MILE SASICH, Complainant

CITY OF MILWAUKEE, 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 June 18, 2004
sasicmi . rsd : 110 : 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

This case concerns an allegation of age and sex discrimination in the 2001 termination of Mile Sasich, a 53-year-old male who worked in the City of Milwaukee Department of City Development as the International Economic Development Manager. The City asserts that Sasich was terminated because his position was eliminated for economic reasons. Sasich asserts that this explanation was a pretext for age and sex discrimination.

The question for decision is whether the evidence is sufficient to meet the "probable cause" standard. The ALJ concluded that it was not and granted the respondent's motion to dismiss made at the close of the complainant's case. Based on its review, and for the reasons discussed below, the commission agrees with the ALJ that probable cause was not established. 
   

Whether Complainant's Job Duties Continued To Be Done By Others -- The complainant's argument that his duties in international economic development were still being performed by others, is simply not persuasive.

The complainant argues that there was evidence that department employees still meet with international firms that may be looking at Milwaukee as a location for business development, that the department "now collaborates (sic) its international development by providing materials to the Department of Commerce and Forward Wisconsin," which the complainant would in his job have been liaison to, and that department employees have traveled to international conferences, which is something that the complainant had done. The complainant also relied on an argument about whether international development was still "within the mission of" the department, and about whether various department representatives agreed or disagreed with that rather vague statement.

The commission was unpersuaded by the complainant's essentially semantic argument about the "mission" of the department and how the department representatives characterized the department's "mission." What is important in this case is understanding on a more specific basis what was done in the past and what still was done, or was not done, after the elimination of the complainant's position. In that respect, the commission credited the testimony of the commissioner of the Department of City Development, Julie Penman, that the DCD had shifted to a focus on growing local businesses locally, where 85 percent of the growth in the local economy came from. The persuasive evidence clearly established, that the DCD was no longer doing the kind of international economic development that was the core of the complainant's job.

The argument that the things the complainant did in his job continued to be done by others rests on abstracting the nature of what he did to such a general level that it blurs all distinctions between different focuses that can be taken in addressing economic development. The commission believes that the more realistic and credible analysis was provided by Penman in her testimony:

Q: So is it your understanding that there are some functions that Mile used to do that are now being performed by some or many employees of the DCD?
A: If you were to say -- Mile would talk to companies. Do we have other people talking to companies and businesses? Yeah, we surely do. If he used to talk to businesses in Milwaukee, and I would hope he did, yes, other people are talking to Milwaukee businesses, but he was never the only person who talked to Milwaukee businesses. It's not like all the calls went to Mile and now all the calls are going somewhere else. Everybody has always gotten calls. All our economic development people deal with businesses in Milwaukee, but his position was focused on international economic development, and the biggest part of his job was to look for international foreign businesses, and typically he spent a good chunk of his time looking at foreign businesses that were issuing bids or requests for proposals for products that local businesses could supply, and we no longer do that. We don't do that at all because those local businesses need to learn to cultivate their own suppliers. It's not really the role of government. And so the main duties of his job are not performed any longer. Incidental things that he did, yes. Some of those may very well be being performed within the department, but that's only because there are many people that do similar pieces of economic development.

(T. 65-66). Based on a careful review of the record, the commission is convinced that these straightforward assertions are accurate. It is clear that many people in DCD worked on economic and business development, and that in doing so that they could end up doing some similar things. The point, though, was that the focus on international economic development that was the essence of the complainant's job, was dropped. There is simply no persuasive evidence in the record that there continued to be any international economic development work of the type the complainant did going on in the department after the complainant's job was eliminated. The fact that there was some overlap between marginal elements of the complainant's job, and jobs that continued to be done in the department, is unremarkable given the nature of the operation.  
  

Argument That Manuel and Lake Were Treated More Favorably -- The complainant argues that he was treated differently than a younger female, Rhonda Manuel, in that when her position was slated for elimination in 1999 the DCD found another position for her and placed her in it, while when his position was slated for elimination he was not found another position. He argued that he could have been given a position that was instead given to another younger female, Laura Wake, and that this shows discriminatory intent. The commission was not persuaded by this argument.

