LEAH TRASKA, Complainant
MID STATES EXPRESS, 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 January 22, 2009
traskle . rsd : 125 : 9
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Leah Traska petitions for a review of the ALJ's decision which found that Mid-States Express (Mid-States) did not violate the WFEA by terminating her employment because she filed a complaint with the Equal Rights Division.
Traska, a female, was employed by Mid-States for about twenty-two months, initially part time as a billing clerk for seven months and thereafter full time as administrative support, when she filed a discrimination complaint against Mid-States with the Equal Rights Division on September 18, 2006. Traska alleged that Mid-States refused to consider her for promotion to the position of terminal manager because of her sex.
Mid-States is a trucking company with its home office in Peru, Illinois, and approximately twenty five terminals, including one in Wausau, Wisconsin. Traska worked at the Wausau terminal. Joe Baker, whom Traska believed to be Mid-States' general manager, was located at the home office.
Mid-States hired Dan Gross, a male, for the terminal manager position in Wausau. Apparently near the end of September 2006, Traska informed Gross about the discrimination complaint she had filed against Mid-States. On October 5, 2006, Gross sent an e-mail to Baker with information regarding two female supervisors who had worked at the Wausau terminal during Traska's employment. Gross apparently gave a copy of this e-mail to Traska.
On October 6, 2006, around 7 a.m., Traska sent an e-mail to Baker stating that she was aware there had been two female supervisors but "[t]hat is not in my complaint."
Around 11 a.m. on October 6, 2006, Baker initiated a conference call to discuss Traska's e-mail. Baker's conference call included Traska and Gross, and several other individuals who were in Baker's office. During their discussion Traska told Baker to stop yelling at her and Baker replied that he was not yelling, he was speaking loud enough for everybody to hear. At some point Baker told Traska that she was not qualified enough for the terminal manager position because of her attitude and work performance. Traska replied with what she believed to be qualities she had to offer the company.
During the conference call Traska told Baker that he was just upset because she had a discrimination complaint against Mid-States. Baker replied that he knew nothing about it. Near the end of the conference call Traska was quite upset and crying. She told Baker that she was a woman; that he didn't have to talk to her like that and that when he could talk to her in a civil manner to call her and hung up the phone.
Traska testified that she then went to Gross' office and said, "I'm leaving for lunch, I am going to go talk to my attorney, I will be back", and then left. Gross was still on the phone with Baker at the time. Traska clocked out at 11:22 a.m.
Traska testified that the practice when going to lunch was to make sure there was somebody there to cover the phones and to let everybody know you were going to lunch. Traska testified that she did not have to have anyone cover her position while she was gone. She also testified that lunch breaks were half an hour.
Traska arrived back from her lunch break at about 12:20 p.m. but did not see her time card. When Gross noticed Traska had returned he called her back to his office and informed her that her employment was terminated for insubordination. Gross presented Traska with a "Letter of Termination". Exhibit 11. In addition to insubordination, the letter cited failure to complete a work assignment and leaving the workplace without permission as reasons for Traska's termination. In the section of the letter with a narrative explanation for her termination the letter reads: "Leah, you have been previously warned about your outbursts and insubordinate behavior, as well as your failure to follow through and complete work assignments. Your conduct today (10-6-06) leaves us no alternative but to terminate your employment for Failure to complete a work assignment, leaving the workplace without permission, insubordination. You have the right to appeal in writing within 24 hours of being issued this letter of termination." (Emphasis in original.)
Traska signed the letter. She did not appeal her termination of employment.
Referencing the termination letter, Traska's attorney asked her if she had previously been warned about "such behavior" and Traska replied, "No." Traska testified that she did not know what assignments were being referred to in the letter. Traska testified that all of her assignments were done and that she had never been warned or disciplined for not completing assignments.
Traska also testified when questioned by her attorney that she knew of one other employee-Chad Slatoski-who was terminated for having hung up the phone on Baker.
Mid-States did not appear for the February 20, 2008 hearing held on Traska's complaint. A week before the hearing, an attorney from the law firm which had been representing Mid-States in the matter notified the ALJ that the firm was withdrawing its representation of Mid-States; that it had been unsuccessful in contacting its client and that it could not represent the client at the February 20 hearing.
The ALJ explained in his memorandum opinion why he concluded that Mid-States did not terminate Traska's employment because she filed a complaint with the Division. The ALJ stated as follows:
"Traska alleges her employment was terminated because she filed a complaint. Mid-States did not appear at the hearing to deny the allegation so all Traska had to do was establish a causal connection between the complaint and the termination of her employment. There is, of course, the proximity in time between the two. The close proximity in time may create an inference of a causal connection. This then presents a rebuttable presumption that Mid-States violated the Wisconsin Fair Employment Act. The presumption may be rebutted by a legitimate non-discriminatory reason for its action. See Potts v. Magna Publications (LIRC, 02/27/01) and Kannenberg v. LIRC, 213 Wis. 2d 373, 571 N.W.2d 165 (Ct. App. 1997).
Traska herself articulated Mid-States' legitimate non-discriminatory reason. Traska testified that Mr. Gross sent an e-mail to Mr. Baker, in response to a question from Mr. Baker, regarding two female supervisors employed by Mid-States. The next day Traska e-mailed Mr. Baker referencing the two women and adding that that was not part of her complaint. Some 4 hours after her e-mail Traska was asked to participate in a conference call. She testified that Mr. Baker told her she was not qualified; she did not say for what she was unqualified. (1) She also testified that Mr. Baker yelled at her. The only mention of her complaint, that Traska testified to, was that Mr. Baker denied being aware of it. Traska testified that she became upset by Mr. Baker's yelling and told him to call her back when he could speak civilly and then hung up on him. She then added, in response to a question from her attorney that another employee had been terminated for hanging up on Mr. Baker. Traska offered no additional examples of what was said during the telephone conversation.
