Wis.LIRC ER Decision: Roncaglione - August 11, 1993 - Procedure -- where transcript prepared after ALJ's decision is demonstrably inaccurate, LIRC will use the synopsis; Retaliation - only "participation", not "opposition", is protected under the "omnibus" anti-retaliation provision, sec. 111.322 (2m)

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

LOUIS RONCAGLIONE, Complainant

PETERSON BUILDERS, INC., Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9111425

In a number of complaints filed with the Equal Rights Division of the Department of Industry, Labor and Human Relations, complainant Louis Roncaglione raised allegations that respondent Peterson Builders, Inc. had discriminated against him because of handicap, sex, and marital status, and retaliated against him for exercising certain rights, in connection with his employment and its termination. In initial determinations issued on January 24, 1991 and September 3, 1991, an investigator for the division concluded that there was no probable cause to believe that handicap discrimination or retaliation had occurred, but that there was probable cause to believe that sex and marital status discrimination occurred. (Proceedings involving the sex and marital status discrimination issues are ongoing, and are not involved in this appeal.)

Roncaglione filed an appeal of the determination that there was no probable cause to believe that handicap discrimination or retaliation occurred. Following notice and hearing, an administrative law judge (ALJ) for the Equal Rights Division issued a decision on May 22, 1992, affirming the investigator's no probable cause findings. Complainant filed a timely petition for review of that decision. Both parties have submitted written arguments.

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

FINDINGS OF FACT

1. Respondent Peterson Builders, Inc. is a business located in Sturgeon Bay and is engaged in design and manufacture of ships.

2. Complainant Louis Roncaglione was employed by Peterson until his employment was terminated in July, 1990. Roncaglione was an engineer.

3. Prior to May 8, 1990, Roncaglione and a co-worker, Keller, purchased flowers for another co-worker, Geneva Macco, on "Secretary's Day." At around the same time, Roncaglione asked Macco if she would like to go for a ride with him on his motorcycle. On another occasion around that time, Roncaglione asked Macco if she wanted to stop at a Sturgeon Bay tavern with him after work. Roncaglione knew that Macco was married to another of Peterson's employes. Then on May 8, 1990 Roncaglione gave Macco a handwritten note which apologized for his behavior and which would also be reasonably understood as suggesting that Roncaglione was experiencing some strong emotional feelings concerning Macco. Macco complained about Roncaglione's conduct to Director of Engineering Georg Thomas.

4. On or about May 8, 1990, Thomas met with Roncaglione and told him that his conduct towards Macco was upsetting to her and unwanted by her. He told Roncaglione that in the future he was to limit his contacts with Macco to those necessary to carry out his job duties. Roncaglione said that he would comply and that he wanted the matter kept confidential.

5. On or about June 29, 1990, Roncaglione gave Macco a small paperback book on tempero-mandibular joint syndrome (TMJ), a medical problem which Macco had previously indicated generally in the office that she suffered from, as well as a copy of a chapter from another book which discussed TMJ. Roncaglione also gave Macco a note suggesting that she read the chapter on stress in the book he had given her. This caused Macco to become very upset, and she again complained to management about Roncaglione's actions.

6. On or about June 29, 1990, Roncaglione met with Thomas, Vice President of Operations Jack Soderlund, and Director of Human Resources Charles St. Pierre, regarding Roncaglione's conduct towards Macco. During the meeting Roncaglione was informed that he would not be allowed to continue work in the Engineering Department, where Macco worked, and that he would either be transferred to another position in another department if a suitable position could be found, or terminated if no suitable position could be found. Following the meeting, Roncaglione commenced a previously-scheduled two week vacation. He never returned to active employment with Peterson.

7. At the time that the decision was made on June 29, 1990 to remove Roncaglione from the Engineering Department and to terminate him unless a suitable position could be found for him in some other department, neither St. Pierre, Soderlund, Thomas, nor any other agent of Peterson had any knowledge or belief that Roncaglione suffered from any kind of handicap.

