MICHAEL W. HAFEMAN, Complainant

COUNTY OF SAUK, 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.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed April 4, 2014
hafemmi_rmd : 110 :

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

This case involves the January 2011 termination of Michael Hafeman from his position as Security Captain/Jail Administrator in the Sauk County Sheriff's Department. Hafeman contended that he was terminated because of his age. The County contended that Hafeman's termination resulted from the elimination of his position as part of a departmental reorganization necessitated by a major budget cut imposed on the department by the Sauk County Board. After a lengthy hearing an ALJ decided that age discrimination had not been established, and Hafeman petitioned for review of that decision by the commission.

Hafeman's request for further hearing -

After Hafeman petitioned the commission for review of the ALJ's decision and a schedule was set for briefing to the commission, he petitioned the Equal Rights Division for rehearing, relying on Wis. Stat. § 227.49. He served the commission with a copy of that rehearing petition, requesting that it suspend briefing until the rehearing petition was resolved by the ERD. For the following reasons, this approach was procedurally incorrect.

Wisconsin's Administrative Procedure Act, Wis. Stat. Chapter 227 ("APA"), provides procedures governing hearings and decisions in contested administrative cases. These procedures are applicable generally in a wide range of agency contexts. Wisconsin's Fair Employment Act, Subchapter II of Chapter 111 ("WFEA"), also provides procedures governing hearings and decisions in contested cases. These procedures are applicable specifically under that Act. See, Wis. Stat. § 111.39.

These two sets of procedures are similar to one another. Under the APA, a hearing examiner acting for an agency holds a hearing and then prepares a proposed decision, parties may then file objections to the proposed decision, and after a review of the record agency officials then make a final decision, which is subject to judicial review. See, Wis. Stat. § 227.43 - 227.52. Under the WFEA, an examiner holds a hearing and then prepares findings and orders, parties may file a written petition for review by the commission of the findings and order, and after a review of the evidence submitted the commission then makes a final decision, which is subject to judicial review. See, Wis. Stat. § 111.39.

The APA and the WFEA also have similar provisions allowing a party who is dissatisfied with a final decision of an agency to seek further hearing. Under the APA, a party aggrieved by a final order may, as an alternative to immediately filing a petition for judicial review, instead file a petition for rehearing with the agency that issued that final order, on grounds which include new evidence. See, Wis. Stat. § 227.49. Under the WFEA, a party may move the commission to set aside, modify or change any decision which has been made by the commission, on grounds which include newly discovered evidence. See, Wis. Stat. § 111.39 (5)(c).

It is important to note, though, that under both of these provisions the procedures are only applicable to action by the appellate level decision-maker, after it has actually issued its final decision and the clock is running to seek judicial review. Nothing in Wis. Stat. § 227.49 indicates that petitions for rehearing can be filed with examiners, particularly after objections have already been filed to their decisions. Furthermore, the procedure for petition for rehearing found in Wis. Stat. § 227.49 is expressly limited to the period "after service of the [final] order." When an agency is still considering the objections that have been raised to an examiner's proposed decision and has not decided what its final decision in the case will be, the limitation to the time period after service of the final order is clearly not satisfied. Similarly, the procedure for a motion to set aside, modify or change a decision found in Wis. Stat. § 111.39 (5)(c), cannot be invoked when the commission is still considering what its final decision in the case will be. For one thing, § 111.39 (5)(c) is expressly limited to setting aside, modifying or changing "any decision made by the commission" and thus does not apply to setting aside, modifying or changing a decision made by an ALJ. For another, once a timely petition for review is filed, the ALJ and the ERD have no authority to act with respect to a case. Treige v. Servicemaster Clean, ERD Case No. CR200802826 (LIRC, June 25, 2010).

Thus, neither Wis. Stat. § 227.49 nor Wis. Stat. § 111.39 (5)(c) are applicable to or provide a basis for Hafeman's petition for the ERD to grant rehearing.

Notwithstanding this, the commission has considered Hafeman's request for further hearing as part of its review of the decision in this case. The commission has held on numerous occasions that when it is reviewing a decision of an ALJ, it has the general authority to remand the case to the ERD for further hearing on grounds of newly discovered evidence. See, e.g., Delgado v. Saint Gobain Performance Plastics Corp, ERD Case No. CR200902721 (LIRC Nov 29, 2013), and decisions cited therein.

The matters Hafeman asserts to be newly discovered evidence justifying rehearing in this case concern an individual named Lewis Lange. According to Hafeman's affidavit, those matters are things he learned about Lange from messages Lange sent in January 2014 to an email list of which Hafeman was a member, and from Lange's profile on the social media website www.LinkedIn.com as it appeared on January 10, 2014. The specific things in those sources that Hafeman asserts are relevant "newly discovered evidence" are that:

Lange is the new Jail Administrator for the County, effective January 1, 2014; and

Lange indicated in response to a question about wages for administrators that "the take home squad has been eliminated," which Hafeman's Petition for Rehearing argues must mean that the County's Jail Administrator does not perform any patrol or traffic functions.

Hafeman's argument about the relevance of these two new facts is that they show that the County's explanation for why it terminated him - particularly explanations focusing on prior law enforcement experience, and on patrol duties as part of the Jail Administrator position - was suspect.

