STEVEN BRYE, Complainant

BRAKEBUSH BROTHERS, INC., Respondent

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on September 11, 1991. Respondent filed a timely petition for review by the Commission and both parties submitted written arguments.

Based upon a review of the record in its entirety, and after consultation with the Administrative Law Judge concerning her assessment of the credibility and demeanor of the witnesses, the Labor and Industry Review Commission hereby issues the following:

1. Respondent Brakebush Brothers is a private closely-held family corporation which operates a chicken processing business employing several hundred people in central Wisconsin.

2. Respondent is owned by Bill Brakebush, who holds an ownership interest of somewhat greater than 25 percent, Carl Brakebush (Bill's cousin), who owns a 25 percent interest, and two other inactive partners.

3. Ultimate management control of Respondent rests in Bill Brakebush, who is corporate president, Carl Brakebush, who is corporate vice president and is in charge of sales, Bill Brakebush's wife Nancy Brakebush, who holds the title of assistant to the president and is corporate treasurer, and Carl Brakebush's wife Judy Brakebush, who is corporate secretary and works part-time in the business.

4. Bill, Nancy, Carl and Judy Brakebush (hereinafter the Brakebushes) are Lutherans. They are religiously devout and active in their church. In their everyday speech they occasionally use expressions which evidence their religious beliefs, such as remarking in response to good news of some kind that the business has been "blessed," expressing the belief that certain things that have happened were "God's will," or stating that they would "pray for" someone as a way of saying good luck. Bill Brakebush has also occasionally referred to verses from the Bible to illustrate points he was making concerning secular concepts such as forgiveness, patience, enjoyment of one's work, etc. However, no religious services are held on Respondent's premises, no religious messages are communicated to employes in Respondent's many written communications with its employes, and there are no religious messages communicated on signs or notices posted on Respondent's premises.

5. Complainant Steven Brye (hereinafter "Brye") interviewed with Bill Brakebush for a job as a cost accountant in 1980, but was not hired. In early 1982 Brye was again interviewed for this position by Bill and Nancy Brakebush, and was hired. The application materials Brye completed solicited no information concerning religion, and Brye was not asked any questions concerning his religious beliefs in interviews for hire by Respondent.

6. As early as late 1983 or early 1984, Nancy and Judy Brakebush learned from Brye's ex-wife Linda (who also worked at Respondent, and from whom Brye had divorced in October 1983) that Brye did not feel a need for formal religion and did not believe in going to church. Nancy Brakebush thereafter came to believe that Brye was an atheist.

7. Nancy Brakebush never spoke to Brye about religion or about his or her religious beliefs.

8. By at least mid-1984, Carl Brakebush had become aware that Brye did not attend church. Carl felt a personal concern for Brye because of this, owing to the importance which religious belief and church attendance played in his life. In mid-1984, Carl asked Brye to go to church with him. Brye told him that he did not want to. Following this exchange, Carl Brakebush never again asked Brye to attend church, although he may on a few occasions have expressed to Brye his opinion that it might be better for Brye to take his son to church rather than on hunting trips on Sundays.

9. By at least mid-1985, Bill Brakebush had become aware that Brye did not attend church. Bill Brakebush had learned from his wife what Brye's ex-wife had told her about Brye's views on religion. At one point Brye told Bill Brakebush that he believed there was a god but that he did not believe in the Christian God.

10. In mid-1985, Bill Brakebush and Brye were having a discussion. about Brye's temper, and Bill Brakebush suggested that perhaps one place Brye could get help with his temper would be to try a church or that type of counseling. Brye interpreted this as Brakebush telling him he should go to church. Following this incident, Bill Brakebush never again said anything to Brye which could reasonably have been interpreted as a suggestion or request that he go to church, although on two occasions in mid-1986 during meetings with Brye, Bill Brakebush recited Bible verses to make a point concerning having patience with others and having joy in one's work. These points were, apart from the method chosen by Brakebush to illustrate them, secular in nature and related to Brakebush's perceptions as to how Brye was performing his job, specifically as to how Brye was dealing with co-workers.

