JOHN GERMAINE, Complainant
SUSSEK MACHINE 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:
Delete paragraph 8 and footnote 4 of the ALJ's FINDINGS OF FACT and replace it with the following:
8. A report purporting to be the results of the reference check was sent to the complainant.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
February 13, 2014
germajo_rmd . doc : 107 : 5 133.1 133.3
762.2 761 747
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The complaint in this matter is fairly straightforward. It alleges adverse employment acts by the respondent based on: 1) the complainant's having filed a previous discrimination complaint with the ERD; and 2) the complainant's opposition to discrimination in the workplace. The case was made simpler by the fact that the employee affirmatively stated at hearing that he engaged in no act of opposition to perceived discrimination other than filing his previous discrimination complaint with the ERD and filing legal claims against the respondent in China. Since there is no dispute that these were all filed after the complainant's employment for the respondent had ended, the alleged retaliatory acts of the respondent necessarily are limited to acts that occurred after the complainant's employment ended. It is undisputed that the complainant employment ended on or about July 28, 2008.
At hearing, the complainant argued that acts of the respondent on or after March 20, 2008 could be considered retaliatory because his complaint in this matter identified that date as the filing date of the previous complaint. The reference to the March date, however, was erroneous. The filing date of the complainant's previous ERD complaint (Case No. CR200803688) was October 20, 2008. (1)
In the complaint form in the present case, it was alleged that the respondent's retaliatory conduct began on March 2, 2010. The specific allegations of the complaint are that: 1) on that date Christopher Sussek, an owner and manager for the respondent, told a reference checking service negative things about the complainant, including that his termination was performance related, and that it would not re-hire him because he was suing the respondent in the U.S. and in China; 2) the respondent's negative comments were in retaliation for his filing of the previous ERD complaint; and 3) the respondent provided similar negative comments to prospective employers and thereby impaired his employment opportunities.
These allegations set the scope of the complaint. James v. Associated Schools, Inc., ERD Case No. 8812763 (LIRC Nov. 27, 1991).
The ALJ's findings and conclusions
The ALJ found that the complainant, by filing his post-discharge discrimination complaint with the ERD on October 20, 2008, was protected under the WFEA from any adverse employment act by the respondent in retaliation for the fact that he had filed that complaint. The ALJ concluded, however, that the complainant failed to prove the alleged negative content of any statement given by the respondent to a reference checking service on or about March 2, 2010, and otherwise failed to prove that the respondent gave any negative references to any potential employer of the complainant. The commission agrees, but provides the following modification to the ALJ's analysis.
In Finding of Fact No. 8, the ALJ labels the evidence regarding the reference check as double hearsay, and thus of no evidentiary value. The evidence came in the form of a report from a reference checking service called Allison & Taylor. The complainant testified that he contacted the company, requested the reference check, and then received the report. The report purports to record the responses of Chris Sussek, president and owner of the respondent, to reference-check questions about the complainant. To the extent the responses were assertions of fact, then, they appear to qualify as admissions of a party opponent under Wis. Stat. § 908.01(4)(b). The problem is that the vehicle for getting those assertions into evidence was not a witness testifying with first-hand knowledge of those assertions, it was the report. The report was an out-of-court statement offered to prove the truth of the matter asserted; in other words, it was hearsay. Wis. Stat. § 908.01(3). The only possible hearsay exception that might apply to the report would be under Wis. Stat. § 908.03(6), for records of regularly conducted activity. The exception applies to records, reports, etc. "made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity,
as shown by the testimony of the custodian, or other qualified witness, . . . unless the sources of information or other circumstances indicate a lack of trustworthiness." (Emphasis added). The complainant did not lay a foundation for the report through the testimony of any custodian or other qualified witness; he simply received it by mail or some other means of transmission. The report, then, while not double hearsay, is a hearsay document that does not meet any exception under Wis. Stat.
§ 908.03. See Howard v. C.D. Smith Construction, Inc., ERD Case No. 200000698 (LIRC Nov. 30, 2001) (hearsay report received by complainant from his union failed to meet § 908.03(6) exception for failure to lay foundation for the report through the custodian or other qualified witness).
