CHERYL A. TOHL, Complainant
CUSA ES, LLC, Respondent
d/b/a EXPRESS SHUTTLE
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 makes the following:
1. CUSA ES, LLC (hereinafter "ES") (1) was a business engaged in providing transportation to train crews, operating in a number of northern states including Wisconsin. Its headquarters were located in Bismarck, North Dakota.
2. ES kept a fleet of vans and other vehicles, and it employed drivers to use those fleet vehicles to pick up and transport railroad crew members both between and within train yards. It also employed "location supervisors" (sometimes referred to as "location managers") to manage operations and supervise drivers at particular locations or train yards.
3. The responsibilities of a location supervisor for ES included recruiting, interviewing, hiring, training and retention of drivers, scheduling drivers and meeting with them, inspection, maintenance and management of the vehicles assigned to each location, meeting with management of the railroad companies being served and addressing their concerns, and handling personnel functions such as getting trip vouchers and payroll logs to ES' headquarters office in Bismarck. The responsibilities to meet with drivers, and to participate in meetings at the Bismarck headquarters, meant that location supervisors had to do some driving.
4. Location supervisors had the discretion to do some driving of train crews themselves, such as for example to cover for a driver who was unable to do a scheduled drive, but they were not required to do so. They could choose to address such situations by arranging for replacement drivers.
5. Complainant Cheryl Tohl, a female individual, was hired by ES in about June, 1999, as a driver. She drove out of ES' Kenosha, Wisconsin location.
6. In about September of 1999, Tohl was promoted to a position as a location supervisor. The decision to promote Tohl was made by Gary Schumacher, the general manager of ES. He decided to promote her after a recommendation to that effect was made by Seb Schumacher (his uncle), (2) who at that time was ES' operations manager.
7. Tohl was made a "multiple location supervisor" ("MLS"), meaning she had responsibility for a number of Wisconsin locations. She was initially responsible for Adams, Janesville, Kenosha, Milwaukee, Portage, and Wisconsin Rapids.
8. In January 2002 Tohl was made responsible for Butler, a Union Pacific railroad yard in a suburb of Milwaukee. This was a new operation for ES, which had just obtained the contract to serve this yard.
9. At some time in 2002 or 2003, Seb Schumacher assigned Tohl responsibility for Waukesha. At some point, Waukesha was incorporated into Milwaukee as a single location.
10. In about April 2002, Gaylord Fridley was hired by ES as a dispatcher.
11. In his position as a dispatcher, Fridley interacted with Tohl in regard to matters such as absences or temporary shortages of drivers in particular locations to do runs Fridley was trying to dispatch. His experience was that she handled such matters differently from all of the other location supervisors, in that rather than taking charge herself to find replacement drivers, she would give Fridley names of drivers for him to call to try to find coverage himself. Fridley's experience with Tohl as a dispatcher was also that Tohl did not like to drive herself, and thus was less likely to handle a coverage problem by taking the run herself, which location supervisors had the discretion to do.
12. Fridley and Tohl also had a continuing disagreement about the fact that Tohl had drivers in the Milwaukee and Kenosha locations she managed drive on a scheduled 12-hour shift basis. These were the only locations in the entire ES operation that ran on that basis; in all the other locations drivers were subject to assignment on a 24 hour a day, 7 days a week basis. Tohl prided herself on her 12-hour shift system and felt that it was preferable for safety reasons. Fridley disagreed that ES' 24/7 system posed safety issues. In his experience, he felt that Tohl's 12-hour shift system created scheduling problems. He felt strongly that it was a big problem, was not feasible, and was not working.
13. At some point after the Butler yard operation was begun, Seb Schumacher asked Tohl to designate one of her drivers at the Butler yard as a "lead driver." Tohl gave that position to a driver named Terry Komasa. In exchange for taking on certain duties, Komasa got an extra $50/week, which was taken out of the overall yard commission that Tohl got.