11. Despite their awareness of the differences between Brye's views on religion and their own views on religion, the Brakebushes retained Brye in their employment throughout the mid-1980s, giving him a number of promotions to positions of control over additional operations of their business, giving him thousands of dollars in annual bonuses, and progressively raising his salary. By July 1986, Brye had been placed in charge of data processing, made controller for the company, given responsibility in the sales department, purchasing, and quality control, given approximately $18,000 in annual bonuses, and had his salary significantly increased.

12. Brye was generally liked and respected by his subordinates. However, as he came to hold more power in the company by virtue of his acquisition of progressively more responsibilities, his relationships with other managers at his level tended to be tense and combative, because of Brye's aggressiveness in pursuing policies he believed were best for the company, because of his lack of patience with those he felt, were advocating mistaken policies, and because of his quick temper.

13. The relationship between Brye and national sales manager Scott Sanders was generally strained. The two had a number of loud arguments. Brye criticized Sanders in front of others in management meetings.

14. In early July of 1986, Dennis Bingham started working as Respondent's operations manager. This position was on the same. level as Brye's position as controller, that being the highest level of management below that of the owners. Brye had opposed Bingham's selection and was unhappy about it.

15. The operations manager who had preceded Bingham, Lou Yaeger, was not a strong leader in his area and frequently went to Brye for guidance. Bingham exercised more authority in this position than Brye had been accustomed to an operations manager exercising.

16. Brye came to believe that Bingham was a poor manager. He came into conflict with Bingham, as well as with Nancy Brakebush, who was generally allied with Bingham. Thus, he was opposed to a decision to discharge another managerial employe, maintenance manager Jim Thalacker, which had been proposed by Bingham and Nancy Brakebush. He also believed their choice for Thalacker's replacement was a major error. Brye was also upset at the length of Bingham's suspension of yet another managerial employe, sanitation manager Marv Gjerning. Brye and Bingham had other disagreements as well.

17. In a management meeting held in August 1986, Brye was advocating the increased use of performance evaluations for managers at certain levels, but Bill and Carl Brakebush were opposed to this idea. In the course of his presentation, Brye made the comment "shit runs downhill," this being part of the punchline of a joke about what plumbers have to know. Brye used this phrase to express his view that if an error is made at a high level in an organization its consequences will work their way down to lower levels. However, this phrase was offensive to the Brakebushes, not only because it made use of an obscenity, but also because it was susceptible to interpretation as an attack on the highest levels of their organization, which was their family, and as a suggestion that something about the position they were advocating (i.e., not doing such performance evaluations) could be characterized as "shit." Nancy Brakebush responded to Brye's statement by saying that there was no call for that kind of language, and Bill Brakebush's expression gave the indication that he did not appreciate the comment either. His sensitivity about Brye's language alone was evidenced by the fact that, counseling Brye about the matter a month later, he could not even bring himself to use the word in written notes he made to himself for his own use in the counseling meeting, and he instead referred to the matter in his notes only with the indication "___ runs downhill."

18. In a management meeting held in February 1987, there was conflict over a proposal which had been made by Dennis Bingham to change certain incentive pay practices. Nancy Brakebush was strongly supportive of the change; Brye strongly opposed it. Brye became very angry about the persistence of Nancy Brakebush in arguing with him about the matter, and he stormed out of the meeting, saying something to the effect of "I've got better things to do," or "I don't have time for this." Nancy Brakebush felt that Brye's conduct was very disrespectful and it made her very angry.

19. Bill Brakebush gave Brye a generally negative performance evaluation in late February 1987. He told him at that time, among other things, that he did not want him to ever walk out of a meeting again as he had at the management meeting held earlier that month, and that he had been out of line to do so. He also told him that Sanders, Bingham, Nancy Brakebush, and Carl Brakebush felt that Brye was uncooperative and defensive. He told Brye he could not accept a situation in which people were not able to talk to the company controller without expecting a fight.

