Wis.LIRC ER Decision: Connor - September 27, 1999 - Age discrimination; Retaliation - employer awareness of; Evidence - weight

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

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, it has reviewed the evidence submitted to the ALJ, and it has consulted with the ALJ concerning his impressions as to the credibility of the witnesses. Based on its review, the commission now makes the following:

1. Heckel's, Inc. operates several restaurants in the Eau Claire area. One of them is located in Chippewa Falls, and is also sometimes referred to as the Heckel's in Hallie. The Chippewa Falls Heckel's will be referred to herein simply as "Heckel's".

2. In August 1993, Elizabeth Connor, who was 50 years old and had worked as a waitress much of her adult life, applied for and was hired for a job as a waitress ("server") at the Heckel's.

3. Connor interviewed with, and was hired by, Rose Harmon, who was the general manager there at the time. In the spring of 1994, Rose Harmon was replaced as general manager of Heckel's by Ken Cross, who continued to be general manager at all material times thereafter.

4. When Connor was hired, other servers also working at Heckel's included Lori Butak and Tracey LaNou, who had both begun their employment there sometime in 1991, and Robin Scott, who had begun her employment there sometime in 1993. Pam Berg was also a server at Heckel's.

5. The exact ages of Butak, LaNou, Scott and Berg are not of record. Connor estimated that Berg and LaNou were in their early-to-mid-twenties. Connor indicated that she was "old enough to be [Scott's] mother."

6. At Heckel's, the dining room area was divided into "sections." Normally, there are four sections; at busy times, a fifth section may be created. On any given day, a server would work in one particular section.

7. In addition to waiting on customers, servers at Heckel's were also responsible for performing certain other miscellaneous tasks, such as changing over the salad dressings, stocking the cooler, cutting up chicken, restocking the ice cream and cleaning the chocolate machine. These tasks were referred to as "side work." The servers would attend to these tasks when they had time free from waiting on customers.

8. The sections into which the restaurant was divided for purposes of assignment of servers each had approximately the same capacity for seating of customers. However, because of differences between the sections in terms of their location in the restaurant in relation to the entrances and whether they were in a smoking or non-smoking area, there were some differences in the number of customers who would prefer to be seated in those sections. These differences were partly seasonal and partly daily or weekly. There were also differences between the sections in terms of the side work attached to them. There were also differences between the sections in terms of their location inside the restaurant relative to the kitchen, salad bar, coffee machines, and other features, with some sections being closer to these features and some being farther from them; these differences in location within the restaurant could have an impact on how much time it took a server to wait on the tables in her section.

9. It was asserted by some witnesses that because of the differences in the number of customers who would prefer to be seated in the different sections of the restaurant at different times and in different seasons, the potential for earning tips varied from section to section, but no actual evidence of tip earnings was offered to support this assertion. However, it is clear that for whatever reason, at least some of the servers at Heckel's - including Connor - had definite preferences as to which sections they worked in.

10. In 1995, Robin Scott became a lead server trainer. In this position, she had responsibility for making assignments of servers to sections, and she also had responsibility for advising and directing servers on how they performed their jobs.

11. Also in 1995, Lori Butak, who had previously become an assistant dining room manager, became dining room manager. In this position, she had responsibility for scheduling servers, as well as other, general supervisory and management authority over servers.

12. Tensions developed between Connor and LaNou and Berg. Scott was friendly with LaNou and Berg, at least at the workplace if not otherwise, and tensions also developed between Connor and Scott. Connor felt that Butak was also a friend of LaNou, Berg, and Scott, and a member of their "clique," and tension developed between them as well.

13. Prior to February 6, 1995, there was no formal system of assignment of sections; instead, servers would simply take whichever of the available sections they wanted when they arrived for work. Connor believed that this system was not fair, and she complained about it. On February 6, 1995, apparently at least in part in response to Connor's complaints, Heckel's initiated a system by which specific assignments of sections would be made to servers. It was also a part of the system initiated at this time, that particular side work was attached to particular sections. The assignment of sections was to be made by Robin Scott.

