Wis.LIRC ER Decision: Tate - May 16, 1995 - Procedure - right to further hearing based on 'newly discovered evidence'; Procedure - witnesses - subpoena quashed

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

KEVIN TATE, Complainant

ROUSE-MILWAUKEE INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9151019, EEOC Case No. 26G910917

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in this matter. The complainant filed a timely petition for commission review of the ALJ's decision. In addition, the complainant filed a motion to supplement the record.

The commission has considered the complainant's petition and motion and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission denies the motion to supplement the record. The commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. In paragraphs 2, 8, 9, 16, 18 and 19 of the administrative law judge's FINDINGS OF FACT the name "Krueger" is deleted and the name "Kreger" is substituted therefor.

2. In paragraph 6 of the administrative law judge's FINDINGS OF FACT the name "Krueger" is deleted and the name "Kroeger" is substituted therefor.

3. In paragraph 14 of the administrative law judge's FINDINGS OF FACT the name "Kroeger" is deleted and the name "Kreger" is substituted therefor.

4. The following paragraph is inserted following paragraph 19 of the administrative law judge's FINDINGS OF FACT:

"20. The decision to discharge the complainant was not motivated by anger or resentment against the complainant for having opposed a perceived practice of employment discrimination."

5. Paragraph 20 of the administrative law judge's FINDINGS OF FACT is renumbered to paragraph 21.

DECISION

The motion to supplement the record is denied. The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed May 16, 1995
tate.dec : 164 : 9

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

Motion to Supplement Record -- This motion centers around a police memo book which was allegedly maintained by Officer Bates and which contains a brief entry regarding the shoplifting incident occurring at Grand Avenue Mall on April 3, 1991. The memo book, which was neither requested by the complainant during pre-hearing discovery nor listed by the complainant as a potential hearing exhibit, became an issue at the hearing only after Officer Bates testified on cross-examination that, if he had ever kept a memo book with respect to the shoplifting incident, it had since been destroyed. In the motion to supplement the record the complainant's attorney alleges that, subsequent to the hearing and the issuance of the administrative law judge's decision, it was discovered that Officer Bates did, indeed, possess a memo book which contained an entry with respect to the incident in question. The complainant's attorney characterizes the memo book as "newly discovered evidence" which demonstrates the respondent's intent to discriminate against the complainant and which was deliberately concealed by the respondent and its counsel. Consequently, it is argued that the complainant is entitled to reopen the case for further discovery and a new hearing.

The commission has considered the complainant's argument and finds it lacking in merit. In order to justify further hearing on the basis of newly discovered evidence, the complainant must show that the evidence is sufficiently strong to reverse or modify the administrative law judge's decision and that the evidence could not have previously been discovered by due diligence. Whipp v. DePaul Rehabilitation Hospital (LIRC, February 24, 1988). The evidence in question does not meet this standard. Officer Bates' memo book contains a concise and nondescriptive entry with respect to the April 3 shoplifting investigation, in which no reference is made to the complainant's presence or participation. Although the complainant asserts that Officer Bates would have made a note of his interference in the investigation had it occurred and that the memo book constitutes essential evidence to impeach Officer Bates' testimony that the complainant obstructed an investigation, this argument is based on pure speculation and the contents of the memo book neither strengthen nor contradict Officer Bates' testimony that the complainant obstructed his investigation. More importantly, because Officer Bates had absolutely no involvement in the decision to discharge the complainant, his subjective beliefs about the complainant's conduct are simply not relevant. Indeed, the only relevant question is whether the respondent's decision to discharge the complainant was motivated by prohibited factors, a matter which does not require an assessment of Officer Bates' credibility. The uncontroverted evidence presented at the hearing established that Officer Bates notified the respondent that the complainant had obstructed a police investigation. In making its decision to discharge the complainant, the respondent did not review Officer Bates' memo book or any other police record related to the incident, but relied solely upon Officer Bates' oral statements regarding the complainant's conduct. Consequently, even if the memo book could somehow be used to establish that Officer Bates fabricated his allegations of obstruction on the part of the complainant, this would not discredit the respondent's explanation that it believed Officer Bates and that its decision to discharge the complainant was based, at least in part, on Officer Bates' complaint. The commission therefore concludes that, had the complainant's "newly discovered evidence" been known to the administrative law judge at the hearing, it would have had no bearing whatsoever on the outcome of this case. Accordingly, the complainant's request to reopen the record is dismissed.

