GUDELIA DELGADO, Complainant
SAINT GOBAIN PERFORMANCE PLASTICS CORP, 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:
1. In the sixth sentence of the first paragraph of the FINDINGS OF FACT, change the word "plan" to plant".
2. In the fifth sentence of the second paragraph of the FINDINGS OF FACT, change "Woolerton (Woolerton)" to "Woolverton (Woolverton)".
3. In the seventh sentence of the second paragraph of the FINDINGS OF FACT, change "Woolerton" to "Woolverton".
4. In the second sentence of the eleventh paragraph of the FINDINGS OF FACT, delete the word "in".
5. In the last sentence of the second paragraph of the MEMORANDUM OPINION, delete the word "has".
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed November 29, 2013
delgagu_rmd . doc : 107 : 751 763 766
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The complainant alleged discrimination on the basis of race (1) and disability. In her petition for commission review, the complainant indicated that she wanted to present evidence that was not presented at hearing. She did not describe in the petition what that evidence was. After a summary of proceedings of the hearing was prepared, the commission established a briefing schedule for the parties, by which the complainant had an opportunity to submit both an initial brief and a brief in reply to the respondent's brief. The complainant submitted no initial brief, and although the respondent submitted a brief, the complainant submitted no reply to the respondent's brief. At no time while this case has been pending before the commission has the complainant either elaborated on her desire to present evidence that was not presented at the hearing, or explained why she disagreed with the decision of the ALJ based on the evidence that was presented at the hearing.
In general, commission review is based only on the evidence previously submitted at hearing. Wis. Admin. Code § 1.04. The commission, however, has the authority to set aside a decision and remand a case to the department for further evidentiary proceedings (see Wis. Stat. § 111.39(5)(b)), and has considered doing so in two kinds of situations: 1) when the petitioner claims to have newly discovered evidence to present (see, e.g. Potts v. Norstar Communications Group, ERD Case No. 199803190 (LIRC April 30, 2004)); and 2) when the petitioner claims that in the initial hearing he or she was denied procedural due process (see, e.g., Roberge v. Department of Agriculture, Trade and Consumer Protection, ERD Case No. CR200303360 (LIRC May 31, 2005)).
In order to justify a reopening of a hearing on the basis of newly discovered evidence, it must be shown that the evidence is strong enough to reverse or modify the administrative law judge's decision and that such evidence could not have previously been discovered by due diligence. Tate v. Rouse- Milwaukee, Inc., ERD Case No. 9151019 (LIRC May 16, 1995); Whipp v. DePaul Rehabilitation Hospital, ERD Case No. 8651101 (LIRC Feb. 24, 1988); Potts v. Norstar Communications Group, ERD Case No. 199803190 (LIRC April 30, 2004). The complainant here has not described what evidence she seeks to present, making it impossible to evaluate its strength, and has not explained that it was newly discovered evidence that could not have been discovered by due diligence. The complainant has had ample opportunity to present arguments on these issues to the commission and has failed to do so. There are no grounds, then, for remanding this case to take newly discovered evidence.
Similarly, the complainant has offered no argument that the ALJ who presided at the hearing deprived her of a fair opportunity to present her case. The petition does not specifically challenge any of the procedural and evidentiary rulings made by the ALJ. Thus, the commission has no specific indication of why the petitioner believes further hearing is warranted. Notwithstanding this, the record in this matter has been reviewed for the purpose of determining whether the hearing was conducted in such a way as to deprive the complainant of a fair opportunity to present her case.
The commission has identified several issues that had a potential for affecting the fairness of the hearing, but in none of these was the complainant denied procedural due process. First, it was noted by the ALJ in her decision that the complainant's primary language was Spanish, and that she spoke limited English. The record shows that the ALJ had arranged for the presence of two court-certified Spanish language interpreters who attended the entire two-day hearing and assisted the complainant with interpretation throughout the hearing. There is no indication that the complainant was unable to understand what was being said during the hearing, or unable to participate by asking questions and giving testimony.
Second, the record shows that the complainant gave testimony in her case-in-chief for over four hours, and that the ALJ asked her if she had anything else to say before ruling on the admissibility of exhibits for the complainant's case. The complainant offered six exhibits, three of which, C. Ex. 1, 4 and 5, were not admitted. As to C. Ex. 1, the ALJ properly excluded it because it had extraneous writing on it, and because a clean version of the exhibit, R. Ex. 13, was offered in its place. As to C. Ex. 4 and 5, the ALJ properly excluded them on relevancy grounds. The record also shows that before announcing that the complainant had rested her case, the ALJ asked the complainant if she had finished all her testimony, subject to giving additional testimony after the respondent's case, and she stated that she had finished. There is no indication that the complainant was not given a fair opportunity to fully present her case-in-chief.
Third, the ALJ denied the respondent's motion for a directed verdict at the close of the complainant's case, which resulted in the complainant's having the opportunity to listen to and question the respondent's witnesses.
