JAMES R WAGNER, Complainant

SUPERIOR SERVICES, 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 conclusion in that decision as its own, except that it makes the following modifications:

The last word in the second sentence of the second paragraph of the statement of the case on the first page of the Decision and Order is changed from "2002" to "2001" to correct an error.

The reference to "2000" in the last sentence of Finding of Fact 3 is changed to "2001" in order to correct an error.

The last sentence of Finding of Fact 6 is modified to read as follows in order to more completely reflect the evidence of record:

The respondent's only exception to this rule permitted the operator of the baler to be absent from the platform, when the baler was in the manual mode, for a few minutes in order to communicate with someone in the immediate vicinity.

The following sentences are added to Finding of Fact 10 in order to more completely reflect the evidence of record:

Wagner left at 11:30 a.m. to pick his infant son up from a medical appointment and take him home. Wagner did not return to work that day even though he was scheduled to work until 3:00 p.m.

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

Dated and mailed December 16, 2003
wagneja . rmd : 115 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

Motion to "Impeach"

The hearing before the administrative law judge (ALJ) was conducted on June 3, 2002. On June 11, 2002, the complainant filed a "Motion to Impeach" two of the respondent's hearing witnesses based on testimony they had provided at an Unemployment Insurance (UI) hearing held in May of 2001. Essentially, the complainant's motion is one to supplement the record by permitting the complainant to offer certain UI hearing testimony of Gary Blaeser and Steve Lahr which the complainant alleges is inconsistent with the testimony they gave at the equal rights (ERD) hearing.

In order to justify further hearing, the evidence sought to be introduced must be sufficiently strong to merit reversing or modifying the ALJ's decision, and must not have been reasonably discoverable at the time of hearing. Whipp v. DePaul Rehabilitation Hospital (LIRC Feb. 24, 1998); Tate v. Rouse-Milwaukee, Inc., ERD Case No. 9151019 (LIRC May 16, 1995). The complainant failed to satisfy either of these requirements.

Here, the UI hearing took place more than a year before the ERD hearing, and the complainant was present for both proceedings. Obviously, the UI hearing testimony of witnesses Blaeser and Lahr was available to the complainant at the time of the ERD hearing, and he had reason to be familiar with it. The record of the ERD hearing does not show that the complainant made any attempt to introduce the subject UI hearing testimony for impeachment purposes at the ERD proceeding, or that he asked that the ERD hearing be held open to permit him to offer such impeachment evidence after he had an opportunity to compare the two records.

Even if the complainant had shown that the UI hearing testimony was not reasonably discoverable at the time of the ERD hearing, the information he has offered in his motion and subsequent correspondence does not establish that the testimony of witnesses Blaeser and Lahr at the two proceedings was inconsistent.

Impeachment by reference to prior testimony requires that a particular piece of testimony be identified and compared to subsequent testimony. Titus v. Oakwood Lutheran Homes Assoc., Inc., ERD Case No. 9200129 (LIRC May 24, 1994).

In his motion and subsequent correspondence, the complainant identifies the following four instances of inconsistent testimony (the complainant's characterization of the inconsistency appears in italics, and the commission's analysis appears thereafter in normal type):

(1) At the UI hearing, "Mr. Lahr stated under oath that I, James Wagner, did in fact describe to him at a lunch break departure, the instructed procedure he previously described to me: `Steve, I'm going to lunch, the baler is on manual, the conveyor off, with the motor running;'" at the ERD hearing, "Lahr completely denied this interaction."

At the UI hearing complainant asked Lahr, "Is it not true that on several occasions when I left for lunch, or break, or doctor appointments, I would tell you I was leaving and the baler was on manual and you said no problem?" Lahr answered that he said it was no problem if someone else was going up to operate it after the complainant left; and that it was okay for the baler operator to come down from the platform for a few minutes before another operator went up in order to tell Lahr that he was leaving.

