KATRINA GRAY, Complainant

SUMMIT PLACE/CREATIVE STEPPING STONES, 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.

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

Dated and mailed April 30, 2004
graykat . rsd : 110 :  

David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

This case concerns the relationship between complainant Katrina Gray and respondent Creative Stepping Stones, and the circumstances under which that relationship ended.

As the administrative law judge found, Creative Stepping Stones is a business which operates two community-based residential facilities, Summit Place and East View Terrace. Gray worked at Summit Place briefly in August, 2001, as an employee of TOPS, a temporary help agency. After Gray's relationship with Creative Stepping Stones ended, she filed a complaint alleging that it had discriminated against her in compensation and had ended their relationship because of her race and her arrest record, in violation of the Wisconsin Fair Employment Act. Following a hearing, an administrative law judge found and concluded that it had been Gray rather than Creative Stepping Stones which ended the relationship, and that Creative Stepping Stones had not discriminated against Gray.

In her petition for commission review, Gray argues that Creative Stepping Stones ended its relationship with her because of her arrest record, in violation of the Act. (1)  She argues in particular that the administrative law judge erred in his findings concerning whether or when the complainant called Ms. Nowakowski after having been told to go home early on the morning of August 5, and in his findings concerning when the complainant was or was not scheduled to work after that time and what caused her relationship with respondent to come to an end. She argues as well that the administrative law judge "did not properly consider" certain evidence which she believes had a bearing on the respondent's subjective motivations concerning her arrest record, and that the administrative law judge "placed too much emphasis on" certain other evidence relating to her conduct in going to both of the respondent's facilities and doing hairdressing work on many of the residents there. Finally, the complainant raised procedural issues, involving the manner in which the hearing record was preserved (by a court reporter rather than taping), and a ruling by the administrative law judge to preclude the complainant from calling as a "rebuttal" witness a person who had not been identified in the complainant's pre-hearing witness disclosure.

The single most important issue in this case was the credibility of the witnesses. Ultimately, the complainant's claim that she was discriminated against because of her arrest record, and her arguments that the administrative law judge "did not properly consider" certain evidence and "placed too much emphasis on" certain other evidence, depend on accepting her version of the relevant facts, which differs very sharply from that provided by the respondent's witnesses. It is evident from the findings of fact made by the administrative law judge, however, that he believed the testimony given by the respondent's witnesses, and that he did not credit the complainant's testimony. Based on a careful review of the record, the commission is in agreement with this assessment of witness credibility. The commission found the testimony of the respondent's witnesses to be more credible than that of the complainant on the critical factual disputes in the case, including the question of whether the complainant was initially told that she was to provide hairdressing services for residents, the matter of the early morning telephone call which ended with the complainant going home early, the questions of when she was and was not scheduled to work after that point and whether she had certain telephone contacts with Nowakowski, what was and was not said in telephone conversations on August 11, and the matter of when and by whom the criminal record report was eventually received and considered. The commission agrees with the findings of the administrative law judge as to these matters.

The complainant clearly wished Exhibit 3 to be taken as independent proof that the telephone calls she asserts she had were in fact made. However, the commission found that document to be highly questionable. It is puzzling that Exhibit 3 bears absolutely no identifying marks indicating that it is a record of a particular telecommunications provider; the handwritten notations on the first page, only partly legible, also seem extremely "informal" as a method by which a telecommunications company would choose to verify details of usage on an account. The main problem with the document received as Exhibit 3, however, was that notwithstanding that there was a stipulation that it was "accurate," there was no stipulation, and no foundation, as to what it meant and thus what it demonstrated. The principal difficulty here was the uncertain meaning of the "Duration" column. Even if the other information on the document is taken to establish that certain numbers were dialed, what is important is whether the calls connected and a conversation then occurred. To evaluate this, it is necessary to see that there was a connection of a certain duration. However, there was no explanation of what the 4-digit numbers in the "Duration" column meant. It is self- evident that they could not represent time in either an hours-and-minutes (HHMM) format or minutes-and-seconds (MMSS format), because in a number of entries the first or second pair of digits is greater than 60. It also seems extremely unlikely that they could reflect time in absolute elapsed seconds. Most suspiciously, there were occasions on which multiple calls were made within a few minutes of one another, or even at exactly the same moment, with "Durations" shown for them that are impossible under any theory of what the "Duration" column measures. The information in the "Durations" column is thus inexplicable, and therefore essentially meaningless, on its face. This means that even if Exhibit 3 is taken to reflect that calls were dialed to certain numbers, there is no basis for taking it to reflect that the calls were completed.