The complainant's assertion that there was a discriminatory failure to help him when his position was eliminated rings somewhat hollow in view of the evidence that when he was told that his position was to be eliminated, he was offered help with outplacement services, recommendations, and calling people and making contacts, and that he replied that he didn't need the assistance and that he could get a job on his own. With respect to the position that went to Laura Wake, the commission credited the testimony of Penman that she did not consider the complainant for that position because the bulk of the job was media relations and she wanted someone who had experience in dealing with the media and writing press releases, and it did not appear that the job would be a good fit for the complainant, from what she knew of his work.

The complainant argues that he had media experience, but this argument is unconvincing. It rests on overstatement of the extent to which the complainant engaged in media contact and other such functions. It also is undercut by the testimony of Penman that as far as she believed -- and it is her subjective beliefs on the matter that are dispositive, given that the ultimate question is the bona fides of her decision rather than its factual accuracy -- the complainant did not have the kind of media background she was looking for. Penman explained that it was her understanding that it would not have been the complainant's job to prepare press releases since the department had a media person and the department's rules were that no one was supposed to do media relations without going through the department's media operation. She acknowledged that a person outside of the media relations operation might draft a press release if the media coordinator asked them to so that they would have something to send out, but she also stated that in the time she had been with the department she had never seen a press release related to international development matters. Penman testified, "[w]hen I'm looking for a media specialist, my first reaction would not be to go ask the international guy, who has nothing to do with the media, if he's interested in the job." The commission found Penman's testimony in this respect credible and persuasive.

Penman also testified that at the time the process of the filling of this position was taking place, in March 2001, it was still not certain that the complainant's position would be eliminated. The complainant has argued that this is not credible, based on a statement that deputy commissioner Dawson made in her deposition that the budget (including the recommendation for the elimination of the complainant's position) was "pretty well together" by March or early April. However, the commission did not find this line of argument particularly compelling. It was clear from Penman's testimony that, to whatever extent she might have thought about the possibility of moving the complainant to the position that Wake ended up in, she did not pursue it because of the nature of the job and the experience she was looking for.  
  

Bi-weekly Reports -- The complainant argues that he was subjected to disparate treatment in that he turned in bi-weekly reports on his work activities while no one else did. The commission finds this argument unpersuasive. The complainant acknowledged that the requirement that he submit such bi-weekly reports originated with a previous deputy commissioner who had left by early 1999. The person who became deputy commissioner at that point, Michal Dawson, testified that she never required the complainant to submit these reports, and that as far as she knew he was doing so simply because he was continuing the previous practice. The one piece of evidence the complainant offered to dispute this, was a claim that in the summer of 2000 an administrative assistant either told him in an e-mail or came to his cubicle to tell him (he testified inconsistently on this) that Dawson was missing several of his bi-weekly reports and wanted him to submit them. Dawson testified that she did not recall having made such a request. The commission does not see anything suspicious about this. It seems entirely possible, if not likely, that Dawson simply thought that filing the bi-weekly reports was something that the complainant was doing on his own initiative. There is no evidence that Dawson specifically required him to submit these reports, and the commission credits her testimony that she did not. Even if Dawson did on one occasion request to see some of his weekly reports, as the complainant testified, the way the commission understands the complainant's testimony was not that Dawson was saying that he hadn't completed them and had to do so, but that she did not have copies of them and wanted him to supply them. It is entirely conceivable that Dawson may have considered them useful or of interest, at least enough so to ask for copies of them if they existed, but this is not the same thing as requiring that he create them. The commission simply sees nothing in this situation that provides any reason to suspect that a discriminatory motive was at work.  
  

"Pale, Stale and Male" -- The complainant tried to connect DCD Commissioner Penman with a comment that was apparently made by another person who was not an employee of the City of Milwaukee. Penman acknowledged that she had heard a local consultant, Rebecca Ryan, use the phrase "pale, male and stale" in Ryan's presentations on "how to . . . attract and retain young talent," to refer to the fact that "young talent today really wants -- they appreciate diversity." Penman acknowledged that in using this phrase, Ryan was referring to "older white men." The best construction that can be put upon the complainant's strategy in bringing up this matter, is that he was attempting to demonstrate that Penman agreed with and would endorse these views. However, the commission was not persuaded that this was the case. Penman did not endorse the use of the phrase, and she did not endorse or adopt any discriminatory views in discussing it. She did not affirmatively acknowledge having used the phrase herself, stating only (when asked if she ever used the phrase) that if she had done so, it would have been in the course of joking about Ryan's use of the phrase. Apart from this, no other evidence was introduced that Penman had ever used the phrase. Penman's marginal association with Ryan is no basis for finding Penman guilty of discriminatory intent based on things that Ryan said.  
  

