earnest. Gunty indicated that besides the formation of the OSRC, what also prompted him to seek other employment was because he had told Payne that everything was pointing in the direction that his position was at risk and that he didn't want to work for an employer that would be treating him in this fashion and because Payne stated "he could understand if I need to take those steps."
26. In a May 15, 2003 memo addressed to the Common Council, Mayor Lombardi included, in part, the following comments:
The creation of the City Administrator's job description in December of 1998 specifically states "Review/recommend department organization and procedures at all levels..." Administrator Payne and I met with the majority of council members in January of 2003 to ask for concerns/suggestions in city operation/budget as we began the new year.... There was no concern expressed except reinforcement of the Steve Gunty moving expense matter, which saw official council closure in December 2002. All council members were told appropriate identification of Administrator Payne's expanded interpretation of our moving expense policy was properly noted on internal evaluation documents on file in the City Clerk's Office.
. . . If there is a question on a current position in the organization, our current committee process does referral to Human Resources and Finance Committee for elimination/consolidation.... So, my question on this referral to all members of the council is: "what's the missing link" in your mind that needs a change?
. . . If you have a skeleton in the closet, let's all hear it at once in open session.
(Complainant's Exh. 34)(Underlining emphasis in original.)
27. Mayor Lombardi testified that she was specifically discouraged from attending the OSRC meetings. Similarly, Payne testified that Council President Hoelkinger, the chair of the OSRC, affirmatively discouraged him from attending any meetings of that committee but "was never terribly illuminating about the reasons" for doing so.
28. The OSRC review process began with its first meeting on June 10, 2003.
29. Also, at some point during 2003, Payne, who along with the Mayor was responsible for preparing the Executive Budget for the City, began preparing the Executive Budget for fiscal year 2004. The Common Council had directed that the Executive Budget for FY2004 be maintained at the same tax levy as the tax levy for FY2003, that is, $9.45 per thousand dollars of assessed property value.
30 On October 1, 2003, the OSRC recommended that the Director of Information Technology (IT) and Gunty's Director of Administrative Services positions be eliminated. It also ordered that Payne review a total of 9 other positions to determine if they should be eliminated.
31. On October 6, 2003, as part of the proposed FY2004 Executive Budget, Payne recommended a reduction in expenditures for services and staffing. This included an elimination of Gunty's Director of Administrative Services position and a number of other positions. However, other than Gunty's position, all the other positions recommended for elimination were vacant positions.
32. Payne admitted that the OSRC's recommendation for elimination of Gunty's position accounted, at least in part, for his decision to make that recommendation.
33. Gunty testified that his position had not been recommended for elimination in a draft budget that Payne had prepared prior to September 19, 2003, nor had Payne sought the elimination of his position on September 19, 2003, when Payne issued a memo request that department heads examine their budgets to provide recommendations for additional cuts due to a need to identify an additional $750,000.00 in reductions because the amount of assessed property value for taxation was incorrect.
34. Gunty testified he asked Payne why he had eliminated his position in his final budget but not in his draft budget and that Payne responded, "Steve, what's the point."
35. Ultimately, on November 18, 2003, the Common Council discussed and adopted a FY2004 budget that eliminated the funding for Gunty's Director of Administrative Services position effective January 1, 2004. No City employee other than Gunty lost his or her position as a result of the adoption of the FY2004 budget.
36. The amount of money saved by the elimination of Gunty's position was $105,562.00 in the context of a FY2004 budget (apparently operating budget) in excess of $37 million. The City saved about three one-thousands of one percentage point in eliminating Gunty's position. Mayor Lombardi agreed that "this was not a significant item in terms of dollars."
37. Gunty testified that in December 2003, Council President Hoelkinger told him that the elimination of his position was nothing personal to him, although it may have been a factor with other aldermen. (3)
Based upon the above FINDINGS OF FACT, the commission makes the following:
2. That based on the existing record evidence presented in this matter, the complainant, Stephen Gunty, has provided sufficient competent evidence to establish a prima facie case that the respondent discharged him because he filed, or the respondent believed he had or would file, a complaint under the Wisconsin Wage Payment Act.
Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission therefore issues the following:
Dated and mailed March 29, 2007
guntyst . rpr : 125 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
This case presents the question of whether or not the ALJ erred in dismissing at the close of complainant Stephen Gunty's case, his complaint that the respondent discharged him because he filed, or the respondent believed he had filed or would file, a complaint under chapter 109 of the Wisconsin Wage Payment Act.
One of the issues central to Gunty's petition for review is that the ALJ improperly excluded, on grounds of attorney-client privilege, testimony regarding an alderperson's threat to retaliate against him. (4) Specifically, Gunty argues that the ALJ erred in refusing to admit testimony that on January 20, 2003, then Assistant City Attorney, Vincent Moschella, told him he had overheard a conversation between an alderperson and City Attorney, Curt Meitz, in which the alderperson said, "We'll fire that mother fucker if he files that claim." The commission agrees.
Section 905.03(2) provides: "GENERAL RULE OF PRIVILEGE. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client; between the client or the client's representative and the client's lawyer or the lawyer's representative; or between the client's lawyer and the lawyer's representative; or by the client or the client's lawyer to a lawyer representing another in a matter of common interest; or between representatives of the client or between the client and a representative of the client; or between lawyers representing the client."
The attorney-client privilege issue first arose during a deposition of Moschella taken by counsel for Gunty on February 24, 2005. At his deposition Moschella refused to answer on grounds of attorney-client privilege, as instructed by respondent's counsel, whether he made the statement as asserted by Gunty in Gunty's deposition testimony that he (Moschella) had overheard a conversation between the City Attorney and an alderman who said "we'll fire that mother fucker if he files that claim", whether he had stated as asserted in Gunty's discrimination complaint the same assertion and whether while employed with the City he heard any city official, including elected officials or any city manager, make a threat regarding Gunty concerning his wage claim or reimbursement claim.
With respect to his conversation with Gunty on January 20, 2003, Moschella did testify at his deposition that he communicated to Gunty his personal belief that Gunty was jeopardizing his relationship with the governing body and chief administrators of the city by continuing to pursue this matter. Asked exactly what he said, Moschella responded, "My personal opinion was this. He was hired as human resources director originally and then his position did evolve, and I don't remember whether it had evolved at that point or not, but in either of those positions, either as the human resources director or as later on the director of administrative services, both were fairly high level positions in the city government in Waukesha and required the confidence and trust of the department heads, the city administrator, the mayor and the aldermen, and by continuing to pursue the claim with them I felt he was going to lose that trust and confidence and suggested to him that he very carefully consider the long-term implications for his ability to perform in those positions." In response to the question if he told Gunty "If I were you, I would have a job in hand before I filed a claim against the city", Moschella answered that he didn't know if those were the exact words but he would have said something consistent with what he stated a few moments ago, that if you are going to go down that road you better be thinking in terms of the long-term of your career.
Counsel for Gunty filed with the ALJ a motion and brief in support of motion to compel Moschella to appear for a second deposition to answer the deposition questions he refused to answer on instruction by respondent's counsel. Counsel for the respondent submitted a brief in opposition to Gunty's motion, along with an affidavit by Moschella. In paragraph 3 of the affidavit Moschella asserts that "Mr. Meitz and I were involved in a conversation with two members of the City of Waukesha Common Council (aldermen) in the office of the City Attorney concerning Stephen Gunty's claim for reimbursement of moving expenses." (Emphasis added.) (5) Further, in a footnote referencing the text of this assertion, Moschella's affidavit states, "The statements being asserted herein are subject to the attorney-client privilege and are being made solely for purposes of opposing Complainant's motion to compel deposition testimony. I am not authorized to waive the attorney-client privilege with respect to these communications." Paragraph 5 of Moschella's affidavit then states, "The conversation took place in the context of the reimbursement claim that Mr. Gunty had made to the Common Council on December 17, 2002 and was for the purpose of seeking legal advice." Paragraph 6 of the affidavit states, "In response to a statement from an alderperson to the effect that 'we'll fire him if he files a claim,' I advised the aldermen that they could not fire someone for filing a claim and that such an action could constitute retaliation."
