MELVYN L WILLIAMS, Complainant

SALVATION ARMY, 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 modification:

In the second line of paragraph 9 of the FINDINGS OF FACT, the word "Monday" is deleted and the word "Saturday" is substituted therefor.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed October 19, 2007
willime . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The respondent Salvation Army employed Melvyn Williams, a black male, as a house manager/training coordinator at its emergency lodge on Seventh and Walnut in Milwaukee, Wisconsin. Williams began employment there in 1992 as a house manager. In May 2004, Williams filed a discrimination complaint against the respondent alleging retaliation for opposing a discriminatory practice under the Wisconsin Fair Employment Act. This complaint was designated as ERD Case No. CR200401922. The subject of this complaint involved an April 29, 2004, written reprimand that the respondent's divisional social service director, Kevin Reeder, issued Williams for alleged conduct by him on April 28, 2004, in connection with the removal of Williams' mother's belongings from the emergency lodge on April 28, 2004, following her termination as the lodge's acting director. Following a probable cause hearing on Williams' complaint, an ALJ issued a decision finding that Williams had failed to establish probable cause to believe the respondent had violated the Act by discriminating against him because he opposed a discriminatory practice under the Act. Department records show that Williams did not file a petition for commission review of this ALJ's decision and therefore ERD Case No. CR200401922 was closed by the department.

The matter presently before the commission, ERD Case No. CR200501162, involves a second discrimination complaint Williams filed against the respondent on March 28, 2005, in which he alleged that the respondent discriminated against him and terminated his employment because he opposed a discriminatory practice under the Act and because he had made a complaint under the Act.

After April of 2004, Nancy Szudzik replaced Williams' mother as the director of the emergency lodge on Seventh and Walnut.

In October of 2004, Williams was apparently scheduled to work from 11 p.m. on Friday, October 8, until 3 p.m. on Saturday, October 9. Around 6:45 a.m. on Saturday, October 9, Williams left a voice mail message for Szudzik stating that he was taking a personal day that day, and did not work his scheduled Saturday shift from 7 a.m. until 3 p.m. Williams had not obtained permission from anyone in management prior to taking the day off.

By letter dated October 15, 2004, Reeder notified Williams that he had received information concerning an unexcused absence by Williams on October 9, and that Williams was suspended with pay until an investigation was completed.

By letter dated October 19, 2004, Reeder notified Williams that his employment with the respondent was terminated effective October 15, 2004. (Exhibit 3.) In this letter, Reeder stated that although Williams was allowed to take a personal day, in accordance with the employee handbook, "prior permission must be obtained for this time off." Further, Reeder noted that in a telephone conversation with Williams on October 15 concerning Williams' suspension, Williams had stated he did not have to give either a reason or notice to his supervisor prior to taking a personal day, and that he had no idea as to how to contact Szudzik outside of normal work hours. However, Reeder dismissed those assertions, noting that on October 3, 2004, Williams had faxed to Maureen Martin, the homeless residential services director, a request for time off on October 24 and 30, 2004, and that in August 2004 Williams had noted in the shelter communication log that he had attempted to contact Szudzik via her cell phone. Reeder's letter also stated that on May 6, 2004, Williams had acknowledged Reeder's reprimand of him for breaching respondent policy, a reprimand which stated that continued violation of the respondent's policies are grounds for dismissal, and that based on Williams' breaches of policy Reeder could not allow his continued employment with the respondent.

At the probable cause hearing on his second complaint, Williams asserted that because of his opposition to a discriminatory practice under the Act and because he had made a complaint against the respondent, the respondent retaliated against him by terminating his employment for taking a personal day. In support of his retaliation claim, Williams asserted that: 1) "Michelle" (Balistre?) (race not disclosed) and white employees at the respondent did the same thing but weren't terminated; 2) the "procedure" was that if you wanted to take a personal day you did not have to get prior authorization from anyone to take a personal day, and that is how it's been since 1992; 3) it was all right to take a personal day without calling prior to that day in order to arrange for someone else to replace you; and 4) you could just call in and say, "I'm taking a personal day" and it didn't matter who you talked to.

In a letter to the ERD following the hearing but prior to the issuance of a decision by the ALJ, Williams asserted that he had not done anything to warrant the April 29, 2004 reprimand and that Reeder was just being racist. Williams further asserted that he never should have been fired for taking a personal day because the procedure the respondent says he violated is a common practice right now for taking personal days. He also asserted that the ALJ "was very rude, unprofessional, bias[ed] as she favor[ed] the respondent during my hearing..."