Resignation form -- The complainant argues that the resignation form he was asked to submit confirming the end of his employment is evidence of pretext. In addition to being signed by the complainant, the resignation form was signed by both commissioner Penman and James Scherer, an employee in the economic development section. On the form, Scherer's title is shown as "Inter. Econ. Dev. Manager" - which was in fact the complainant's title (indeed, the same title was shown above on the form for the complainant). Complainant asserts that the form was thus "arguably fraudulent". However, Penman testified that she noticed this right after she had signed the form, and assumed that it had simply been a mistake by the clerical person who prepared the form. The commission credits this testimony wholly, and it is convinced that this is precisely the explanation. There would have been no conceivable motive for listing someone else on the resignation form as having exactly the same title as the resigning employee, and there is no way in which to understand that listing as evidencing or being part of some conspiracy or plan to discriminate against the complainant. It is obviously nothing more than an error. This commission believes that this argument lacks any colorable merit.  
  

Excluded Evidence Issue -- In his brief, the complainant argues that the ALJ improperly excluded evidence and that this requires, at a minimum, a remand for further hearing. In this connection, he cites to several points in the transcript at which there were colloquies about evidence and testimony. However, much of what the complainant cites to here really does not rise to the level of the ALJ excluding evidence, and where it does, the failure of the complainant to make any clear offer of proof precludes a determination that any such exclusion of evidence was prejudicial.

Thus, at T. 48-49, an objection was interposed to the question about how the step and grade system works. In the colloquy that followed, the ALJ expressed some doubt about why "the rest of it" -- i.e., the question about the step and grade system -- was relevant. In response to this, complainant's counsel basically gave up and withdrew the question. Notably, though, the ALJ never actually sustained the objection. There was no ruling excluding evidence that could be evaluated to determine if it was erroneous, and no offer of proof that could be evaluated to determine if any ruling excluding evidence was harmless or prejudicial.

At T. 80-82, there was a general discussion about a line of inquiry, but again there was in fact no specific ruling that a specific question would not be allowed. The colloquy began with a question, "Do you know what the cost of living increases are?" The witness answered "No," apparently reflecting the fact that she did not know the actual percentage figure, and she then appeared to be beginning to explain generally how the cost of living increase system works. It is this that was cut off by the objection, which led into the longer discussion. Again, however, there was no direct "exclusion" of any evidence. Counsel for the complainant did not take the necessary step of asking the question(s) he wanted to ask in order to explore whatever line he was working on here, getting a clear ruling disallowing the questions, and then taking steps to make an offer of proof as to what evidence he contends would come in if the question(s) were allowed.

It is true that in this interchange counsel for the complainant says something about an "offer of proof", but what he says is clearly not, in fact, an offer of proof. When counsel for the respondent objects, saying "I'm going to object at this point because compensation has nothing to do with this complaint," counsel for the complainant says, "For an offer of proof, we did allege disparate treatment." That is not an "offer of proof." That is argument in response to counsel's assertion that the testimony is not relevant. It is useless as an offer of proof because it provides no indication of what it is claimed the witness would testify to if allowed to continue.

Later in the interchange, counsel for the complainant says something which is actually somewhat closer to an offer a proof, that being his assertion, "we'll bring in the ER representative, but we have a concern that Rhonda Manuel is making more than she's authorized to make." However, counsel for the complainant never actually attempted to call "the DER representative" and never actually attempted in any other fashion to present this evidence, so it is not clear what the evidence would have been. (1)

Finally, complainant points to T. 134, where the ALJ disallowed a question to Rhonda Manuel as to whether she knew if the Department of Employee Relations had analyzed her new job description and determined what pay grade she had. In response to this ruling, counsel for the complainant simply proceeded to another question, again failing to take the necessary step of making an offer of proof so that a determination could be made as to whether any error in the ruling was harmless or prejudicial.

