KALANITH VAISMAN, Complainant

ALDRIDGE, INC. 
d/b/a GEORGE WEBB RESTAURANTS, Respondent

On December 7, 1989, an Administrative Law Judge (ALJ) for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter. The Complainant, Kalanith Vaisman, filed a timely petition for review of the ALJ's decision by the commission. On July 25, 1990, Vaisman and the Complainant in a companion case (Linda Alexander) moved to disqualify ALJ Pamela Rasche and to vacate her decision for asserted bias. Written arguments have been filed by both parties with respect to the petition for review on the merits, and with respect to the motion to vacate.

Based upon a review of the record in its entirety, and after consultation with the ALJ, the Commission issues the following:

The decision of the Administrative Law Judge (copy attached) is modified as follows:

1. Finding of Fact No. 18 is modified to read:

"Aldridge, Inc.'s decisions to reduce Vaisman's work hours, to terminate her employment, or to deny her rehire were not based upon her sex, her marital status, or her creed.

2. Finding of Fact No. 19 is created to read:

"19. Vaisman was not subject to a sexually harassing work environment."

3. Conclusion of Law No. 2 is amended to read:

"Vaisman has failed to establish by a fair preponderance of the evidence that Aldridge, Inc. reduced her work hours, discharged her, or denied her rehire because of her sex, marital status, or creed; or that she was subject to a sexually harassing work environment."

4. Vaisman's motion to disqualify Administrative Law Judge Rasche and to vacate her decision is denied.

As modified, the decision of the Administrative Law Judge is affirmed and shall stand as the FINAL ORDER herein..

Dated and mailed October 21, 1991

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

I. Was Vaisman discharged, or were her work hours reduced, or was she denied rehire because of her marital status creed or sex?

Vaisman alleges that she was discharged, that her work hours were reduced, and that she was denied rehire because of her marital status (single), her creed (Jewish), and her sex (female) . The basis of the marital status claim is that she was living with another Aldridge employe and that Aldridge allegedly had a rule which prohibited employes from dating or living with other employes. The basis of the creed claim is that on her application form, Vaisman indicated that she had worked in a kibbutz in Israel. The basis for the sex discrimination claim is twofold: (1) She was disciplined for talking to her boyfriend while working, but the boyfriend was not disciplined, and (2) Tom Aldridge's use of profanity in front of female employes constituted sexual harassment.

After a careful review of the entire record, the Commission concludes that none of Vaisman's claims have any merit.

A. Marital Status Discrimination

The ALJ found that Aldridge had no policy against employes dating each other, that Aldridge was aware that Vaisman lived with a co-employe, and that Aldridge took no action against her because she lived with a co-employe. Tom Aldridge testified that Aldridge had no policy which prohibited employes from dating each other or from living with each other, and that he knew that Vaisman's boyfriend worked for Aldridge when she was discharged. June Ritzel, a former general manager for Aldridge, testified that there was no policy about employes dating. Vaisman testified that she "did not hear about a policy against dating exactly" (Hrg. Syn., p. 8) but that another employe named Marion advised her that she should not let anyone know that she was living with a co-employe. She also testified that Jeff Aldridge, the company vice president, said to her that the co-employe was her boyfriend and that she lived with him. (Hrg. Syn., p. 10)

The evidence clearly supports the ALJ's finding that Aldridge did not have a policy prohibiting employes from dating or living together. Vaisman argues that such a policy existed because Aldridge did not specifically deny the existence of such a policy in its letter to the Equal Rights investigator (Complainant's Exh. 7), because Aldridge, through his attorney, asserted in the same letter that such a policy "would be in the best interest of a harmonious working environment," and because the co-worker Marion advised her that she should not let anyone know that she lived with a co-employe. Vaisman's argument is wholly without merit and does not warrant any change of the ALJ's findings.

First, Aldridge's failure to specifically deny the existence of a policy in its letter to the Equal Rights investigator simply is not affirmative proof that such a policy existed. Vaisman's co-employe/boyfriend continued to be employed by Aldridge at the time Vaisman was discharged. If Aldridge had a policy prohibiting employes to live together, then the employe's boyfriend would also have been reprimanded and/or discharged for the situation.

Second, the Commission believes, with respect to the assertion in the letter that such a policy "would be in the best interest of a harmonious working environment," that this is not an admission that the policy existed, but rather a statement which is meant to be taken as an expression of desirable social policy. The entire sentence reads as follows: "Because of the vicarious liability of employers for sexual harassment, Respondent submits that a policy against employe dating would not only be nondiscriminatory, it would be in the best interest of a harmonious working environment." This is evidence of Aldridge's (or more properly Aldridge's attorney's) opinion, not evidence of Aldridge's policy.