At the ERD hearing, Lahr testified that, "If Mr. Wagner was going to leave the platform to talk to the guy on the skidster, he could leave the machine running. However, if he was going to leave the machine for lunch, dinner, or a bathroom break, the machine had to be shut down completely. It was not to be left in a manual or neutral mode.I do not recall telling Mr. Wagner on at least one occasion that it was okay to leave the compactor and baler in manual mode while he went to lunch..It is my understanding that, on March 19, 2001, the compactor was left running in automatic mode and the compactor was compacting material being thrown in the hopper. It would not have been okay to leave the compactor in manual mode and walk away because if it malfunctioned and popped into automatic mode serious problems would occur. It is Superior's policy to shut the machine off completely when leaving it unattended."

The complainant has failed to show that Lahr's UI and ERD testimony in this regard is inconsistent.

(2) At the UI hearing, Lahr testified that he had directed complainant "on at least two occasions to shovel snow with one hand and directed me to sweep floors with one hand." At the ERD hearing, "he now denies those supervisory directives."

The commission could find no reference in Lahr's UI testimony to shoveling snow or sweeping floors.

At the ERD hearing, Lahr testified that "I did not direct Mr. Wagner to sweep floors with one hand or shovel snow with one hand."

The complainant has failed to show that Lahr's UI and ERD testimony in this regard is inconsistent.

(3) At the UI hearing, "Mr. Blaeser stated . that I did give him all my Doctor's appointments." At the ERD hearing, "he stated I did not."

At the UI hearing, in response to questioning from the ALJ, Blaeser testified that, on February 2, 2001, on the back of a document he and the complainant were discussing, the complainant wrote down certain upcoming appointments with his doctor and with his attorney.

At the UI hearing, the complainant asked Blaeser, "Is it not true that you had copies of all my doctor's excuses, doctor's appointments, and 'no work' orders?" Although Blaeser's answer is difficult to discern from the copy of the tape provided to the commission by the complainant, it appears that he answers, "Correct." Complainant then asks Blaeser, "And they coincided with the days and hours of my absences?" Blaeser answers, "No."

At the ERD hearing, Blaeser testified, "Mr. Wagner was not coming to work like he should. I told him he needed to have all his medical appointments set up later in the day if possible. Mr. Wagner did not give me at least a week's notice of the times he would be absent from work for various appointments..The subject of doctor's releases was not an ongoing problem between Mr. Wagner and me..Mr. Wagner gave me one schedule with five or six appointments on it, one time."

The UI hearing testimony indicates that at some unspecified point in time the respondent became aware of all of complainant's medical appointments, excuses, and 'no work' orders. The ERD testimony indicates that the respondent was concerned that the complainant was not providing sufficient prior notice of such appointments, and that the complainant gave prior notice once in a schedule listing five or six appointments.

The testimony Blaeser gave in these two proceedings is not clearly inconsistent, and in fact appears to relate to two different matters, i.e., UI=complainant keeping the respondent updated on the complainant's medical status, and ERD=complainant failing to consistently provide sufficient prior notice of upcoming appointments. The complainant has failed to show that Blaeser's UI and ERD testimony in this regard is inconsistent.

(4) At the ERD hearing, Blaeser "denies he fired me on February 1, 2001, telling me to 'get the hell out and don't come back'." At the UI hearing, "Blaeser admitted making the statement, but disputed its meaning."

At the ERD hearing, Blaeser testified, on cross-examination by the complainant, that, "When Mr. Wagner reported for work on February 1, 2001, I did not tell him to get the hell out of my office and not come back when he said he had a doctor's appointment at 11:00 a.m. that day."

The commission could find no UI testimony regarding what Blaeser said to the complainant on February 1, and no testimony that he ever told the complainant to get the hell out of his office and not come back.

It should be noted that, at the ERD hearing, the complainant testified that, on March 16, 2001, not February 1, 2001, he and Blaeser got into an argument which ended with Blaeser "telling me to get the hell out and not come back. I believed I was terminated."