The stipulation that Exhibit 3 was an "accurate" document, does not bind the commission to accept the document as proof of whatever the complainant asserts it proves, particularly since its meaning is unclear and it is questionable on its face. For the reasons discussed above, the commission finds Exhibit 3 unpersuasive as proof that the complainant had the telephone calls she asserts she had with Nowakowski in the days after August 5.

The commission also carefully considered Exhibit 6, the Criminal History form and associated paperwork, and particularly the FAX transmission markings on the pages, to see if they could provide independent confirmation of the testimonial assertions of either the complainant or the respondent. The FAX transmission markings left on the documents in the Criminal History report documents are consistent with the respondent's assertions. They show that the part of the form completed by the complainant was FAXed on the same day the complainant filled it out, August 3. This was presumably a reflection of Tania Bounds' FAXing of the document to the Department of Justice Division of Law Enforcement Services for it to do the check. The actual report (the last 3 pages of Exhibit 6) show that they were produced on August 7. The important question is, when the report was sent back to the respondent, and how. The paperwork is consistent with Tania Bound's testimony, that the report was mailed back rather than FAXed. The commission therefore found credible the testimony that the report was not received back by the respondent until August 13 and was not noted by Nowakowski until August 14. The complainant's assertion about having been told in a telephone conversation on August 11 that the respondent had her criminal record back and was going to refuse to allow her to work as a caregiver because of what it showed, was not credible.

Nowakowski testified to some attempts to reach the complainant after Nowakowski received the Criminal History report on August 14, to ask the complainant to clarify the "No Prosecution" notations as to the two arrests. A question may be raised as to why she would have done this if she really thought at that point, that the relationship had ended. However, it is necessary to take into account that the reason the respondent was running these criminal record checks was not simply an internal policy or practice. Rather, it was a state law requirement. Wis. Stat. § 50.065 requires these criminal history searches for caregivers in positions such as those the complainant worked in, and it requires the employers of such persons to obtain and to retain such information. Even if the employment relationship had ended, it would be necessary to keep information on file, at least for a time, concerning people who had been employed as caregivers. Nowakowski alluded to the fact that she understood this as an outside requirement concerning their creation and maintenance of records, at several points in her testimony, mentioning the time limits (30 days) that they were subject to for acquiring the necessary criminal record check data. Thus, the fact that Nowakowski may have made efforts to contact and obtain information from the complainant about the Criminal History report after she received it, does not support an inference that Nowakowski somehow thought that even at that point the relationship was still continuing between the respondent and the complainant.

The commission finds most credible the testimony and evidence that the Criminal History report came in the mail, that it was not opened and noted by anyone until Monday, August 13, when Bounds opened it, that it did not come to Nowakowski's attention until Tuesday, August 14, when she found it on her desk where Bounds had left it. The events that had transpired before that point - including the complainant's failure to show up for two successive shifts, and the debacle caused by the unauthorized hairdressing activities she had engaged in - were sufficient to end, and did in fact end, the relationship between complainant and respondent. Thus, because the relationship ended before the potential motive for the discrimination arose, the commission agrees with the conclusion that there was no discrimination because of arrest record.

Record - The complainant argues that she was unfairly prejudiced by the fact that the hearing record was preserved by a court reporter rather than being tape- recorded. The commission finds this argument unpersuasive.

While it is true that the hearing notice was accompanied by an enclosure indicating that the hearing would be tape-recorded, it was also accompanied by a copy of the ERD's rules, which provide inter alia that "[a] stenographic, electronic or other record of oral proceedings" will be made, and that a hearing may be taken by a court reporter. Wis. Admin. Code § DWD 218.19. Thus, the information provided in advance of the hearing did not necessarily justify an assumption on the complainant's part that the hearing would be tape-recorded.

Complainant's counsel asserts that the respondent insisted that the hearing be taken by a court reporter, and that she made a request to the administrative law judge that the hearing be tape-recorded in addition to being taken by a court reporter and that he refused this request. Absolutely nothing like this is reflected in the record. In fact, no objection of any kind was stated on the record to the use of a court reporter instead of tape-recording, until the end of the hearing, and then the objection was not to the fact that the hearing had been taken by a court reporter, but to the fact that briefing would be allowed (in which the respondent, which was intending to obtain a copy of the transcript, could cite to pages therein, which the complainant could not unless she also had access to a transcript). If complainant's counsel did in fact have objections to the procedure followed by the administrative law judge, it was incumbent on her to note them on the record. Her failure to do so can be considered a waiver of her objections.

