Wis.LIRC ER Decision: Titus, Penelope - May 24, 1994 - Discrimination based on National Guard membership; LIRC Review - consideration of hearing tapes; Procedure - Evidence - admission of tapes of UC hearing for impeachment purposes

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

PENELOPE A. TITUS, Complainant

OAKWOOD LUTHERAN HOMES ASSOCIATION, INC., Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9200129

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on May 14, 1993. Complainant filed a timely petition for review by the commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

The decision of the administrative law judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed May 24, 1994

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

Complainant asserts discrimination based on National Guard membership, based on her claims that various statements were made at various times about her Army National Guard experience. According to the synopsis, Complainant testified that during her interview, Respondent's Director of Nursing, Jan Vinet, stated "well, I see that you have five years experience in the military" and asked her several questions regarding her experience in the military, that during counseling over a dispute between Complainant and another employe, Vinet "said she had heard we were yelling in the room and that she did not think I should be fighting with my coworkers because I was in the military," and that during the meeting regarding her termination Vinet "stated that [she] should not be fighting with co-workers just because of the fact that [she] was in the Army."

By contrast, Vinet testified that she did not recall if she said anything during the initial interview to the effect that most of Complainant's experience in nursing had been in the Army. (If she had made such a statement, it certainly would have been true). Vinet also testified that her statement in the counseling session was made in response to a comment by Complainant to the effect that when she was in the Army they did something a certain way, to which Vinet responded that Respondent had a policy of partnership and coaching and that its philosophy was dealing with one another in a team-oriented place of employment. There is confirmation of this at p. 2 of Ex. 7, Vinet's notes of a September 20, 1991 counseling session in which Complainant made a comment to the effect that she was used to an Army-type environment in which nurses gave the orders and Vinet responded that that would not fit Respondent's partnership environment.

Complainant's testimony as noted above is called into question by other testimony she gave. Following her claims as noted above, she conceded that "Jan would say to me, this isn't the Army, we don't do things the Army way . . . she said in terms of policies and procedures you are not to command people, you are to request them. It was in the context of discussions about the partnership philosophy at Oakwood."

The commission agrees with the evident assessment of the administrative law judge, that Vinet was a more credible witness. The commission sees absolutely no basis for any suspicion that Respondent had any preconceptions about, or bore any animus towards, Complainant because of her Army service. To the extent that the topic came up in the context of supervisors telling Complainant that its policies concerning inter-employe relations were different from the Army, there is simply nothing wrong with this.

Complainant has specifically requested that the Commission review both the actual ERD hearing tapes, and the tapes of her UC hearing (these were marked as Exs. 20-22). However, the Complainant has not raised any assertion that the synopsis is in any respect inaccurate or deficient. The Commission's rules provide, at Wis. Admin. Code Ch. LIRC 1.04:

Review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing as prepared by the department of industry, labor and human relations' administrative law judge who presided at the hearing. Consideration of the hearing tapes or a transcript of the hearing testimony is discretionary with the commission, except as provided under s. LIRC 4.02(2). (emphasis added) (1 )

Because the Complainant has not raised any specific assertion that the administrative law judge's synopsis is inaccurate or otherwise inadequate, the commission has determined in its discretion that it will not review the hearing tapes.

With respect to the UC hearing tapes, Complainant's request that the commission listen to them is connected with her theory that the witnesses against her were lying. However, the ALJ properly ruled that the tapes of the UC hearing would be received into evidence "for the limited purpose(s) to be used by the parties only to (attempt to) impeach the credibility of the witnesses who testified at the April 13, 1993 hearing." Impeachment by reference to prior testimony involves identification of prior inconsistent testimony -- which requires that a particular piece of testimony be identified and compared to subsequent testimony. Where the tribunal has ruled that the prior testimony can be used only for this limited purpose, it means that only the particular pieces of prior testimony identified as inconsistent can be considered.

What the Complainant seeks is not proper impeachment, if it can be called impeachment at all. She wants the commission to go on a fishing expedition, considering all of the testimony at the prior hearing and weighing it generally against subsequent testimony. This is inconsistent with the ALJ's ruling that the prior testimony could be considered only for the "limited" purpose of attempting to impeach credibility. Complainant has not identified any particular piece of testimony at the UC hearing that impeaches any particular piece of testimony at the ERD hearing. The only specific claim Complainant makes about testimony at the UC hearing is that at the UC hearing, the co-employe with whom Complainant fought prior to her discharge testified that she pushed the Complainant and then turned around and supposedly corrected herself and denied this. However, this testimony can not be introduced as "impeachment" because this witness did not testify at the ERD hearing. There is thus no subsequent testimony to "impeach."

The commission sees absolutely no reason to suspect that any discrimination occurred here, and it therefore affirms the decision of the administrative law judge.

110

cc: Michael J. Westcott

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Footnotes:

(1)( Back ) LIRC 4.02(2) provides that in equal rights cases, review by the commission shall be based on the transcript if one has been prepared before the administrative law judge prepared the decision. That did not occur here, so this exception to LIRC 1.04 is not relevant.