The ALJ denied Gunty's motion to compel, apparently by a letter faxed to the parties on April 26, 2005. At the hearing, counsel for Gunty attempted to have Gunty testify about what Moschella told him on January 20, 2003, and again attempted to examine Moschella about what he said to Gunty but the respondent's objections on the grounds of attorney-client privilege were sustained by the ALJ. (6)
The parties agree that in order for the attorney-client privilege to apply the party has to satisfy the following three-part test: First, the communication must be between a client and his attorney. Second, the communication must be confidential in nature. Third, the communication must be made for the purpose of facilitating legal services. Absent any of the three criteria, there is no privilege.
Assuming for purposes of argument that the conversation between the alderperson and City Attorney Meitz that Moschella overheard and communicated to Gunty was 1) a conversation that occurred between a client and his attorney and 2) was confidential in nature, the respondent has failed to establish the third criterion, which is that the alderperson's statement was for the purpose of facilitating legal services. Even had Moschella's affidavit been admitted into evidence, as noted by counsel for Gunty:
Moschella does not purport to have any personal knowledge regarding the alderperson's purpose, if any, in making that threat and no such purpose is apparent from the statement itself. Indeed, to the contrary, the statement itself admits of no more than a City official's stated intent that the Common Council would engage in a future, unlawful act, if Gunty were to afford himself of the legal right to file a wage claim.
It was the City's burden to prove that the alderperson's threatening statement was made in order to facilitate legal advice. The City has offered no explanation as to how such a purpose could have been served by that statement or, if that were the case, why no affidavit was submitted from the alderperson himself or herself explaining the alderperson's [intent] in making the statement.
Counsel for the parties also dispute whether or not the City waived any privilege that might have existed when it filed with the ALJ, as part of its response to Gunty's motion to compel, Moschella's affidavit, when it was not under seal and not for in camera review and restated the alderperson's statement. The commission finds that it need not decide this issue because the respondent has failed to prove the third criterion in order to establish the applicability of the attorney-client privilege to the alderperson's statement.
The respondent has argued that even if it were determined that the attorney-client privilege did not protect the subject conversation or that the privilege was somehow waived, the substance of the conversation was nonetheless irrelevant because courts have been reluctant to examine the motives of individual legislators, citing Campana v. City of Greenfield, 164 F.Supp.2d 1078 (E.D. Wis. 2002), Grossbaum v. Indianapolis-Marion County Blg. Auth., 100 F.3d 1287 (7th Cir. 1996) and F.O.P. Hobart Lodge No. 121 v. City of Hobart, 864 F.2d 555 (7th Cir. 1988). The respondent notes that in Campana the plaintiff lost her job when the city aldermen voted to consolidate the treasurer and comptroller position and filed a claim alleging sex discrimination under Title VII, a violation of the Equal Pay Act and a violation of her due process rights under § 1983, but that the district court did not consider her evidence of animosity, holding that when a reorganization is enacted by legislators/alderpersons the motives of the legislators are not relevant. The respondent further notes that in appealing the dismissal of the § 1983 action, the plaintiff challenged the reorganization on the grounds that it was motivated by bad faith based on animosity between her and some council members, but the court of appeals in an unpublished decision affirmed the district court's holding that because the decision to reorganize and consolidate the two positions was made by the common council the motivations of the individual alderperson were irrelevant. Campana v. City of Greenfield, 38 Fed. Appx. 339, 2002 U.S. App. LEXIS 12648. The respondent also notes that in F.O.P. Hobart Lodge No. 121, the court refused to consider the alleged illicit legislative motive of a lame-duck city council in a challenge to a municipal ordinance allegedly enacted in retaliation for police officers' support of the council members' successful opponents.
As Gunty points out, however, the language of the WFEA itself refutes the respondent's claim that its Common Council decisions are immune from scrutiny, and the federal cases the respondent cites as support are distinguishable from the facts presented here.