The County argues first in response to Hafeman's petition for rehearing, that he is relying on new evidence which only came into existence after the trial. It argues that this is not what is contemplated by a rule allowing rehearing for newly discovered evidence. It cites Peacock v. Bd. of School Commissioners of the City of Indianapolis, 721 F.2d 210, 214 (7th Cir. 1983) for the proposition that under analogous federal rules (Fed. R. Civ. P. 59, allowing for new trial based on newly discovered evidence, and Fed. R. Civ. P. 60, allowing for relief from judgment or order based on newly discovered evidence), "the evidence also must have been in existence at the time of trial."

The County also argues, based on information contained in an affidavit submitted by Sheriff Richard Meister, that contrary to Hafeman's suggestion that Lange did not have law enforcement officer certification, he in fact did. The County also argues, based on Meister's affidavit, that the hiring of Lange as Jail Administrator beginning in January, 2014, was a special hire that was temporary only, for a period of one year, and was a result of a number of staff shifts having to do with the County Board's approval of a one year Drug Coordinator position.

Hafeman argues further, in his brief to the commission, that there is no authority that its power to remand for rehearing based on newly discovered evidence is limited to situations in which the newly discovered evidence existed at the time of the hearing. He also repeats his argument that the evidence about Lange being made the Jail Administrator is sufficiently strong to reverse or modify the ALJ's decision.

Hafeman argues that the facts developed in Meister's affidavit regarding Lange's temporary assignment to the position are immaterial. He does not, however, dispute those facts.

Having carefully considered the parties' arguments, the commission declines to exercise its authority to remand for further hearing in this case. The question here is whether the circumstances of Lange's assignment as Jail Administrator in January 2014 are persuasive evidence that the County's explanations regarding the elimination of Hafeman's position in January 2011, were pretextual. The commission does not so find. There are not sufficient parallels between the 2014 appointment of Lange to a temporary leadership position due to a distinctive set of funding and staffing circumstances, and the elimination of Hafeman's position three years before, for the commission to conclude that evidence as to Lange's appointment would change the result in this case.

Merits -

Hafeman's argument with respect to the merits is that the ALJ did not consider the evidence that the County's purported non-discriminatory reasons for terminating him were pretextual, but simply took the County's reasons at face value without completing the required burden-shifting analysis. Hafeman argues that the County's actions were inconsistent with its assertion that the reasons for elimination of Hafeman's position were budgetary. He also argues that the County's assertions should be considered pretextual because of inaccuracies in the position statement which was submitted on the County's behalf in the course of the ERD's investigation. He also argues that pretext was demonstrated by inconsistencies in Sheriff Meister's testimony at hearing and in his deposition.

The County argues, in response to the assertion that its claimed reasons were pretext, that the ALJ concluded that Sheriff Meister's expressed rationale for his decision was credible, and that this credibility finding should be given deference. It points out that the commission has held, that "pretext" means a "dishonest explanation, a lie rather than an oddity or an error," citing Bialk v. Aurora Health Care Center, ERD Case No. CR200700068 (LIRC Apr 23, 2010). It points out further that the commission has held, that to establish pretext a complainant must establish that a respondent did not honestly believe its asserted reasons for a decision, citing Engen v. Harbor Campus, ERD Case No. CR200400475 (LIRC Feb 22, 2008). The County in its brief addresses the specific assertions by Hafeman as to alleged inconsistencies in the County's evidence, and it marshals evidence in the record supporting the reasons advanced by the County, that the budget cut necessitated the elimination of positions and that the County was seeking to create efficiencies by assigning certain jail duties to Tobin given his skills. The County also argues that inaccuracies in a position statement to an investigating agency are not necessarily indicative of pretext on the part of the decision-maker.

The commission is satisfied that, contrary to the arguments made by Hafeman, the ALJ did consider the evidence that Hafeman claimed was indicative of pretext. Her extensive and detailed findings leave no doubt that she studied and was quite familiar with the evidence in the extensive record in this case. The commission is satisfied that what Hafeman sees or characterizes as taking the County's reasons at face value, is actually a matter of a trier of fact weighing the evidence and finding one party's case to simply be more persuasive than that of the other party.

Based on its own review, and having considered the parties' arguments and weighed the evidence, the commission agrees with the findings and conclusions of the ALJ. Sheriff Meister was faced with an unprecedented budget cut and the necessity of a reorganization that affected staffing. He did not want to cut services to the public or increase response time, and he wanted to retain enough Field Services staff to deal with the County's summer influx of visitors. He had a preference for retaining staff with Law Enforcement Officer certification. Weighing many different scenarios, he settled on one that involved the elimination of Hafeman's position.

The ultimate issue here, is whether Hafeman established that Meister's expressed rationale for his decision was in fact a dishonest one, a reason that Meister did not honestly believe. The commission was not persuaded of that fact. Therefore, it affirms the decision of the ALJ.

NOTE: The parties' arguments below addressed the issue of whether the "hazardous occupations" exception to age discrimination found in Wis. Stat. § 111.33(2)(f), was applicable given the facts here. The ALJ expressly noted that she did not address that issue because she had decided that the County articulated a legitimate, non-discriminatory reason for terminating Hafeman and he failed to prove that reason was a pretext.

In their arguments to the commission the parties have continued to argue this issue. However, the commission agrees with the ALJ that since consideration of the merits justifies dismissal of the complaint, it is unnecessary to address the applicability of the exception.

cc:
Nicole Marklein Bacher, Attorney for Complainant
Kristofor L. Hanson, Attorney for Respondent

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