8. Following the meeting of June 29, 1990, St. Pierre attempted to locate a position outside of the Engineering Department which would be suitable for Roncaglione. He was unable to locate such a position. His inability to locate such a position was in large part due to the fact that Roncaglione had insisted that he was only interested in a position which would allow him to continue doing the EMI (electro magnetic interference) testing which he had been doing, and the fact that there were no positions outside of the Engineering Department involving a significant amount of that work.

9. During the second week of July, Roncaglione and St. Pierre had a telephone conversation in which Roncaglione informed St. Pierre that he had been diagnosed as suffering from bi-polar disease and invited St. Pierre to contact his physician to confirm this. St. Pierre contacted Roncaglione's physician by telephone and had this diagnosis confirmed.

10. On July 20, 1990, St. Pierre wrote a letter to Roncaglione informing him that his employment was being terminated. He did not mail the letter on that date because it was his practice not to send written notice of termination without first speaking to the employe involved to give them oral notice of the termination. On or about July 24, 1990, St. Pierre spoke to Roncaglione by telephone and advised him that he had been terminated. Following this, he mailed the termination letter.

11. Neither the information St. Pierre received from Roncaglione and Roncaglione's physician about Roncaglione's diagnosis of mental illness, nor any perception or belief St. Pierre formed as a result of receiving that information, were determining factors in the decision to terminate Roncaglione. Roncaglione was terminated because his conduct towards Geneva Macco led to a decision to remove him from the Engineering Department and because it thereafter proved impossible to find a suitable position for him in some other department.

12. Roncaglione never filed a complaint or otherwise attempted to enforce any right under sec. 103.10, Stats., nor did he ever testify or assist in any action thereunder.

13. Roncaglione never took any action which reasonably could have been understood by any agent of Peterson as intended to be opposition to an alleged violation of the Wisconsin Fair Employment Act, nor did he at any time prior to his discharge file a complaint, testify in or assist in any proceeding thereunder.

Based on the Findings of Fact made above, the commission makes the following:

CONCLUSIONS OF LAW

1. There is no probable cause to believe that Peterson Builders, Inc. discriminated against Louis Roncaglione because of handicap within the meaning of secs. 111.32(8), 111.321, 111.322(1) and 111.34, Stats.

2. There is no probable cause to believe that Peterson Builders, Inc. discriminated against Louis Roncaglione because he filed a complaint or attempted to enforce a right under sec. 103.10, Stats. or testified or assisted in any action thereunder, within the meaning of sec. 111.322(2m), Stats.

3. There is no probable cause to believe that Peterson Builders, Inc. discriminated against Louis Roncaglione for opposition to discriminatory practices under the Wisconsin Fair Employment Act or for participation in any action thereunder, within the meaning of sec. 111.322(3), Stats.

Based on the Findings of Fact and the Conclusions of Law made above, the commission now makes the following:

ORDER

That the complaint and amended complaints of Louis Roncaglione be dismissed insofar as they allege discrimination because of handicap and because of alleged participation in enforcement of rights under sec. 103.10, Stats. or alleged opposition to discriminatory practices and participation under the Wisconsin 'Fair Employment Act.

Dated and mailed at Madison, Wisconsin, August 11, 1993.

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

Introduction -- This case arises out of a decision by Peterson Builders, a shipbuilding company, to discharge one of its engineers, Louis Roncaglione, in the summer of 1990.

Roncaglione was a staff engineer for Peterson Builders. Geneva Macco was a clerical who worked for the engineers. She was married, and her husband also worked at Peterson, as complainant knew. In a nutshell, this case is about the fact that complainant was fired after engaging in certain conduct towards Macco which upset her.

The issue presented here is whether there is probable cause to believe that discrimination occurred. In Boldt v. LIRC and GM, 173 Wis. 2d 469, 475-76, 496 N.W.2d 676 (Ct. App. 1992), the court of appeals clarified the nature of the probable cause burden by indicating that it requires more proof than an "any credible evidence" standard, and that the burden of showing probable cause rests on the complainant. Explaining that it is not a preponderance of the evidence test, the court nevertheless suggested that it was a burden to prove that discrimination "probably" occurred. Id., at 475.

