JEROD ROBERT JAMES, Complainant

DANE COUNTY PARENT COUNCIL INC, 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 February 20, 2009
jamesje . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

Dane County Parent Council, Inc. (DCPC) hired Jerod James in August 2005 to work as a transportation specialist. His primary job duty was to drive a bus during the morning and afternoon to take pre-kindergarten children to and from a DCPC school program site. Typically, a teacher's assistant rode along on the bus with the driver. James is a bi-racial (black and white) male.

Gary Rolfsmeyer was James's immediate supervisor. Rolfsmeyer reported to Laurie Oryall, DCPC's Chief Financial Officer. Marcia Huemoeller is the Executive Director/CEO of DCPC.

Shortly after James's hire, Rolfsmeyer went over a set of Driver Guidelines with James, and these guidelines were subsequently again reviewed with the drivers at a staff orientation meeting on September 2, 2005. The Driver Guidelines included the following instructions:

25. The following loading and unloading procedures are designed to insure that children move safely from the bus to the classroom and back:

a. Attendance will be taken by the Teachers' Assistant and a head count by the Transportation Specialist before any children leave the vehicle.

b. When the vehicle is fully stopped, the engine turned off, the four-way flashers turned on, and the emergency brake set, the driver and aide may loosen the seat belts.

c. The aide will leave the bus and take up a position that will allow him/her to observe the unloading process.

d. As the children enter the school door, the Teacher Director will count them.

e. If there are any "difficult to manage" children the driver will take them by the hand and walk them to the center after the other children.

f. The driver will check the bus for any remaining children when exiting. The driver will be the last person off the bus.

g. Only when this procedure has been completed, will the driver continue his/her schedule.

h. These measures should also be used when loading the children at school.

26. Children may never be left unattended in a vehicle. 

. . .

32. After completion of each route, the driver will check the bus for sleeping or any remaining children and radio the office to indicate the bus is clear.

James was a member of a union that had a labor agreement with DCPC. The labor agreement included a provision that stated DCPC could discharge an employee for certain first offenses, including "Engaging in conduct which jeopardizes program licensure, accreditation or funding."

On James's morning bus route to DCPC's East Madison facility on December 15, 2005, the teacher's assistant that rode along with him was Maria Covarrubius, a Hispanic female. Cheryl Tolley was the on-site supervisor for the East Madison facility. Tolley supervised the teacher directors, who in turn supervised the teachers' assistants. Donna Jost, DCPC's Child Health and Development Director, supervised Tolley.

James's bus arrived at the facility around 8:30 a.m. on December 15, 2005. It was the second of three buses to arrive that morning. Covarrubius went to the back of the bus and began assisting some of the children unbuckle their seat belts, and then helped one child in particular, who was dressed in heavy winter clothing and having difficulty walking, get off the bus and then remained off the bus. James testified that he immediately got off the bus after Covarrubius got off the bus. In any event, James did not check the bus for any remaining children, and, despite not checking the bus for any remaining children, James radioed in to the office that the bus was clear. However, one of the children, who will be referred to as "F." (since this was the designation given this child by the ALJ), had fallen asleep in the back of the bus and did not get off the bus.

Covarrubius had filled out the bus attendance tracking sheet with the names of the children that had boarded the bus, including the child that had fallen asleep on the bus. Covarrubius gave the tracking sheet to teacher director Amy Borchardt, who, after the third bus had arrived, led her children into her classroom. Borchardt noticed that F., who was assigned to her class, was not present but she did not check the tracking sheet to see whether F. had boarded the bus. Borchardt is a white female.

Wanda Glubka, a teacher's assistant that rode on the third bus on the morning of December 15, 2005, was supposed to conduct a face-to-face attendance check and match that with the information on the various bus tracking sheets to create a "master list" for use during the day to check attendance. Glubka transferred the information from the three buses' tracking sheets to the master list without doing a face-to-face check and left the school premises shortly after arriving at the facility to accompany her mother who had recently been diagnosed as having cancer. Glubka is a white female.