14. Beginning on the same day as this change in the system for assignment of sections and side work, Connor began to keep a "log" or journal in which she kept notations about things that were occurring at work which concerned her.

15. Connor understood that the new system for assignment of sections was that they were to be rotated. After February 6, 1995, she was evidently dissatisfied with the way in which the system was implemented, in that she felt that only a "weak attempt" was being made to rotate the assignments.

16. For purposes of scheduling shifts for servers, Heckel's maintained an assignment book. Servers who wanted time off on a particular day could request that time off by making a written notation of their request in that schedule book. However, this only constituted a request; the servers could not determine their own schedules and could not be guaranteed the days off they requested, because needs for servers varied and the number of servers who might be requesting the same day off varied.

17. Heckel's has performance standards which servers are expected to meet in the service of customers. It is expected that customers will be greeted and seated immediately, that water and coffee will be offered to seated customers within 30 seconds, that customers' meal orders will be taken within two minutes, that food will be delivered to tables immediately when it comes out of the kitchen, and that the server will check back with the customer as to whether everything was satisfactory within "one minute or one bite."

18. During 1995, persons in Heckel's management observed, and also had customer complaints, that Connor was not meeting the performance standards for servers. Robin Scott, as well as Lori Butak, both observed problems of this nature, and they communicated their concerns to Ken Cross. Cross also had direct experience with customer complaints about Connor, through his work on the floor as a host. These complaints concerned Connor not getting customers' orders taken in what they felt was an adequate time, not delivering food correctly, and getting the orders wrong.

19. Connor acknowledged that she had some "bad days" and that there may have been what she described as "the ordinary complaints" from customers about the service she gave them. She described some customers, who wanted their food "very hot" or "exactly as they want it," as "real fussy."

20. In the spring of 1995, Connor went to Ken Cross and complained to him about how she was being treated at Heckel's, mentioning that she felt that Robin Scott was "picking on her." Connor did not mention age discrimination to Cross or make any assertion to him that she believed she was being discriminated against because of her age, and Cross did not understand or believe Connor to be making any sort of assertion about age discrimination. Cross indicated that he would look into Connor's complaints and attempt to take care of it.

21. Connor's complaints in the spring of 1995 had to do with scheduling practices at Heckel's, including assigned days and whether she was getting the days off that she requested, as well as with assignment of particular sections.

22. During 1995, the tension between Connor and other staff, particularly Berg, LaNou, Scott, and Butak, grew more severe. Connor believed that favoritism was being shown in scheduling, assignment of sections, and other matters including the seating of customers in their sections. Connor was also convinced that Scott, Butak and Ken Cross were unfairly criticizing her and making her life difficult.

23. In September, 1995 Connor asked Lori Butak if she could have more days off on weekends. Connor asked that she not be scheduled for work on Sundays, or if she were scheduled on Sunday, that she not be scheduled to work on Saturday. Sundays were typically a "fast paced," very busy day at Heckel's. Servers are generally scheduled to work on weekends. Butak tried to accommodate Connor's request but was not always able to do so because of the need to staff the restaurant and to attempt to fairly accommodate other employe's requests for days off as well.

24. On September 28, 1995 Connor met with Cross to discuss with him her desire for more time off on Sundays and weekends and her complaints about scheduling and section assignment matters. In this discussion, Connor did not mention age discrimination to Cross or make any assertion to him that she believed she was being discriminated against because of her age, and Cross did not understand or believe Connor to be making any sort of assertion about age discrimination.

25. In October, 1995, Cross and Lori Butak met with Connor to counsel her about what they felt were problems with her service on customers. They mentioned customer complaints to her, as well as disorganization at her station. They mentioned that they wanted to try to address the problem by having Butak work with Connor. Within a few days of this meeting, Cross used a "Warning Notice" form used by Heckel's to write up notes memorializing the meeting. He wrote "Betty Connors" on the line on the form designated for "employe signature," in order to record what employe was being written about. Cross made no attempt to imitate Connor's signature and did not intend to have it taken as Connor's signature. Connors prepared this note for his own records; he did not provide a copy to Connor. He considered the meeting with Connor to have been a verbal warning and used the "Written Warning" form as a format for keeping a record of that verbal warning.