Review Procedure -- This case presents a controversy involving the state of the record, which must be resolved as a preliminary to deciding the substance of the case.

Following issuance of the ALJ's decision on May 22, 1992 and the filing of a timely petition for commission review, the ALJ duly prepared a summary of proceedings, which was served on the parties (along with a schedule for briefing to LIRC) on September 16, 1992. In addition, the respondent made arrangements to have a transcript prepared. However, the transcript was not prepared before the ALJ issued his decision, and its use in reviewing the ALJ's decision is therefore discretionary with the commission. Crawford v. School District of Beloit (LIRC, November 8, 1991). In such situations, the commission has generally decided whether or not to use transcripts based on its assessment of whether they are complete and accurate. Where it is demonstrably inaccurate or incomplete, the commission will not use a transcript and will look to the summary of proceedings instead. Crawford, supra, Crosby v. Intertractor (LIRC, May 21, 1993).

The transcript in this case appears on its face to be inadequate, in that it contains a very large number of indications that parts of the testimony are omitted because they are inaudible. Comparison of the transcript in this case to both copies of the hearing tapes and the original hearing tapes confirms that the transcript is inadequate. It is in fact much worse than it appears, particularly with respect to the testimony of the employer witness. Much of his material testimony simply does not appear in the transcript. The reason for this becomes apparent when the copies of the hearing tapes, from which the transcript was prepared, are compared with the original hearing tapes. The copies are inadequate, rendering much of the testimony unintelligible. The transcript is thus also inadequate. If this case ever finds its way to court, a new transcript will undoubtedly have to be prepared, from the original tapes or from adequate copies thereof.

The problems with the record have been noted in the arguments submitted by Roncaglione. He objects that the transcript is inadequate and urges that the tapes be considered. Because a summary has been prepared, however, it is not necessary that the commission rely on the tapes. Based on partial review of the tapes, there is no reason to suspect that the summary of proceedings is any less complete and accurate than the typical summary of proceedings coming out of the Equal Rights Division.

Handicap -- one issue raised by Roncaglione's complaints is whether there is probable cause to believe that he was discharged because of handicap. Roncaglione failed to offer any competent (i.e., nonhearsay), expert evidence that he actually suffers or suffered from a handicapping condition, and therefore if his charge of handicap discrimination is to have any validity it must be by way of a theory that the employer acted on the basis of a belief that he suffered from such a condition. This would allow invocation of the "perceived as having such an impairment" branch of the definition of "handicapped individual" in sec. 111.32(8)(c), Stats. However, Roncaglione does not claim that the employer had or would have had any reason to have such a perception at any time prior to some point in the second week of July, when the employer was first told that Roncaglione had been diagnosed as suffering from bipolar disease. Therefore, there could have been no discrimination because of perceived handicap in any decision made prior to this-because there was no perception that there was a handicap.

Roncaglione had been informed on June 29 -- when it is not possible that any "perceived handicap" discrimination was involved -- that he might be moved to another position or terminated in view of the complaints that had been made about his behavior by Macco. He never returned to work with the employer after this.

While there was a period of some days after St. Pierre had received the information about the diagnosis of complainant, during which there was apparently still some thought that another position might be found, and before the termination had been confirmed in writing, this of course does not in itself establish probable cause that a perception that complainant had bipolar disease was the reason that he was discharged rather than being put in another job. It merely establishes that it is possible that it was (in contrast to the time period before St. Pierre learned of the diagnosis, when it is obviously impossible that any decision was motivated by a belief about complainant being handicapped). But as the court of appeals noted in Boldt, the concept of probable cause focuses on probabilities, not possibilities. 173 Wis. 2d at 475.

The ALJ clearly accepted as true, St. Pierre's claim that he decided on June 29 (before he knew of any alleged handicap) that complainant would be removed from the Engineering Department, and that he thereafter terminated him not because of whatever he had heard from complainant's doctor but simply because he could find no other position for him. The commission agrees that the evidence of this is persuasive.