Traska testified that she had never been disciplined or received any sort of warning for any reason. When her employment was terminated Mr. Gross handed her a letter, which she signed, specifically stating that she had been warned about the very things for which she was being terminated. For reasons she did not express Traska did not take advantage of the appeal process and point out that the claims made in the termination letter were not true.
There is simply not enough evidence to conclude that Traska's termination was retaliatory; at the same time, there is evidence upon which one could conclude Mid-States' motives were legitimate. The burden of proof is upon Traska and she had not carried that burden."
In her petition for review, Traska claims that the ALJ's determination that Mid-States did not terminate her employment because she filed a complaint with the Division is contrary to law based upon the correct and complete facts of record.
Traska has submitted a brief in support of her petition for review, and a "reply" brief, even though Mid-States did not submit a response brief to her first brief. Traska argues on appeal that she cannot articulate Mid-States' non-discriminatory reason for its actions because her testimony (and Exhibit 11) regarding Mid-States' proffered explanation for her termination constitutes inadmissible hearsay evidence.
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Wis. Stat. § 908.01(3). A "statement" includes a written assertion. Wis. Stat. § 908.01(1).
Traska argues that Mid-States did not provide any evidence or testimony substantiating its alleged legitimate, non-discriminatory reasons for terminating her; that instead, the ALJ used her own testimony to prove Mid-States' alleged reasons for her termination. Traska argues that, indeed, it was Gross that informed her about the reasons for her termination, making any testimony by her regarding Mid-States' reasons for her termination hearsay. Further, she argues that an ultimate or crucial finding of fact may not be based solely on uncorroborated hearsay evidence.
Traska's arguments fail. The testimony and evidence that Traska presented regarding Mid-States' proffered reasons for her termination was not hearsay. See Wis. Stat. § 908.01(4). A statement is not hearsay if the statement is offered against the party and is: the party's own statement, in either the party's individual or a representative capacity (Wis. Stat. § 908.01(4)(b)1.); a statement by a person authorized by the party to make a statement concerning the subject (Wis. Stat. § 908.01(4)(b)3.); or a statement by the party's agent or servant concerning a matter within the scope of the agent's or servant's agency or employment, made during the existence of the relationship (Wis. Stat. § 908.01(4)(b)4.). Traska's testimony about what Gross told her as reason for her termination and Exhibit 11 fall under all of these statutory provisions and therefore do not constitute hearsay.
The testimony given by a complainant may establish the legitimate, non-discriminatory reason for the employer's actions and thus rebut a prima facie case of discrimination. See, e.g., Cortez v. City of Milwaukee (LIRC, 01/31/01) (The respondent's burden of producing a legitimate, non-discriminatory reason for its actions can be met by facts presented as part of the complainant's case-in-chief); Ewing v. James River-Dixie Northern (LIRC, 10/19/84)(An employer met its burden without introducing any witnesses of its own, where an applicant's own testimony on cross-examination revealed her lack of experience in the position applied for); Davis v. Jos. Schlitz Brewing (LIRC, 09/14/82)(An employer's non-discriminatory reasons for its actions may be presented through the testimony of the complainant's own witnesses). The two latter LIRC cases cited Sime v. Trustees of State University, 526 F.2d 1112, 1114 (9th Cir. 1975), where the court, discussing the respective burdens of the parties, stated that "The defendants...met their burden out of the mouths of Sime's own witnesses, by cross-examining them." A Seventh Circuit case, Flowers v. Crouch-Walker Corp., 552 F.2d 1277 (7th Cir. 1997), citing Sime, has also held that there is nothing to preclude the defendant's reliance on evidence appearing in the plaintiff's case to establish a non-discriminatory reason for its actions. The testimony and evidence presented in this case by Traska established Mid-States' legitimate, non-discriminatory reasons for its action taken against her.
Alternatively, Traska argues that should the commission find that she proffered Mid-States' legitimate, non-discriminatory reasons for terminating her employment that her uncontroverted testimony casts Mid-States' reasons in doubt, thus establishing the pretextual nature of the reasons. Traska argues that she testified she completed all of her work assignments prior to leaving work on October 6, 2006, that she followed company procedure when she left on October 6 as she informed Gross she was leaving for lunch, and that she testified she was not being insubordinate because her supervisor was yelling at her about her underlying discrimination complaint with the ERD (2) and had no choice but to end the conversation. Traska argues that if she was credible enough to articulate Mid-States' non-discriminatory reasons for her termination, her testimony regarding pretext is just as credible.
Traska's testimony does not establish that Mid-States' reasons for terminating her employment were pretextual. First, the record does not support Traska's assertion that she had no choice but to end the telephone conversation (i.e., hang up on Baker) because her supervisor was yelling at her about her underlying discrimination complaint with the ERD. The record shows that the only mention of Traska's underlying discrimination complaint occurred at the beginning of Traska's conversation with Baker and that after some 20 minutes into their conversation Traska hung up on Baker because "he was getting her very upset and she did not want to say something to get into trouble." T 30-31, 39. Traska did not testify about what was being said by Baker that was getting her upset. Furthermore, Traska herself testified that she knew that another employee had been terminated for hanging up on Baker. Moreover, while Traska testified that she had not previously been warned and that all of her assignments were done when she left for lunch on October 6, 2006, on October 6 Traska signed the letter of termination given to her which specifically elaborated that the reasons for her termination were because she had been previously warned about her outbursts and insubordinate behavior and her failure to follow through and complete work assignments. It is also of significance that despite the termination letter's notice of her right to appeal her termination that Traska did not do so.
cc: Attorney Larry A. Johnson
Appealed to Circuit Court. Affirmed July 29, 2009.
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