DEBORAH K. LEVANDUSKI, Complainant

VISITING NURSE ASSOCIATION OF SHEBOYGAN, INC., Respondent

An administrative law judge for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on June 19, 1987. Complainant filed a timely petition for review by the Commission and both parties submitted written arguments.

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 February 10, 1988

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

In the petition, Complainant asserted that the circumstances of her discharge differed in significant respect from those of the Complainant in City of Onalaska v. LIRC, 120 Wis. 2d 363 (1984), because Respondent discharged her without interviewing her with respect to the incident of arrest. However, the Complainant informed the Respondent's scheduler, Ms. Gardella, of the incident with her husband. Ms. Gardella relayed this information to Complainant's supervisor, who checked at the police station to verify it. While the Respondent did not question the Complainant directly concerning the incident, Respondent relied on the statements Complainant made to Ms. Gardella and its own investigation. The circumstances were therefore very similar to those in City of Onalaska; and most importantly, it is clear that the Respondent acted out of concern over the Complainant's conduct, and its belief that such conduct might mean the Complainant would respond inappropriately to provocation from its clients. The decision to discharge the Complainant was made because of her conduct on July 17, 1985, not because of her arrest record.

Complainant also asserted in the petition that the Administrative Law Judge erred by allowing hearsay testimony with respect to complaints from the Complainant's former patients regarding her work performance, and by refusing to allow cross-examination of this testimony. The Administrative Law Judge has discretion to allow hearsay testimony at a hearing, but no findings may be based on such testimony. The testimony complained of was minimal in nature, and neither the Administrative Law Judge nor the Commission relied upon it to any extent in making findings.

In its answer to the petition, Respondent made a motion for attorney fees and costs to be awarded to it. The Commission has no power to award fees and costs to respondents under the Wisconsin Fair Employment Act. See Beverly Tatum v. LIRC, 132 Wis. 2d 411 (1986).

185 / A

Appealed to Circuit Court.  Affirmed September 13, 1988.

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