Wis.LIRC ER Decision: Cortez - January 31, 2001 - Procedure - proof - Respondent's burden of producing a legitimate, nondiscriminatory reason for its actions can be met by facts presented as part of complainant's case-in-chief; Procedure - evidence - hearsay - ALJ did not err in instructing Complainant she could not testify to matters she did not have personal knowledge of - Complainant failed to show what evidence this prevented her from presenting

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

MARGARET M CORTEZ, Complainant

CITY OF MILWAUKEE
DEPARTMENT OF NEIGHBORHOOD SERVICE
f/k/a DEPARTMENT OF BULDING INSPECTION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199802055, EEOC Case No. 26G981502

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The second sentence in paragraph #8 of the administrative law judge's FINDINGS OF FACT is deleted and the following is substituted therefor:

"At least two of the decision-makers, Ms. Marrari and Mr. Seager, were aware of the complainant's prior discrimination complaint against the respondent."

2. Paragraph #9 of the administrative law judge's FINDINGS OF FACT is deleted and the following is substituted therefor:

"On or before June 11, 1998, the respondent decided to promote Clara Kittrell, age 39, to the position of Office Assistant III, instead of the complainant. The respondent considered Ms. Kittrell to be the best qualified candidate for the job."

DECISION

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

Dated and mailed January 31, 2001
cortema.rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review the complainant states that she understands it was her burden to show the respondent's reasons were pretextual, but argues that where the respondent failed to come forth with its reasons for promoting someone other than the complainant, the dismissal of her complaint was improper. The commission has carefully considered the complainant's argument, but finds it unpersuasive. While the complainant's understanding of the burdens of proof in a discrimination case is essentially correct, the respondent's burden of producing a legitimate, nondiscriminatory reason for its actions can be met by facts presented as part of the complainant's case-in-chief. See Browder v. Best Foods United of CPC North America (LIRC, January 9, 1987). In this case, the complainant introduced into evidence two documents prepared by the respondent's attorneys, letters to the Equal Rights Division dated July 20, 1998 and March 30, 1999, which were sufficient to meet the respondent's burden of production. In those documents the respondent explained that the decision to promote Ms. Kittrell, rather than the complainant, was based upon an assessment of the relative strengths of the candidates, and that it considered Ms. Kittrell to be the best qualified. The respondent indicated that Ms. Kittrell had broad experience working on the city's Graffiti Hotline and that, while this was not a key factor in her selection, the decision to offer her the promotion was motivated by the high degree of skill and initiative she demonstrated in that position. In its written explanation, the respondent conceded that the complainant had more experience with the Department of City Development, but denied that this greater experience rendered her better qualified for the job. Having put this information into the record herself, the complainant cannot now argue that she was unaware of the respondent's rationale for choosing to promote Ms. Kittrell instead of her or that she lacked an opportunity to present evidence in rebuttal. However, while in her petition the complainant asserts that Ms. Kittrell was less qualified for the promotion, she did not introduce evidence on this point at the hearing, nor did she present any other evidence warranting a conclusion that the respondent's stated reasons for choosing not to promote her were a pretext for discrimination.

In her petition the complainant also argues that the administrative law judge gave a directive that she could only testify about matters of which she had firsthand knowledge, a ruling which she maintains was inappropriate because the United States Supreme Court has held that indirect and/or circumstantial evidence can be used as proof of job bias. The complainant contends that the administrative law judge's erroneous directive prevented her from introducing evidence that was necessary to her case. Again, this argument is unpersuasive. While it is true that discrimination may be proved through indirect evidence, this does not mean that a finding of discrimination can be based solely upon hearsay or evidence which otherwise lacks foundation. A witness is only competent to testify about those matters about which he or she has firsthand knowledge, and it is not an error to preclude testimony on matters about which a witness lacks such knowledge. For that reason, and because the complainant has failed to explain what evidence she would have introduced had she been permitted to do so, the commission sees no reason to conclude that the administrative law judge made any evidentiary rulings that were erroneous or which prejudiced the complainant in her ability to present her case.

NOTE: The commission has modified the administrative law judge's decision to correct an erroneous finding that none of the decision-makers were shown to be aware of the complainant's prior discrimination complaint. The complainant contended that some of those individuals knew about her complaint, and in a written submission to the Equal Rights Division, which is part of the record, the respondent conceded this was the case. The commission has also modified the decision to include the respondent's rationale for the adverse employment action. These modifications notwithstanding, the dismissal of the complaint is affirmed.

cc: Leonard A. Tokus

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