The complainant has failed to show that there is an inconsistency between Blaeser's UI and ERD testimony in this regard.

Since the complainant's failure to demonstrate the inconsistencies he alleges in the UI and ERD testimony means that he has failed to show that the evidence he seeks to offer to supplement the hearing record would justify reversing or modifying the ALJ's decision, and since he has also failed to show that this evidence would not have been available to him at the time of the ERD hearing, his motion to supplement the record was appropriately denied by the ALJ, and the commission affirms this denial as a result.

Merits of Discrimination Claims

The complainant claims that he was discriminated against on the basis of disability and retaliated against for engaging in a protected fair employment activity (reporting sexual harassment) when he was terminated.

Wisconsin courts, in the absence of the Fair Employment Act's (WFEA) establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc., v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985); Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003). As stated by the court in Puetz:

McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).

Assuming for purposes of analysis that the complainant established a prima facie case of discrimination/retaliation, the burden would shift to the respondent to articulate a legitimate, nondiscriminatory reason for the discharge. The respondent has satisfied this burden by explaining that the complainant was terminated for leaving work in the middle of his shift without notice to the respondent and without shutting off the baler as required by the respondent's safety protocols.

The burden would then shift to the complainant to demonstrate pretext. The complainant appears to be contending in this regard that he did give notice to the respondent prior to leaving work on March 19, and that it was the respondent's typical and approved practice for an operator to put the baler on its manual setting when leaving for an extended period of time. However, the administrative law judge did not credit these contentions, and there is no persuasive reason in the record to overturn his credibility determinations in this regard. The testimony of the respondent's safety director and recycling shop foreman is consistent and establishes that the baler is required to be turned off if its operator is going to be absent from the platform for more than a few minutes. Moreover, the individuals to whom the complainant would have provided notice of his absence consistently testified that the complainant failed to do so on March 19, and the complainant's testimony in this regard is very uncertain and unconvincing.

The complainant also seems to be contending that the respondent's dissatisfaction with the amount of time he was taking for medical appointments and with his inability to perform a more extensive range of duties demonstrates that respondent was probably motivated by his disability to terminate his employment. However, the record shows that the respondent was dissatisfied with the complainant's failure to consistently provide sufficient advance notice of his appointments and with his failure to schedule them after work hours, not with the fact of his medical appointments per se. These are typical and reasonable employment expectations and would not establish pretext. In addition, the record does not show that the employer required the employee to perform duties beyond his restrictions. In fact, the record shows that the employer identified and assigned the employee to perform light duty tasks which did not require the use of his injured hand.

Finally, the complainant alleges that he was sexually harassed twice by a co-worker. It is undisputed that the complainant failed to report the second incident of alleged harassment. In regard to the first, the employer conducted an immediate investigation, reasonably concluded that it was unable to discern whether the complainant or the co-worker was telling the truth, and counseled the co-worker that the actions which the complainant described were unacceptable and, if it was ever discovered that the co-worker had engaged in such actions, there would be a serious consequence. This single incident is not sufficiently egregious to support a conclusion that sexual harassment occurred. Moreover, since the record shows that the employer conducted an immediate investigation and took a reasonable course of action as a result, liability would not attach even if sexual harassment had been shown. An employer cannot be found responsible for discriminatory conduct unless it is carried out directly by the employer or, if carried out by co-employees, the employer knows or should reasonably know of it and fails to take reasonable action to prevent or address it. Valentin v. Clear Lake Ambulance Service (LIRC Feb. 26, 1992), citing Crear v. LIRC, 114 Wis. 2d 537, 542, 339 N.W.2d 350 (Ct. App. 1983); Ferguson v. Buechel Stone Corp., ERD Case No. 199900706 (LIRC April 24, 2001).

The commission concludes that the complainant failed to sustain his burden to prove his claims of discrimination, harassment, or retaliation.

cc: Attorney James B. Sherman

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