In his brief in support of the motion to supplement the complainant's attorney espouses a separate theory for the granting of relief. The complainant's attorney avers that respondent's counsel offered material evidence at the hearing (i.e. Officer Bates' testimony that he destroyed the memo book), came to know of the falsity of that evidence, and failed to take reasonable remedial measures. It is argued that counsel's actions in this regard constituted a violation of the Code of Professional Responsibility, from which the commission should infer that the respondent's proffered reason for the complainant's discharge was a pretext for discrimination. This argument is unpersuasive for a number of reasons. To begin with, Officer Bates' testimony regarding the memo book was not material, as it is not probative of any matter at issue in this case, and because the testimony regarding the memo book was not put into the record by the respondent, but was elicited by the complainant's counsel on cross-examination, the commission sees no reason to conclude that the respondent offered any false evidence. Moreover, even if the complainant could demonstrate that respondent's counsel committed a violation of the Code of Professional Responsibility, such allegations should be raised before the appropriate professional authority rather than the commission, which has no authority to address matters involving professional ethics. Although the complainant suggests that the commission can remedy an alleged ethical violation on the part of the respondent's attorney by noting a presumption in his favor, alleged ethical violations on the part of the other party do not relieve the complainant of his burden to prove his case on the merits.

Petition for Review -- In the petition for review the complainant makes the argument that discharging an employe for refusal to discriminate against the employer's patrons because of their race is an act of employment discrimination within the meaning of the Wisconsin Fair Employment Act and that, consequently, the administrative law judge erred in finding that she had no jurisdiction to consider this portion of the complainant's discrimination claim. The commission deems it unnecessary to address this issue because, regardless of whether opposition to a practice of discriminating against mall patrons can be considered protected activity under the Act, the complainant has failed to set forth a prima facie case of retaliation on this basis. Although the administrative law judge permitted the complainant to introduce evidence showing that he had opposed the alleged discriminatory practices and that he was discharged as a result, the complainant introduced no competent evidence to establish that he ever made his complaints known to any of the respondent's management employes who were involved in the decision to discharge him, nor was it established that any of those individuals believed the complainant had raised a claim that discrimination was occurring. See Notaro v. Kotecki & Radtke, S.C. (LIRC, July 14, 1993); Cangelosi v. Robert E. Larson Associates (LIRC, November 9, 1990). Moreover, the complainant was not discharged until ten months after he allegedly registered his opposition to the perceived discriminatory practices, and then for reasons related to problems with his work performance. Consequently, even if the complainant's alleged oppositional activities do fall within the protection of the Act, the commission sees no reason to conclude that the respondent's decision to discharge the complainant was motivated by anger or resentment against the complainant for having opposed a perceived practice of discrimination.

The complainant also maintains that he was denied a full and fair hearing because the administrative law judge refused to enforce a subpoena issued by the complainant requiring Randall Layton to testify at the hearing. The complainant therefore requests that the commission reopen the proceedings for the taking of this witness' testimony. The complainant was provided with three separate opportunities to have Mr. Layton testify at the hearing but, in every instance, failed to exercise appropriate diligence to secure the presence of this witness. First, the complainant served Mr. Layton with a subpoena requiring his appearance at an April 20, 1993 hearing. Because the subpoena was not served on Mr. Layton until the evening of April 19, and then only by way of substituted service on Mr. Layton's sister, and because the subpoena was not accompanied by a witness fee, the administrative law judge refused to enforce the subpoena. The administrative law judge contacted Mr. Layton by telephone in order to give him an opportunity to appear voluntarily and, when he indicated that he did not wish to do so, the subpoena was quashed. The complainant then attempted to arrange for the presence of Mr. Layton at the next scheduled hearing date, which was set for April 30, 1993, by serving a subpoena on Mr. Layton's sister at 9:35 p.m. on the night before the hearing. (1 ) Although the complainant argued that he exercised due diligence in serving the subpoena, he was unable to explain why he waited until the night before the hearing when the hearing had been scheduled ten days earlier. The respondent moved to quash the subpoena and the administrative law granted the respondent's request. Finally, on June 15, 1993, the administrative law judge notified the complainant's attorney by letter that Mr. Layton had filed a complaint which contained allegations that he had been prevented from testifying at the complainant's hearing. The administrative law judge indicated that, in light of Mr. Layton's complaint, she would be willing to reopen the hearing in order to give Mr. Layton a chance to testify. The administrative law judge advised complainant's counsel that if the complainant wished to reopen the hearing for the purpose of taking Mr. Layton's testimony he should notify the administrative law judge of this fact by July 2, 1993. The complainant failed to contact the administrative law judge until July 6, 1993, at which point complainant's counsel explained that he had been too busy to respond to the administrative law judge's letter any earlier. On July 13, 1993, the administrative law judge notified the parties that no further hearing would be granted.

Based upon the foregoing, it is clear that any failure to secure the presence of Mr. Layton as a witness was not due to prejudice or error on the part of the administrative law judge, but was the fault of the complainant himself. The commission, therefore, declines to reopen the hearing. Because the commission agrees with the administrative law judge's decision on the merits, the administrative law judge's dismissal of the complaint is affirmed.

NOTE: The commission has modified the administrative law judge's decision to correctly set forth the names of Lieutenant Elizabeth Kreger and Sergeant James Kroeger and to include an ultimate finding of fact with respect to the complainant's allegations of retaliatory discharge.

cc:
WILLIAM W. LYNCH
ROBERT H. DUFFY

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Footnotes:

(1)( Back ) Although in his brief to the commission the complainant insists that the subpoena was served two days prior to the hearing, the subpoena which is contained in the case file shows an April 29 date of service.