DIANE M GERSMEHL, Complainant
ACUITY MUTUAL INSURANCE CO, Respondent
An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modification:
The last sentence in paragraph 48 of the administrative law judge's FINDINGS OF FACT is deleted and the following sentence is substituted therefor:
"Meisnest was 25 years old and single."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed July 29, 2011
gersmdi . rmd : 164 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
Complainant's claims
The complainant alleged that she was denied a promotion based upon her age and marital status, that she was discriminated against in the terms and conditions of her employment based upon her marital status and because she opposed a practice of discrimination, and that she was discharged because she opposed a practice of discrimination. None of these complaints have merit. With respect to the promotion, the respondent offered the job at issue to two different people who were similar in age to or older than the complainant, both of whom turned it down, before offering it to the 25-year old candidate. Given that the first two individuals the respondent selected for the job were close in age to or older than the complainant, it is clear that age was not a factor in the decision. Further, while the first individual to whom the job was offered was married, the marital status of the second individual is not known, and the candidate who ultimately accepted the job was single. There is nothing in these facts or elsewhere in the record to suggest a bias in favor of married employees or against those who are divorced. (1)
Turning to her allegations that she was discriminated against for having engaged in protected conduct, the evidence failed to establish that the complainant opposed a discriminatory practice. The complainant complained to her supervisor about unfair treatment, and complained to other members of management that she was being harassed by her supervisor and that she was upset she had not been considered for the executive secretary position. However, the credible evidence in the record indicates that the complainant did not tell any of these individuals that she believed she had been discriminated against or that any of the adverse treatment was related to her age or marital status. The complainant's supervisor, Nancy Morgan, and the director of employee benefits, Lynn Coady, both testified that the complainant never complained about discrimination, and the complainant did not contend that she ever specifically mentioned discrimination to either of these individuals. While the complainant testified that she told Ann Schmertzler, the general manager of services, "I really feel your promotion practices are discriminatory," the administrative law judge credited Ms. Schmertzler's testimony that the complainant did not make any reference to discrimination, and the commission agrees with that credibility assessment. The complainant made multiple complaints to Morgan, Coady and Schmertzler, and it seems unlikely that, if she genuinely believed she was being discriminated against, she would have mentioned this only once and without providing any explanation as to why she believed this was the case.
The complainant also contended that she was discharged in retaliation for opposing a practice of discrimination. As stated above, the commission is unpersuaded that the complainant engaged in any protected conduct. Further, the record indicates that it was the complainant's own decision to quit after receiving another job offer. While the complainant contends that she was constructively discharged, there is no evidence to suggest this was the case. Notwithstanding the complainant's assertions to the contrary, she was not subjected to any conduct that could reasonably be characterized as harassment, nor is there reason to believe that the respondent was attempting to induce the complainant to quit.
Complainant's petition for review
In the brief in support of her petition for commission review the complainant contends that the administrative law judge erred in denying her discovery motion to obtain the personnel files for Kim Zimmermann and Kristin Luedtke, and erred in excluding other evidence at the hearing, including testimony about a conversation involving Zimmermann and members of management, and an e-mail the complainant wrote but never sent to the respondent. These arguments fail. The complainant has not established that any of the evidence in question would have been relevant to her case, and the commission agrees with the administrative law judge's rulings. While the complainant also contends that the respondent failed to comply with a discovery order, which resulted in prejudice to her, it does not appear that the respondent was ordered to produce any evidence that it failed to provide. The commission is unpersuaded, moreover, that the additional documents, had they been available to the complainant, would have had any bearing on the decision in this case.
The complainant also makes an argument that the commission will be unable to fairly review the evidence because a significant portion of the recorded testimony of Ann Schmertzler is inaudible. However, the respondent was able to prepare a transcript which includes Ms. Schmertzler's testimony, and the complainant has not identified any errors or omissions in the transcript.
Finally, in her brief the complainant corrects or elaborates upon many of the administrative law judge's factual findings. However, the complainant has not provided any citations to the record in support of her version of events, has not explained why she believes that factual disputes, where they exist, should be resolved in her favor, and has not persuasively argued that her version of the facts would lead to a different result. The commission has corrected one factual error not identified by the complainant: the administrative law judge found that Mindy Meisnest was married at the time she was offered the executive secretary job. However, at the hearing the complainant testified without rebuttal that Ms. Meisnest was single. (TR, at 280.) That minor modification notwithstanding, the administrative law judge's decision is affirmed.
cc: Attorney Steven Gillman
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