14. Sometime in early 2003, the Wisconsin Rapids location assignment was shifted from Tohl to the supervisor who had responsibility for Stevens Point. This change was decided on by Gary Schumacher, on the suggestion of Seb Schumacher, and was agreed to by Tohl. There had been concerns about how often Tohl was getting to the Wisconsin Rapids location, which was 100 miles from her home. Gary Schumacher thought it would be easier for the new supervisor to get to Wisconsin Rapids more often because he lived closer.
15. In April or May 2003, Seb Schumacher retired, and Gaylord Fridley was made operations manager. As operations manager, Fridley became Tohl's immediate supervisor.
16. When he became operations manager, one of Fridley's new responsibilities was fielding complaints related to ES' operations, which could come in from ES' drivers, railroads with which ES contracted, or third party contractual intermediaries between ES and railroads. Fridley received frequent complaints having to do with locations managed by Tohl, from drivers, dispatch, and railroads.
17. In July 2003, Fridley had been receiving complaints from railroad management about the service and coverage being provided at Butler. When he would call Tohl, she would blame it on Komasa. When Fridley looked into it he determined that Komasa was doing most of the work there. Fridley felt that even if Tohl had Komasa watching the yard for her, she was the one responsible for it. He recommended to Gary Schumacher that Komasa should be made supervisor of that location. Schumacher agreed and made the decision to change the assignment from Tohl to Komasa.
18. Fridley did not say to Tohl, in connection with the reassignment of the Butler yard to Komasa, that (with reference to Komasa) "this man is not paid enough for what he does."
19. In about February 2004, a driver named John Aulwes, who had been hired about 6 months before, was made supervisor of the Stevens Point location. Subsequently, Fond du Lac and La Crosse were added to his responsibilities.
20. In March 2005, Tohl fell out of a tow truck while at work. She banged her heel, wrenched her arm, landed on her tailbone on the running board, and was banged up and bruised. However, the record contains no competent medical evidence sufficient to support a finding as to the existence, nature, or permanency of any injuries Tohl suffered in that incident, or as to the existence, nature, or permanency of any medically necessary restrictions resulting from any such injuries.
21. Tohl asserts that she has diabetes and that it affects how long it takes her to heal from injuries. However, the record contains no competent medical evidence sufficient to support a finding as to the existence of Tohl's diabetes, the effect it may have had on her, or how it may have affected her healing from injuries.
22. After the incident in which she fell from a tow truck, Tohl at various times asserted to ES that she was subject to certain restrictions on her abilities to drive because of injuries sustained in that incident (specifically, limits on the time she could drive without a break). Fridley and Schumacher were aware of those assertions by Tohl. They were also aware, that Tohl had passed a Department of Transportation physical after this incident without DOT placing any restrictions on her based on the physical. Schumacher never saw any medical reports relating to Tohl's condition.
23. Fridley was aware that Tohl asserted she had diabetes, based on Tohl's having told him that. However, Fridley did not believe that Tohl's diabetes had any effect on her ability to work. It was not established that Schumacher had any awareness that Tohl asserted she had diabetes.
24. After March 2005, Fridley and Schumacher both had a perception that Tohl had some restrictions on her ability to drive. However, it was not established that either Fridley or Schumacher had any perception that any such restrictions were permanent, as opposed to being temporary restrictions from which she could and would heal.
25. Under Tohl's supervision, the Portage location was having continual staffing problems. There were not enough drivers, and they did not live close enough to Portage, with the result that ES would continuously fail to meet its contractual obligations to provide coverage for crews needing transportation. Complaints were coming in from both drivers and from a crew transport contractor that was a middleman between ES and the railroads serving Portage. Tohl was under ongoing instructions to increase staffing at Portage, but she failed to do so. Instead, she provided explanations - such as Portage having too many people with DUIs, or the prison system there having hired all the good employees, or that it was the fault of the application of a DOT physical requirement, or that there were too few vans - that ES management did not find reasonable.
26. Tohl was not denied the ability to have lodging expenses covered so she could travel to Portage overnight to work on recruitment and hiring of drivers. All she had to do to obtain lodging was to contact dispatch and tell them to get her a room there; she never did so. Tohl chose not to travel overnight to Portage.