Although the ALJ received the report into evidence (Ex. 3) at the hearing, she commented in her Memorandum Opinion that the report was not admissible. The fact that evidence is hearsay, however, does not by itself make it inadmissible. Administrative hearings in the ERD are subject to Wis. Stat. ch. 227. Section 227.45(1) establishes that an ALJ is not bound by common law or statutory rules of evidence, and is directed to admit evidence of reasonable probative value. Rutherford v. LIRC, 2008 WI App 66, 309 Wis.2d 498, 792 N.W.2d 897; Stichmann v. Valley Health Care Center, ERD Case No. 200104418 (LIRC June 14, 2005). The primary problem with the report is not its admissibility; it is that it is uncorroborated by any non-hearsay evidence. Hearsay cannot be the entire support for a crucial finding of fact. Village of Menomonee Falls v. DNR, 140 Wis.2d 579, 412 N.W.2d 505 (1987); Rybicki v. DJ Convenience LLC, ERD Case No. 200800018 (LIRC Aug. 20, 2010). The commission, then, agrees with the ALJ's conclusion that the complainant failed to prove that the respondent told the reference checking service that the complainant had performance issues, or that it would not re-hire the complainant because he had sued the respondent.
The commission also agrees with the ALJ's conclusion that the complainant failed to prove his broader contention that the respondent gave negative references to prospective employers of the complainant. The complainant testified that on numerous occasions he applied and was interviewed for jobs for which he believed he was a good candidate, only to be told that he was unsuccessful. On no occasion did the complainant provide an evidentiary trail between the loss of any of these job opportunities and a negative reference from the respondent, much less a negative reference motivated by the fact that the complainant had filed a complaint with the ERD. The evidentiary record supports the ALJ's determination that the complainant failed to establish retaliation by the respondent in violation of the WFEA.
Procedural issues
The complainant raised several procedural issues having to do with whether he received a fair hearing. His arguments are unpersuasive.
First, the complainant maintained that he was unfairly being forced to proceed to hearing without an attorney. The history of this case shows that the complainant had an attorney prior to hearing, but the attorney withdrew from representing the complainant on September 20, 2012. This was approximately four months prior to the hearing, leaving the complainant plenty of time to either find another attorney or prepare to represent himself. Selimi v. Wellpoint, ERD Case No. 200204071 (LIRC Nov. 29, 2005). Parties in ERD hearings are not guaranteed legal representation. The withdrawal of the complainant's legal counsel is not grounds for setting aside the ALJ's decision or granting further hearing.
Second, the complainant argued that he was hampered in his ability to present his case because his former attorney was still in possession of documents that he needed. That is not an issue for the commission to resolve. Surin v. Toney, ERD Case No. 9002828 (LIRC June 25, 1992). The complainant's remedy for inadequate assistance or cooperation from his legal counsel is something that the complainant can seek to adjust directly with his former legal counsel. Johannes v. County of Washara Executive Committee Board of Supervisors, ERD Case No. 9321736 (LIRC Nov. 1, 1993). It does not provide a basis for setting aside an administrative law judge's decision or granting further hearing. Patek v. Waukesha Engine Division, Dresser Industries, Inc., ERD Case No. 9433716 (LIRC Aug. 31, 1995).
Third, the complainant argued that it was unfair for the hearing not to include testimony from certain witnesses that the complainant believed were important to proving his case, including testimony of the owner of the respondent, Chris Sussek. The absence of witnesses from the hearing, however, was entirely attributable to the complainant's own failure to secure their attendance. It is the responsibility of each party to ensure the attendance of witnesses. There is no indication that the complainant was deprived of the normal channels for doing so.
Fourth, the complainant argued that the ALJ should have admitted audio recordings into evidence, which purported to include threatening statements made by Chris Sussek. The respondent objected to the recordings on the ground that they were not provided to the respondent as a potential exhibit prior to hearing, and that the respondent would be prejudiced by their admission because it had no idea what was on the recordings and therefore was unprepared to put on any evidence in rebuttal. The ALJ sustained the respondent's objection, and it was within her discretion to do so. Walker v. Masterson Company, ERD Case No. 93537000 (LIRC Oct. 4, 1995).
The commission, having reviewed the entire evidentiary record, concludes that the complainant was provided a fair opportunity to prove his contentions of retaliation and failed to do so. The decision of the ALJ, therefore, is affirmed.
cc:
Attorney Amy Bruchs
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