JENNA NIELSEN, Complainant
SPORTS CLIPS, 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 makes the following:
1. The respondent in this matter is a hair cutting business located at 5502
Washington Avenue in Racine, Wisconsin. That business operates under the name
Sport Clips. (1) It is owned by Linda Tischler and Jennifer Lein, who are mother and daughter.
2. Tischler and Lein operate their business under the name "Sport Clips" pursuant to a franchise agreement between them and Sport Clips, Inc. (hereinafter, "SCI"). SCI is a Texas corporation whose offices are located in Georgetown, Texas. SCI's business involves franchising the right to operate hair cutting businesses under the name "Sport Clips," and providing support to such businesses. Tischler and Lein were such franchisees.
3. In SCI's parlance, employees of the corporation (i.e., SCI) are referred to as "Corporate Team Members," and owners of hair cutting businesses that operate under franchises from SCI (such as Tischler and Lein) are referred to as "Team Leaders." In the SCI system there are also "Area Developers," who recruit, train, and provide support to "Team Leaders" in their areas. "Area Developers" are not employees of SCI, but are themselves also franchisees of it.
4. The "Area Developer" for the State of Wisconsin was Walter Sauthoff, who (through his company, "Black Bend Development") had the SCI franchise to operate as its "Area Developer" in Wisconsin. Sauthoff had no ownership interest in Tischler and Lein's business, and he was not an employee of that business. Sauthoff had no authority over the personnel-related actions of franchisees of SCI, including Tischler and Lein's business, and he did not provide advice on hiring and firing.
5. In her complaint in this matter, Nielsen specifically identified both "Sports Clips" in Georgetown, Texas, and "Sports Clips" on Washington Avenue in Racine, Wisconsin, as employers she believed discriminated against her. In its investigation the Equal Rights Division designated "Sports Clips" in Georgetown as "Respondent A" and "Sports Clips" on Washington Avenue in Racine as "Respondent B." Records of the ERD reflect that insofar as the complaint was against "Respondent A," it was dismissed by a Preliminary Determination under Wis. Adm. Code § DWD 218.05 ("Preliminary review of complaints"), which was not appealed. The ERD's Initial Determination that there was probable cause to believe discrimination had occurred in this matter, was issued only as against "Respondent B" (i.e., the business operating as "Sport Clips" on Washington Avenue in Racine). Thus, the hair cutting business located at 5502 Washington Avenue in Racine, Wisconsin and owned by Tischler and Lein, is the only respondent in this matter. In this decision, the business operated by Tischler and Lein on Washington Avenue in Racine will be referred to as "respondent."
6. Complainant Jenna Nielsen was originally hired by respondent on or around October 5, 2008, shortly before the business opened, with the intention that she would work as a hair stylist once the opening occurred. At that time, the respondent had also already hired an individual to work as the manager. However, before the store even opened that manager had personal issues causing her to not call and not show up, and Tischler and Lein decided to discontinue her employment. They then decided to make Nielsen the manager, after concluding based on an observation of an interaction Nielsen had with another employee, that Nielsen would be able to offer leadership and guidance.
7. At the time they opened their business in October 2008, neither Tischler nor Lein had any experience in operating a business.
8. Lynn Westrich was employed by the respondent beginning on or around October 7, 2008. She was interviewed and hired by Lein. Westrich was initially employed as a stylist. Westrich was 55 years old when she was hired by Lein.
9. Josh Vinson was employed by the respondent beginning on or around mid-October 2008. At some point he became an assistant manager. Vinson is African-American.
10. Tammy Hoffman was employed by the respondent beginning on or around mid-October 2008. She was initially employed as a stylist. After about two weeks she was made an assistant manager.
11. The respondent's business opened to the public on or about October 15, 2008, with Nielsen serving as manager.
12. By December 2008, Tischler and Lein had begun to become dissatisfied with Nielsen's performance as manager, in a number of areas. These included Nielsen's failure to do adequate training ("coaching") of her employees, her failure to obtain a required license, her failure to consistently follow procedures for closing the store, the inaccuracy of Nielsen's advice as to products for the business to sell, and the less-than-expected rate at which Nielsen's customers elected service upgrades at the "back bar." There was also dissatisfaction with Nielsen because of some specific incidents. In one, Nielsen caused a $40 loss by undercharging a customer for a pair of clippers. There was also an incident in which Nielsen disclosed information about one employee's health condition to other employees. On an occasion in November 2008, a customer complained because Nielsen had delayed waiting on the customer while she had a lengthy discussion with another employee about a personnel issue. In addition, there were concerns that Nielsen exhibited favoritism towards Vinson and Westrich in scheduling and supervision.
