Wis.LIRC ER Decision: Voelz - June 6, 1997 - Race discrimination (Native American), Sex discrimination; Procedure - Evidence - hearsay - statement not offered to prove truth of statement but for effect on employer's decision

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

RONALD VOELZ, Complainant

KIMBERLY-CLARK CORP, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199403271, EEOC Case No. 26G942179

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 conclusion in that decision as its own, except that it makes the following modifications:

1. In the second to the last line in paragraph 8 of the FINDINGS OF FACT, the name "Neubauer" is deleted and the name "Day" is substituted therefor.

2. In paragraph 35 of the FINDINGS OF FACT, the day "Sunday" is deleted and "Monday" is substituted therefor.

3. In the third to the last line in paragraph 38 of the FINDINGS OF FACT, the phrase "did at any time not" is deleted and the phrase "did not at any time" is substituted therefor.

4. In the last paragraph of the quoted language appearing in paragraph 39 of the FINDINGS OF FACT, the name "Gary" is deleted and the name "Gerry" is substituted therefor.

DECISION

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

Dated and mailed: June 6, 1997
voelzro.rmd : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant, a Native American male, appeals from the ALJ's decision finding that he failed to establish probable cause to believe that the respondent terminated his employment because of his race and sex. The complainant's employment was terminated following investigation of an incident on April 22, 1994, where he was observed arguing with and pushing Cindy Feuerstein, a white female coworker. A careful review of the evidence shows that the respondent discharged the complainant not because of his race or sex, but because the respondent concluded from its investigation of the April 22, 1994 incident that the complainant had not pushed Feuerstein in self-defense (the complainant alleged she came at him with the blade extended on a Stanley knife), because in pushing Feuerstein the complainant had engaged in totally unacceptable behavior, and because of the complainant's past work history, which included prior discipline for physically threatening an employe.

In his petition for review, the complainant includes a request that the commission review the hearing tapes and the deposition testimony of Tom Colgrove, the respondent's mill manager. With respect to the review of the hearing tapes, this request is denied as the commission's review shall be based on a transcript of the testimony where, as here, the record has been transcribed and used by the ALJ in preparing a decision. Wis. Admin. Code � LIRC 1.04, 4.02(2) (June 1997). The complainant has not specified what his concern is regarding Colgrove's deposition testimony. Based upon a reading of the transcript, it may be the complainant's contention that Colgrove did not care what he had to say during the respondent's investigation of the April 22, 1994 incident and had "assumed that he was a liar and a story teller just by looking at him." The record does not support such contention, however. First of all, what Colgrove actually stated at his deposition was that he had known the complainant for about a year and a half prior to his discharge, that he knew that the complainant liked to tell stories, that storytellers sometimes embellished those stories and that he had not believed all the stories the complainant had told him in the past were all factual. (Colgrove depos., pp. 26-27). Secondly, the evidence shows that Colgrove met with the complainant on April 23, 1994, expressly to obtain his version of the incident, and that he took nearly a half a page of written notes involving the complainant's statements made during this meeting. Thirdly, the evidence shows, as found by the ALJ, that the reason the respondent discredited the complainant's version of the incident was because of his prior history of physical threats and because none of the witnesses interviewed during the investigation corroborated the complainant's position. On the other hand, Feuerstein had no previous history of threatening or violent conduct and her version of the incident was corroborated by a number of witnesses.

The complainant apparently also claims that the ALJ improperly allowed into evidence statements made by individuals who did not testify at the hearing, i.e., hearsay. The complainant has not identified these individuals nor the particular statements that he has in mind. Again, based upon a reading of the transcript, it may be that the complainant is objecting to testimony by Scott Sauer, the respondent's human resources team leader, regarding information that two employes (Marty Meyer and Dan Schmidt) had provided him concerning the April 22, 1994 incident. Neither Meyer nor Schmidt testified at the hearing. Sauer testified that Meyer told him the complainant said that if he loses his job over this he will "beat the shit out of Sparky and kill Cindy." Sauer testified that Schmidt told him that the complainant had called him (Schmidt) stating he had a chance of losing his job and asking him (Schmidt) to lie for the complainant by stating that the blade on the knife was exposed and being waved. The complainant's argument fails. The ALJ properly overruled the complainant's objection to this testimony. Sauer's testimony regarding the statements made by Meyer and Schmidt was not hearsay as this testimony was offered only to show how it influenced the respondent's decision as to what really happened during the incident, not to prove the truth of the matter asserted. Wis. Stat. � 908.01(3).

cc: XUAN THI TRAN

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