20. Bill Brakebush gave Brye a generally favorable review in April and again in July 1987, and Brye also received salary increases at or around the time of these reviews. In these reviews, Brakebush told Brye that he believed his relationship with upper management was improving.

21. Despite Bill Brakebush's impression that Brye's relationships with other managers were improving, there in fact continued to be conflict and tension between Brye and Sanders and Bingham. By late 1987, both Sanders and Bingham were so dissatisfied with conditions at Respondent that they were thinking of looking for other work. Both of them told Nancy Brakebush of their plans to look for other work and of the reason for those plans.

22. Shortly before Brye's discharge, a receptionist named Pat Johnson resigned, leaving behind a resignation letter complaining about managers and others. Thereafter, she spoke to Carl Brakebush about the possibility of obtaining reemployment with Respondent, and he told her that she might be able to get a job in the sales department but that she would have to talk to the supervisor there or to the personnel department. Accounting manager Ron Mickelson learned of this contact and told Brye of it; both men were upset because they saw it as a case in which Carl Brakebush was intruding into personnel judgments made by company managers. Brye and Mickelson then went to Bill Brakebush's office to talk to him about the matter.

23. In the meeting between Brye, Mickelson and Bill Brakebush in the latter's office, Brye was angry, his voice was loud, and his manner was emphatic. He told Brakebush that he had heard that Carl had talked to Johnson and told her that she would get a job back in the sales department, and that he (Brye) didn't think it was right. He then said that Bill Brakebush "should go kick Carl's butt but good," and that he felt that if Pat Johnson was hired back, Brakebush "would have to get a new controller."

24. Following this meeting, Bill Brakebush spoke to Carl Brakebush concerning the matter, and he then returned to Brye to report on this contact. When he did so, he informed Brye that Carl had had a concern about how certain typing duties were going to be taken care of in view of Johnson's resignation. In response, Brye said, "Well, Carl must have shit in his ears because we had talked about that."

25. Bill Brakebush responded immediately to Brye's statement by indicating that the use of the word "shit" offended him. Rather than apologize, Brye continued to behave in a challenging manner, justifying his conduct by saying that he grew up on a farm and worked in construction and that it was part of his vocabulary, that he was 36 years old and thought it would be pretty hard for him to change that aspect of his behavior at that point, that everyone swore, and that some of the things Bill Brakebush had said had offended him too.

26. When Brye told Brakebush that some of the things Brakebush had said to him had offended him too, he did not in any way state, nor did his statement or its context imply, that he was talking about the relatively few instances in which Brakebush had spoken to Brye about church or religious matters.

27. In reaction to Brye's challenging comments, Brakebush's expression became visibly grim. The meeting ended at this point.

28. Nancy Brakebush overheard Brye's loud and angry statements to Bill Brakebush as she approached his office during their meeting. She felt that Brye's conduct was disrespectful, and it angered her. She found Judy Brakebush and told her, "Steve is hollering at Billy again. Enough is enough." Judy and Nancy both agreed that they were "sick of" the situation and that a meeting should be held to discuss it. Each woman went to her husband and persuaded him to hold a meeting that afternoon to discuss the matter.

29. Later that afternoon, Bill, Nancy, Carl and Judy Brakebush met. A consensus of the discussion was that Brye was disrespectful to the owners and was splitting the company through his conflict with Bingham and Sanders, and that he should be terminated. However, Bill Brakebush asked the others to be allowed to "sleep on it."

30. On the following morning, Bill Brakebush awoke at 5 a.m. to find his wife awake, crying. She told him that she could not go on with the situation as it was and that if Brye were not terminated she could not continue to work in the business. Bill Brakebush finally decided at this point that he would have to fire Brye.

31. Bill Brakebush met with Brye later that day to discharge him. At that time he informed him that he could no longer reconcile their differences in management styles. When Brye asked what the "bottom line" was, Brakebush told him that he was being let go.