Around 10:00 a.m. on December 15, 2005, Tolley, a white female, asked the teacher directors for the names of children who were "absent without reason". Borchardt reported F.'s. absence to Tolley, who then called F.'s family and was informed that F. had boarded the bus that morning. Tolley then asked James about F. James remembered that F. had been picked up that morning and immediately went out to the bus where he found F. sleeping in the back of the bus.

On December 15, 2005, Tolley notified Jost that a child had been left on the bus. Since DCPC is a licensed childcare facility and because F. had been unsupervised for a period of time, Jost was required to report the incident to its childcare licenser, as well as to Dane County's office of Child Protective Services.

A child left on a bus unattended threatens DCPC's licensing, and potentially its funding because its funding is tied to being a licensed facility.

James called Rolfsmeyer on December 15 and told him that a child had been left on the bus. Rolfsmeyer informed James that an investigation would have to be conducted and that he should go home for the day. On December 16, 2005, James provided Rolfsmeyer with a written account of what had happened on December 15. Oryall testified that she and Rolfsmeyer were the two people involved in discussing and determining James discipline. Oryall testified that Rolfsmeyer recommended that James's employment be terminated and that she supported that recommendation. In a letter dated December 20, 2005, James was informed that his employment had been terminated effective as of his last day of work, December 15, 2005, for "Engaging in conduct which jeopardizes program licensure, accreditation or funding."

On December 15, 2005, after advising the executive director of the incident, Jost instructed Tolley to suspend Covarrubius. The next day, DCPC also suspended Borchardt while it investigated what had happened. Over the course of December 15 and 16, 2005, Jost interviewed Tolley, Borchardt, Glubka and Covarrubius. After meeting with her supervisors, Jost decided to give a verbal warning to Tolley, to place Glubka and Covarrubius on a Last Chance Agreement for "Engaging in conduct which jeopardizes program licensure, accreditation or funding", and to place Borchardt on a Last Chance Agreement for a period of two years for failing to follow agency policies and procedures and for failing to ensure that licensing and safety procedures were adequately conducted by the staff she supervises.

Jost did not participate in the decision to terminate James's employment, and neither Rolfsmeyer nor Oryall participated in the disciplining of Tolley, Borchardt, Glubka or Covarrubius.

Sometime during late winter, or early spring of 2006, the Dane County office of Child Protective Services completed its investigation of the December 15, 2005 incident and it made a finding of child neglect on the part of both James and Covarrubius. Under the childcare licensing rules, the fact that Child Protective Services had made a finding of child neglect on the part of Covarrubius meant that DCPC had to terminate Covarrubius' employment, which it then did.

In determining that James had not shown probable cause to believe that DCPC had violated the WFEA by terminating his employment because of race or sex, the ALJ included the following in a memorandum opinion as reasons:

There certainly is some similarity between James's failure to check the back of the bus and reporting that he did so, and, for instance, Glubka's failure to conduct a face-to-face attendance check, and her resulting creation of a master list indicating that F. was present when he was not, or Covarrubius's failure to make sure all the children who boarded the bus had gotten off the bus. In this situation, however, it would not have been unreasonable for the employer to assign a greater share of blame to James than to Covarrubius for leaving F. on the bus, since between the two of them he was the last to leave the bus, and Covarrubius's leaving the bus ahead of him was not an entirely neglectful act, but appeared to result from her feeling that she had to help a child get off the bus; nor would it have been unreasonable for the employer to treat James differently from Glubka based on a consideration that Glubka was under some personal stress at the time that was not true of James.