The commission recognizes that it is not uncommon in litigation before administrative law judges of the ERD, for there to be relevance objections that lead to lengthy discussions between counsel and the ALJ about what the issues are and what evidence is relevant. Frequently, these discussions take place at a fairly high level of generality, as the relevance of whole lines of testimony and approaches to the case are debated. However, a claim by a party that they have been prejudiced by a ruling excluding certain evidence cannot be premised merely on the fact that the ALJ has expressed doubt about the relevance of a line of questioning or has otherwise discouraged that line of questioning. For there to be a conclusion that an ALJ erred by excluding evidence, there needs to have been an identifiable ruling, such as a refusal to allow a particular question, or an order that certain testimony be stricken, or a definitive statement that a described line of inquiry will not be allowed. If it is not clear whether a line of questioning is being excluded in this fashion, it is incumbent on counsel who wishes to preserve the right to complain of alleged error, to seek clarification from the ALJ. In addition, for there to be a conclusion that any such erroneous exclusion was prejudicial, there needs to be some indication as to what evidence it is claimed could have been presented but for that ruling, and an offer of proof is clearly the preferred method of providing that indication. See, Fauteck v. Sinai Samaritan Med. Center (LIRC, Nov. 9, 2000). This, too, is a responsibility that rests on counsel who wishes to preserve the right to complain of alleged error. Based on consideration of the transcript of the proceedings in this case, the commission is not persuaded that there were any rulings by the ALJ excluding evidence which warrant any further hearing opportunity.

NOTE: Motion To Strike Respondent's Post-Briefing Schedule Argument -

The commission issued a briefing schedule in this matter on January 26, 2004, allowing for an initial brief from the complainant, to be followed by a brief from respondent, to be followed by a reply brief from the complainant. These were the only briefs allowed by the briefing schedule. Briefs were thereafter filed in accordance with this briefing schedule.

Two weeks after the complainant's reply brief was filed, counsel for the respondent submitted a letter to the commission which contained further argument on the merits of the case. The complainant moved to strike the respondent's letter on the grounds that the briefing schedule had been clear in not providing for any further argument beyond that which had already been filed. In response to the complainant's motion to strike, counsel for the respondent submitted another letter. This letter failed entirely to address the substance of the complainant's objection that the briefing schedule had not provided for submission of any further argument after the complainant's reply brief. Instead, the letter continued to argue the merits of the case.

The briefing schedule issued in this matter was clear and unambiguous. It provided for no further argument following the filing of the complainant's reply brief. Counsel for the respondent had no colorable justification for filing additional argument on the merits after the briefing called for in the briefing schedule was completed. He clearly had no excuse whatsoever for filing still more argument on the merits of the case after the complainant properly objected that his previous letter had gone beyond what had been allowed by the briefing schedule.

A briefing schedule set by the commission is not a mere suggestion, to be accepted or rejected by the parties depending on whether they feel they have had enough to say. Submission of further argument on the merits after the briefing called for by the briefing schedule has been completed, is clearly inappropriate. The commission grants the complainant's motion to strike the submissions of counsel for respondent filed after the scheduled briefing had been completed. Those submissions have not been considered by the commission in deciding this case.

cc: 
James P. End, Attorney for Complainant
Leonard A. Tokus, Attorney for Respondent

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(1)( Back ) Citing pages 80-82 of the transcript, complainant's brief asserts that he "attempted to introduce evidence that Ms. Manuel's salary was approximately $20,000 greater than Mr. Sasich's salary and also greater than the appropriate City pay grades," and that he "attempted to introduce testimony showing that Ms. Wake's position received a pay increase immediately prior to her hiring." That is simply not true. At no point in the hearing, either at pp. 80-82 or anywhere else, did complainant ever actually attempt to introduce evidence that "Manuel's salary was approximately $20,000 greater than Mr. Sasich's salary," nor did he ever attempt to introduce evidence that "Wake's position received a pay increase immediately prior to her hiring." What did happen at T. 80-82 was a question about what salary Manuel was at (a question that was answered without any objection being interposed with a response indicating her pay grade), a hypothetical question calling for the witness to assume that Manuel had been making $69,000 in her previous position and was now making $80,000, (a question that was answered without any objection being interposed), and a question to the witness if she knew what the cost of living increases were, a question to which the witness answered "no," with her further answer concerning the cost of living increase system being interrupted by an objection, leading to a long colloquy. As noted, though, there was never a clear ruling disallowing that or any other question and without a clear offer of proof being made.

uploaded 2004/06/21