13. On or about December 15, 2008, a conversation occurred at the store involving Tischler, Lein, Westrich and Nielsen, in which Westrich asked Tischler about being considered for a position as a manager. Tischler told Westrich that she would not consider her for a manager position. In the course of describing what she thought were characteristics needed in a manager, Tischler used words like "vivacious," "vibrant," "outgoing," "enthusiastic," "energetic," and "energy." Nielsen thought that being young, and not being old, was what was being referred to or implied in this conversation. However, Nielsen did not say anything indicating that that was what she thought, and she did not say anything indicating that she believed that the respondent was expressing age bias or discriminating because of age and that she was opposed to that.
14. As one of the services it provided to franchisees, SCI saw to the distribution in franchisees' market areas of coupons which could be redeemed for discounts at SCI franchises. It was expected that potential customers would obtain these coupons from the sources through which they were distributed and bring the coupons with them when they came in to the business. Employees of respondent were prohibited from directly providing coupons to customers in the store.
15. Some time prior to December 22, 2008, Josh Vinson had provided coupons directly to customers in the store and was warned by Lein against doing this and informed that if he continued to do so he could be terminated. However, on or about December 22, 2008, Vinson again provided coupons directly to customers in the store. This was observed, and the respondent made the decision to discharge him. Vinson was informed by Tischler that he was discharged.
16. On the day that Vinson was discharged, Tischler made a statement in Nielsen's presence regarding Vinson and his discharge, in which she said, or at least was understood by Nielsen to have said, that the respondent would never hire a black person again. At that time, however, Nielsen did not say anything in response indicating that she believed that the respondent was expressing racial bias or discriminating because of race and that she was opposed to this. Lein was not present on this occasion, and Nielsen did not at this time say anything about the matter "making her sick."
17. Sometime shortly after the incident on December 22, 2008 in which Vinson was discharged, Nielsen contacted Sauthoff by telephone and expressed concern about comments regarding age and race having been made by respondent's owners. Sauthoff understood from what Nielsen told him that she felt there were comments made about one employee being too old for Sport Clips, and that comments were made about another employee who was African-American that made her uncomfortable.
18. Sauthoff understood from what Nielsen said to him in this call, that she wanted him to step in and approach the owners and have a discussion with them about how the comments Nielsen was complaining of were not appropriate. However, Sauthoff did not tell Nielsen that he would talk to Lein and Tischler about Nielsen's complaints; on the contrary, he expressly told her that he would not be doing so.
19. Sauthoff never did tell Tischler or Lein about the call from Nielsen, and Tischler and Lein were not aware of that call, at any time until after the filing of the complaint in this matter.
20. Around the end of December, 2008, Nielsen was demoted from manager to assistant manager. The decision to demote Nielsen from her position as manager was made by Tischler and Lein. based on a culmination of the concerns about Nielsen's performance as the manager.
21. When informing her of her demotion from manager to assistant manager, Lein indicated that they did not see "eye to eye." Lein did not specifically say that they did not see eye to eye "on personnel matters." In response, Nielsen said simply, "I agree, we do not see eye to eye."
22. At the time of the demotion of Nielsen from manager to assistant manager, Tischler and Lein had no knowledge of the telephone conversation that Nielsen had with Mr. Sauthoff, and they had no knowledge or belief that Nielsen had indicated to Sauthoff, or anyone else, that she believed that the respondent was expressing bias or discriminating because of age or race and that she was opposed to this.
23. Towards the end of December 2008, around Christmas, and after the point at which Nielsen had been demoted to assistant manager, Nielsen approached Lein in the shower area of the business one day and said to her, without any preamble, "You make me sick." She said nothing else. Neither Tischler, nor anyone else apart from Lein, was present when Nielsen made this statement. Lein did not have any idea what Nielsen meant by the statement, but she was taken aback by it. She did not follow up and ask what Nielsen meant by her statement. She simply left the area.
24. Lein did not perceive or understand Nielsen's "you make me sick" statement as any kind of indication by Nielsen that she believed that the respondent was expressing racial bias or discriminating because of race and that she was opposed to this.
25. Effective January 1, 2009, Hoffman was made manager of the respondent. Her only involvement in the process by which Nielsen was demoted from manager was that Tischler and Lein asked her if she would take over as manager if Nielsen were demoted and Hoffman told them she would.