Third, the advice Vaisman received from Marion that she should not let anyone know that she lived with a co-employe is not credible evidence of any policy Aldridge might have concerning employes living together.

Fourth, even if Vaisman's hours were reduced and she were discharged or denied rehire because she violated a company policy prohibiting employes from dating or living together, she would not have been unlawfully discriminated against because of marital status. Such a policy, as Vaisman asserts it exists, applies equally to all employes, regardless of marital status, and attempts to regulate conduct rather than the status of being married or single. Federated Elec. v. Kessler, 131 Wis. 2d 189, 207-08, 388 N.W.2d 553 (1986). Consequently, Vaisman failed to prove that she was a victim of marital status discrimination.

B. Creed Discrimination

Vaisman's application stated that she had worked in a kibbutz in Israel. The application did not state that she was Jewish. Under adverse examination by Vaisman's attorney, Aldridge admitted that he had heard of Israel being referred to as the Jewish state, but it did not occur to him that working on a kibbutz in Israel meant that a person was Jewish. He specifically testified that "I had not heard of the term 'kibbutz' until this charge was filed. No, it did not occur to me that being a presser in a kibbutz in Israel meant that a person was Jewish, because I did not know what a presser in a kibbutz was. I never heard of such a thing. Yes, I know what a presser in a laundry means." (Hearing synopsis, p. 2) Aldridge further testified that it did not occur to him that Vaisman's application was from a person who was Jewish. (Hearing synopsis, p. 3)

In the Commission's opinion, the mere fact that Vaisman's application stated that she had worked in a kibbutz in Israel is an insufficient basis from which to conclude that Tom Aldridge knew that she was Jewish. Although the connection may seem obvious for many, there are many for whom it would not be so obvious. Vaisman, in her brief, accuses Aldridge of lying when he made the statement that he did not know what a kibbutz was, etc. However, the ALJ, by her finding, clearly believed Aldridge. It was within her discretion to do so and there is no basis for questioning it. Since there is no other evidence to establish that Aldridge knew Vaisman was Jewish, the ALJ correctly concluded that Aldridge did not discharge Vaisman, did not reduce her work hours, and did not deny her rehire because she was, Jewish.

Vaisman relies on the method of case analysis developed by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973). Applied to a discharge case, a person establishes a prima facie case by proving that the person is a member of a protected class, that the person is doing satisfactory work, that the person is discharged, and that the employer seeks to fill the person's position with similarly qualified candidates. A prima facie case under the McDonnell Douglas analysis raises an inference of discriminatory motivation because it eliminates the most common reasons for the plaintiff's rejection, and it suggests discriminatory animus in the absence of any other explanation. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567, 577-80 (1978).

Although the establishment of a prima facie case shifts the burden to the employer, to articulate some legitimate nondiscriminatory reason for its employment decision, and the burden then returns to the employe to prove that the employer's proffered reason was not the true reason for the employment decision, McDonnell Douglas, 411 U.S. at 802-04, Burdine, 450 U.S. at 254-56, the important point is that the plaintiff has the "ultimate burden of persuading the court that she has been the victim of intentional discrimination." Burdine, 450 U.S. at 456. It is evident, therefore, that even if a person is a member of a protected class (e.g., in this case Vaisman is Jewish), if the employer is unaware of the person's membership in the protected class, the person fails even to establish a prima facie case. There simply is no inference of discriminatory motivation. The Wisconsin Fair Employment Act prohibits discrimination "because of" a person's creed. Since there is no credible evidence that Tom Aldridge was aware that Vaisman was Jewish, there can be no reasonable inference that he discharged her, reduced her hours, or denied her rehire "because of" her creed.

C. Sex Discrimination

Aldridge has a rule which prohibits personal visitors while an employe is on duty. On at least two occasions, Vaisman's boyfriend was in the restaurant while Vaisman was on duty. The boyfriend was not on duty at the same time because he worked at another location for Aldridge. Vaisman was disciplined for visiting with her boyfriend while on duty. The boyfriend was not disciplined.