32. On the day following Brye's discharge, a number of managerial employes went to Bill Brakebush's office. They were upset over the discharge of Brye, and in effect they challenged Brakebush to explain and justify his decision. In response, Brakebush indicated in substance that Brye was fired because he was causing conflict in his level of management and in the family. Brakebush placed a Bible on the table in front of him, and indicated in substance that the company was and would be run based on the Bible.

33. Bill Brakebush's reference to the Bible and to religious beliefs in this meeting did not indicate that Brye was discharged because he did not share Brakebush's religious beliefs. Rather, Brakebush was indicating that Brye was discharged because he treated other people in a way which Brakebush found unacceptable. For Brakebush, treating other people in a respectful and patient matter was a matter of religious precept, and his discussion of this topic, especially in this highly emotional context in which his management decision was in effect being challenged, naturally reflected Brakebush's view of the issue.

34. The Brakebushes fired Brye because of dissatisfaction with the way he treated them and the other upper level managers at their company. Brye's beliefs with respect to religion were not a factor in the decision to discharge him.

Based on the FINDINGS OF FACT made above, the Commission makes the following:

1. Respondent Brakebush Brothers is an employer within the meaning of the Wisconsin Fair Employment Act.

2. Respondent did not discriminate against Complainant Steven Brye because of creed with respect to conditions of employment, within the meaning of the Wisconsin Fair Employment Act.

3. Respondent did not discriminate against Complainant Steven Brye because of creed with respect to discharge, within the meaning of the Wisconsin Fair Employment Act.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the Commission now makes the following:

That the complaint in this matter be dismissed.

Dated and mailed January 11, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

This case arises out of a decision of the Brakebush family to discharge one of the high level managers of their family business. He asserts, and the Administrative Law Judge found, that the Brakebushes were aggressively evangelical Christians who proselytized him at work for years and who eventually fired him when they lost patience with his refusal to accept their religion and join their church. While she grudgingly acknowledged that there was validity in the nondiscriminatory reasons the Brakebushes advanced for their decision, the ALJ concluded that if it had not been for their religious motivation, these other reasons would not have led to the discharge. Having reviewed the record, the commission cannot agree.

The Wisconsin Supreme Court has held that where the Commission reverses an Administrative Law Judge, making contrary findings, and credibility of witnesses is at issue, due process requires that the Commission consult of record with the ALJ to obtain his or her personal impressions of the material witnesses based on observation of their demeanor. (1)   Braun v. Industrial Commission, 36 Wis. 2d 48, 56-57, 153 N.W.2d 81 (1967), Carley Ford, Lincoln, Mercury, Inc. v. Bosquette, 72 Wis. 2d 569, 576, 241 N.W.2d 596 (1976), Hamilton v. DILHR, 94 Wis. 2d 611, 621, 288 N.W.2d 857 (1980). Because of the Commission's inclination to make findings contrary to those of the Administrative Law Judge on the issues of credibility in this case, it was required to and did conduct a telephone conference with the ALJ in which she was invited to describe any impressions she drew concerning witness credibility based on observation of witness demeanor while testifying.

In response to this invitation, the ALJ indicated that Nancy Brakebush was nervous and angry at times, that Bill Brakebush was calm at times and lost his temper at times, that Carl Brakebush was nervous and gave the appearance of wanting to be anywhere other than where he was, and that Brye was calm, professional, and showed little emotion. She indicated further that she got the impression that the Brakebushes were not telling her everything, were hiding something, and were not telling her the whole truth. She indicated as well that she felt that there were inconsistencies between their descriptions of the facts and that by contrast, Brye's testimony seemed internally consistent.

The ALJ's indication that she found the testimony of the Brakebushes internally inconsistent compared to that of Brye is not a matter of demeanor evidence at all. Consistency or inconsistency of evidence is a characteristic of the evidence itself, not of the manner in which the evidence was given, and a reviewer deciding the case on the record is in just as good a position as the hearing officer to draw conclusions about credibility based on such factors.

