PATRICIA J. LUCKETT, Complainant

REGIS CORPORATION, d/b/a COST CUTTERS, 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 December 28, 2012
luckett . rsd : 110 :

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

In her petition for commission review, the complainant states that she was not really well prepared and did not know until she arrived that her attorney was not going to be at the hearing, that she should have hired another attorney to help her, and that she intends to rectify this. The complainant also states that she has dates, hospital records of her injury when she fell off a ladder, that she intends to subpoena all parties involved in this situations, and that she has witnesses that will support her to prove that a lot of accusations made by the respondent's witness are false.

However, the complainant already had her hearing in this matter. That hearing was her opportunity to offer witness testimony and exhibits supporting her case. The ALJ was required to make her decision on the basis of the evidence that was offered at that hearing, and in this review the commission is similarly limited to considering the evidence that came in at the hearing.

The complainant also states that she does not agree with the information listed in the ALJ's decision. While she does not raise any specific objection to particular findings of fact or conclusions of law made by the ALJ, it seems probable that the complainant disagrees with many things the respondent's witness, Ms. Amidon, testified to. This includes testimony Ms. Amidon gave about the contents of the telephone message from the customer, and about what she (Amidon) was subsequently told by that customer and by the complainant's co-workers Dunn and Galarza.

The commission recognizes that Amidon was not present at the salon on February 17, 2007, when the events occurred, and that Amidon's testimony was based on things she was told by other individuals (the customer, and the employees Dunn and Galarza) who did not testify at the hearing. However, what Amidon was told by these people is relevant and important in this case. The issue in this case was whether Amidon was motivated by prejudice against the complainant because of age, race or disability in making her decision. Amidon denied that she was motivated by those things, and she testified that what instead motivated her was her dissatisfaction with what she heard from others about what had happened at the salon on February 17, 2007. In order to decide whether or not to accept this testimony by Amidon about her motivation, it was necessary to consider what she was told about the events at the salon on February 17. What she was told is evidence of what affected and motivated her in making her decision to discharge the complainant.

In [discrimination] cases, the important question is the motivation of the person making the challenged decision -- specifically, whether they were motivated by an impermissible factor such as race, sex, [or] age . . . Evidence about something a decisionmaker was told by another person can be important in understanding what the decisionmaker's motive was, and it is appropriate for it to be considered for that purpose.

Kleinsteiber v. Eaton Corporation Cutler Hammer, ERD Case No. CR 200103841 (LIRC, Mar. 15, 2004).

The commission has carefully considered all the evidence in the record, and it is persuaded, as was the ALJ, that Amidon's decision to discharge the complainant was motivated by her understanding of what the complainant had done and said in the occurrences of February 17, 2007. The complainant failed to persuade the commission that her age, race, or alleged disability, played any part in the decision to terminate her. For this reason, and because the commission also agrees that there was no evidence establishing probable cause to believe compensation discrimination occurred, the commission has adopted and affirmed the decision of the ALJ.

cc: Debra A. Krukowski, Attorney for Respondent

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