MICHAEL R. WALKER, Complainant
CITY OF EAU CLAIRE, 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, except that it makes the following modifications:
In Finding of Fact 7, delete "Brain" and substitute "Brian" therefor.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
March 28, 2013
walkemi . rmd : 110 :
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
This case involves the termination of the complainant, Michael Walker, from his position with the City of Eau Claire. The decision to terminate him was made by Brian Amundson, the director of public works for the city. The issue in this case is whether Amundson was motivated to make his decision to terminate Walker because of Walker's arrest record or conviction record. The ALJ found that he was not and that no violation of the WFEA was established. Walker petitioned for review of that decision.
In his petition for commission review, Walker specifically asserted that the ALJ erred in making his Finding of Fact number 30, which was that Amundson's decision to terminate Walker was not based on his arrest record or conviction record, and his Conclusion of Law number 3, which was that Walker had not shown by a preponderance of the evidence that the City discriminated against him. Walker further asserted that the ALJ erred when he wrote in his Memorandum Opinion that the evidence did not support a finding that the enforcement of the policy regarding personal use of City equipment against Walker was a pretext for discrimination based on arrest or conviction record.
Beyond this, however, Walker has not offered or sought to offer any further argument. (1)
In the absence of any more specific argument from Walker, the commission has considered the brief he filed with the ALJ below in an effort to better understand his position.
In his brief to ALJ Brown, Walker cited to the fact that, prior to the proceedings before ALJ Brown, another ALJ (Gary Olstad) had held a hearing in this matter and issued a decision finding probable cause to believe that the respondent had discriminated against him because of arrest or conviction record. With his brief to ALJ Brown, Walker attached a copy of that earlier decision by ALJ Olstad, and he requested that ALJ Brown "adopt the same Findings of Fact at this stage of the case as ALJ Olstad reached in deciding the issue of probable cause." He further requested that ALJ Brown base his decision in part on the findings which had been made by ALJ Olstad.
Walker's arguments in that regard overlooked the fact that ALJ Olstad had a different record before him than did ALJ Brown. ALJ Olstad was issuing a decision based on a record made at a hearing held before him on January 23, 2009. ALJ Brown was issuing a decision based on a record made at a hearing held before him on July 21, 2010.
Walker's argument also overlooked the fact that in rendering his decision, ALJ Olstad was also applying a different legal standard, of whether there was probable cause to believe that discrimination has occurred as alleged. That is a lower standard than that which ALJ Brown was required to apply to the case as it came before him.
Walker's argument based on reliance on the probable cause hearing record and decision, was fundamentally at odds with the scheme created by the Wisconsin Fair Employment Act and the administrative rules of the Equal Rights Division thereunder. When an investigation results in a determination of no probable cause and that is appealed to a hearing on the issue of probable cause, and when that hearing results in an ALJ's decision that there is probable cause and that the matter should proceed to a hearing on the merits, the proceedings on the merits which follow are entirely de novo. The record of the probable cause hearing is not part of the record on which the merits are to be decided, and the decision of the ALJ who presided at the probable cause hearing is of no relevance and of no weight in the merits proceedings. Neither the probable cause hearing record or the decision resulting from it should be cited as having any significance, or accorded any significance, in the process of trying and deciding the merits of the case.
Therefore, to the extent that Walker still takes the position that the decision on his complaint should be based on factual findings made in the probable cause proceeding before ALJ Olstad, the commission rejects that position. It has reviewed this case based solely on the record made in the proceedings before ALJ Brown, and it has not considered the findings earlier made by ALJ Olstad.
With regard to the merits, the focus of Walker's argument to ALJ Brown was that after his arrest for OWI he was singled out and told he would lose his job by his immediate supervisor, that he then questioned and challenged that determination and as a result was able to remain employed, and that he then was again singled out and terminated on pretextual grounds, ostensibly based on an anonymous tip. He argued that his actions regarding stopping by his home with a city vehicle, and combining his breaks to do his job more efficiently, were no different from actions of other city employees, and that his use of fill dirt and transporting it with city vehicles was at times approved by his supervisors. He cited the elements of "timing," in regard to which he asserts he was all but terminated right after he was arrested for OWI. He also argued that the "timing" of the anonymous tipster's report of events which had happened months before, made no sense. He placed particular emphasis on his claim that other city employees commonly engaged in practices such as he had, without being subjected to investigations as he was.
The commission has considered these arguments but, like ALJ Brown, it finds them unpersuasive.
While there was inconsistency in the City's application of its policy regarding personal use of City equipment, the City's application of this policy to Walker does not appear to have been a pretext for discrimination. The inconsistencies were a result of the difficulty of changing established patterns and habits. The City also offered reasonable explanations for the fact that supervisors were allowed to take City equipment home with them. Walker also did not establish that other employees who made personal use of City equipment to the extent that he did, were treated dissimilarly. And, as the ALJ noted, Walker's attempts to conceal from management the extent of what he was doing on his property indicated that he knew management would not approve of his conduct.
As the ALJ noted, Walker's efforts to prove discrimination focused on Barnhardt, and relied on a theory that Barnhardt influenced Amundson to carry out Barnhardt's desire to get Walker fired because of his OWI. However, the ALJ's findings of fact about the investigative process that ensued after the anonymous complaint about Walker came in, show that Amundson came to his own conclusions. The ALJ's findings included findings that it was Amundson that organized the investigation and Amundson who drafted the questions initially asked of the employees who were questioned, that it was because of Amundson's feeling that the employees were not telling all they knew that the investigation was extended, that it was Amundson who drafted the follow-up questions asked of those employees, and that Amundson drafted the questions then asked of Walker. Findings of Fact Nos. 16, 17. The ALJ further made findings that Amundson formed the belief, from Walker's explanations about the matter of the flat tire, that Walker was aware that what he had done was improper, Finding of Fact No. 18, and that Amundson found it incredible that Walker would not know what the material shown in front of the backhoe was, Finding of Fact No. 19. The ALJ also made findings that Amundson concluded that Walker had used City equipment and materials for personal purposes, that he had attempted to hide from management the fact that he had a flat tire on the backhoe repaired, and that he had not been truthful during Amundson's questioning of him. Ibid.
These findings of fact -- conspicuously not specifically challenged in Walker's petition for commission review -- undercut any argument that Amundson was just a "cat's paw" who was influenced by Barnhardt to terminate Walker because of Barnhardt's animus against Walker due to his OWI. On the contrary, they make it clear that the decision to terminate Walker was made by Amundson. Furthermore, the evidence supports the inference that the decision was made for the reasons asserted by Amundson, and not because of any animus against Walker resulting from his OWI. The commission therefore agrees with and adopts the decision of the ALJ.
cc:
Glenn Stoddard, Attorney for Complainant
Victoria Seltun, Attorney for Respondent
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