After noting that Wis. Stat. § 111.322(2m) makes it an act of employment discrimination to discharge or otherwise discriminate against any individual because the individual files a complaint or attempts to enforce any rights under § 109.03, or because the employer believes that the individual engaged in or may file a complaint or enforce any right under § 109.03, Gunty correctly points out that:
The WFEA defines the entities included and excluded from its coverage as follows:
(6)(a) "Employer" means the state and each agency of the state and, except as provided in par. (b), any other person engaging in any activity, enterprise or business employing at least one individual. In this subsection, "agency" means an office, department, independent agency, authority, institution, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.
(b) "Employer" does not include a social club or fraternal society under ch. 188 with respect to a particular job for which the club or society seeks to employ or employs a member, if the particular job is advertised only within the membership.
(Underlining emphasis added by Gunty.)
As argued by Gunty, "The legislature specifically included itself as a body covered by the WFEA's anti-discrimination provisions. It is doubtful that it specifically included itself, yet intended to exclude municipal common councils, from the Act's coverage. That inference is made even stronger by the fact that municipal common council decisions were not made exempt from coverage by Wis. Stat. § 111.32(6)(b)."
With respect to the federal case law, Gunty correctly notes that:
. . . even examination of F.O.P. Hobart Lodge No. 121 v. City of Hobart, 864 F.2d 551, 554 (7th Cir. 1988)...demonstrates that even the federal courts are willing to examine the motives of individual legislators where improper animus toward a particular individual is shown.
Hobart was a first amendment challenge to a city ordinance requiring [city] employees to work 40 hours a week. City police officers challenged the statute on the grounds that it was enacted in retaliation to their support of a particular political party in a recent election. The court held that, in that case, the motives of individual legislators could not be scrutinized where a broad group of persons were impacted by legislation. However, the court stated, "The political process is not impaired when legislators are merely forbidden to engage in invidious discrimination." Id. at 555. Further, the court stated, "If the ordinance had been directed just at the police or just at opponents of the incumbents, it would have been...subject to a more exacting scrutiny. Legislators' motives would be admissible, as we have seen." Id. at 556.
(Italicized emphasis added by Gunty.)
A prima facie case of retaliation may be established by showing that: (1) the complainant engaged in statutorily protected expression; (2) the complainant suffered an adverse action; and (3) there is a causal connection between his or her protected expression and the adverse action. If the complainant establishes a prima facie case of discrimination, the respondent may rebut the prima facie case by articulating a legitimate, non-discriminatory reason for the adverse action. Should the respondent meet its burden, the complainant then has the burden of proving that the respondent's proffered reasons are merely a pretext for discriminatory conduct. See, e.g., Sarazin v. W & G Transport (LIRC, 03/09/99), citing Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989); Roden v. Federal Express (LIRC, 06/30/93).
The commission concludes that based on the evidence presented in this case, Gunty has presented sufficient competent evidence to establish a prima facie case of discrimination. Gunty has presented evidence which includes the following: 1) testimony that Moschella told him that he had overheard an alderman say "we'll fire that mother fucker if he files that claim"; 2) evidence that shortly after Gunty filed his wage claim Alderman Hoelkinger announced he wanted to form an Organizational Structure Review Committee "for the purpose of flattening the organization and reducing the pension fund by eliminating staff"; 3) evidence that as a result of the OSRC no City employee other than Gunty lost his or her position under the City's budget for 2004; 4) testimony by the Mayor that what the City saved by the elimination of Gunty's position was "not a significant item in terms of dollars"; and 5) Gunty's testimony that in December 2003 Council President Hoelkinger told him that the elimination of his position "was nothing personal to him, although it may have been a factor with other aldermen".