First, the conclusion that respondent did indeed reach a definite decision on June 29 to remove complainant from the Engineering Department is compelling. Respondent had explicitly warned complainant on May 8 to refrain from relating to Macco on anything other than a professional basis, and complainant had nevertheless communicated with Macco about a personal matter (her health) within a short time. Complainant's claim that he was told at the June 29 meeting that options at that point included Macco being transferred or losing her job, is not found credible. Disregarding this claim, what remains is complainant's agreement with respondent that he was told at this time that he would either be transferred to a different position or be fired. Thus, complainant's own testimony confirms that, well before it is possible that any handicap discrimination could have occurred, the respondent had made a very serious decision to permanently remove complainant from the Engineering Department and in fact to terminate him if no other position could be found.

Second, the conclusion that the knowledge of complainant's diagnosis did not affect St. Pierre's eventual termination of complainant is also supported by the evidence. Here, the matter turns on the credibility of St. Pierre's testimony to that effect. Boldt held that it was appropriate for the commission to assess credibility when deciding if there is probable cause. 173 Wis. 2d at 475. Considering all of the evidence, the commission agrees with the evident assessment of the ALJ, that St. Pierre was credible. His testimony as a whole painted a consistent picture of an attempt to deal with a difficult situation in which an employe 's repetition of disturbing and unwelcome conduct toward a co-worker precluded returning the employe to his old position, while the employe's limitations (including self-imposed limitations) made it impossible to find another position for him. The intervention of a diagnosis of mental illness was very much toward the end of that process, when much of what turned out to be the result had essentially already been determined.

The commission therefore affirms the conclusion that there is no probable cause to believe that St. Pierre's awareness of complainant's diagnosis of bipolar disease was a determining factor in his decision to discharge complainant.

Retaliation -- This case was treated by the ERD as presenting an issue of the type that is frequently referred to by the term "retaliation." The exact nature of the allegation was never clarified, either by Roncaglione or by the ERD in its investigation and adjudication of the case. The ALJ evidently considered that it had to do with retaliation for requesting medical leave. As the discussion which follows will show, a great deal more analytical rigor is now required when dealing with these issues, than has been shown here.

It used to be that the only "anti-retaliation" provision in the WFEA was what is now found in sec. 111.322(3), Stats. prohibiting discrimination because a person has opposed any discriminatory practice, or because a person has made a complaint, testified or assisted in a proceeding, "under this subchapter" (i.e., the WFEA). This section protects both "opposition," which involves an employe's "self-help" actions to oppose what they believe to be a discriminatory practice and which is only protected if it is supported by a good faith belief that discrimination in fact occurred; and "participation," which involves actual proceedings before the ERD (either filing a complaint or assisting in one) and which is absolutely privileged against retaliation. See, Notaro v. Kotecki and Radtke (LIRC, July 14, 1993).

This picture has been complicated by enactment of sec. 111.322(2)(m), Stats. as part of the WFEA in 1989. This is an "omnibus" anti-retaliation provision which makes it unlawful under the WFEA to engage in retaliation against employes for certain types of conduct they have engaged in with respect to laws other than the WFEA. These other laws include a range of labor standards enactments, the wage claim statute in chapter 109, and the Family and Medical Leave Act, sec. 103.10, Stats. The anomaly thus created is that these other laws, although they are within the program responsibilities of the Equal Rights Division, are not within the program responsibilities of LIRC. Thus, for example, LIRC does not review the ERD's decisions under the FMLA, but because certain kinds of retaliation relating to the FMLA are now defined as discrimination under the WFEA, LIRC will get those cases.

