JANICE M GOUGE, Complainant

RANDY'S FAMILY RESTAURANT, 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 conclusion in that decision as its own.

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

Dated and mailed June 27, 2008
gougeja . rsd : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

In her petition for commission review the complainant contends that the administrative law judge did not permit her to introduce all of her evidence. She maintains that the administrative law judge limited her to incidents taking place between October 1, 2004 and April 18, 2005, 120 days prior to the discharge, and that she was not permitted to refer to her notebook for information, but was required to testify off the top of her head. The complainant also contends that the respondent's owners refused to testify and that she did not get a chance to cross-examine them. Based on these cited deficiencies, the complainant requests a new hearing. The commission listened to the digital recording of the hearing, but found no reason to believe the complainant was denied a fair hearing. The complainant has not identified any specific piece of evidence which she believes was improperly excluded, nor has she explained how the excluded evidence would have advanced the presentation of her case, and the commission sees no basis to conclude that the complainant was deprived of an opportunity to present any evidence which may have resulted in a finding in her favor. Contrary to the complainant's assertions, the administrative law judge did permit her to introduce evidence regarding incidents occurring within 300 days of the discharge, as evidenced by the fact that the complainant presented a disciplinary document from August of 2004, and the commission does not believe that the administrative law judge rejected any timely, relevant evidence. While the administrative law judge refused to admit documents written by the complainant which represented narrative descriptions of events which the complainant was able to describe through testimony, the commission finds his ruling on this point to be appropriate. The hearing was the complainant's opportunity to testify as to those events which she believed constituted acts of discrimination, and the record would not have been enhanced by a reading of her notes. Regarding her complaint that the respondent's owners did not testify, the burden of proof in this matter was on the complainant. The respondent's owners were not required to testify, and if the complainant considered their testimony critical to her case, she should have arranged to subpoena them as witnesses.

Turning to the merits of her case, the complainant states that wearing a hearing aid should be enough evidence that a person has a hearing disability. This argument fails. While the use of a hearing aid may be indicative of a hearing impairment, in order to establish that that impairment constitutes a disability under the Wisconsin Fair Employment Act, the complainant must demonstrate that it makes achievement unusually difficult for her or limits the capacity to work. See Wis. Stat. § 111.32(8). The complainant presented no evidence to suggest this was the case, nor did she demonstrate that the respondent perceived her as having a disability. Further, even assuming the complainant had established that she had a hearing impairment which constituted a disability, the record is devoid of any evidence to suggest that the respondent subjected her to discriminatory terms and conditions of employment because of it or that it played any role in the termination of her employment. The complainant's testimony that she had trouble hearing orders for malts and shakes and that some of her co-workers commented negatively about this is insufficient to warrant a finding that the respondent violated the law.

The complainant's evidence of age and religious discrimination is similarly thin. Regarding the former, the complainant testified that the respondent's owner indicated she was not getting any younger and that he needed to get another employee to help her in the baking area, since the other baker was often out ill. This remark is not evidence that the complainant was subjected to discriminatory terms and conditions of employment because of her age, nor does it suggest that the respondent was motivated to discharge her for that reason.

With respect to religious discrimination, the complainant testified that she was baptized in the United Church of Christ and that the respondent's owner yelled at her that she was "evil" and she should "let the evil go." The complainant maintains that the respondent is judging her and her religion. The statement attributed to the respondent's owner, while certainly bizarre, does not, standing alone, amount to a criticism of the complainant's religion, nor has the complainant presented anything to suggest that she was discharged because the respondent disapproved of her religious beliefs.

In conclusion, the complainant was afforded a fair hearing, but simply failed to present any evidence to suggest that she was discriminated against in the manner alleged. Accordingly, the dismissal of the complaint is affirmed.

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