Vaisman argues that it was an act of sex discrimination to reduce her hours, to discharge her, and to deny her rehire in part for visiting with her co-employe boyfriend when he suffered no similar consequences. The simple and obvious response to this argument is that Vaisman and her boyfriend were not similarly situated. Aldridge's work rule prohibits personal visitors while an employe is on duty. Vaisman violated the work rule because her boyfriend visited with her while she was on duty. Her boyfriend was not on duty at the time and, so, was not in violation of the rule. There is no evidence that the boyfriend ever violated the work rule by visiting with Vaisman or having any other personal visitors while he was on duty. The boyfriend's status as an Aldridge employe while he was visiting with Vaisman does not constitute a violation of any work rule of Aldridge's. The work rule is addressed only to the employe who is on duty, not to the individual who is the visitor.

With regard to the sexual harassment claim, there was no evidence that Tom Aldridge used profanity in front of female employes to an extent that would constitute unlawful sexual harassment. The only evidence at all pertinent was Vaisman's testimony that Tom Aldridge once swore at a male cook and a female cook because they did not do something right. Such testimony clearly is insufficient to establish sexual harassment. It appears that if Aldridge had a propensity, it was toward abusive language in general, not toward sexually harassing language.

II. Was the ALJ biased in favor of Aldridge or was there an impermissible risk of bias?

Section 227.46(6), Stats., requires that "the functions of persons presiding at a hearing or participating in proposed or final decisions shall be performed in an impartial manner." Moreover, a fair and impartial decision-maker is a basic requirement of due process. Guthrie v. WERC, 111 Wis. 2d 447, 454, 331 N.W.2d 331 (1983). It is not necessary to prove actual bias; it is sufficient to prove that the risk of bias is "impermissibly high." Id.; State ex rel. DeLuca v. Common Council, 72 Wis. 2d 672, 681-85, 242 N.W.2d 689 (1976). Quoting the decision of the United States Supreme Court in Withrow v. Larkin, 421 U.S. 35 (1975), the court in Guthrie notes situations where the risk of bias is impermissibly high, even though there is no actual bias: " 'Among these cases are those in which the adjudicator has a pecuniary interest in the outcome and in which he has been the target of personal abuse or criticism from the party before him. [footnotes omitted]' Page 47." Guthrie, 111 Wis. 2d at 455.

Persons who serve as decision-makers in state administrative proceedings enjoy a presumption of honesty and integrity. Guthrie, 111 Wis. 2d at 455; DeLuca, 72 Wis. 2d at 687; Eastman v. City of Madison, 117 Wis. 2d 106, 114, 342 N.W.2d 764 (Ct. App. 1983). A party seeking to prove either actual bias or an impermissibly high risk of bias bears a heavy burden to overcome this presumption. DeLuca, 72 Wis. 2d at 684; Eastman, 117 Wis. 2d at 114.

Hearings in Vaisman's case were conducted before ALJ Pam Rasche on May 24, 1989 and October 10, 1989. Rasche issued her written decision on December 7, 1989, dismissing Vaisman's complaint. Vaisman petitioned for review by the Commission on December 17, 1989, and briefing was completed by April 16, 1990. Vaisman made no claim of ALJ bias in either of her briefs.

On June 18, 1990, Vaisman raised the issue of ALJ bias for the first time. On July 25, 1990, Vaisman moved the commission to disqualify Rasche, to vacate her decision, and to decide the case independently or remand the case for decision by an impartial decision-maker. Vaisman contends that Rasche was not impartial because she unreasonably decided important issues in favor of Aldridge and against Vaisman, because she quashed a subpoena to produce Aldridge's records at the hearing, because she failed to control the conduct of Tom Aldridge during the hearing, because she limited Vaisman's oral argument in opposition to Aldridge's motion to dismiss (to the same amount of time given Aldridge's attorney to argue in favor of the motion), and, most significantly, because counsel for Aldridge (Barry Chaet), on February 27, 1990 (which was the last day of hearing in the companion Alexander v. Aldridge case and was after Vaisman had filed her petition for Commission review), invited Rasche in the presence of Vaisman's attorney (Barton Peck) to speak at a continuing legal education course Chaet was presenting in conjunction with Marquette University. Rasche immediately declined the invitation because of her expressed concern that her involvement in the CLE course during the pendency of the case would be improper. Rasche had appeared as a speaker in a course Chaet presented at Marquette University sometime prior to 1986. Speakers at Chaet's courses received no honorarium or financial remuneration for their participation. All speakers from the Equal Rights Division (there have been a number over the years) have received prior approval to speak from the head of DILHR.