Further complexity is introduced by the way the Legislature has defined the types of retaliation that are covered under this omnibus protection in the WFEA. The FMLA, for example, has a section that prohibits "opposition" (sec. 103.10(11)(b), Stats., which provides that "no person may discharge or in any other manner discriminate against any individual for opposing a practice prohibited under this section"). The WFEA omnibus anti-retaliation provision, by way of contrast, addresses itself to "participation"--there is nothing about opposition, and all that is prohibited is discrimination because an individual has "filed a complaint or attempted to enforce any right under the statute or testified or assisted in any action or proceeding held under or to enforce any right under the statute." The "enforce any right under the statute" language seems, from the context, to refer to formal attempts by the filing of a complaint--i.e., "participation." This impression is strengthened by the fact that the FMLA provides in sec. 103.10(11)(c) that the omnibus anti-retaliation provision in WFEA "applies to discharge or other discriminatory acts arising in connection with any proceeding under this section [i.e., the FMLA]." This impression, is also strengthened by consideration of legislative history. As originally enacted, the FMLA made it a prohibited act to discharge or discriminate against an individual for doing any of four separately described and numbered things: (1) opposing a practice prohibited under the FMLA, (2) filing a charge or instituting a proceeding, (3) assisting in an investigation or proceeding under the section, and (4) testifying in an investigation or proceeding under the section. However, when the Legislature amended the WFEA to add the omnibus antiretaliation provision, it also amended the FMLA at the same time and in the same bill to bring it to its present form, in which only the "opposing a practice" language remains as an act prohibited under the FMLA, and in which "other acts arising in connection with any proceeding under this section" are placed under the omnibus anti-retaliation provision in the WFEA. The original distinction between "opposition" and "participation" is thus maintained.

The commission therefore concludes that only retaliation because of acts of participation under the listed statutes is made unlawful under the omnibus anti-retaliation provision of the WFEA, sec. 111.322(2m), Stats.

For this reason, it affirms the dismissal of Roncaglione's complaint of "retaliation." There is no evidence that he ever filed a complaint with the ERD alleging a violation of the FMLA, at any time prior to any of the acts he complains of. He therefore was not retaliated against for filing a complaint or attempting to "enforce" any right under the FMLA. Whether he was "retaliated against" for asking the employer for leave under the FMLA, or for objecting in some informal fashion to the employer's denial of such leave, is irrelevant, because such actions are not within the scope of sec. 111.322(2m), Stats. The commission has no authority to determine if there was any kind of independent violation of the FMLA. Therefore the retaliation claim must fail insofar as it is premised on sec. 111.322(2m), Stats. There also was no proof that prior to the time of the acts complained of here, Roncaglione ever communicated to respondent that he thought he was being discriminated against under the WFEA. Therefore, there is not even a prima facie case of conventional WFEA retaliation under sec. 111.322(3), Stats.

Roncaglione's Arguments--Roncaglione has raised a large number of points of argument.

Complainant argues that the ALJ erred in finding that he was not handicapped or perceived as handicapped. Because he failed to prove by non-hearsay evidence that he actually suffered from a handicap, that finding is clearly correct. It is a closer question whether the ALJ should have found that there was a perceived handicap, since it is clear that St. Pierre had been told that complainant's doctor had diagnosed him as suffering from bipolar disease. However, the issue is made moot by the finding that any perception St. Pierre had as to Roncaglione's mental health was not a, determining factor in the termination decision anyway.

Complainant makes much of a change in terminology used by respondent. Initially, in the meeting of June 29, the term "sexual harassment" was used. Then later, according to complainant, St. Pierre modified this, telling complainant that he was not being accused of sexual harassment, but merely harassment. Then, complainant claims, after St. Pierre heard of the diagnosis of bipolar disease from complainant's doctor, he returned to assertions that complainant was engaging in sexual harassment. This argument is largely if not entirely irrelevant. St. Pierre apparently did modify his terminology at some point, but he appears to have done so only because his investigation had revealed that the actions by complainant had no overtly sexual content. Indeed, this confusion about terminology is built into the law and is completely understandable. "Sexual harassment" is defined as "unwelcome sexual advances, unwelcome physical conduct of a sexual nature or unwelcome verbal or physical conduct of a sexual nature." Section 111.32(13), Stats. The phrase, "of a sexual nature," is not free of ambiguity. Despite the fact that repeatedly asking a co-employe out on dates and trying to engage them in purely personal interactions may not be overtly "of a sexual nature," most people recognize that where it is unwelcome and is nevertheless persisted in, it can cause the same kind of tension and discomfort as overtly sexual advances. The commission can understand a lay person's uncertainty about whether to call this kind of unwelcome attention "sexual harassment" or just "harassment." Nevertheless, St. Pierre made it clear to complainant exactly what it was that he was doing that Macco did not like and he made it clear that it was viewed as a ,form of harassment that made Macco's work environment a hostile and unpleasant one for her. The commission does not believe that the change in terminology has any significance to the question of whether there is probable cause to believe that handicap discrimination occurred.