What the evidence showed, however, was that at the time the disciplinary decisions were being made the employer was not making conscious decisions justifying the different treatment it gave to James compared to the others. The different treatment was the result of having two separate chains of command making the decisions with respect to James and the others, each chain of command operating independently of the other, and each applying discretion as they saw fit. Federal case law in the Seventh Circuit applying the McDonnell Douglas test is clear that establishing different treatment of similarly situated employees is very difficult when the employees have different supervisors:

...in disciplinary cases-in which a plaintiff claims that he was disciplined more harshly than a similarly situated employee based on some prohibited reason-a plaintiff must show that he is similarly situated with respect to performance, qualifications, and conduct. [citation omitted]. This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them. [citation omitted]. 
. . . 
When "different decision-makers are involved, two decisions are rarely similarly situated in all relevant respects." Stanback v. Best Diversified Products, Inc., 180 F.3d 903[,] 910 (8th Cir. 1999)(quoting Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994); see Hollins v. Atlantic Co., Inc., 188 F.3d 652, 659 (6th Cir. 1999). Different employment decisions, concerning different employees, made by different supervisors, are seldom sufficiently comparable to establish a prima facie case of discrimination for the simple reason that different supervisors may exercise their discretion differently. Cf. Weisbrot v. Medical College of Wisconsin, 79 F.3d 677, 683 (7th Cir. 1996); Timms v. Frank, 953 F.2d 281, 287 (7th Cir. 1992). These distinctions sufficiently account for any disparity in treatment, thereby preventing an inference of discrimination.

Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000)....

Here, then, the comparisons that James has sought to make to show discriminatory treatment break down because there is nothing in the evidence to suggest that the different treatment was not the result of different supervisors exercising their separate decision-making discretion.

James makes several arguments on appeal from the ALJ's decision.

James argues that because the respondent did not file a witness list 10 days prior to the date of the hearing this suggested to him that the respondent was not presenting any witnesses at the hearing on July 25, 2007, and consequently he did not feel it necessary for him to present any witness testimony at the hearing since a decision would be based only on the evidence presented at the hearing. James argues that had the respondent presented a witness list to him prior to the hearing, he "would have reacted appropriately". James argues that the ALJ allowed witnesses that the respondent brought to the hearing to testify and that this "changed everything for [him]." James asks why have rules if they are not going to be followed. Further, James requests to be allowed to have his witnesses "submit testimony" to prove that he was discriminated against.

James's arguments fail. Also, his request to permit his witnesses to submit testimony must be denied. As the complainant in this matter, James had the burden of establishing probable cause to believe that he was discriminated against because of his race or sex. The ERD advised James when it certified his case to hearing on January 3, 2007, that at the hearing he should be ready to offer testimony and evidence to support his case and that he (or his attorney) should arrange to have any witnesses present that he felt would help to prove his claim. This was not done by James. James appears to be arguing that had he known the respondent was presenting witnesses at the hearing, then he would have presented witnesses. However, regardless of how the respondent was proceeding in the matter, as the party with the burden of proof, James was required to be prepared to prove his claim. By not preparing to have any witnesses present to help prove his claim, James ran the risk of not being able to prove his claim. Also, while it is true that the ALJ's decision is to be based only on the evidence presented at the hearing, James did not object to the respondent presenting testimony by the witnesses it brought to the hearing and therefore the decision issued by the ALJ could include the evidence those witnesses presented as a basis for his decision. The administrative rules which govern the hearing do not automatically preclude a witness from testifying that a party had not listed as a witness by no later than the tenth day prior to the day of hearing. The rules state, in relevant part, that "[t]he administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section." Wis. Admin. Code § DWD 218.17 (Emphasis added). Having been notified prior to the hearing that he should arrange to have any witnesses present at the hearing that he felt would help to prove his claim and the hearing already completed, James is not entitled to now have his witnesses submit testimony in an effort to establish probable cause to believe that he was discriminated against.