The ALJ's indication that she had "the impression" that the Brakebushes were not telling her everything and were hiding something, is viewed by the Commission as simply being a conclusory statement that they were found not credible. The ALJ did not directly relate this impression to any observed element of their demeanor, and for that reason it is of little use to the Commission other than as confirmation of the fact, already disclosed by the ALJ's decision, that she decided that Brye was more credible. This assessment of credibility was an ultimate inference which the ALJ presumably drew from the content of testimony (which is available to the Commission) and from the manner in which it was given ("demeanor evidence"). However, the purpose of the consultation requirement is not to allow the hearing officer an opportunity to convey his or her ultimate inference about credibility.  It is rather to allow the hearing officer to convey any information about witness demeanor that is unavailable to the decision-maker relying on the record. Wright v. Industrial Commission, 10 Wis. 2d 653, 659, 103 N.W.2d 531 (1960), Falk v. Industrial Commission, 17 Wis. 2d 289, 295, 116 N.W.2d 125 (1962). When a case is pending before the Commission, responsibility for making the ultimate inference about credibility on the basis of content of testimony and manner of testifying is the Commission's.

The only "demeanor evidence" disclosed by the consultation with the ALJ was her observation that Nancy Brakebush was nervous and angry at times, that Bill Brakebush was calm at times and lost his temper at times, and that Carl Brakebush was nervous, while Brye was calm, "professional," and showed little emotion. Contrary to the ALJ, the commission is not inclined to infer from this evidence that Brye was more credible than the Brakebushes. Viewing anger on the Brakebushes' part as evidencing lacking of credibility seems to the Commission to assume that if they had been being truthful, they would have had nothing to be angry about. However, the circumstances of this case are such that they could anger reasonable persons in the Brakebushes' position. The "nervousness" cited by the ALJ also fails to persuade the Commission that the testimony was not credible. Nervousness on the part of a lay witness, party or non-party, is common and is not necessarily an indication of untruthfulness. The assumption that lying is emotionally upsetting has been questioned, and it has been observed that those most likely to lie in court are least likely to be bothered by lying; see Skolnick and Flock,  supra note 1.

The Commission also disagreed with the ALJ's assessment of the credibility of the witnesses because it found other reasons to doubt Brye's testimony. While the ALJ described Brye's testimony as being consistent, the Commission thinks that it is more accurate to describe it as having been pat. The degree of inconsistency between witnesses for Respondent was matched by the inconsistency between witnesses for Brye, as in the case of the differing versions of what Brye said to co-workers immediately following his discharge. Most significantly, Brye's explanation for not having saved the alleged Christmas card from Bill Brakebush in December 1987 is unpersuasive when measured against his explanation for the notes he claims he so diligently kept to document other alleged religious overtures. The alleged Christmas card would have represented the first irrefutable evidence Brye had of the conduct he now complains of; the Commission cannot believe he would have so casually disposed of it. Additionally, it is the height of disingenuousness for Brye to insist (as he did at hearing) that he was not trying to pressure Bill Brakebush with a threat to quit when he told him that he felt that if Pat Johnson were rehired he (Brakebush) would have to get a new controller. This is of course exactly what such a comment threatened, and Brye's attempt to disclaim this calls his own credibility into question.

The Commission thus has intentionally made no findings that Bill Brakebush made the comment attributed to him in October 1987 concerning Jesus Christ, that he gave Brye the alleged Christmas card in December 1987, or that he made the comment attributed to him in December 1987 referring back to the card, because it simply did not believe Brye's testimony on those points. The Commission has also intentionally failed to make findings that Brye complained to Carl and Bill Brakebush that their statements concerning religious or church matters were against the law, or to make other findings which would be consistent with Brye's version of the events but inconsistent with the Brakebushes' version, because it did not credit Brye's testimony. As reflected above, it finds that the contacts between the Brakebushes and Brye in which the subject of religion arose were limited.