26. On or around January 5, 2009, Hoffman observed one morning that a file cabinet in which personnel and medical records were kept had been left open the previous night after Nielsen had worked. Other than Nielsen, nobody else had a key to that file cabinet. On January 5, 2009, Hoffman gave Nielsen a verbal warning about the file cabinet having been left open, and she completed a written "Counseling Statement" documenting the warning. The "Counseling Statement" also noted that Nielsen had been failing to timely return calls.
27. It was Hoffman's decision to issue the verbal warning and "Counseling Statement" to Nielsen on January 5. Tischler and Lein did not instruct Hoffman to do so.
28. At the time she issued the verbal warning and "Counseling Statement" to Nielsen on January 5, Hoffman had no knowledge of the late December telephone conversation that Nielsen had with Mr. Sauthoff, and she had no knowledge or belief that Nielsen had indicated to Sauthoff, or Tischler and Lein, or anyone else, that she believed that the respondent was expressing bias or discriminating because of age or race and that she was opposed to this.
29. On or around January 14, 2009, Nielsen failed to follow correct procedures regarding a problem in a credit card transaction as a result of which the problem became uncorrectable, and because of this the respondent lost an amount of revenue. This was brought to Hoffman's attention by Tischler and Lein. All three of them agreed that another "Counseling Statement" should be issued to Nielsen, and that because this represented a second performance-related warning in less than 10 days, Nielsen should be demoted to a stylist.
30. At the time Tischler, Lein and Hoffman decided that Nielsen should be issued another "Counseling Statement" and demoted to stylist, they still had no knowledge of Nielsen's December phone call with Sauthoff and no knowledge or belief that Nielsen had expressed any opposition to perceived age or race bias to Sauthoff or anyone else.
31. In January 2009 the work hours of many of respondents' employees, including Westrich, were being reduced. Because Hoffman was the manager, she was involved in scheduling. Sometime between January 14 and January 17, Westrich confronted Hoffman in the back of the store in a verbally abusive manner, about the fact that her hours had been reduced. Westrich said that the reduction in her hours was uncalled for, and she asked Hoffman "how [she] could live with [her]self." Westrich was "in [Hoffman's] face" about it and caused Hoffman to feel threatened.
32. Hoffman immediately called Tischler and Lein. She was very upset. She reported to them that Westrich had been shouting at her. She told them that she would rather work 7 days a week than deal with someone getting in her face and treating her disrespectfully. Hoffman told Tischler and Lein she thought both Westrich and Nielsen had to go. This reflected Hoffman's view that if they let only one of them go, the other would cause them problems, because they worked together with each other.
33. Because Tischler and Lein were not regularly present in the store, they gave weight to their manager's recommendation. Based on that recommendation and also on their personal observations of and assessment of Nielsen's performance after her demotion, Tischler and Lein agreed with the recommendation. They terminated the employment of both Westrich and Nielsen, effective January 17, 2009.
34. At the time Tischler, Lein and Hoffman decided that Nielsen should be discharged, they still had no knowledge of Nielsen's December phone call with Sauthoff and no knowledge or belief that Nielsen had expressed any opposition to perceived age or race bias to Sauthoff or anyone else.
35. Nielsen filed a charge of discrimination against respondent with the Equal Employment Opportunity Commission, on or about January 20, 2009. It was only after this charge was filed and served on the respondent, that Tischler and Lein first became aware of Nielsen's December 22 phone call with Sauthoff.
36. None of the adverse employment actions taken by Tischler, Lein and Hoffman against Nielsen were motivated by any knowledge or belief on the part of Tischler, Lein and Hoffman that Nielsen had articulated or engaged in any opposition to what Nielsen believed was age or race bias on their part. At the times material herein, neither Tischler, Lein nor Hoffman had any such knowledge or belief.
Based on the Findings of Fact made above, the commission makes the following:
1. Respondent, the hair cutting business doing business as "Sport Clips" and owned and operated by Linda Tischler and Jennifer Lein on Washington Avenue in Racine, Wisconsin, was an employer within the meaning of the Wisconsin Fair Employment Act, and it was the employer of Jenna Nielsen.
2. Sport Clips, Inc., the Texas corporation based in Georgetown, Texas, was not the employer of either Tischler, Lein, or Hoffman, or of Walter Sauthoff.