27. Tohl was not given a two-week deadline to hire additional staff in Portage. In a telephone call between Schumacher and Tohl about hiring additional staff in Portage, Schumacher asked her how long she thought it would take, and it was Tohl who said two weeks.
28. Eventually, in 2005, Schumacher had Aulwes come to Portage to assist in getting additional drivers hired. Within two weeks Aulwes had additional drivers hired and trained.
29. In about May, 2005, Schumacher decided to reassign the Portage location to Aulwes. He made that decision because Tohl had conspicuously failed to meet expectations for management of that location and Aulwes had done a good job of meeting them.
30. Location supervisors were paid a commission based on the income generated by their location(s). Tohl's commission rate was 2.5% at the time Fridley became operations manager. Fridley did not reduce her commission rate. Tohl's commission rate was increased to 3% in February 2006.
31. Tohl was relieved of responsibility for the Adams location in February or March, 2006, after it came to the attention of ES management that Tohl had not been up there for a long time. Fridley was told by a driver there that they had not seen Tohl in six months. Fridley reported what he had been told to Schumacher. Initially, Schumacher was not going to remove Ms. Tohl from managing Adams in response to hearing this; he instead wanted to let her know it was important to get to Adams every 30 days. She told him it was a long way for her to go and she was really busy. He then suggested that the Stevens Point manager, who was only 20 miles away, take over Adams. Tohl agreed with that.
32. At some point when Tohl still had the assignment for Adams, Fridley and Tohl had a disagreement about the distribution of driving work between employees based in Adams, and employees based in Eau Claire, a location not assigned to Tohl. The three employees in Eau Claire were males; the employees in Adams were one male and one female. Fridley did not make a comment in connection with this disagreement, that Tohl was making too much money and that he "had a female driver making more money than male drivers in an area," or words to that effect.
33. As a result of the location assignments and reassignments described above, by mid-2006, Tohl's assignments included only Janesville, Kenosha, Milwaukee and Waukesha.
34. In October, 2006, Schumacher made the decision to create a new position of regional manager. The regional manager role evolved in Wisconsin as Aulwes was taking over failing locations. Aulwes communicated to Schumacher that he felt that the job had gotten to be more than just a manager of each location and that he needed a person to be an assistant manager at each location so he had time to work them all. Schumacher saw that as turning Aulwes' position into something on the next level, which Schumacher felt would appropriately be considered a regional manager position. Schumacher decided that he was going to have the regional manager position oversee southern Wisconsin generally. The scope of the regional manager position covered the assignments Tohl was then in, and Schumacher thought there was no sense having both of them oversee the same locations, so he decided to eliminate Tohl's position. Schumacher's reasons for deciding to eliminate Tohl's MLS position also included the problems they had had with Tohl's supervision of her locations.
35. The creation of the regional manager position and the elimination of Tohl's multiple location supervisor position was Schumacher's idea, not Fridley's, and Fridley was not involved in the creation of the regional manager position. Fridley first learned that Tohl's role with the company had come to an end only a few minutes before Tohl did, when Schumacher called him into the office and informed him of his plans.
36. When Schumacher informed Fridley of his plans, he told him that he was going to eliminate Tohl's position for several reasons, one of which was because of all the problems they had had. Schumacher then made a call to Tohl to inform her of the decision. Fridley listened but did not participate in the call. In that call, when informing her of his decision, Schumacher explained it by saying that he wanted to make a change and get someone in there to get the locations fully staffed, shifts changed over to 24/7, and get them running the way he would like to see it done from the home office. He also explained that Aulwes was going to be doing oversight of locations including the ones Tohl had from then on, and that he thought there was no sense having both of them oversee the same locations. Schumacher indicated to Tohl that she could remain employed with ES as a driver, and Tohl indicated that she would think about that and let him know. Tohl did not accept that offer and did not work for ES again.
37. Tohl's sex was not a factor in Schumacher's decisions to create the regional manager position and to eliminate Tohl's multiple location supervisor position.
