KAREN KIRK, Complainant

NEENAH-MENASHA YMCA, Respondent

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, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:

Finding of Fact 2 is modified to read as follows in order to more accurately and completely reflect the record:

Before being hired in September of 1998, Kirk had worked since May of 1998 as a volunteer Water Fitness Instructor for respondent's Older Adult Department's 11:35 a.m. class. On or around September 14, 1998, Kirk began her part-time paid employment for respondent as an instructor for respondent's Aquatic Department's 12:50 p.m. water fitness class. In March of 1999, Kirk was assigned at her request to instruct the Aquatic Department's 8:50 a.m. water fitness class instead of the 12:50 p.m. class. During her paid employment for respondent, Kirk continued to instruct the 11:35 a.m. older adult water fitness class.

Finding of Fact 12 is modified to read as follows in order to more accurately and completely reflect complainant's allegations and the record here:

On February 21, 1999, a training conference was held for Water Fitness Instructors. Kirk believed that Russow asked another Water Fitness Instructor, Becky Kneip, to attend the conference and not her because Kirk is disabled. However, the attendees for the training conference were selected by Jenicek. In order to hold down costs, Jenicek selected one of the more experienced employees, Russow, to attend the conference on behalf of Respondent and to bring back information to share with the other staff. Kirk went to the conference on her own and was reimbursed by Respondent for her expenses.

Finding of Fact 18 is modified to read as follows in order to more accurately and completely reflect the record (note that reference to Jean Wollerman was deleted because no support for her inclusion among those with whom complainant spoke within the context of this finding could be found in the record)

At that time, Kirk started phoning and initiating conversations at the work site with certain staff (Molly Craemer, Sue Pawlowski, Kurt Jenicek, Jamie Johnson, Marcie Jansen, and Eileen Goerl) relating to her concerns about an incident involving her son in respondent's child care center and about the discontinuation of her instructional assignments. In these conversations, Kirk was critical of respondent's management team and questioned their decisions and motives. Englebert was told by certain staff, including Johnson and Kniep, that Kirk had called them at home and told them, among other things, that their assignments were the next to be eliminated.

The notice of hearing specified that the hearing was to be held on the issue of probable cause, not the merits. As a result, Conclusions of Law 2. through 5. are modified to read as follows:

2. There is no probable cause to believe that the Respondent, in violation of the Act, discriminated against the Complainant as alleged based on disability.

3. There is no probable cause to believe that the Respondent, in violation of the Act, discriminated against the Complainant based on disability by terminating her employment.

4. There is no probable cause to believe that the Respondent, in violation of the Act, discriminated against the Complainant as alleged because she opposed a discriminatory practice under the Act.

5. There is no probable cause to believe that the Respondent, in violation of the Act, discriminated against the Complainant by terminating her employment because she opposed a discriminatory practice under the Act.

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

Dated and mailed February 14, 2003
kirkkar . rmd : 115 : aty 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

In her petition, complainant raises certain procedural objections. She first contends that the ALJ abused his discretion by interrupting the presentation of her case and by not permitting post-hearing briefs. However, the ALJ's admonitions to the complainant during the hearing generally related to his attempts to keep complainant on track so that the testimony she was eliciting would be relevant to the issues noticed for hearing, The matter of briefing is solely within the discretion of the ALJ. It should be noted that the ALJ advised the complainant during the course of the hearing that she would be allowed the opportunity to present argument in her closing statement, but the summary of proceedings does not indicate that such an opportunity was afforded. However, a review of the hearing record, as well as recognition of the fact that the complainant has now had an opportunity to present argument to the commission as a part of her petition for commission review, supports a conclusion that the complainant has had a full and fair opportunity to present her case.

Complainant also contends that certain documents she had subpoenaed were not made available to her during the hearing, and that the ALJ failed to return certain documents to her after the hearing. The only indication in the summary of proceedings that respondent had failed to bring subpoenaed documents to the hearing appears at page 7, and relates apparently to certain personnel and payroll records. However, complainant has failed to explain with sufficient specificity the nature of such documents or their relevance here. In addition, complainant has failed to specifically identify the documents which the ALJ has supposedly improperly retained. However, it should be noted that, after the expiration of the relevant appeal period, complainant may wish to contact the Equal Rights Division in order to determine whether the documents she seeks may be returned to her.

Complainant requests in her petition that the commission review all the documents she filed in anticipation of hearing. However, the commission may review only those documents which actually became part of the hearing record, or those documents which it determines the ALJ improperly excluded from the record. The commission has made no such determination of improper exclusion here, and none is warranted.