The Commission believes that the ALJ erred when she rejected Respondent's statute of limitations defense to the religious harassment claim. Looking even at what Brye alleged (as opposed to what he credibly proved), the only incidents alleged with any specificity as to time involved the conversation with Bill Brakebush in June 1984, a conversation with Bill Brakebush in July 1985, statements by Bill Brakebush in performance reviews in July and September 1986, and the alleged statement about Jesus Christ in October 1987 followed by the alleged Christmas card in December 1987. To successfully plead a continuing violation, a complainant must show that some illegal act, part of the continuing pattern of violations, took place during the 300 days prior to the filing of the complaint. See, e.g., EEOC v. AT&T Technologies, Inc., 45 FEP Cases 568 (N.D. I11. 1987). Here, however, more than 300 days passed between the incidents in each year. Thus, before the second (July 1985) incident occurred, the first (June 1984) incident had become time barred, etc. These acts are too sporadic to be found a "continuing" practice.

The commission also does not agree that there was actionable religious harassment here, because the acts proven simply do not rise to that level. The events cited as harassment were very sporadic. However, it has been held that occasional or sporadic instances of the use of slurs do not in and of themselves rise to the level of discrimination, Saltarikos v. Charter Wire Corp. (LIRC, July 31, 1989), and that more than a few isolated incidents must have occurred, Sheridan v. U.W. Madison (Wisconsin Personnel Commission, February 22, 1989). The individual events here were not really in the nature of harassment; there were no acts of disparagement of Brye because of his beliefs. A statement Brye made to a co-worker shows what Brye's understanding of the matter was:  he thought the Brakebushes were trying to convert him. While a supervisor's proselytizing of its employes could in some circumstances rise to the level of harassment if it were persistent, unwelcome, and created either a hostile environment or a perception on the part of an employe that a quid pro quo was contemplated, this case does not approach that level.

Thus, this is not a case like Minnesota v. Sports and Health Club, 370 N.W.2d 844, 37 FEP Cases 1463 (Minn. 1985), in which job applicants were extensively questioned about their religious beliefs and in which employes were subjected to relentless proselytizing at work on the subject of religion. This is not a case like Blalock v. Metals Trades, Inc., 755 F.2d 703, 39 FEP 140 (6th Cir. 1985), in which the employer pressured the employe constantly to resolve a disagreement the employe had with a non-employe religious figure followed by the employer, and in which the frequent reading of Bible verses was expressly related by the employer to this non-work-related issue. This case does not even rise to the level of Young v. Southwestern Saving and Loan Assn., 509 F.2d 140, 10 FEP Cases 522 (5th Cir. 1975), in which the employe was required over objection to attend monthly meetings that were prefaced by a religious address and a prayer delivered by a clergyman. The Commission has found as a matter of fact that the topic of religion and religious belief arose between Brye and the Brakebushes only sporadically, and without any significant pressure being applied to Brye. Specifically, Carl Brakebush asked Brye to attend church with him in mid-1984, Bill Brakebush asked Brye to attend church with him in mid-1985, and there were two occasions in 1986 in which Bill Brakebush recited Bible verses to illustrate points he was trying to make about Brye's relations with co-workers. This, and the occasional "blessed" or "pray for" comments which were no more than part of how the Brakebushes expressed themselves, is all that the Commission finds occurred with respect to religion in the workplace.

The commission disagreed with the ALJ's conclusion that the Respondent spent "a large amount of time during the hearing" attempting to prove that Brye failed to cooperate with Bingham's request to prepare new computerized production reports, but more important, it disagreed with her evident conclusion that this and other evidence was offered as a direct reason or justification for the discharge. The record considered as a whole makes it abundantly clear that the reasons relied on by Respondent at the time of the decision, and at the time of hearing, were those described by the ALJ as "splitting the company," "not cooperating with other top level managers," and "intimidating the owners and upper management." In other words, Respondent consistently claimed that it terminated Brye because of dissatisfaction with the way he was treating his co-managers and his superiors.