3. Walter Sauthoff was not the employer of Jenna Nielsen and was not an employee or agent of respondent.
4. Respondent did not discharge or otherwise discriminate against Complainant Jenna Nielsen because she had opposed a discriminatory practice, within the meaning of Wis. Stat. § 111.322(3).
Based on the Findings of Fact and Conclusions of Law made above, the commission makes the following:
The complaint in this matter is dismissed.
Dated and mailed
March 28, 2014
nielsje_rrr : 110 :
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The issue in this case was whether the respondent discriminated against the complainant in retaliation for her having opposed a discriminatory practice.
In order to establish unlawful retaliation, an employee must prove that she engaged in statutorily protected conduct, that the employer took an adverse action against the employee, and that a causal connection exists between these two things. Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989). The required causal connection between the employee's conduct and the employer's adverse action cannot be established, unless it is proved that the employer was aware of the employee's conduct. In order to violate the prohibition against retaliation, an employer must have a belief that the person retaliated against is raising some kind of claim that discrimination is occurring, and is objecting to it. If an employer does not have such a belief, it obviously cannot be motivated by such a belief in conduct it undertakes. Thus, it is an essential element of a claim of retaliation that the complainant prove that the employer was actually aware that the complainant engaged in conduct which was recognizable to and recognized by the employer as opposition to employment discrimination. Cangelosi v. Larson & Associates, ERD Case No. 8821554 (LIRC, Nov. 9, 1990), Norton v. City of Kenosha, ERD Case No. 9052433 (LIRC, Mar. 16, 1994).
The commission decided that unlawful retaliation was not established in this case, because it found as a matter of fact that the only opposition to perceived discrimination Nielsen engaged in was her phone call to Sauthoff, who was not an employee or agent of the respondent, and who also never told the respondent about that call until after Nielsen had been discharged.
The commission's findings in this matter were arrived at based on a careful weighing of all of the evidence in the record. They reflect the commission's resolution of sharp disputes of fact, disputes which necessarily implicated the credibility of a number of witnesses. The versions of the facts offered at hearing by Tischler and Lein and their witnesses Hoffman and Sauthoff, and by Nielsen and her witness Westrich, were inconsistent with one another in many respects. There were multiple disputes over whether, when, and by whom certain things were or were not said. The inconsistencies were irreconcilable: if certain testimony was to be believed, other testimony necessarily had to be disbelieved.
The principal reason for the commission's decision to generally credit the testimony of Tischler and Lein and their witnesses and to disbelieve significant elements of the testimony of Nielsen and Westrich, were that it was persuaded that Nielsen's claims about having engaged in acts of opposition other than her call with Sauthoff were simply untrue, thus calling into question Nielsen's testimony in general. The commission also found no persuasive reason to draw an inference contrary to the undisputed evidence, that Sauthoff did not tell Tischler and Lein about the phone call from Nielsen. The reasons for these things are discussed in more detail below.
Nielsen's claims about other acts of opposition not credible -
The earliest piece of evidence from Nielsen bearing on the question of what oppositional activity she engaged in, is a page of handwritten notes she testified she began keeping at some point (Ex. C9). Nielsen was vague on exactly when she wrote these notes. She acknowledged that the notes were not all made on the date indicated, and that some notes were added later. She acknowledged that it was possible that she had changed some dates.
These notes reflect the incident in which race was referred to in connection with the discharge of Vinson, but they conspicuously do not reflect the claim later made by Nielsen that at that time she made the "makes me sick" statement:
Dec. 22nd fired Josh w/out even telling me about it - after firing Josh Linda said Well I'll tell you one thing we will never hire a black person again, Right Jenni?" Jenni said "What?" Linda said "that we will never hire a black person again" Jenni said "Right"
Dec 22rd (sic) (2) Called Wally told him about what Jenni and Linda said about Westrich & black people and told Jenni that it wasn't right to say rasist and ageist comments when owning a business
The date and the first four words of the "Dec. 22rd" entry ("Called Wally told him") are in blue ink, while the remainder of the entry - including the "told Jenni" part - is in black ink. Nielsen testified that some things in different ink colors were added at a later point in time, and that she could not testify as to when precisely each entry was made. The doubts this raises about when the entry was made, equally give reason to doubt whether the entry is accurate at all.
Even taking this entry at face value, it appears from context that Nielsen was claiming that the alleged "told Jenni it wasn't right" statement occurred after the call to Wally Sauthoff. That means, though, that this could not be a reference to the "makes me sick" comment that Nielsen alleges she made at the time of the race-related statement by Tischler.