James argues that the witnesses for the respondent answered the respondent's attorney's questions with detail and extensive knowledge of what he did wrong, but "couldn't recall answers to even the simplest of his questions". Further, James argues that a witness "who was trying to be forthright" began to answer his question but counsel for the respondent "made her stop" saying it had nothing to do with the case, when it had everything to do with case. He also argues that another time counsel objected, saying a person who he was speaking of could be fictitious because they were not present, when everyone except the ALJ knew who he was speaking of. However, a careful review of the record fails to provide any reason to believe that the respondent's witnesses were purposely trying to avoid answering any of James's questions, or that there was anything improper with the objections counsel raised regarding the questions James had asked of the respondent's witnesses.

James argues that Oryall testified that Rolfsmeyer recommended that he be terminated, that it was Rolfsmeyer's call, and that she agreed with him, but that that is not true at all, that Rolfsmeyer did not feel he should be fired because "Rolfsmeyer had stated to him something to the effect that something like this would never happen again to me." James argues that none of the respondent's witnesses were present when the incident occurred; none were involved in any conversations with him following the incident and none were present at any meeting with him following the incident, including the one where he was told he would be terminated, so they had no firsthand knowledge. James argues that it "wasn't convenient" for the respondent to have Rolfsmeyer present because he knew what happened and would tell the whole truth, so they left him out of the process.

First, James is essentially asserting that Oryall's testimony about what Rolfsmeyer recommended is hearsay. However, there is no question but that a decision was made to terminate James's employment. Oryall was a competent witness to testify that a decision was made to terminate James's employment due to the December 15, 2005 incident. Oryall testified that it was up to Rolfsmeyer to conduct the initial investigation and then she reviews it, that she was involved in determining the discipline for James on December 16, 2005, after James brought in his written account of the December 15 incident and that they (she and Rolfsmeyer) determined that James should be dismissed. Second, James's assertion about why the respondent did not have Rolfsmeyer present at the hearing is mere speculation. Moreover, based on James's assertion about what Rolfsmeyer had allegedly told him, this was evidently something that James knew long before the hearing on his complaint and therefore James could have presented Rolfsmeyer as a witness for his case.

James argues that he was treated differently than all of the others involved in the incident, though others' roles were just as significant as his, and that the three other individuals all had the ability to shorten the time of the incident, yet the respondent contends that he is primarily responsible, while providing a reason for everyone else's mistakes but not his mistake. However, while not attempting to minimize the responsibility of the others involved, had James properly fulfilled his job responsibilities there would have been no incident at all.

James argues that the kids were actually in the TA's care, not his, as the "report" states. Further, James argues that it's funny that nowhere in "this report" does it mention that four months later the TA was fired because of this incident, when the human services report determined she needed to be fired like him because she was also negligent. The first "report" referred to by James is apparently a document regarding the respondent's standards of conduct for all employees and others. See Exhibit #3. One of the standards of conduct that employees agree to when hired is to "Never leave any child alone or unsupervised while under my care". Contrary to argument by James, the evidence presented at the hearing showed that the driver and the TA had shared responsibility for the children while both were on the bus. The second report that James refers to is apparently the letter dated December 21, 2005, that Marcia Huemoeller sent to the Division of Children and Family Services summarizing what DCPC's investigation of the December 15, 2005 incident revealed, the discipline that it had issued to the individuals involved and why. Since Huemoeller's "report" was issued on December 15, 2005, it could not possibly have mentioned what another agency had determined four months later regarding Maria Covarrubius.

James argues that while the ALJ's decision says that different lines of supervisors, using their discretion, can result in different punishment for employees, that Borchardt was given a last chance agreement when she was already on probation for a prior serious incident and had made the most mistakes in the December 15 incident. The evidence, however, fails to show that Borchardt was already on probation for a prior incident. Jost testified that none of the other individuals involved in the December 15, 2005 incident had previously been on last-chance agreements, and, further, that to her knowledge none of these individuals had had any significant incident or reports about them for anything else. Consequently, all that exists is evidence that different supervisors, operating independently of each other and using their discretion, determined different discipline for those under their line of supervision.