26. At around the time of the meeting described above at which Connor was counseled about problems with her service of customers, a decision was made to limit Connor to assignments to sections 1 and 4 of the restaurant. Sections 1 and 4 were selected because they were closer to the places where a server needed to go while waiting on customers and it was felt that this would make it easier for Connor to meet Heckel's performance standards with respect to timely service of customers. Connor was assigned exclusively to sections 1 and 4 between about October 22, 1995 and November 26, 1995.

27. Connor did not like being assigned exclusively to sections 1 and 4, and she was not receptive to the Butak's efforts to counsel her on how to do her job. Her attitude towards Heckel's management was adversary. Problems continued with bickering and spiteful interactions with other servers. On or about December 9, 1995, Cross met with Connor and counseled her on continuing service problems and problems with staff. As with the counseling in October, Connor considered this to be in the nature of a verbal warning, but he used a "Written Warning" form to memorialize the meeting for his own records, writing Connor's name on it without any intent that it would be taken as her actual signature, and keeping it without giving Connor a copy.

28. During the fall of 1995, John Eastman was an assistant dining room manager at Heckel's; as such, he was in a supervisory position over Connor. On one occasion, in early December, 1995, Connor verbally assaulted Eastman in an angry fashion, cursing, and calling him (among other things) "lazy." Eastman reported this incident to Ken Cross shortly after it occurred, and Cross then called Connor into his office and spoke to her about it, telling her that her behavior had been inappropriate and criticizing her attitude. Cross memorialized this incident on a "Written Warning" form in the same fashion as he had the two earlier verbal warnings concerning Connor's performance problems.

29. There was a fairly regular turnover rate among servers at Heckel's. During the period from September through November, 1995, the names of approximately 6 persons stopped appearing on weekly assignment sheets for servers, while the names of 13 other persons began appearing on those sheets for the first time.

30. For most of November, 1995, there were 30 or 31 persons whose names appeared on weekly assignment sheets at Heckel's. However, the number of persons who were scheduled as servers then dropped, with 5 persons (Andrea, Stacey, Sean, Chong, and Jennifer N.) no longer appearing on schedule. Schedules in December 1995 showed the names of only 27 or 28 persons.

31. Michelle Martell was hired as a server at Heckel's in early December, 1995. She was 32 years old at the time. She was hired because Heckel's needed more servers on staff, particularly in view of the then-upcoming holiday season. Heckel's was not fully staffed at this time, even after Martell was hired; instead, it had fewer people on the schedule than had been on the schedule in November.

32. Martell was not hired with the intention that she would be a "replacement" for Connor. Ken Cross never told John Eastman, or anyone, that she was being hired to replace Connor.

33. The number of days Connor worked per week always varied somewhat. This was in part a result of requests for particular days off. The scheduling practices at Heckel's could not guarantee a server who requested a particular day off, that in addition she would still be able to receive the full number of days of work in the remaining days of that week, as there was no way such a guarantee could be made without creating unfairness in the scheduling of other servers. In the weeks during the fall of 1995 for which records were available, Connor's days of work were as follows

Week	# of days Connor worked in that week	# of days Connor specifically requested not to work in that week
Sep. 17-23	4	1
Oct. 1-7	6
Oct. 8-14	5
Oct. 22-28	5	1
Nov. 5-11	5
Nov. 12-18	5	1
Nov. 19-25	4	2
Dec. 10-16	4
Dec. 17-23	4	2
Dec. 24-30	3	1 (restaurant also closed on Christmas) (1 )
Dec. 31-Jan. 6	5	1

There was only a slight reduction in the number of days per week worked by Connor during the period following the hire of Michelle Martell. Considering the slight nature of this reduction, its apparent connection (at least in part) to an increase in the number of days on which Connor could not work due either to holidays or her own requests for days off, and total number of servers on staff during this period, there is no basis for finding that the hire of Martell had anything to do with the number of days Connor worked.