The ALJ subsequently issued a decision in the matter, concluding that Williams had failed to prove there was probable cause to believe the respondent had violated the WFEA by discriminating against him or terminating his employment because he opposed a discriminatory practice under the Act or because he filed a complaint alleging discrimination under the Act. Williams filed a timely petition for commission review of the matter.

In his initial written arguments (brief) submitted pursuant to the commission's briefing schedule, Williams again asserts that the April 29, 2004 written reprimand that he received was not warranted, and he asserts that Reeder did not do a proper investigation of the actual events on the morning of April 28, 2004, and apparently also regarding his being terminated for using a personal day. In his reply brief, Williams asserts that the ALJ had already made her decision to find no probable cause in favor of the respondent's Kevin Reeder and Nancy Szudzik due to his not being given the opportunity to present his evidence. Further, he again asserts that Reeder never did a proper investigation of the April 28, 2004 incident, or for firing him for taking a personal day because there is nothing in the policy and procedures that he has had since his employment with the respondent that collaborates "what Kevin and Nancy did to be the proper way in handling a situation such as this."

DISCUSSION

With respect to Williams' assertions that Reeder had not conducted a proper investigation of the April 28, 2004 incident and that he (Williams) had not done anything wrong to warrant the April 29, 2004 written reprimand, these matters were the subject of his complaint in ERD Case No. CR200401922. The earlier ALJ's decision issued on that complaint concluding that there was no probable cause to believe the respondent had discriminated against Williams because he opposed a discriminatory practice under the Act became final on those matters when Williams did not file a petition for review in that case. Accordingly, Williams' assertions about Reeder's investigation of the April 28 incident and about the April 29 written reprimand not being warranted are not issues which the commission may address.

While Williams also asserts that he never should have been fired for taking a personal day and that Reeder did not conduct a proper investigation before terminating his employment for taking a personal day because there is nothing in the policy and procedures that he has had since he had been employed by the respondent, Williams did not have any documentation regarding the respondent's policy or procedures for taking a personal day at the hearing to substantiate these claims. Furthermore, with respect to Williams' assertions about "Michelle" and white employees taking personal days in the same manner as he did but were not terminated, "Michelle" was not present at the hearing and Williams had no documentation to show that she or any white employee had taken a personal day without prior notice or authorization. Also, while Williams contended that contrary to Reeder's October 19 letter statement, the need for prior authorization to take a personal day was not in the handbook that he has had since 1992, Williams did not have that handbook at the hearing. Also, at the hearing Williams testified that the only time he had taken a personal day was when Szudzik was the director, except for "years before" when Martin was the director. Moreover, Williams also testified that he was "not sure" the "procedure" of not having to get prior authorization from anyone continued when Szudzik became the director.

Finally, Williams argues that the ALJ "was very rude, unprofessional, biased and favored the respondent during the hearing", and that she had already made her decision to find no probable cause in favor of the respondent's Reeder and Szudzik due to his not being given the opportunity to present his evidence.

Williams apparently alleges that the ALJ was biased in favor of the respondent because she rejected as evidence a document he wished to have admitted into evidence (Exhibit 1) and because, other than testimony by himself, she refused to allow him to call anyone to testify as a witness on his behalf. The ALJ ruled, in response to the respondent's objection to Williams' mother testifying, that other than testimony by Williams himself, Williams was not allowed to call any witnesses to testify because he could not establish that prior to the hearing he had filed with the Division or provided the respondent with a list of witnesses he was going to use. The ALJ refused to admit Exhibit 1 as evidence, in response to the respondent's objection that it would be prejudiced in terms of its preparation for the hearing by Exhibit 1's admission into evidence because Williams had not provided the respondent notice prior to the hearing that Williams was going to use that document.

Section DWD 218.17 of the Wisconsin Administrative Code, which implements the provisions of the WFEA, provides as follows:

DWD 218.17 Exchange of names of witnesses and copies of exhibits. By no later than the tenth day prior to the day of hearing, the parties shall file with the division and serve upon all other parties a written list of the names of witnesses and copies of the exhibits that the parties intend to use at the hearing. For the purpose of this section, service is complete on mailing rather than on receipt. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not reasonably have anticipated using prior to the hearing.