This evidence is sufficient to cause the burden to shift to the respondent to articulate through its witnesses a legitimate, non-discriminatory reason for Gunty's discharge. (7)
The respondent argues, however, that the Common Council was not even aware Gunty had filed a wage claim until July 15, 2003, and that if an employer does not know an employee has made a complaint of discrimination, it obviously cannot be motivated by such knowledge in the conduct it undertakes, citing Crook v. County of Vernon (LIRC, 02/23/04). As argued by Gunty, however, it can reasonably be inferred that the council was aware of his wage claim at the time of the OSRC formation. Gunty cites the following as support: As Moschella's testimony shows, after his formal request for reimbursement with the Common Council, his request became "the hot subject in the building at that time and it was what everybody in the building was talking about"; on January 20, 2003, Moschella conveyed to him the alderperson's threat; on March 25, 2003, he informed by email both Hoelkinger and Finance Chair DuPont of his "intent to pursue legal action regarding [his] reimbursement request that was denied by the Council"; and that on April 15, 2003, he had filed with the City Clerk a Notice of Claim regarding his unpaid wage claim, which provided a detailed explanation of his efforts to recoup his reimbursement expenses, and that same day the City Clerk sent the claim to the City's insurer and copies to both City Attorney Meitz and to "Finance" (although the Clerk's memorandum does not indicate if this was to the Finance Department or to the Common Council's Finance Committee). As Gunty also notes, either an employer's actual knowledge of an employee's filing of a wage claim or the employer's belief that the employee may file such a claim is equally sufficient to satisfy the knowledge prong of the prima facie test, citing Wis. Stat. § 111.322(2m); Hephner v. Rohde Brothers Inc. (LIRC, 06/30/04).
Finally, Counsel for Gunty has requested that the commission remand this matter for further proceedings before a different ALJ, as the commission did in Roberge v. Dept. of Agri., Trade and Consumer Protection (LIRC, 05/31/05). Counsel includes as reason, the ALJ's "apparent lack of consideration to Gunty's motion to compel", "apparent lack of understanding of the rules of evidence as they relate to hearsay" and "the ALJ's erroneous dismissal of Gunty's case, at the close of his evidence, in contravention of clear Commission precedent". However, the commission agrees with counsel for the respondent that there is no need for the selection of a new ALJ here, as was the case in Roberge. In Roberge, there were a number of significant procedural irregularities that were not present here, such as the ALJ not swearing the complainant in until almost an hour and a half into the proceeding; and after she was sworn in, being subjected to close questioning by the ALJ, who often limited the scope of her testimony and cut her off. In addition, there was also the ALJ's mishandling of the exhibits by marking and admitting the exhibits into evidence before the complainant was even sworn in, as well as the ALJ also granting the respondent's motion to dismiss before the complainant had rested her case. Furthermore, the present ALJ is already familiar with the facts and theories involved in this matter.
Attorney Aaron Halstead
Attorney Oyvind Wistrom
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(1)( Back ) As argued by Gunty's counsel, the alderman's statement that he perceived Gunty's comment as a "threat" was the statement of an elected representative of the City, and thus admissible under Wis. Stat. § 908.01(4)(b). Wis. Stat. § 908.01(4)(b)1 provides that a statement is not hearsay if the statement is offered against a party and is the party's own statement, in either the party's individual or a representative capacity.
(2)( Back ) Since it can reasonably be inferred that Payne was hearing this from some City official(s) with authority to determine whether or not he remained in the respondent's employment, this testimony by Gunty was also admissible under Wis. Stat. § 908.01(4)(b)1.
(3)( Back ) Again as argued by Gunty's counsel, this testimony by Gunty was admissible evidence under Wis. Stat. § 908.01(4)(b)1.
(4)( Back ) Another issue raised on appeal by Gunty is that the ALJ improperly excluded evidence as hearsay. The commission has already addressed above what it believes to be the most salient evidence excluded by the ALJ.
(5)( Back ) Gunty's claim is that Moschella told him he had overheard the conversation between Meitz and the alderperson, which contradicts Moschella's affidavit assertion that he was involved in a conversation with Meitz and two aldermen in the city attorney's office.
(6)( Back ) The ALJ also sustained the respondent's objection to admission of Moschella's affidavit as evidence in the case.
(7)( Back ) Should the respondent meet its burden, Gunty would then have the opportunity to prove that the respondent's proffered reason(s) are merely a pretext for discriminatory conduct.