34. On or about December 18, 1995, Connor telephoned Bruce Weegman, Heckel's Operations Manager and complained about how she was being treated at Heckel's. She mentioned conflicts she was having with other employes and her belief that she was being treated unfairly with respect to scheduling. Connor did not mention age discrimination to Weegman or make any assertion to him that she believed she was being discriminated against because of her age, and Weegman did not understand or believe Connor to be making any sort of assertion about age discrimination. Weegman indicated to Connor that in his position he tried to stay out of the middle of scheduling issues, but that he would contact Cross to discuss the matter.

35. Weegman communicated to Cross the substance of the conversation he had with Connor. Cross understood the substance of Connor's complaints to be related to scheduling issues and fairness in scheduling. Cross did not have any understanding that Cross had complained to Weegman about age discrimination. Cross did not thereafter reduce the amount of work Connor was scheduled for or take any other action against her in retaliation for her having contacted Weegman.

36. On or about January 7, a customer told Connor that he did not want her as his server as she had been rude to him on a previous occasion. Connor did not remember having waited on him before. She said that she would get someone else to wait on him, and Robin Scott then acted as the customer's server.

37. The customer's statements and tone of voice were sufficiently noticeable that a number of staff in the restaurant, including Lori Butak, became aware of this interaction. The most credible testimony about this incident, that of Lori Butak, established that the man was visibly upset and angry and speaking loudly enough that she could hear him from around a corner. There were other customers in the restaurant at the time.

38. Connor believed that this event was all a sham and that she had in fact never waited on the man before and that he had "set her up," in cooperation with Robin Scott, to embarrass her. This belief was completely unfounded. The customer was a credible witness. He had been waited on by Connor previously on two occasions, he had felt that she had been rude and inattentive on those occasions, and he felt this strongly enough that he was willing to make a scene in a restaurant, embarrassing his family who were with him, to express how he felt. Connor's conviction that this was a sham event, staged as a result of a conspiracy between this person and other staff of Heckel's, was a result of her unwillingness to take seriously any suggestion that she had performance problems, and of her unrealistic belief that criticisms of her performance by her managers at Heckel's were groundless.

39. By on or about January 11, 1996, Cross had come to the conclusion that the problems with Connor's service of customers and with her relations with others at Heckel's were not going to improve, and he decided to terminate her. He informed Connor of this in a meeting held on or about January 11, 1996.

40. At the time of his meeting with Connor in January, 1996, Ken Cross arranged to have Randy Tessmer, who was the general manager of another one of the three Heckel's restaurants in the Eau Claire area, interview Connor for a position at his (Tessmer's) restaurant. Cross told Tessmer that he was looking for another position for Connor because of conflicts that had developed between Connor and other employes at his (Cross') restaurant and because his (Cross') restaurant was too busy for Connor to keep up. Cross' thinking, which he mentioned to Tessmer, was that Tessmer's operation was less busy and that perhaps Connor would do better in such an atmosphere.

41. In response to Cross' request, Tessmer did interview Connor, at his restaurant. He informed her that at that time all he had available was evening hours, and Connor said that she could not work evening hours. Because of Connor's indication that she would not work evening hours nothing came of this meeting.

42. Neither Cross, nor Weegman, nor Lori Butak, nor Robin Scott, were motivated by any animus against Connor based on her age in any action they took or decision they made concerning her employment at Heckel's. To the extent that there was some degree of personal animosity which had developed at Heckel's between Connor and other employes, including Scott and Butak, which may have infected management decisions to some extent, this animosity appears to have arisen from factors other than age.

1. The respondent, Heckel's, is an employer within the meaning of the Wisconsin Fair Employment Act.

2. The complainant, Elizabeth A. Connor, is an employe within the meaning of the Wisconsin Fair Employment Act.

3. Heckel's did not discriminate against Connor because of her age, within the meaning of Wis. Stat. � 111.322 (1), with respect to the terms and conditions of her employment, her termination, or any other decision made by Heckel's concerning her employment.

