PAMELA M PAUL, Complainant
WEIMER BEARING AND TRANSMISSION, Respondent
On January 27, 2006, an administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter concluding that the complainant had failed to prove by a preponderance of the evidence that the respondent had terminated her employment because of her age. Accordingly, the ALJ dismissed this portion of her complaint. (1) The complainant filed a timely petition for commission review of the ALJ's decision.
The parties submitted briefs pursuant to a briefing schedule, which concluded with the reply brief received from the complainant on April 23, 2007.
The commission has considered the petition and the position of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review and for reasons set forth in the attached Memorandum Opinion, the commission issues the following:
The administrative law judge's January 27, 2006 decision is set aside and this matter is remanded for a new hearing on the merits of the complainant's claim of age discrimination with respect to her termination of employment. (2)
Dated and mailed August 16, 2007
paulpa2 . rpr : 125 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Pamela Paul's argument on appeal is that: 1) the ALJ prevented her from introducing evidence to prove that the respondent's asserted reasons for her termination were pretextual, on the grounds that the scope of the hearing was limited to Paul's proving that she was terminated because of her age and because she could not relitigate issues that had been litigated earlier before another ALJ, yet the ALJ went beyond the scope of the hearing when she found not only that her termination was not the result of age discrimination, but that she was terminated because of problems with her performance (3) ; 2) that she (Paul) provided the only competent evidence of record relating to the reasons for her discharge (being told that her termination was a "hard decision" and not that it was performance-based), since the respondent's only attempt to introduce evidence was through its use of the negative reviews by Dan Stangl and Holowitz on cross-examination of Paul, when Stangl and Holowitz did not testify at the hearing, constituted hearsay, and that she provided significant evidence of age-based animus on the part of the respondent in terminating her employment, which is the only evidence upon which essential findings of fact may be made and which supports her age discrimination claim; and 3) even if the record did sustain substantial evidence that age discrimination was not a motivating factor, the ALJ went beyond the scope of the hearing by finding that the motivation for the termination was performance based, after repeatedly preventing her from introducing evidence of pretext and that other motivations such as retaliation were in play.
Paul argues that the ALJ's decision on her age discrimination termination claim must be reheard on the merits. The commission agrees.
The ALJ in fact did view the hearing issue before her as very limited. For instance, at the outset of the hearing, the ALJ stated:
...This is a very limited issue, as I've told the parties in the past because I've gotten the impression that the Complainant believes that there's a bigger issue here. This is a very narrow case and that's all I'll be listening to.
T. 5.
Later, during the hearing, after Paul had been testifying about her overall performance rating of "Poor. Unacceptable for a manager" that she had received on February 10, 2003, and why she believed this rating was wrong, the ALJ stated:
. . .Then moving on, was there anything else about your termination that you believe shows that the reason you were terminated was because of your age? And I - I really have to caution you again about the fact that we're not here to relitigate the issues that you litigated in the other hearing.
. . .
We're also not here to litigate whether or not you believe this was fair, that their assessment of you was just - was fair. It may be that they were wrong, that you were doing a great job, but unless you can show that the reason that they did not consider your performance to be good was because of your age, then it just is not relevant to these proceedings."
T. 58-60. (Emphasis added.)
The commission suspects that the ALJ believed, and perhaps rightly so, that because the issue of Paul's performance had been litigated at the earlier hearing and because that ALJ found that the respondent had terminated Paul's employment based on her poor work performance, that that ALJ's ruling on this issue was binding precedent she had to follow. Further, the ALJ may have reasoned that if Paul were permitted to relitigate the issue of her performance before her, not only would she in effect be sitting in judgment of a fellow ALJ on this issue, the end result could be conflicting decisions by two different ALJ's on the same issue.
Regardless of the ALJ's reasoning, however, based upon the commission's conclusion that at her earlier hearing Paul was wrongly prevented from introducing relevant evidence to show that the respondent's assertions regarding her work performance were a pretext for unlawful discrimination, this alone provides sufficient reason to grant Paul a new hearing on her age-based termination claim. Clearly, if Paul was prevented from litigating the issue of her work performance at her earlier hearing, she should not have been prevented, on the grounds that she could not relitigate issues that were litigated at the earlier hearing, from introducing evidence at her age termination claim hearing to show that the respondent's assertion that her work performance was the reason for her termination was a pretext for age discrimination.
cc:
Attorney Lynn M. Novotnak
Attorney Michael J. Cieslewicz
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