38. Tohl's sex was not a factor in Schumacher's decision to promote Aulwes rather than Tohl to the new regional manager position.
Based on the Findings of Fact made above, the commission makes the following:
1. ES is an employer within the meaning of the Wisconsin Fair Employment Act.
2. Tohl, as a female individual, is a member of a class protected by the provisions of the Wisconsin Fair Employment Act prohibiting discrimination in employment because of sex.
3. There is no probable cause to believe that ES discriminated against Tohl because of sex, in violation of the Wisconsin Fair Employment Act, in regard to the decisions to create the regional manager position and to eliminate Tohl's multiple location supervisor position.
4. There is no probable cause to believe that ES discriminated against Tohl because of sex, in violation of the Wisconsin Fair Employment Act, in regard to the decision to promote Aulwes rather than Tohl to the new regional manager position.
5. There is no probable cause to believe that Tohl is an individual with a disability, within the meaning of the Wisconsin Fair Employment Act.
6. There is no probable cause to believe that ES discriminated against Tohl because of disability, in violation of the Wisconsin Fair Employment Act, in regard to the decisions to create the regional manager position and to eliminate Tohl's multiple location supervisor position.
7. There is no probable cause to believe that ES discriminated against Tohl because of disability, in violation of the Wisconsin Fair Employment Act, in regard to the decision to promote Aulwes rather than Tohl to the new regional manager position.
Based on the Findings of Fact and Conclusions of Law made above, the commission makes the following:
The complaint in this matter is dismissed with prejudice.
Dated and mailed November 21, 2013
tohlche_rrr : 110 : 741.2 156
123.12 123.13
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
A threshold question in this case is, what alleged discriminatory acts are at issue?
Tohl's complaint and amended complaint involved the October, 2006 decisions to eliminate her position and to put Aulwes in the regional manager position, after which her employment ended. No allegations were made as to any earlier decisions made over the years to remove individual location assignments from her, or as to any other employment actions. The Initial Determination focused on the matters alleged in the complaint. Appropriately, the Notice of Hearing then identified only those matters as the issues in the case.
Notwithstanding this, at hearing Tohl extensively focused on events involving her assignments, pay, and terms and conditions of employment, stretching back to Fridley's ascension to the position of operations manager in 2003. She appeared to be contending that Fridley made discriminatory decisions about these matters, which should also be found to be violations of the law.
This is problematic, though, because where an issue is not raised by a complaint, the ERD is without authority to issue an Initial Determination making a conclusion on that issue and without authority to conduct a hearing on that issue. Greco v. Snap-On Tools, ERD Case No. 200200350 (LIRC May 27, 2004). Findings and orders may not be broader than specified in the complaint and notice of hearing. Ibid. It is also problematic because those events are, as potential subjects of a discrimination claim, time-barred. The effective statute of limitations cut-off date defined by the filing of the complaint on April 27, 2007, is July 1, 2006. Much of what Tohl focused on at hearing involved acts prior to that time.
The commission concludes that the issues of alleged discrimination presented in this case, as to which ultimate findings and conclusions must be made, are limited to the October, 2006 decisions to eliminate Tohl's position and not put her in the newly-created regional manager position, after which her employment ended.
Another important question is, who are the agents of ES alleged to have made the discriminatory decisions at issue?
At times during the processing of this case, Tohl argued that both Fridley and Schumacher were motivated by bias against her, and were involved in making decisions in which they intentionally discriminated against her. At other times, she seemed to focus only on Fridley as the individual who was allegedly motivated by bias against her. Also, at times she seemed to argue that Fridley had direct involvement in making decisions she claims were discriminatory, while at other times she argued for a "cat's paw" theory linking Fridley to the challenged decisions. The "cat's paw" analysis allows the finder of fact to impute a discriminatory motive to the unbiased decision maker who is "decisively influenced" by an employee who is prejudiced against the complainant. Haecker v. Carter Steel, ERD Case No. 200002629 (LIRC Jan. 28, 2003). The test for application of a "cat's paw" analysis is whether the nominal decision-maker relied exclusively or primarily on information and recommendations received from other individuals, and the record shows that those others were prejudiced against complainant.