4. In her communications with Heckel's, Connor did not express opposition to discriminatory practices under the Wisconsin Fair Employment Act or make a complaint, testify or assist in a proceeding under that Act, within the meaning of Wis. Stat. � 111.322 (3), and Heckel's did not understand her to be doing so. Heckel's did not discriminate against Connor within the meaning of Wis. Stat. � 111.322 (3), with respect to the terms and conditions of her employment, her termination, or any other decision made by Heckel's concerning her employment.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:

The commission carefully reviewed the transcript of the testimonial evidence and the exhibits in this case. It also conferred with the administrative law judge, who discussed with the commission his impressions as to the credibility of the witnesses. The question before the commission, is whether Elizabeth Connor established, by a preponderance of the evidence, that age, and expressions of opposition to discriminatory practices under the Fair Employment Act, were the reason for adverse actions (including termination) taken against her by Heckel's. The commission does not believe that Connor carried her burden of proof in this matter.

It is abundantly clear from the record, that there was a group of servers with whom Connor did not get along. It is also clear from the record, that there was significant rancor and hostility between Connor and these other staff members about such bread-and-butter issues (for servers) as scheduling and section assignments. Scheduling and section assignments were controlled by members of management, and so it is not surprising - indeed, it seems almost inevitable - that the conviction arose that favoritism was being shown. In this case, Connor became convinced that favoritism was being shown to her adversaries. Distrusting the motives of her supervisors and managers, she did not accept the criticisms they brought to her attention concerning her performance. With these developments, the trajectory of the relationship took its predictable course.

However, the evidence does not establish persuasively that Connor was being treated unfairly with respect to scheduling and assignments. The evidence is also far from demonstrating that the criticisms Heckel's raised as to Connor's performance were unfounded.

More important, though, the evidence is altogether inadequate to establish a prohibited motive for the decisions made and actions taken by Heckel's in these areas. Apart from the bare fact of the approximate ages of the persons involved in this case, there is no reliable evidence that age was a motivating factor. There is also no reason to suspect that there was any motive to retaliate against Connor for having raised complaints about perceived age discrimination, because there is no reliable evidence that Connor ever did raise complaints about age discrimination. Against this lack of reliable evidence of unlawful factors, there is a great deal of evidence suggesting that other factors - such as workplace "territorialism" and personal cliquishness, to mention just a few - were very much in play in the case of a number of persons. Based on the experience it has obtained in the course of reviewing a great number of cases involving employment situations, the commission is aware that such factors are unfortunately common in workplaces.

The difficulty presented in cases such as this, is in distinguishing between the possibility that discrimination was at work, and the possibility that it was these other kinds of workplace dynamics that caused the problems seen.

It is not adequate for a complainant to present evidence which simply raises the suggestion or the possibility that a prohibited motivation was at work. A complainant bears the burden of demonstrating by a preponderance of the evidence that the respondent's actions were based upon prohibited factors. See, Lowe v. City of Appleton (LIRC, January 11, 1995). For number of reasons, which are reflected both in the Findings of Fact set forth above as well as in this Memorandum Opinion, the commission was left with the definite conviction that the evidence failed to meet Connor's burden of establishing by a preponderance of the evidence that the treatment she complained of was engaged in because of age or because she had expressed opposition to age discrimination.

The major considerations which led to the commission's decision are discussed below.

The alleged age-related comments -- The Administrative Law Judge found that Lori Butak and Robin Scott "frequently" made age-related comments about Connor. The commission cannot agree with this finding.

Even if the testimony of Connor's witnesses was accepted at face value, it would be incorrect to characterize what they described as "frequent". The only testimony about alleged age-related comments, was that one witness testified that she once heard Robyn Scott say that Connor was "old and slow" (T. 97), and that another witness testified that he once heard Robyn Scott refer to Connor with the comment "Look at grandma go" (T. 183). This is not "frequent."