Fourth, prior to the second day of hearing, the complainant submitted a letter dated August 27, 2010 to the ALJ, requesting that she be allowed to supplement her case with additional attached exhibits and testimony of two additional witnesses, Maria Vera and Natalie Delgado. The complainant had already rested her case during the first day of hearing, so she had already missed her opportunity to present this evidence and testimony in any way other than by rebuttal to the respondent's case. The ALJ properly indicated that she would decide at the conclusion of the respondent's case whether the proposed testimony and documentary evidence would be allowable as rebuttal. As to the additional exhibits, a review of the complainant's letter of August 27, 2010 shows that they were, with one exception, duplicates of exhibits that became evidence as part of the respondent's case (R. Ex. 6, 11, 13, 13a, 13b, 19). The one document that did not become evidence was a copy of an appeal tribunal decision in the complainant's unemployment insurance case. This document could not have been considered by the ALJ, because of Wis. Stat. § 108.101, which prohibits determinations in unemployment insurance law from being admitted in any action not arising under the unemployment insurance law.
As to the two additional witnesses, the commission finds no request on the record by the complainant to call these witnesses when the time came for her rebuttal case, nor does it find any statement at that time by the ALJ concerning them. Given that the ALJ stated on the record that she would decide whether to allow the witnesses to testify when the time came for the complainant's rebuttal case, it would have been better if the ALJ had made some statement on the record regarding the witnesses at that time. Nevertheless, it was incumbent on the complainant to call her witnesses. The record does not reflect that the complainant was prevented from calling them in her rebuttal case if she had wanted to do so. Furthermore, the complainant's reasons for wanting the two witnesses to testify, which the complainant explained on the record at the beginning of the second day of hearing, are not central to the issues of discrimination, and are not in the nature of rebuttal to the respondent's case. The respondent's case was that the complainant's supervisor, Riley, recommended the discharge of the complainant to the plant manager because she and another manager, Lochner, believed that more than once she had fallen asleep on the job. The complainant did not contend that either of the two witnesses had competent testimony to rebut this non-discriminatory explanation for the complainant's termination. The complainant has not shown that their failure to testify was due to error by the ALJ, and has not shown that their testimony, if it had been given, would have been of consequence. Obasi v. Milwaukee School of Engineering, ERD Case No. CR201003882 (LIRC Oct. 14, 2013) ("If an error by the trial forum was harmless, in that it did not affect substantial rights of a party, it is not grounds for reversal.").
Fifth, the ALJ excluded one more exhibit, C. Ex. 7, offered by the complainant during her rebuttal testimony. The exhibit consisted of four pages of vision test results, and was offered as evidence of the complainant's problem with her eyes, which she alleged was her disability. This exhibit was properly excluded on the grounds that it was not timely disclosed as a potential exhibit prior to hearing (Wis. Admin. Code § DWD 219.17), and was not in the nature of rebuttal.
Finally, even though the complainant has not challenged any specific findings of fact as being unsupported by the record, or any conclusions of law as being in error, the commission has reviewed the findings of fact and conclusions of law made by the ALJ, and determines that the findings are supported by the evidence, and the conclusions are not in error. The complainant has not put on sufficient evidence to prove she had a disability as defined in the Wisconsin Fair Employment Act. The complainant described having itchy and burning eyes, but a complainant's own list of symptoms is not enough; a complainant must show through credible and competent evidence how or to what degree her symptoms limit her capacity to work or make achievement unusually difficult. Doepke-Kline v. LIRC, 2005 WI App 209, 287 Wis. 2d 337, 704 N.W.2d 605. The complainant has failed to make this showing.
As to discrimination on the basis of race or ethnicity, the employer articulated a legitimate, non-discriminatory reason for terminating the complainant. Although the respondent argued that the complainant failed to make a prima facie case because she did not show she was qualified to perform her job, once a respondent articulates a legitimate non-discriminatory reason for discharge, it no longer matters whether the complainant has established a prima facie case; the case would proceed directly to consideration of the ultimate factual inquiry. Gentilli v. Badger Coaches, ERD Case No. 86-01411 (LIRC July 12, 1990), aff'd sub nom. Gentilli v. LIRC (Wis. Cir. Ct. Dane County Jan. 15, 1991). That inquiry, however, is often still focused on whether the employer's proffered non-discriminatory reason is false or a pretext for discrimination. Binversie v. Alaark Mfg Corp., ERD Case No. 199901928 (LIRC June 27, 2001); Puetz Motor Sales, supra, at 175.
The complainant did not show the respondent's non-discriminatory reason to be pretextual. The employer presented credible, firsthand testimony of witnesses who observed the complainant in the apparent act of sleeping on the job, credibly showed how the complainant's conduct warranted termination, and presented evidence that its prior discipline of the complainant was in line with its discipline of similarly situated employees not in the complainant's protected group. The complainant's insistence that she was not sleeping, while not disputing that her eyes were in fact closed during the final two instances recounted by the respondent, was not enough to show pretext.
cc:
Mark Stacey, HR Director
Attorney Thomas Godar
[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]