Roncaglione claims that the discharge letter he eventually received on July 25 was not prepared on July 20, the date it bears, but only after his telephone conversation with St. Pierre on July 24, and that it was back-dated. His proof is the reference in the second paragraph of the letter to his having been given ample opportunity to explain his side of the issues in a meeting. Complainant links this to his claim that on July 24, in his telephone conversation with St. Pierre, he allegedly complained that he had not been given notice of the charges or an opportunity to be heard; he asserts that the statement in the letter is an obvious response to this. However, in respondent's exhibit 2, complainant's letter of October 18, 1990 to the investigator (which is of course much closer in time to the events recalled), complainant states that in a telephone call on July 18, when he was back in Sturgeon Bay to pick up his mail and pay some bills, he told St. Pierre that he was considering bringing a lawyer to a contemplated meeting with St. Pierre because they had given him no fair and equal opportunity to address the complaint. (1 ) Also in respondent's exhibit 2, complainant describes the July 24 telephone conversation with St. Pierre in which he was told he was terminated, and in this description there is no reference to complainant telling St. Pierre that he had not been given notice of the charges or an opportunity to be heard.

Thus, the statement in the July 20 letter appears to have been in response to complainant's assertions in the July 18 telephone call that he had not been given an opportunity to present his side of the story. There is no reason to suspect back-dating. There is reason to question the accuracy of complainant's testimony, however, because he clearly confused the date and sequence of certain events in a way that fit his interests in the case. The dating of the letter (July 20) as compared to its date of receipt by complainant and his undisputed testimony that it was not postmarked until July 24 or 25, is credibly explained by St. Pierre's indication that, although he prepared the letter on July 20, he did not mail it right away because it was his practice never to terminate someone without first speaking to them and that he had been unable to reach complainant by telephone until July 24.

Another incident pointed to by complainant as evidencing bias by St. Pierre against him because of handicap is St. Pierre's conduct in allegedly calling the Sturgeon Bay police to report that complainant was potentially dangerous. St. Pierre concedes that he did do this, even arranging to have police present when complainant came to clean out his desk after his discharge. However, the events post-date the decision to discharge. Also, St. Pierre credibly explains what he told the police by reference to things he was told by complainant's family doctor, as well as things he was told by two other employes of respondent. His testimony to this effect is not objectionable as hearsay because it' is not offered to prove the truth of what these people said, but merely to prove that they said these things to him, thus tending to establish what his motives were. St. Pierre testified that when complainant's doctor spoke to him (this would have been on approximately July 12) he told him that complainant had bipolar disease, that he was suicidal at times, that he drank to control his manic behavior, and that under the influence of alcohol he could become violent. St. Pierre also testified that two Peterson employes (who he named) told him that complainant had been thrown out of bars in Sturgeon Bay for getting drunk and starting fights, that he was a serious gun collector with a number of semi-automatic weapons, and that he had lots of gun magazines and talked about guns a lot.

Complainant argues that the ALJ erred in refusing to accept into evidence the written "interrogatory" of a co-worker, Alton Smith. Complainant cited sec. 804.08, Stats. as authority for admission of this document, but the problem is that that section deals with written interrogatories to parties, and Smith is not a party, but simply a witness. Non-party witnesses can be deposed in writing under sec. 804.06, Stats., and certain uses may be made of their responses, but complainant failed to meet the procedural requirements for this method of discovery. The document he offered was clearly inadmissible hearsay.