More important, the commission finds that this testimony about these limited occurrences, can not be accepted at face value, and is lacking in reliability.

Valerie Miller's testimony about the alleged "old and slow" comment was inconsistent. Initially, she asserted without equivocation that she heard Connor being referred to as old, "a couple of times". On further questioning, though, she retreated, both in terms of the certainty of her testimony and in terms of how many such incidents there were. She qualified her testimony, explaining, "[t]here might have been once when I remember Robin saying that she was old and slow." Then, on continued questioning, she then retreated further, expressly indicating that she did not, in fact, recall any other such cases. Her initial over-statement of the frequency with which she claims she heard such remarks suggests a desire to shade her testimony in favor of the complainant, a characteristic which does not inspire confidence in her truthfulness or the accuracy of her testimony.

Another witness, John Eastman, testified that he remembered Robin Scott saying about Connor, "Look at Grandma go." However, the commission does not credit this testimony, because Eastman, too, was clearly going out of his way to provide testimony helpful to the Complainant. A notable instance of this occurred when he was asked whether Ken Cross, Lori Butak and Robin Scott ever made any specific comments to him that they didn't like Connor because of her age, and he responded by testifying:

Of course, Eastman had been asked if there had been comments made about Complainant's age. His volunteering of testimony about an incident in which a comment was made about Complainant being slow, was non-responsive. "Slow" is not a surrogate for "old." (3 ) It appears to the commission that Eastman was actively "reaching" for a way to bolster the Complainant's case. The commission was left with the definite impression that Eastman was advocating for Connor, and for this reason it did not have great confidence in the accuracy of his testimony.

The testimony from other witnesses for Connor that they "felt" that there was age bias at Heckel's is unsupported opinion which the commission finds unpersuasive. It appears likely that these opinions were offered in a spirit of "support" similar to that which was obvious in John Eastman's effort to find evidence of age-related comments where they had not been made. It also appears likely that some were based on the same type of ill-advised conflation of "age" with "slowness" that Eastman engaged in.

For these reasons, the commission found that the record contained no reliable evidence of any statements reflecting bias against Connor because of her age. Thus, the only evidence in the case which can be said to raise any suggestion that age was a factor in how Connor was treated, was the bare fact of her age and the ages of other persons involved in the case.

Complainant's failure to offer her "log" - At the hearing, Complainant affirmatively indicated that beginning on February 6, 1995, she started a "log or journal" specifically to keep a record of things which were happening at work. She acknowledged having made "same-day" contemporaneous notations in this log, and it appears likely that she in fact made such contemporaneous notations about many events which occurred at work, because during her testimony she repeatedly made references to particular events, literally years in the past at the time of the hearing, having occurred on specific dates, times and days of the week.

An item of greater potential relevance to proof of this kind of discrimination claim could hardly be imagined. The fact that written notations about alleged discriminatory events occurring at work are made contemporaneously with the events can be something that gives the notations great weight as proof; see, Saltarikos v. Charter Wire Corp. (LIRC, 07/31/89). (4 )

However, even though she had this document with her at the hearing, and even though direct conflicts arose at hearing between the testimony offered by Respondent's witnesses and Connor's testimony about certain events which she may well have made notes about in her "log," Connor chose not to offer the "log" as evidence supporting her version of the disputed events. In the proper circumstances, the failure of a party to present material evidence within their control permits an inference against such party. See, e.g., Carr v. Amusement, Inc., 47 Wis. 2d 368, 375, 177 N.W.2d 388 (1970). The commission believes that the circumstances here justify an inference that Connor elected not to offer her "log" because it would have undercut, in some fashion, her testimonial versions of a number of materially important interactions.

