Wis.LIRC ER Decision: Vandeveer, Peggy - June 28, 1993 - Sexual Orientation discrimination - not proved - employer genuinely believed reports it received from third parties concerning Complainant, and acted on the basis of those reports, not on the basis of any invidious bias against Complainant - evidence of third parties' reports not hearsay, because not offered for truth but to prove motivations of employer

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

PEGGY VANDEVEER, Complainant

BROWN COUNTY, Respondent A

JULIE WEINBERGER, Respondent B

PAUL LESPERANCE, Respondent C

FAIR EMPLOYMENT DECISION
ERD Case No. 9020864

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on February 6, 1992. Complainant filed a timely petition for review by the commission and the parties subsequently submitted written arguments.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

The decision of the administrative law judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed June 28, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

Peggy Vandeveer sought to be employed by the Brown County Association of Retarded Citizens ("ARC") as a live-in attendant for Carol Vandeveer, who was the mother of her lesbian partner, Tracey Vandeveer. Such live-in attendant services would have been provided pursuant to contract between ARC and Brown County's Department of Social Services. Brown County, through representatives including Julie Weinberger and Paul Lesperance, effectively prevented the hire of Peggy Vandeveer by ARC, by informing ARC that it would not contract with it to provide live-in attendant services for Carol Vandeveer if ARC hired Peggy Vandeveer to perform those services. Peggy Vandeveer alleged that Brown County thus prevented her employment by ARC, because of her sexual orientation. Brown County denied that this was a motivation, and asserted that the motivation was a belief that Peggy Vandeveer, who (with Tracey Vandeveer) had lived with Carol Vandeveer in the past, had emotionally abused, physically neglected, and financially exploited Carol Vandeveer.

The commission agrees with the administrative law judge that it is not necessary to directly resolve the question of whether Brown County's asserted reason was true as a matter of objective fact. The question is whether Brown County genuinely believed the reports it received of such abuse, neglect and exploitation, and whether it acted on the basis of that belief rather than on the basis of invidious prejudice against Peggy Vandeveer because of her sexual orientation.

Based on a careful review of the testimony and exhibits, the commission agrees with the administrative law judge that the reports to Brown County of abuse, neglect and exploitation of Carol Vandeveer were accepted and relied on by Brown County in good faith and without bias against Peggy Vandeveer, and that it was because of those reports, as well as observations of Brown County's own representatives, that it decided that it would not pay ARC to have Peggy Vandeveer care for Carol Vandeveer.

In respect to those disputes of fact that. turned on an assessment of the credibility of Peggy and Tracey Vandeveer and Julie Weinberger and others, the commission agreed with the assessment of the administrative law judge, which is quite evident from her findings, that the respondents' witnesses were more credible. The commission specifically agreed with the administrative law judge that Julie Weinberger's testimony was more credible than that of Peggy and Tracey Vandeveer with respect to the events of October 15, 1987, when Carol Vandeveer was removed from her home.

The commission has carefully considered the arguments made on Peggy Vandeveer's behalf, but finds them unpersuasive. In particular, the commission rejects the argument that the decision of the administrative law judge rested on impermissible hearsay. The evidence in question was not hearsay, because it was neither offered nor accepted for the truth of its contents, but rather merely as evidence of statements to Julie Weinberger and other representatives of the county to show what motivated them in the decision complained of by complainant.

NOTE: Peggy Vandeveer was represented in this matter by Challoner Morse McBride. After briefs had been filed with the commission, McBride's license to practice law was summarily suspended. Because she is not now authorized to act as an attorney for Peggy Vandeveer, the commission is not sending a copy of this decision to McBride.

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