While Tohl expressed the opinion that Schumacher was influenced by people he works with in close proximity, this was not persuasive. She conceded on cross-examination that she did not know who made the decision to eliminate her multiple location supervisor position and that she did not know who made the decision to award the regional manager position to Aulwes. The commission credited the testimony of both Fridley and Schumacher, that the creation of the regional manager position and the elimination of Tohl's multiple location supervisor position was Schumacher's idea, not Fridley's, that Schumacher made the decision, and that Fridley learned of it only after it had been decided and was about to be announced to Tohl.
The commission does not believe that it was established that in making his decisions about creating the new regional manager position and eliminating Tohl's position, and filling the new regional manager position with Aulwes, Schumacher relied "exclusively or primarily on" information and recommendations received from Fridley, or was "decisively influenced" by Fridley, for purposes of a "cat's paw" analysis. It believes that the weight of the evidence supports finding that Schumacher was the decision-maker with regard to the creation and filling of the regional manager position and the elimination of Tohl's position and the ending of her employment. Thus, in approaching the ultimate question of whether ES discriminated against Tohl, the commission has looked principally into Schumacher's motives.
Notwithstanding this, in view of the parties' extensive litigation of factual matters from the earlier years of Tohl's employment, including some involving Fridley, and in view of the potential argument that those matters and Fridley's motives might have background relevance, the commission considered the evidence concerning those matters and motives, made findings regarding them as reflected above, and addresses them below to the extent they are found relevant to the ultimate issues.
Disability --
Another threshold question here, is whether Tohl is an individual with a disability.
Tohl asserted that she was disabled as a result of the effects of a fall from a vehicle in March 2005. She also asserted that she had diabetes which affected her ability to heal from injuries. However, "[p]roof of a disability requires competent medical evidence of the employee's alleged impairment." Erickson v. LIRC and Quad Graphics, 2005 WI App 208, ¶17, 287 Wis. 2d 204, 704 N.W.2d 398. Here, there is absolutely no medical evidence of any kind in the record. Tohl called no medical witnesses to testify about her disability, and she offered no medical evidence or records concerning her alleged injuries or their treatment. (3) Tohl's assertions are not supported by anything other than her own lay testimony.
Tohl thus failed to establish that she actually "has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work," or a record of such an impairment, see, Wis. Stat. § 111.32(8)(a), (b). Thus she could be considered to have established that she was "an individual with a disability" only if she established that she was "perceived as having such an impairment" by ES, within the meaning of Wis. Stat. § 111.32(8)(c).
There are some things in the record which could be seen as evidence that ES' managers had a perception that Tohl had some limitations on her ability to drive. However, "[t]he commission has consistently found that the statute only covers permanent impairments, and not injuries of a transitory nature." Rutherford v. Wackenhut Corp., ERD Case No. 200402916 (LIRC May 13, 2011).
Tohl rests her claim regarding disability, on her having been injured in an accident. Even where a respondent is "clearly aware that the complainant had various work-related injuries for which she was seeking medical treatment," there still needs to be evidence supporting a finding that the respondent believed the complainant had an impairment that would constitute a permanent disability. Bowdish v. Copps/Roundy's Supermarkets Inc., ERD Case No. CR200801664 (LIRC Jan. 14, 2011). In Reiter v. Waukesha Engine Div. (LIRC Nov. 30, 2007), the commission explained why such evidence is needed:
An injury, by its very nature, is generally regarded as a temporary condition that will heal over time, and there is no reason to assume that the complainant's shoulder injury is more serious than a typical shoulder injury which would be expected to heal.
Similarly, in this case, in which the issue is what the respondent perceived with respect to Tohl's condition, there is no reason to assume that they perceived it as involving anything more serious than injuries which require time to heal. Indeed, the record tends to affirmatively suggest that Tohl's injuries were perceived as being subject to healing. Her assertions about diabetes affecting her ability to "heal from" her injuries and being the reason why "it took her so long to heal," suggest that Tohl was in a healing period and that eventual recovery, without permanent restrictions, was still a possibility.
