WENDY M. HIGGINS, Complainant

TOTAL PETROLEUM, Respondent

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 September 30, 1993. Complainant filed a timely petition for review by the commission and both parties submitted written argument in support of their positions.

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

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

Dated and mailed July 25, 1994
135

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

Sexual Harassment Claim

The sexual harassment finding has not been challenged. In view of the complainant's companion case, the commission has reviewed the record to determine whether the findings of fact and conclusions of law are supported by the record. Concluding that they are, the commission adopts these specific findings of fact and conclusions of law as its own.

Retaliatory Discharge-Claim

The complainant contends that the ALJ erroneously found no causal link between her protected activity and her discharge. The complainant explains that the commission in the past has found a causal link where four to five months transpired between the protected activity and the discharge. Weir v. A. E. Moore, (LIRC 2/20/80). Based upon its review of the record, the commission is satisfied that the complainant's protected activity did not motivate the respondent's decision to remove her from Store 2618, or its ultimate decision to terminate her.

The decision to remove the complainant from Store 2618 was made on October 12, 1990. The complainant did not file a formal complaint of sexual harassment with the Equal Rights Division until October 26, 1990. Because the respondent's decision to remove the complainant from Store 2618 preceded the complainant's filing of a formal complaint, it cannot be concluded that there was a causal link between these two specific events. This leaves only the complainant's conduct on September 19, 1990. The complainant complained about the male co-worker to Michael Sardina and Scott Paulson on or about September 19, 1990, almost a month before Sardina and Paulson made their decision on October 12, 1990 to remove the complainant from Store 2618.

There is sufficient evidence supporting reasons other than complainant's protected activity regarding the respondent's decision to transfer the complainant. The complainant, however, contends that the ALJ improperly relied upon hearsay evidence for these crucial and essential findings of fact. The complainant contends that the ALJ improperly accepted unsubstantiated employer justifications as reasons other than the protected activity that led to the transfer decision. However, upon reviewing the transcript testimony of Sardina and Paulson, the commission noted no objections by complainant's counsel as to the hearsay nature of these unsubstantiated justifications. Generally, where no objection is made to hearsay it is admitted as evidence and may be used as proof to whatever extent it may have rational persuasive power. Joe Janz v. Joseph Schlitz Brewing Co., (LIRC 9/10/81). And although an ALJ may not base a finding solely on hearsay, the ALJ has the discretion to allow hearsay testimony at a hearing. Deborah K. Levanduski v. Visiting Nurse Association, (LIRC 2/10/88).

Admittedly it would have been helpful if several of the customers who complained about the complainant appeared at the hearing. Their absences, however, do not detract from the ALJ's weighing of the testimony admitted. Furthermore, both Sardina and Paulson were in positions to offer probative, relevant firsthand testimony regarding the gas losses recorded for Store 2618 and their conclusions about complainant's role in the matter. Again while documentation would have been helpful, its noticeable absence does not discount the ALJ's credibility assessment of Sardina and Paulson.

Complainant also contends that the ALJ erred, sub silentio, when she found that the respondent's reasons for the transfer were based upon the personality conflict between complainant and Sardina. Although Sardina was unsympathetic to complainant in regard to her sexual harassment claim, he did put her in contact with the appropriate employer representative (Doug Mast) to file her sexual harassment claim. And although the complainant describes Sardina's attitude toward complainant as "callous indifference," this argument only serves to support how relevant the personality conflict was to respondent's decision to transfer the complainant. Sardina testified that he did not like the complainant's interpersonal skills, or lack thereof. Sardina also testified that a manager should have been more cognizant of the gas loss than the complainant actually was. Based upon this testimony, a reasonable inference is that Sardina did not respect complainant's managerial skills and that is why he wanted her transferred from a store he supervised. Finally, complainant contends there is no substantial basis that respondent legitimately attempted to transfer complainant. Again, resolution of this contention rests largely on credibility. The ALJ found the respondent's witnesses credible regarding the number and extent of the store transfers. The commission will not disturb this credibility assessment, as well as any other referenced in this decision. Because the findings of fact and conclusions of law are supported by the record, the commission affirms the ALJ's decision.

cc: 
Thomas C. McClure
Carolyn C. Burrell

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