The ALJ conceded that there was a "sound evidentiary basis" for this reason, but she deprecated its seriousness by characterizing it as "occasionally tactless and abrasive behavior." This description is several orders of magnitude too mild. Brye was on thin enough ice in his contentious relationships with his peers (Bingham and Sanders); many businesses would not have tolerated even that. However, when his offensiveness came to bear on the members of the Brakebush family, his fate was effectively sealed. Three incidents were obviously significant. First, Brye's "shit runs downhill" comment was personally offensive to Bill and Nancy Brakebush both in terms of its crudity and in terms of the criticism of Bill Brakebush which was implicit in it. That the statement was made in a meeting in the presence of others clearly did not help. Second, Brye's angry "storming out" of a meeting during a disagreement with Nancy Brakebush was similarly offensive and potentially embarrassing to the Brakebushes. Third, Brye's conduct in the Pat Johnson incident obviously passed the bounds of what the Brakebushes, or any reasonable owners, could tolerate. It is so completely unsurprising, indeed so predictable, that a manager would be fired for pushing his employers this far, that there is simply no call to suspect any other motive in the action.

The Commission thus does not agree with the ALJ's belief that the Brakebushes' concern about Brye's behavior was "magnified out of proportion" as they became aware of his religious beliefs and as he came to play a major role in the company. For one thing, as discussed above, the discharge was in no sense disproportionate to Brye's increasingly abusive treatment of the family that employed him. For another thing, the ALJ's chronology is simply wrong. The Brakebushes knew of Brye's religious beliefs relatively early. Despite this knowledge, they continually advanced him both in responsibility and salary, and they tolerated his difficult relations with his co-managers. What developed relatively late in his tenure, however, and what the Brakebushes could not tolerate, was the growth in Brye of such hubris that he began to treat them as if he was at the head of their family business.

Brye was not terminated because of his beliefs, but because of his actions. Furthermore, the fact that those actions offended values and standards of the Brakebushes which they saw as part of their religious beliefs, does not mean that they discharged him for a religious reason. It would be an indefensible construction of the Fair Employment Act, to hold that one employer is prohibited from firing an employe who steals from him just because that employer views the unacceptability of theft as a matter of religious doctrine, while another employer who views the unacceptability of theft as a business issue would be free to discharge such an employe. Similarly, it is not determinative that the Brakebushes viewed the unacceptability of traits such as impatience, arrogance and anger as matters of religious doctrine, while other more secular employers might see them simply as personnel problems. Brye was terminated for engaging in conduct which would generally be considered unacceptable for entirely secular reasons. He was therefore was not discharged or otherwise discriminated against because of creed.

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(1)( Back ) This is a minority view. See, Rosales v. Dept. of Labor and Industries, 40 Wash. App. 712, 700 P.2d 748, 750 (Ct. App. Wash. 1985).  The majority rule is that due process does not require the preservation of demeanor evidence under any circumstances. Note, Replacing Finders of Fact--Judge, Juror, Administrative Hearing Officer, 68 Col. L. Rev. 1317, 1361 (1968). The majority rule rests on the view that any loss of "demeanor evidence" is harmless error in view of the many other indicia of veracity which appear in a record, such as contradictions internal to a witness's testimony, contradictions in testimony of witnesses allied in interest, conflict with known facts, inherent unbelievability, and evident bias or prejudice, in the face of which indicia "demeanor evidence" fades in importance. Id. at 1326-27.  The questionable reliability of "demeanor evidence" has also been cited as a basis for the majority rule. Id. at 1361. "Demeanor evidence" may be more prejudicial than probative on the issue of sincerity: the assumption that lying is emotionally upsetting and that an experienced trier of fact can detect this has been questioned. See Id. at 1327, citing Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie Detection, 70 Yale Law Journal, 694, 700 (1961), and Flock, Limitations of the Lie Detector, 40 J. Crim. L.C.&P.S. 651 (1950). One commentator has gone so far as to conclude that "witness demeanor is a very treacherous technique for assessing credibility." Lareau and Sacks, Assessing Credibility in Labor Arbitration, The Labor Lawyer, Vol. 5, No. 1 (Spring 1989).

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