For the foregoing reasons the commission concluded that, even taking into account the lower standard of proof applicable to determining probable cause, Tohl did not meet her burden to establish that she either had, or was perceived by ES as having, a permanent physical or mental impairment which makes achievement unusually difficult or limits the capacity to work. Therefore, it concluded that she did not establish that she was an individual with a disability, within the meaning of Wis. Stat. § 111.32(8), and thus that there was no probable cause to believe that ES discriminated against her because of disability within the meaning of the Act.
This leaves the issue of whether there is probable cause to believe that ES discriminated against Tohl because of sex.
Resolution of factual disputes and credibility --
There were a number of disputes of fact in this case about statements and actions of individuals which were relevant to their motives and intent, and thus to the ultimate issue of whether probable cause was established to believe that ES discriminated against Tohl because of sex. Before that ultimate issue can be addressed, those factual issues must be resolved.
Those disputes presented the question of credibility. Though the standard of proof at a probable cause hearing is in some respects lower than that which applies when it is deciding a case on the merits, LIRC is still entitled to make credibility determinations when deciding if probable cause exists. Boldt v. LIRC, 173 Wis. 2d 469, 475, 496 N.W.2d 676 (Ct. App. 1992). Indeed, where credibility issues arise in a probable cause case, LIRC is "required to" resolve those issues. Sommerfeldt v. AT & T (LIRC Oct. 27, 1993).
The commission's resolution of those issues is reflected in the findings of fact made above. Those findings reflect that after having carefully considered and weighed the evidence, the commission found the testimony of ES' witnesses Fridley and Schumacher to be generally more credible than that of Tohl.
That general assessment was influenced in significant part by the commission's resolution of two particular factual disputes, involving whether or not Fridley made certain overtly discriminatory remarks as claimed by Tohl.
As reflected in Finding of Fact 32 above, the commission found that Fridley did not say to Tohl, in connection with their disagreement about the distribution of driving work between employees based in Adams and employees based in Eau Claire, that he "had a female driver making more money than male drivers in an area." It so found because it believed Tohl's testimony to that effect was not credible. The commission credits and accepts Fridley's testimony that he "absolutely did not make any such comment" and that he "do[es] not harbor that kind of animus against women." It does not find it credible that Fridley expressly used the adjectives "female" and "male" in such a statement in the manner that Tohl claimed, or that Fridley was expressing or intended any discriminatory intent in what he may have said.
As reflected in Finding of Fact 18 above, the commission also found that Fridley did not say to Tohl, in connection with the reassignment of the Butler yard to Komasa, that (with reference to Komasa) "this man is not paid enough for what he does." Again, it so found because it believed that Tohl's testimony to that effect was not credible. Here too, crediting Fridley's testimony about his views, it doubts the accuracy of Tohl's testimony that Fridley expressly used the gender-specific "man" in whatever statement Tohl purported to describe.
One reason the accuracy of Tohl's testimony on this last point is doubted, is that Tohl conspicuously did not offer into evidence the alleged e-mail message she testified she wrote in response to this supposed statement by Tohl. Had such evidence been offered, it could have been quite persuasive that such a statement had been made; Tohl's failure to offer such evidence gives reason to doubt the underlying claim.
These issues as to whether Fridley made overtly discriminatory statements are clearly viewed by Tohl as being crucially important to her case. The commission agrees that they are important. However, the importance it sees in them is that the lack of credibility it feels Tohl had on these issues, caused the commission to doubt, generally, the testimony of Tohl in other areas in which there were outright conflicts between testimony of Tohl and that of ES' witnesses.
Is there probable cause to believe sex discrimination occurred? --
"Probable cause" is defined by rule as "a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the act probably has been or is being committed," Wis. Admin. Code § DWD 218.02(8).