Except for the issue of Rasche's past participation as a speaker in Chaet's course and his present invitation for her to do so again, none of the issues Vaisman raises seriously suggest either actual bias or an "impermissibly high risk" of bias'. Vaisman asserts that the ALJ's findings of fact and conclusions of law are not supported by the evidence, that she failed to properly interpret the facts, and that somehow this constitutes bias. Other than reciting the many differences which Vaisman has with the ALJ with regard to her interpretation of the evidence and her ultimate findings and conclusions, Vaisman makes absolutely no argument nor gives any explanation of exactly how this demonstrates an "impermissibly high risk of bias." These arguments are a basis on which to appeal the merits of the decision, not a basis on which to assert ALJ bias. While they may be the result of bias, they do not establish bias.

With respect to the allegations concerning the manner in which Rasche conducted the hearing (with little or no control), the Commission's review of the record reveals no indication of bias. The latitude which a particular ALJ allows the parties is a matter of the ALJ's style, not an indication of bias.

With respect to Vaisman's allegations of procedural errors (Rasche's decision to quash the subpoena and her decision to hold Vaisman to the same amount of time in arguing against the motion to dismiss as she allowed Aldridge in arguing in favor of the motion) these are issues which may form the basis of a substantive appeal, but they do not establish or even suggest bias on the part of the ALJ. The ruling restricting Peck to the same amount of time to argue the motion as Chaet is not per se unreasonable, even though Peck argues that Chaet somehow had an advantage because he brought the motion. Rasche's decision to quash the subpoena (to be discussed in more detail below) is also defensible and does not at all suggest bias. With respect to the numerous procedural errors of which Rasche is accused in Vaisman's motion to disqualify her and to vacate her decision, none have any merit. Rather, it appears that Vaisman is simply lumping together almost every ruling which was adverse to her and asserting that such rulings collectively establish bias. During the course of any hearing or trial, it is not uncommon to have rulings which are adverse to both sides. The mere compilation of such rulings for one side or the other does not, by itself, establish bias, absent a specific showing of how the rulings reflect bias or are somehow unusual. There was no such showing in this case. The arguments do little more than accuse. There are very few specifics to back up the continuing allegations of error and bias. The crucial question of why these rulings constitute bias is simply not addressed.

With respect to Vaisman's allegation that Chaet's invitation to Rasche to speak at one of his CLE courses establishes bias on Rasche's part, the commission rejects it. (1)  Vaisman argues that speaking at Chaet's courses enhances an ALJ's status and employment opportunities, and provides the ALJ with continuing legal education credits (as a speaker) which the ALJ would otherwise have had to pay to receive (as an attendee at a course). Consequently, she argues that Rasche's past participation in Chaet's course on one occasion in 1986 and Chaet's present invitation to have her participate posed an impermissibly high risk of bias. The Commission disagrees. In the presence of Vaisman's attorney, Rasche refused Chaet's invitation to speak. Her refusal, based upon the pending case, demonstrates her impartiality rather than any partiality. Moreover, her single participation in Chaet's course some four years prior to her decision in Vaisman's case fails to raise an impermissibly high risk of bias. It was very remote in time to the hearing on the present case and there was no evidence of a continuing professional relationship, nor evidence of anything else which would point to even the appearance of bias on Rasche's part.

Vaisman asserts that Rasche committed a procedural error when she quashed Vaisman's subpoena, which was issued on October 8, 1989, two days before the beginning of the second day of hearing, and which ordered the Respondent Tom Aldridge to produce work schedules for the period following Vaisman's departure. Specifically, Vaisman argues that "it was procedurally indefensible for the ALJ to have quashed Complainant's subpoena ordering Respondent to produce those additional records. Her ruling is without precedent. Her rationale would if sustained, make a shambles of rebuttal." (Complainant's Brief, p. 21) This argument is without merit for a number of reasons. First, the subpoena, or request to produce additional evidence, was untimely pursuant to Ind 88.14(1), Wis. Adm. Code, which requires that all exhibits must be submitted no later than the tenth day prior to the date of the hearing. Being so untimely and not complying with the administrative rule regarding the notice of exhibits ten days prior to the hearing date, it is likely that Rasche quashed the subpoena because Vaisman could not have introduced the work schedules into the record even if Aldridge had produced the records according to the subpoena.

Second, a general consideration of the timeliness of a request for documents may be considered by a court in denying such request. If the documents are requested shortly before the hearing the court is justified in denying the request. Bank of Commerce v. Lesperance, 54 Wis. 2d 519, 525, 196 N.W.2d 671 (1972).