The purpose of the prehearing notice requirement of Wis. Adm. Code § DWD 218.17 is to avoid surprise for the parties at hearing. Rutherford v. Wackenhut Corp. (LIRC, 01/31/06), citing, Scott v. Sno Bird Trailer Co. (LIRC, 12/19/1990); Berglund v. The Post Crescent Co. (LIRC, 01/31/01). The test for determining whether exhibits or witness testimony should be excluded for failing to meet this requirement is whether the opposing party has been prejudiced by the lack of notice. Rutherford, supra, citing, Peace v. Milwaukee Plating Co. (LIRC, 08/21/92).

Exhibit 1, which the ALJ refused to admit as evidence, is a copy of Reeder's letter of written reprimand that was issued to Williams on April 29, 2004. It appears that it was error for the ALJ to reject this document on the grounds of surprise or prejudice to the respondent. The respondent should have neither been surprised nor prejudiced by this document. Indeed, Williams' complaint in the instant matter had specifically referenced this letter, the respondent itself had listed this document as one its potential exhibits for the hearing, and another document which the respondent moved and was admitted into evidence (Exhibit 3) made specific reference to the April 29, 2004 written reprimand issued to Williams.

The actual shortcoming of this document, however, is that other than background information, it had no significance with respect to Williams' instant complaint. The reason is, the April 29, 2004 reprimand was the subject of Williams' first case against the respondent (ERD Case No. CR200401922) wherein he claimed he should not have received the April 2004 reprimand and that it constituted retaliation for opposing a discriminatory practice under the Act, but an ALJ issued a decision finding no probable cause to believe the respondent had violated the Act and that decision became final and binding as to those issues when Williams failed to file an appeal from that decision.

Whether or not the ALJ erred in refusing to allow Williams' mother to testify on the ground that prior to the hearing he had not filed with the Division or provided the respondent a list of his potential witnesses presents a closer question. Williams had identified his mother as an individual he might use to support his discrimination claim in response to the respondent's April 12, 2006, Second Set of Interrogatories which asked him to identify such individuals. On the other hand, given that the hearing in this matter did not take place until March 19, 2007, and that Williams never did serve the respondent with a list of his witnesses, the respondent very well could have been prejudiced in its preparation for the hearing. Wisconsin Administrative Code § DWD 218.17 gives the ALJ discretion as to whether or not to exclude witnesses based on party's failure to serve the other party, no later than 10 days before the hearing, with a list of the names of the witnesses that party intends to use at the hearing. Under the circumstances presented here, it does not appear that there was an abuse of discretion by the ALJ in refusing to allow Williams' mother to testify. The only other individual to appear at the hearing for Williams was Reverend Tommy Thompson. There is no evidence in the record that Reverend Thompson had ever been identified as a possible witness for Williams.

Persons who serve as decision-makers in state administrative proceedings enjoy a presumption of honesty and integrity. Guthrie v. WERC, 111 Wis. 2d 447, 455, 331 N.W.2d 331 (1983); State ex rel. DeLuca v. Common Council, 72 Wis. 2d 672, 687, 242 N.W.2d 689 (1976); Eastman v. City of Madison, 117 Wis. 2d 106, 114, 342 N.W.2d 764 (Ct. App. 1983). A party seeking to prove either actual bias or an impermissibly high risk of bias bears a heavy burden to overcome this presumption. DeLuca, 72 Wis. 2d at 684; Eastman, 117 Wis. 2d at 114.

While it appears that the ALJ may have erred in excluding a document Williams wished to enter into evidence, a careful review of the transcript of the proceedings provides no reason to believe that the ALJ held any bias against him. The record shows that the ALJ attempted to assist Williams at the hearing by asking him questions in an effort for him to present his case. However, as discussed above, Williams did not have the appropriate witnesses or documentary evidence available at the hearing to support his discrimination claims. As noted by the ALJ in granting the respondent's motion to dismiss at the close of Williams' case, the matter was originally to be heard on June 28, 2006, was rescheduled for November 17, 2006, and then was rescheduled for March 19, 2007, so there were plenty of opportunities for Williams to be prepared for the hearing, to submit a witness list and copies of exhibits and to have the proper testimony and exhibits at the hearing.

Williams has not explained in what way the ALJ was "rude" and "unprofessional". While the transcript indicates that the ALJ conducted the hearing in a "business-like" fashion, there is no indication that she conducted herself unprofessionally or was rude to Williams.

Based upon the above-stated reasons, the commission has affirmed the administrative law judge's decision in this matter.

cc: Attorney Lucas J. Thomas

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