To satisfy his or her burden of showing probable cause, a complainant is required to establish more than "possibility and suspicion." See, Barnes v. Miller Brewing Company, ERD Case No. CR200703309 (LIRC May 14, 2012). The probable cause concept focuses on probabilities, not on possibilities. Even if some evidence of discrimination exists in a case, LIRC might still conclude that based upon all the evidence produced at the hearing, it was not probable that discrimination had occurred. Boldt v. LIRC and General Motors Corp., supra, 173 Wis. 2d at 475.
An explanation of the "probable cause" standard which is particularly helpful, is found in Hintz v. Flambeau Medical Center, ERD Case No. 8710429 (LIRC Aug. 9, 1989). In that decision, the commission adopted the interpretation of the Wisconsin Personnel Commission in Winters v. Dept. of Transportation, Case Nos. 84-003, 0199-PC-ER (Wis. Personnel Comm'n. Sep. 4, 1986), that probable cause is "somewhere between preponderance and suspicion." The commission has continued to rely on this interpretation over the years, see, e.g., Castro v. County Of Milwaukee Sheriff's Department, ERD Case No. CR200800720 (LIRC Dec. 20, 2011).
In Winters the Personnel Commission grounded its interpretation of the probable cause standard in its recognition of the purpose intended to be served by the probable cause standard:
It seems apparent that the legislature imposed the probable cause requirement at least in part as a screening device to sort out cases lacking a certain threshold degree of substance. If the commission were to apply a standard that would result in a determination of probable cause if there is any credible evidence to support it, and resolving in the complainant's favor all factual matters which give rise to competing inferences, it seems to the commission there would be very few cases that would not result in probable cause determinations, and the probable cause stage of the proceeding would serve a minimal purpose.
On the other hand, to utilize a preponderance test at the probable cause stage of the process seems unduly rigorous in the opposite direction. Instead of screening out too few cases, this approach would screen out too many, by in effect utilizing a standard that should only be applied at the full hearing on the merits, at a point at which many complainants will not yet have acquired the evidence necessary or helpful in proving their claims.
The only reported case of which the commission is aware which specifically addresses the difference between the "probable cause" and "preponderance of the evidence" concepts in a civil context contains the following statement: "Probable cause is not synonymous with 'preponderance,' being somewhere between 'preponderance' and 'suspicion.' " Young Oil Co. of La., Inc. v Durbin, 412 So. 2d 620, 626 (La. App. 1982). The Commission agrees with this kind of characterization of the matter, as it is supported both by the language of § PC 4.03(2), Wis. Adm. Code, and the policy underlying the probable cause requirement. (4)
Thus the critical question for the commission as the decision-maker in this case is whether there is more than a "suspicion" that discrimination occurred as alleged.
ES articulated non-discriminatory reasons for the challenged employment decisions; Tohl thus needed to have established, to the "probable cause" quantum of proof, that those reasons were in fact a pretext for discrimination. See, e.g., Binversie v. Manitowoc Tool & Manufacturing Inc., ERD Case No. CR200901810 (LIRC Mar. 28, 2013). Pretext may be established by showing the employer's proffered explanation is "unworthy of credence." Puetz Motor Sales v. LIRC, 126 Wis.2d 168, 175, 376 N.W.2d 372 (Ct. App. 1985). The commission has interpreted "pretext" to mean a "dishonest explanation, a lie rather than an oddity or an error." Bialk v. Aurora Health Care, ERD Case No. CR200700068 (LIRC Apr. 23, 2010). See also, Ebner v. Dura Tech, ERD Case No. CR200504645 (LIRC Apr. 23, 2009), quoting Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000) (the "focus of a pretext inquiry is whether the stated reason for an action is honest, not whether it is accurate, wise, or well-considered").
The commission's inference as to Schumacher's motives in regards to the ultimate challenged employment decisions, is that he was honest in explaining that his decisions came from dissatisfaction with Tohl's performance. It credits his testimony, that he believed that Tohl was not meeting the requirements that ES had set, and that complaints were being received about her attention to her locations. It is understandable that Schumacher would find Tohl's explanations that she was not able to "staff up" the Portage location because everyone there had DUIs, hard to accept. It was understandable that he would find her excuse that the prison system had hired up all the good employees, was unbelievable. The commission's assessment is, that Schumacher was being honest when he indicated that his concerns with Tohl were regarding on-time performance, customer service, meeting safety standards including doing regular safety meetings, an inability to recruit and effectively manage drivers. Having considered Schumacher's testimony as a whole, the commission is unable to say that it feels "more than a suspicion," that he acted on the basis of gender bias.
