ARLEEN HOEY, Complainant

CO OF FOND DU LAC, Respondent A

ROBER EBNER, Respondent B

RICHARD BRZOZOWSKI, Respondent C

KEN NEWTON, Respondent D

ALLEN BUECHEL, Respondent E

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 July 9, 1997
hoeyar . rsd : 101 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

The ALJ concluded that the complainant failed to show probable cause to believe that the respondents (1)  discriminated against her with respect to age, sex, or creed, or for filing a discrimination complaint. The ALJ found that the complainant was discharged for failing to change her behavior, which her supervisor Ebner found disrespectful and insubordinate, in compliance with prior warnings and a corrective action plan.

The commission acknowledges the admission of Mr. Ebner that he referred to another female worker in front of a colleague by using a highly derogatory term. The commission also acknowledges the testimony of the complainant which, if true, raises the possibility of pretext. However, after considering the credibility of the witnesses who testified before him, the ALJ carefully set out the findings leading to his conclusion that the complainant's job performance in fact led to her discharge from her job as a clerk or program assistant in the emergency government division, and the respondent's refusal to return or rehire her in her former position. The commission is satisfied the ALJ made the correct credibility determinations in this case, and that the complainant failed to meet the standard of proof required to show probable cause under Wis. Admin. Code § ILHR 218.02 (8), discussed in Boldt v. LIRC, 173 Wis. 2d 469, 475-76 (Ct. App. 1992).

cc:
Anthony O'Malley
William J. Bendt

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(1)( Back ) The complainant agreed at the hearing to withdraw her claims against two of the named individuals (Buechel and Brzozowski.)  Moreover, the commission has previously held that where an individual person has acted under color of his or her authority as an agent of an employer, the employer rather than the individual person is properly held liable as the respondent. Nelson v. Waybridge Manor, Inc., and Theodore Sternbach, ERD case no. 8651771 (LIRC, April 6, 1990); Sinclair v. Mike's Town and Country, ERD case no. 92201449 (LIRC, October 15, 1993); Belinda Yaekel v. DRS Limited, ERD case no. 9301087 (LIRC, November 22, 1996); and Richard Rathbun v. City of Madison, ERD case no. 199500515 (LIRC, December 19, 1996). In this case, the record contains no evidence showing that any of the named individuals acted outside of their authority as agents of the County of Fond du Lac. Consequently, while the commission has left these individuals in the caption, they could not be held liable to the complainant, even if probable cause were found.

uploaded 2004/07/07