Complainant argues that there should have been a full hearing, i.e., that the ALJ should not have dismissed his complaint at the end of his case in chief. However, the evidence complainant presented was simply inadequate to support a finding in his favor, and the ruling was therefore appropriate. If complainant believed that certain testimony or evidence from respondent would have supported his case, he could have presented it himself during his case in chief.

Complainant has raised an argument that he has discovered certain "new evidence" in the course of discovery in a related proceeding. The "new evidence" is a statement by St. Pierre concerning the facts of the case which allegedly contradicts some statement St. Pierre made in his testimony at the hearing in this matter concerning who he spoke to when investigating complainant's conduct toward Macco. At hearing, St. Pierre testified that in his investigation he talked to Macco and her husband and to Soderlund, the vice president. Complainant asserts that St. Pierre testified, that this was a "complete list" of the people he talked to, but the summary of proceedings does not reflect this. Complainant then compares this to an excerpt from a recent interrogatory answer:

"From talking to an employe at the time he was. employed by PBI, Lynn Kelley indicated that he participated in providing flowers. This is the only employe that we are aware of based on our investigation."

Complainant argues that this proves that St. Pierre lied at hearing about who he spoke to in the investigation, thus depriving complainant of notice that another person had been spoken to, and thus resulting in his not calling this person at hearing.

This argument is wholly unconvincing. First, the hearing statement and the subsequent interrogatory statement are both quite ambiguous. Second, there is a logical flaw in complainant's argument that because he was denied this information (about St. Pierre having spoken to Keller) at hearing, he therefore did not call Mr. Keller and could not explore the ramifications of this new witness. There is no evidence that Keller was even at the 'hearing. He was not on respondent's witness list. While he was on complainant's witness list (along with 18 other persons), there is no evidence that complainant actually had him present at the hearing. St. Pierre's testimony at the hearing could not have "caused" complainant to lose or otherwise forsake an opportunity to question Keller, unless complainant had actually arranged to have Keller present, had been planning to call him prior to the point at which the testimony was given, and decided not to because of the testimony. Third, there is simply no indication that it would have made any difference whether Keller testified. Complainant's claim that he could have pursued "ramifications" is no substitute for a specific articulation of what new evidence he believes Keller could have offered and how it would require a different outcome in the case. The whole question is marginal at best.

Roncaglione is also claiming that respondent failed to fully comply with one of his requests for discovery prior to the hearing in this matter, withholding certain information which he has now become aware of. Roncaglione had sought "copies of all memos, speeches or other communications regarding the management code issued by Peterson Builders" and "all management code files kept by Peterson Builders or the management code committee." Complainant now asserts that a recent interrogatory answer shows that respondent had but failed to disclose, videotapes of presentations that had been made in meetings to members of management concerning the "management code."

This is simply irrelevant. It relates to the effort by Roncaglione to establish that he had some sort of contractual right under the management code and under his contract of employment with Peterson Builders to a fuller and more complete investigation than the one he was given. This was not an issue that was subject to the jurisdiction of the Equal Rights Division, in that it was essentially a matter of his contractual rights against his employer as opposed to his legal rights to be free of discrimination. The commission cannot see how it has any significant connection to the issues presented in this case. For all practical purposes, the "investigation" conducted into complainant's conduct towards Macco, and the determination to remove him from the Engineering Department and to terminate him if no acceptable alternative position could be found, occurred prior to the time that there was any knowledge on the part of respondent of an alleged handicap.

NOTE: The commission had no disagreement with the material findings of fact made by the ALJ. It has issued its own findings of fact rather than adopting his in order to express more fully its reasons for agreeing with the result he arrived at, and also in an effort to express the findings more in the form of the ultimate findings of fact anticipated by sec. 227.47, Stats.

110

Appealed to Circuit Court. Affirmed May 6, 1994.

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Footnotes:

(1)( Back ) Considering the content of this communication, the commission concludes that it does not constitute protected "opposition" under sec. 111.322(3), Stats. because it does not state or imply any belief that an unlawful act of discrimination has occurred under the WFEA.