Finally, Vaisman's implication in her brief that the documents would be offered for rebuttal purposes and therefore would be acceptable under the rebuttal exception of sec. Ind 88.14(1), Wis. Adm. Code, which states that "this section does not apply to witnesses and exhibits offered in rebuttal which the party could not have reasonably anticipated using prior to the hearing," must also fail. Rebuttal is not applicable unless and until the complainant and the respondent have rested their cases and the complainant discovers during the respondent's presentation of its case in chief a piece of evidence or some testimony which it could not have anticipated and which would have an important bearing on the case. This did not occur in the Vaisman case. Rasche dismissed the case at the end of Vaisman's case in chief. Aldridge had not presented any evidence and, therefore, rebuttal would not be applicable. Although Tom Aldridge was called as a witness adversely by Vaisman, there appears to be nothing in his testimony which would have raised the issue of these records and which would have given Vaisman a basis for arguing that these should be submitted in the form of rebuttal even though Respondent had not submitted its case in chief.

Even if they would qualify as rebuttal evidence, however, the ten-day notification requirement is lifted with respect to only that rebuttal evidence "which the party could not have reasonably anticipated using prior to the hearing." In this case, Vaisman's theory of her case revolved around the premise that she was discharged and did not voluntarily terminate her employment. This premise involves accepting her assertion that she did not come to work after November 17 because she was not placed on the schedule, not because she voluntarily terminated her employment. As such, it would seem that the employer's work schedules for that period of time after she stopped coming to work would be an integral part of her case in attempting to establish that she was discharged and that the discharge was established by her absence from the work schedules, rather than that she had quit her employment. Consequently, there is no reasonable basis upon which to believe that Vaisman could not have anticipated prior to the hearing that she would need such work schedules to establish her assertion.

Another allegation in Vaisman's brief of procedural error is the ALJ's decision to dismiss the case after the Complainant's case in chief was presented and before the Respondent presented its case. Vaisman argues in her brief  that "It was error for the ALJ to summarily dismiss the case particularly when the first day of what was in essence a two-day hearing was held 149 days before her ruling. The Commission has cautioned that a request to dismiss at hearing at the close of a complainant's case must be handled with due care. It urged that before granting such a request the administrative law judge must be fully knowledgeable of what facts a complainant needs to present to establish her case and exactly what evidence has been presented at hearing. Holcomb v. American Convenience Products (LIRC, 3/25/88)." (Complainant's Brief, pp. 21-22)

Vaisman argues that this principle has been "unheeded" by the ALJ in her summary dismissal after Vaisman's case. It is true that the Commission did caution against summary dismissal without full knowledge of the facts the complainant needs to present in the case and without full knowledge of what evidence has been presented at the hearing. However, there is no evidence in this record that the ALJ either was not informed about what Vaisman needed to establish her case or what evidence had been presented at the hearing. Simply because the hearing was continued and there was a 149-day gap between the two hearing days is not sufficient to establish that the ALJ had lost her recollection of the evidence or was not in command of what Vaisman needed to establish her case. The argument, again, is without merit.

Finally, Vaisman argues that the ALJ somehow erred when she failed to give any reasons for her decision to dismiss the case at the time she dismissed it. Vaisman states "To say the least, fairness dictates that the reasons for the ALJ's decision to dismiss the case should have been presented when she had announced her decision -- not later, after she had the opportunity to scrutinize the evidence in order to find support for her decision." (Complainant's Brief, p. 22) There is nothing in Chapter 227 which requires an administrative law judge to announce the reasons for a bench ruling.  Even in a written decision, an administrative agency need not set out what evidence it believed and what it rejected. State ex ref. Harris v. Annuity Pension Board, 87 Wis. 2d 646, 661, 275 N.W.2d 668 (1978). It has been deemed unnecessary for administrative agencies to give reasons for the implied rejection of all alternatives as this would be too onerous a burden. Wisconsin Environmental Decade Inc. v. PSC, 98 Wis. 2d 682, 702, 298 N.W.2d 205 (1980).

For the reasons discussed above, the Commission rejects Vaisman's petition request to reverse the decision of the Administrative Law Judge, and denies her motion to disqualify Rasche and to vacate her decision.

150

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(1)( Back ) The Commission would like to point out that waiver ("a voluntary relinquishment of a known right" Guthrie v. WERC, 107 Wis. 2d 306, 311, 320 N.W.2d 213 (Ct. App. 1982)), is not an issue in this case. There is no question of Vaisman having waived this issue because she did not have any knowledge of the issue prior to the issuance of the ALJ's decision. Everything having to do with the Vaisman hearing, including the ALJ's decision (12/7/89) as well as the Complainant's petition for review (12/17/89), came before the day of the Alexander hearing (2/27/90) during which Chaet invited Rasche to speak at the CLE course.

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