Further, the entry says that this statement was made to "Jenni" (Lein) without mentioning Tischler; this is another indication that this is not a reference to the alleged "makes me sick" comment, since at least according to Nielsen, both Tischler and Lein were present when the race-related statement was made.
The point here, is that while Nielsen's case now depends on the proposition that she engaged in protected statement of opposition in the form of her "makes me sick" statement to Tischler and Lein immediately after they made a race-related statement, these handwritten notes, apparently written closest in time to the event, do not mention any such statement. And, while they claim that an apparently different complaint to Lein occurred after the contact with Sauthoff, that entry is subject to doubt.
The next-most contemporaneous piece of evidence from Nielsen bearing on what oppositional activity she may have engaged in, is the "Intake Questionnaire" she completed for the EEOC in connection with the filing of her complaint (Ex. R2).
Notably, only one act of alleged protected oppositional activity is described in the questionnaire: the complaint to Sauthoff. There is no mention of any oppositional statement to Tischler or Lein at the time of and in immediate response to the race-related statement (i.e., the alleged "makes me sick" statement that appears later). There is also no mention of any other alleged protected oppositional activity after the call to Sauthoff, such as is included in the handwritten notes.
The next-most contemporaneous piece of evidence from Nielsen bearing on what oppositional activity she may have engaged in, is her January 20, 2009 complaint (Ex. R3). As in the original handwritten notes, and as in the Intake Questionnaire, there is no mention of Nielsen making her alleged "makes me sick" oppositional statement to Tischler and Lein at the time of and in response to the race-related statement. That is thus inconsistent with the position she took at hearing. But, the complaint also claims an oppositional statement was made to Lein after the contact with Sauthoff ("[Sauthoff] suggested I express my concerns directly to Jennifer, which I later did"). This differs from what was in the Intake Questionnaire on that point, and is also inconsistent with the position she took at hearing.
Further complicating matters, Nielsen testified at hearing that her "I later did" claim in the complaint was actually not correct, and that after her call with Sauthoff, she did not speak to Tischler or Lein about opposing discriminatory practices. Challenged to explain the "I later did" indication in her complaint, she testified that it was just a reference to the discussion in which she was informed of her demotion, in which she was (she asserts) told that they did not see "eye to eye" on personnel matters and Nielsen agreed they were not seeing "eye to eye." After some evasiveness, she eventually acknowledged that in the conversation about the demotion, there was no discussion of age comments or race comments.
But then complicating matters still further, Nielsen testified shortly after this that her handwritten notes' indication that she complained to Lein about age and race remarks after her call with Sauthoff, was true. But after being challenged on this, Nielsen then expressly acknowledged that the testimony she had just given was "different than [her] prior testimony which was that [she] never talked to them after talking to Wally about racist or age comments."
Still later, on re-cross, Nielsen returned to her claim that it was after she spoke to Sauthoff that she told Lein that it wasn't right to say racist and age comments when owning a business. However, she could not remember when this happened, or whether it was by phone or in person, or whether Tischler was involved -- or, for that matter, "anything about that conversation."
In the next-most contemporaneous piece of evidence from Nielsen, a typed version of her handwritten notes (Ex. R6), there is again no mention of Nielsen making her alleged "makes me sick" oppositional statement to Tischler and Lein at the time of and in response to the race-related statement. It vaguely describes an oppositional statement to Lein, but is ambiguous as to when it occurred.
In what is apparently the next-most contemporaneous piece of evidence from Nielsen, a "timeline" document (Ex. R4), the dates of the discussion about Westrich becoming a manager, and of the discharge of Vinson, are (as Nielsen acknowledged at hearing) reversed. In addition, there is no mention of Nielsen making her alleged "makes me sick" oppositional statement to Tischler and Lein at the time of and in response to the race-related statement. Furthermore, there is a description about "talk[ing] to owners about illegality of race and age discrimination," which appears below the description of the Sauthoff call. When asked at hearing why these two entries appeared in the order they did, Nielsen claimed that they too were out of order.
Considering all of the above, the commission is persuaded by the way Nielsen's assertions about alleged acts of protected opposition have shifted, that those assertions are not credible. It finds it most likely, that Nielsen raised objections to alleged discrimination only in her call to Sauthoff, that she assumed he relayed those objections to Tischler and Lein, and that after her discharge when she found out that Sauthoff was not an agent or employee of respondent and did not relay her objections to Tischler and Lein, she attempted to make up other acts of opposition which had not in fact occurred.