James argues that he tried to speak of an "identical incident" involving a driver named Nicole where no discipline occurred, but he was not permitted to do this because it was said to be hearsay and secondhand. James argues that Rolfsmeyer and Marcia Huemoeller heard about this incident at a driver's meeting, yet the respondent did nothing. James apparently argues that Jost asserted that the difference in that case from his was that the other driver "did not leave the bus, but this doesn't change the fact that there was a child hiding under a seat of a moving bus that nobody knew was there." Further, James argues that Jost stated "this" would be a violation that could cause licensure issues, and asks why wasn't this incident reported? These arguments also fail. To begin, James presented no admissible evidence that an incident involving Nicole had ever occurred. Indeed, James admitted at the hearing that he had only heard about this alleged incident from other drivers and from Nicole. James could have but failed to have Nicole, or any other witnesses he deemed necessary to establish his claim, present at the hearing. Jost testified that she had never heard about an incident involving a driver named Nicole until the hearing. Jost never affirmatively asserted that the difference between his situation and the alleged incident with Nicole was that the driver (Nicole) did not leave the bus. The record indicates that in response to James's question about whether a hypothetical situation "where a driver called in and said the bus was empty but a child was actually still on the bus and drove somewhere else and realized their mistake" was any different from his situation, Jost simply responded, "From what I understand you to say, the child (in the hypothetical) was never left unattended." James then stated, "No," and rephrased the hypothetical, at which point objections were raised on the grounds of speculation and that James was testifying. Further, the record does not support James's apparent assertion that Jost was asked and agreed that a driver who "did not leave the bus but there was a child hiding under a seat of a moving bus nobody knew was there" would be a violation causing licensure issues. The record shows that what James asked Jost was "hypothetically, if someone called in to say the bus was clear, didn't get off the bus, and then started to drive to another site and then found a child under the seat, and that wasn't reported to you, was there a problem with that?" Jost responded that it was certainly possible that a situation could happen where there was a determination made by the supervisors in the chain that the situation did not warrant a call to licensing and she would not be made aware of it.

James argues that if the respondent claims he was most responsible for the incident because he was the last person off the bus, then why did the respondent fire both the driver and the TA in an incident that occurred in February 2005 where "one person had to get off before the other but the respondent punished them the same because they were both involved." The evidence shows, however, that in the December 15, 2005 incident, the respondent determined that James bore most responsibility because Covarrubius left the bus before James and was preoccupied with carrying a child off the bus who could hardly walk because he was heavily dressed in winter clothing. James has not shown that any such circumstances existed in the February 2005 incident to merit different discipline for the driver and TA, yet DCPC had nevertheless fired both the driver and the TA.

Finally, James argues that he was discriminated against because the respondent discharged him immediately and gave the TA (Covarrubius) a lesser punishment for the same infraction. He argues that his claim of discrimination is supported by the fact that Dane County Child Protective Services determined that both he and the TA were neglectful, at which time the TA was then fired. James argues that he should have been able to keep working until Child Protective Service's determination, like the TA was. James's arguments fail. James has presented no evidence to show that DCPC was without authority to discipline its employees based upon its investigation of the incident until Child Protective Services had completed its investigation. Further, James ignores the fact that his discipline and that of Covarrubius was determined by two different lines of DCPC supervisors; that the supervisors involved in determining Covarrubius's discipline viewed Covarrubius's preoccupation with assisting a child to get off the bus as presenting an extenuating circumstance; and that Child Protective Services was an entirely separate agency from DCPC. James has not presented any reason to believe that either line of DCPC supervisors were motivated by race or sex when determining the discipline for him and Covarrubius, nor does any reason exist to believe that DCPC discriminated against him because Child Protective Services subsequently determined that both he and Covarrubius were neglectful.

cc: Attorney Brian Nuedling

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