As indicated, the commission does not think that Fridley "decisively influenced" Schumacher, as his "cat's paw," into making the decisions he did. However, since Schumacher was at a minimum presumably aware of Fridley's views about Tohl's work, and given the standard of proof applicable in this proceeding, the commission has considered Fridley's subjective motives and intent.
The commission's inference is that Fridley's very obvious and longstanding dissatisfaction with Tohl was not motivated by gender bias but by his unhappiness at having to field complaints coming out of locations Tohl oversaw. His unhappiness about this seemed real and palpable. Particularly, it appears, Fridley was frustrated by problems that affected scheduling - something which is unsurprising considering the nature of the business and Fridley's background in dispatch. The strength of Fridley's feelings was evident when the matter of Tohl's 12-hour shift system came up, as well as in Fridley's expressed views that Tohl was "more employee-oriented than management-oriented."
One factor which reinforces the commission's assessment that Fridley was not engaged in a bias-driven campaign focusing on Tohl, but instead was just genuinely upset by the complaints and problems coming out of Tohl's locations, has to do with the scale and scope of his duties. ES was a relatively large company, with around 100 locations, operating in around 70 train yards, transporting railroad employees "everywhere from New York to Seattle," and regularly processing a large number of personnel and payroll transactions. Fridley was involved in overseeing this all from Bismarck, North Dakota. The idea that with that scope of responsibility, he would expend the effort to pursue a years-long campaign against a particular location supervisor in Wisconsin whose performance was (according to Tohl's claims) presenting no particular problem for him, simply to satisfy some inclination to gender bias (as to which there is no direct evidence in the record), just does not seem likely. What seems more likely, is that disappointment with Tohl's handling of her locations, not least in regard to scheduling matters, was in fact the actual reason.
NOTE: The commission has considered the arguments submitted by Tohl in her petition for review. It believes that, to the extent that the arguments made by Tohl therein are relevant and involve issues bearing on the outcome of the case, those arguments are addressed and resolved, either expressly or implicitly, by the findings of fact made by the commission herein and the discussion set out in the foregoing memorandum opinion.
To the extent that arguments raised in the petition for review are not either explicitly or implicitly addressed and resolved herein, may in part reflect an assessment that the arguments are not material or relevant, or are not sufficiently persuasive to affect the outcome reached by the commission.
In addition, some arguments raised in the petition for review may not be addressed and resolved herein because those arguments depend on factual assertions not supported by the record. It appears that Tohl has taken the petition for review as an opportunity to supplement her hearing testimony, by adding factual assertions as to details about events, or introducing events that are altogether new. These assertions are often folded in so closely with arguments which do have some basis in the record evidence, that it is difficult to separate them. Examples include, but are not limited to: new details about an incident in which a vehicle operated by Tohl was struck by a moving train, an allegation that Komasa accessed train company computers to find himself desirable runs, and allegations about a workers compensation claim. In addition, Tohl cites and relies in argument on documents which were part of the ES proposed exhibit packet but which were not received into evidence. Examples of this include argument about Ex. A. pages R000004, R000215-R000218, R000034, R000013, and R000006.
The commission is limited to reviewing the evidence of record in reaching its decision. This consists of the evidence offered and received at the hearing before the Administrative Law Judge. Metzger v. UGD Automotive, ERD Case No. 200602390 (LIRC Feb. 28, 2008). It will not consider factual assertions which a party has presented for the first time in its petition for review. Kilgore v. Social Dev. Comm., ERD Case No. 9452953 (LIRC Feb. 14, 1997).
cc:
Attorney Peter J. Keane
Pachulski Stang Ziehl & Jones
P. O. Box 8705
Wilmington DE 19899-8705
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