In any event, the argument that complainant was disadvantaged by inability to obtain a copy of the transcript to use in briefing is without merit. The original of the transcript was filed with the ERD and was available to complainant's counsel there. The complainant's argument that she was effectively denied access to the ERD's file copy of the transcript because her client was "not in a position to pay attorney fees to have her attorney travel to Madison to review the file copy", is particularly lacking in merit. When the matter was pending before the administrative law judge, the file and the transcripts were in Milwaukee, and complainant's counsel, in Milwaukee, had the opportunity to go down to the ERD's offices and work with the transcript there while preparing her briefs to the administrative law judge. However, there is no indication in the file that she ever asked to do so. In addition, even after the record had been transmitted to the commission following the filing of the petition for review, complainant's counsel could have asked to have the record temporarily transmitted back to the Milwaukee offices of the ERD so that she could have access to the transcript while working on her brief to the commission; again, she never asked. For these reasons, as noted, the commission is not persuaded by this line of argument.

Rebuttal witness - At the hearing there was a factual dispute about whether the complainant went over to the respondent's second facility, East View Terrace, after she completed her application at respondent's Summit Place location. The respondent's witnesses contended that she did; the complainant denied this. On October 29, 2002, a week after the first day of hearing in this matter had been completed and less than a week before the hearing was scheduled to continue on November 4, complainant's counsel sent the administrative law judge and respondent's attorney a letter stating that she intended to call two "rebuttal" witnesses to testify in connection with this issue. These witnesses had not been identified as potential witnesses for hearing on the witness and exhibit disclosure filed by complainant prior to hearing. The commission agrees with the administrative law judge's decision to exclude these witnesses pursuant to Wis. Admin. Code § DWD 218.17. The issue as to which the complainant proposed to have these witnesses testify was one which had arisen and become clearly identifiable as an issue for hearing, during pre-hearing discovery. The complainant could reasonably have anticipated using these witnesses, prior to the hearing. The "rebuttal" exception to DWD 218.17 therefore does not apply.

In Pohlen v. General Electric (LIRC, 04/18/91), the commission recognized another limited exception to this rule, for situations in which a party has clearly identified on the record at hearing its desire to call a particular person as a witness, all parties reasonably anticipate that the hearing will continue on a subsequent day before the party proposing a witness rests its case, and the hearing is in fact continued on a subsequent day more than ten days later and the party proposing the witness has not rested its case. Although this was a multi-day hearing, this exception cannot be invoked here both because the complainant had rested before the end of the first day of hearing, and because the complainant's disclosure of the desire to call the rebuttal witnesses, in the October 29 letter from complainant's attorney, came less than 10 days before the resumed hearing on November 4.

The purpose and rationale of DWD 218.17 is that each party should have proper opportunity to prepare its case against the witnesses and exhibits planned by the opposing party and that a lack of notice prejudices the party that did not receive it. Walker v. Masterson Co. (LIRC, 10/4/95). The commission is satisfied that there would have been prejudice to the respondent here from allowing the complainant to expand the witness list at this late stage, requiring further effort by the respondent to address the new testimony, and with less than 10 days to meet the proposed new witnesses. The commission believes that the ALJ's ruling was a reasonable exercise of his discretion under the circumstances.

cc: 
Andrea B. Kriegel, Attorney for Complainant
John C. Patzke, Attorney for Respondent

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(1)( Back ) The allegation of discrimination in compensation because of race and arrest record, and the allegation of discharge because of race, were dismissed at the close of the complainant's case. Complainant essentially agreed to dismissal of the complaint of discrimination in compensation, T. 135, and acknowledged that no evidence had been presented bearing on the allegation of race discrimination, T. 136. While complainant referred to the allegation of discrimination in compensation based on race in her brief in chief to the commission, after the respondent objected in its responsive brief that this claim had basically been conceded by the complainant at hearing and had been dismissed by the administrative law judge on that basis, the complainant conspicuously dropped her reference to the claim in her reply brief to the commission, which referred solely to the claim of discharge because of arrest record. The commission summarily affirms the administrative law judge's decision finding no discrimination based on race and no discrimination in compensation on any basis, not only because this decision is supported by the record, but also because complainant can be deemed to have dropped those claims.

uploaded 2004/05/03