Because of this lack of credibility on the central issue in her case, the commission was skeptical of Nielsen's credibility in regard to other aspects of her testimony. Thus, for example, it disbelieved the testimony of Nielsen as to what was said in her telephone call with Sauthoff (regarding, among other things, whether he would talk to Tischler and Lein about what Nielsen had said to him), and credited the testimony of Sauthoff. The commission's findings of fact generally reflect its overall assessment that respondent's evidence is more credible.
Undisputed that Sauthoff did not tell Tischler and Lein about the call -
Whether Sauthoff talked to Tischler or Lein about the call he got from Nielsen, is a simple question of objective fact: it either happened, or it did not. There were only three people who could have had actual knowledge as to whether Sauthoff talked to Tischler or Lein about the call: Sauthoff, Tischler and Lein. All three testified consistently: he did not.
Furthermore, Nielsen acknowledged both prior to (Ex. R7) and at (T. 78) the hearing, that she had no indication or documentation that Sauthoff talked to Lein and Tischler about Nielsen's conversation with him.
It is notable that the ALJ did not make a Finding of Fact that Sauthoff told the owners about the complaints Nielsen made to him in the phone call. It is also notable, that the ALJ limited his Conclusion of Law regarding acts of protected opposition by Nielsen, to her alleged response to Tischler's overt racial reference. All the ALJ did with respect to the issue of whether Sauthoff told the owners about the call with Nielsen, was to write in his Memorandum Opinion that "the weight of the credible evidence suggests that [Sauthoff] did inform Linda Tischler and Jennifer Lein about Jenna Nielsen's complaint."
Whatever the ALJ may have found to be "suggested" by the record, his conspicuous avoidance of either a Finding of Fact or a Conclusion of Law on this issue indicates his recognition that the record would not support an actual finding in Nielsen's favor on that issue. In any event, that is what the commission believes.
Conclusion -
For all the foregoing reasons, the commission finds that respondent did not discharge or otherwise discriminate against Nielsen because she had opposed a discriminatory practice, within the meaning of the Fair Employment Act. On that basis, the complaint is dismissed.
NOTE: Reasons for disagreement with the ALJ -
In connection with the commission's review of this case, an inquiry was sent to the ALJ asking him to advise whether he had any particular demeanor impressions of the witnesses that factored into his decision, and if so to describe them. This inquiry was sent in compliance with the long line of judicial authority that where there is conflicting testimony and the ALJ made findings based upon the credibility of the witnesses, the commission must have the benefit of the ALJ's personal impressions of the material witnesses before it may reverse the ALJ on the basis of contrary findings. See, e.g., Braun v. Indus. Comm'n., 36 Wis. 2d 48, 57, 153 N.W.2d 81 (1967); Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272, 282, 195 N.W.2d 656 (1972).
What the commission must have from the ALJ, and thus what it requests of ALJs when seeking to satisfy this requirement, is what the courts have referred to as "demeanor evidence." Falke v. Industrial Comm., 17 Wis. 2d 289, 295, 116 N.W.2d 125 (1962), Worsch v. DILHR, 46 Wis. 2d 504, 511, 175 N.W.2d 201 (1970). Such demeanor evidence rests on "the impression the fact finder has of [the witnesses'] demeanor," Braun, supra. It is based on the ALJ's ability to observe the "manner of testifying, demeanor, hesitancies and inflections" of the witnesses. Burton v. DILHR, 43 Wis. 2d 218, 223, 168 N.W.2d 196 (1969). It is distinct from matters relating to the content of testimony, such as consistency and plausibility.
So that there would be no uncertainty about what was required, and thus what the commission was therefore requesting, the foregoing was set out in the request to the ALJ. However, the response from the ALJ contained no information about the demeanor of the witnesses when testifying. It contained no indication that anything about the demeanor of the witnesses had any effect on how the ALJ arrived at his assessments of their credibility. It consisted entirely of analysis of the content of the testimony, and description of the ALJ's reasoning from that content as to the inherent believability of that testimony.
Because the ALJ was specifically requested to indicate whether he had any particular demeanor impressions that factored into his decision and if so to describe them, and because in his response he did not indicate that he had any such demeanor impressions, and did not describe any, the commission can only infer that he had none. It infers, in other words, that the ALJ formed no particular impressions as to the credibility of the witnesses by observation of their demeanor, and ended up making his assessment of their credibility based on the content of their testimony alone. (3)
cc:
Jacob E. Miota, Attorney for Nielsen
Oyvind Wistrom, Attorney for Respondent
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