The issue of retaliation - For an employer to violate the prohibition against retaliation, it must have a belief that the person retaliated against is raising some kind of claim that discrimination is occurring. If an employer does not have such a belief, it obviously cannot be motivated by such a belief in the conduct it undertakes. This is an essential element of a claim of retaliation. Aken v. Blood Center of Southeastern Wis. (LIRC, 12/23/98), Cangelosi v. Robert E. Larson & Associates (LIRC, 11/09/90). It is not disputed that Connor complained to both Cross and Weegman about how she was being treated at work, but that is not sufficient to establish a prima facie case. Many things can and do happen in employment situations which employes may perceive as unfair and which they may complain about, but which are not described by the employee as involving, and are not understood by the employer as involving, any issue of discrimination based on a status protected under the Wisconsin Fair Employment Act.

Connor asserted that on March 22, 1995 she told Cross that she was being "discriminated against, harassed and in general made to feel that [she didn't] belong," and that on September 28, 1995 she met with Cross to discuss the matter of her wanting Sundays off and that in the course of their discussion she told him that she thought there was "discrimination" going on because "others" were allowed scheduling considerations and she was not, and that on December 18, 1995 she talked by telephone with Respondent's Operations Manager Bruce Weegman and asked him to investigate the "harassment and discrimination and abuse" she said she was experiencing. These assertions were directly and forcefully denied by Cross and Weegman insofar as they involved the mention of discrimination and harassment: Cross testified that the words discrimination and harassment were "never" used by Connor, and Weegman testified that there was "absolutely not" any mention of discrimination or harassment. A credibility issue was thus presented.

The commission found the testimony of Cross and Weegman to be more credible and persuasive than that of Connor. As Weegman noted, an allegation of unlawful employment discrimination is sufficiently serious that it will almost certainly catch the attention of most employers. In addition, Connor was unpersuasive on this point. Even in her testimony as to what she complained about to Cross and Weegman, she did not mention "age." The vague and generic nature of her testimony suggests that her complaints may have been at least as vague. In addition, the commission believes that if Connor had in fact raised an issue of age discrimination with Cross or Weegman on the dates as to which she testified, she would probably have made some kind of notation to that effect in her "log." Her failure to offer her "log" into evidence when this direct conflict developed between her testimony and that of Cross and Weegman as to what she had said on those occasions, suggests that the notes in her "log" would not have supported, or would even have undercut, her testimony.

Credibility of witnesses -- The commission conducted a conference with the Administrative Law Judge in which he described to and discussed with the commission his impressions as to the credibility of the witnesses who testified in this matter. The commission carefully considered the Administrative Law Judge's views.

This case turned on credibility. The contrast between the picture offered by the witnesses for Elizabeth Connor and the picture offered by the witnesses for Heckel's in this case, was striking; they might as well have been describing different cases. Furthermore, almost every witness seemed to be motivated to some degree to advocate for the position of one of the two "sides."

The administrative law judge noted this as well: in his consultation with the commission, he indicated that he felt that Audrey Schellin was the only witness who did not seem to have "an ax to grind". The commission agrees generally with this assessment, disagreeing only with the administrative law judge's feelings on Audrey Schellin: the commission felt that even she was notably sympathetic with Connor's "side." (5 )

Witnesses who have developed a conviction as to the correctness of their "side's" view of the case, frequently allow this conviction not only to color their interpretation of events where the facts are essentially undisputed, but also in some cases to color their actual recollection of and description of the facts. This was evident to some extent on both "sides" in this case. (6 ) However, weighing all of the evidence together the commission felt that the general outlines of the picture painted by Heckel's was the more reliable one. The commission felt that the testimony of the employer's witnesses as to their concerns about the complainant's performance and about the reasons for the employer's actions, was believable and was not pretextual. The commission was also left with the definite impression that the testimony offered by some witnesses for the employe, about alleged age-related comments, was unreliable, as was much of the testimony of Connor herself.