Complainant objects to the ALJ's failure to conclude that complainant's qualification for a disabled parking permit would satisfy her burden under the Act to prove that she is a person with a disability. The ALJ's conclusion in this regard is correct, since the record fails to show that the requirements for a permit and those for a finding of disability under the Act are identical. Moreover, the ALJ concluded that the complainant was disabled within the meaning of the Act, so complainant's purpose in presenting this argument is not clear.

Complainant objects as well to respondent's failure to call certain witnesses as part of their case in chief. However, it is a party's prerogative to determine its own litigation strategy. If complainant wished to call these witnesses as a part of her case, she should have made appropriate arrangements to do so.

Complainant argues further that she should have been allowed to amend her complaint to include an allegation that she was retaliated against for engaging in protected fair employment activities when, after her termination, respondent located part of a route for a walk/run it was planning in her immediate neighborhood. The file shows that complainant filed this amendment request on Friday, September 29, 2000; that the walk/run was conducted on Saturday, September 30, and Sunday, October 1, 2000; and that the hearing commenced on Tuesday, October 3, 2000. This was not a proper subject for amendment of this complaint and the ALJ was correct in so concluding. Not only did the subject of the amendment not arise out of the same actions underlying the complaint, but the complainant has failed to show a sufficient nexus between the establishment of the route for the walk/run and her employment by respondent to be cognizable under the Wisconsin Fair Employment Act.

The complainant also takes issue with certain of the ALJ's findings. It should first be noted that complainant offers in her petition many facts not included in the hearing record, and the commission may not consider these extra-record facts in reviewing this matter.

It should further be noted that several of the factual findings to which the complainant objects rely on credibility determinations made by the ALJ, including but not limited to all or parts of findings 5, 15, 18, and 19. An ALJ, because he or she is present to hear and observe the testimony of witnesses, is in the best position to assess credibility. The commission has carefully and thoroughly reviewed the record and finds no reason to disturb any of the ALJ's credibility determinations here.

The record shows that the only part of complainant's job for which she arguably needed an accommodation was her responsibility for moving the boombox, on which she played the music for her class, to and from its storage place near the pool. Jenicek, who hired complainant to instruct the 12:50 p.m. class, recognized this need and agreed to have other staff assist complainant with this function. Apparently, Jenicek did not communicate this clearly to other staff and, as a result, Assistant Aquatic Director Russow wrote complainant a pointed note in March of 1999 reminding her of instructors' responsibilities to put away the equipment they use in their classes. However, the record shows that, once Aquatic Director Jenicek and Program Director Englebert learned of Russow's note and complainant's objection to it, they not only clarified that complainant would continue to be provided assistance but they also immediately ordered a rolling cart for complainant to use to transport the boombox. This was a prompt and appropriate response, and respondent has satisfied its burden to show that it reasonably accommodated complainant's disability. Although complainant now contends that the cart was difficult for her to maneuver, the record does not show that she expressed this concern to respondent, and, in fact, complainant testified at hearing (see page 31 of the summary) that the "rolling cart solved the boombox problem."

Complainant states that Executive Director Breider's testimony that she was the only staffer unemployed because of the April/May 1999 budget cuts conflicts with Englebert's testimony that staffing cuts affecting other employees were made, and demonstrates that she was singled out. However, Breider's testimony (see page 34 of the summary) was that no other employees were terminated between May 1 and 15, 1999. This does not conflict with Englbert's testimony that budget cuts were effected by having salaried employees teach certain classes formerly taught by part-time staff. Complainant was not terminated due to budget cuts. Instead, responsibility for teaching her Aquatic Department class was assigned to a salaried employee; her Older Adult class, which had a very small enrollment, was merged with another class; and she remained an employee of respondent on a substitute basis. The record shows that the responsibilities of certain other part-time instructors were reassigned in a similar fashion. This is consistent both with Breider's and with Englebert's testimony. Complainant was terminated for certain disruptive conduct in which she engaged after she was reduced to substitute status. Complainant made no showing that any other staff member engaged in similar conduct.

Complainant also argues that her removal from the volunteer instructor assignment for the Older Adult class shows that budget cuts were not the real reason for her reduction from a part-time instructor to a substitute instructor. However, exhibit C28 confirms that Englebert was under the impression that complainant was paid for the Older Adult department assignment as well.

Overall, the record here shows that complainant was not discriminated against, harassed, or retaliated against by respondent as alleged. The commission did not address in this opinion each point raised by complainant in her lengthy petition, but did address those it felt were most significant. However, the commission did consider each point raised by complainant as well as the entire record in this matter before reaching its decision to affirm, with those modifications set forth above, the decision of the ALJ.

cc: Attorney Samuel J. Bomier

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