Some of the major considerations which played a part in the commission's eventual assessment of credibility are discussed above in this Memorandum Opinion; others are implicit in the commission's Findings of Fact. It should be understood that where the commission has made a finding on a point as to which there was conflicting testimony from witnesses -- for example, the question of whether Ken Cross told John Eastman that he was hiring Michelle Martell to replace Connor - it has considered and resolved the credibility dispute which lies behind that issue based on these specific considerations and on consideration of the record as a whole, after hearing from and considering the information about credibility impressions conveyed by the administrative law judge.

cc:
Peter M. Reinhardt, Attorney for the Complainant
Victoria L. Seltun, Attorney for the Respondent

Appealed to Circuit Court. Affirmed March 6, 2000. Appealed to the Court of Appeals. Affirmed per curiam Dcember 27, 2000.

T. 182 (emphasis added). Noting that the conventional expression about molasses in January has to do with how slow it is, the commission suspected that the transcript was in error in showing Eastman using the words "old" and "older." In his consultation with the commission, the administrative law judge stated that he also believed that the transcript was in error. The hearing tapes were subsequently reviewed, and this disclosed that the transcript was indeed in error, and that Eastman had used the words "slow" and "slower". The commission suspects that this was simply a case in which the transcriptionist expected to hear the words "old" and "older" based on the question which had been put to Eastman, and that she then "heard" what she expected to hear.

(3)( Back ) The reliance on stereotypes about the characteristics of people in protected categories - such as, for example, the stereotype that old people are slow -- is one of the evils which equal rights laws are intended to prevent. However, to carelessly accept the proposition that an otherwise category- neutral description of a person (for example, "slow") is automatically to be understood as a surrogate for a reference to their membership in the protected category for which that description is a stereotype (i.e., "old") would turn the principles of equal rights laws on their head, by acknowledging and relying on the very stereotypes which the law is intended to do away with. The commission does not accept the stereotype that old people are slow, and it will therefore not presume that a comment about someone being slow is a disguised reference to their being old.

(4)( Back ) Connor's counsel alluded to the importance which could be attached to contemporaneous notes. In questioning Bruce Weegman about the stark conflict between his testimony and the testimony of Connor on the question of whether Connor raised the issue of age discrimination when she spoke to him in December, 1995, he suggested that given that it was several years ago and that Weegman didn't take any notes, Weegman could not be sure that Connor had not in fact used those terms; he also suggested that Weegman's testimony was suspicious in view of the fact that he did not have any notes. Yet it appears likely from the specificity of her testimony as to the circumstances of this very conversation, that Connor herself had made notes concerning that conversation in her "log" - notes which she chose not to offer as evidence even though she had them with her at the hearing.

(5)( Back ) Schellin showed the same tendency to see age bias in behavior that had no connection to age except for the fact that it involved a younger person doing something with respect to her that she did not like. Thus, she responded to a question about whether Robin Scott treated her differently because of her age, by describing actions by Scott in which Scott either ignored her or stepped in to perform functions which Schellin felt were part of Schellin's job, but which had no arguable connection to age apart from the fact that Scott is younger and Schellin is older. (T. 190-91). This was made clear by the fact that, when asked to explain why she thought that this had to do with her age, she responded, "I feel like she thinks I'm not doing my job". (T. 195). As Eastman had done, she responded to a question about whether she ever heard age-specific comments directed at Connor, by describing something which was not an age-specific comment. (T. 193). Also, the extreme definiteness with which Schellin answered questions from Connor's counsel about her observations as to Connor's work performance, characterized by the free and frequent use of absolutes such as "never" and "always", slid into indefiniteness when Heckel's counsel was asking questions about whether she had ever complained to Cross or Butak about things Connor was not taking care of, or about Connor being behind ("I don't ever recall", "I don't recall that," "I don't think I ever have"; T. 193). Schellin was an acquaintance of Connor since before Connor worked at Heckel's and considered her a friend. (T. 191-92). It is clear that Schellin, just as much as the other witnesses, "had an ax to grind."

(6)( Back ) For example, the commission felt that the testimony of Robin Scott concerning the incident in which a customer refused to be waited on by Connor was definitely exaggerated in its description of the customer's behavior (the testimony of Lori Butak was, the commission felt, the most reliable on this point).