Wis.LIRC ER Decision: Losser - May 12, 1998 - Procedure - newly discovered evidence; - Retaliation - discrimination because of opposition to discrimination or filing complaint

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MICHAEL W. LOSSER, Complainant

GRAND CHUTE POLICE DEPARTMENT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199600181, EEOC Case No. 26G960544

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, except that it makes the following modifications:

Add the following at the end of paragraph number 3 of the Findings of Fact:

"The decision to promote that officer, Dale Knauer, was made by Respondent before June 16, 1995."

Substitute the following for paragraph number 12 of the Findings of Fact:

"12. On approximately November 22, 1995, the Respondent received an Initial Determination from the Equal Rights Division finding probable cause to believe that the Respondent had discriminated against Losser because of handicap as alleged in Losser's complaint of June 16, 1995. On the day that the Respondent received that Initial Determination, Chief Reque discussed it with Lieutenant (then Captain) Kopp. In that discussion, Chief Reque did not make any statement to the effect that Losser would never work for the department full time while he (Reque) was there."

13. Losser's complaint, alleging handicap discrimination, was not a factor in GCPD's decision to select Officer Mohr over Losser for promotion to full time status in November, 1995."

DECISION

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

Dated and mailed: May 12, 1998
losserm.rmd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case concerns an allegation that the Grand Chute Police Department denied promotion to Michael Losser because he had previously filed a complaint of handicap discrimination against it.

Losser was hired by the Grand Chute Police Department as a part-time patrol officer in February, 1993, and he subsequently applied for promotion to a full-time position. In 1994 and 1995 a number of officers were promoted from part-time to full-time, but Losser was not one of them. On June 15, 1995 he filed a complaint with the Equal Rights Division (ERD) alleging that he had been denied promotion to full-time because of handicap. Then, on January 11, 1996, he filed a complaint with the ERD alleging that he had been denied promotion to a full-time position in retaliation for his having filed that complaint of handicap discrimination. An Administrative Law Judge found that Losser's filing of a previous complaint of handicap discrimination was not a factor in the decision not to promote him to full-time, and he therefore dismissed the retaliation complaint. Losser has petitioned for review. (1 )

Motion To Consider Additional Evidence -- The Respondent has filed a "Motion Requesting DILHR Judicial Notice Of Prior Discrimination Hearing Sworn Testimony By Officer Losser." This Motion requests the commission to consider testimony given by Losser at the hearing on his earlier handicap discrimination complaint, held before another administrative law judge on May 6, 1996, as well as at a deposition given in that matter on April 23, 1996. The Motion asserts that the prior testimony was inconsistent with the testimony given by Losser at the July 29, 1996 retaliation charge hearing, and that the prior testimony "must be considered as part of this proceeding even though discovered after the record was closed."

The commission does not agree that this testimony was "discovered after the record was closed," within the meaning of general legal principles relating to newly discovered evidence. The Respondent's attorney was present at both the April 23, 1996 deposition and at the May 6, 1996 hearing on the handicap discrimination charge. Respondent was thus aware of that prior testimony, and it could have attempted to use it in impeachment at the July 29, 1996 hearing on the retaliation charge. Its failure to do so may have been caused by its lack of appreciation for its supposed importance at that time; but it was certainly not caused by the fact that the existence of the evidence was unknown to it.

In addition, the Respondent had ample time, even after the July 29, 1996 retaliation charge hearing, to ask ALJ Olstad to consider the evidence. This would have been preferable to having the commission consider it now, since ALJ Olstad actually heard and saw the testimony of Losser which the prior testimony supposedly impeaches, and he would have been in the best position to weigh that impeachment evidence against the live testimony he had observed. However, the Respondent did not urge consideration of this prior testimony evidence until after the ALJ had decided the case.

For all of these reasons, the Respondent's Motion is denied.

Merits -- One point which appears to be in dispute between the parties, is how many promotion decisions are at issue: Losser addresses himself to the promotion of both Dale Knauer in the summer of 1995 and the promotion of Greg Mohr in the fall of 1995, while Respondent asserts that only the latter could be relevant to this charge.

It was not disputed that Respondent did not receive notice of the filing of Losser's handicap discrimination complaint until June 29, 1995. Therefore, only promotion decisions which occurred on or after June 29, 1995 could have been motivated by a desire to retaliate against Losser because of his filing of that complaint. While the effective date of the promotion of Officer Dale Knauer was July 4, 1995, Losser himself testified that he became aware of the fact that a decision had been made to promote Knauer to full-time, prior to the time he filed his handicap discrimination complaint. Indeed, Losser testified that that discovery was what prompted him to file his handicap discrimination complaint. This testimony is also consistent with Losser's retaliation charge, which complains only about the hiring of a full-time officer in November 1995. It is also consistent with the testimony of the Chief of Police that Knauer was notified that he would be going to full-time in early June, approximately a month before the change became effective.

For these reasons, the commission does not agree with the argument in Complainant's brief that "subsequent to the filing of his discrimination complaint, the Grand Chute Police department promoted two officers to full time employment." The Administrative Law Judge correctly found (Finding of Fact No. 6) that there was only one promotion at issue here, that being the promotion which went to Officer Mohr in the fall of 1995.

The question is therefore whether the evidence establishes to the degree of proof required, that Losser's filing of the handicap discrimination complaint was a factor in the decision made in the fall of 1995 to promote Mohr to full-time rather than Losser.

While the bare chronology of events here can be considered to raise an inference of retaliation when taken by itself, that chronology does not stand alone. The commission believes that the reasons advanced by the Respondent, accurately summarized by the Administrative Law Judge in Findings of Fact 8 through 11, are more than sufficient to rebut that inference.

Losser relies significantly on the assertion that he was recommended for promotion by Sergeants Dahlke and Zolkowski. The commission does not find this persuasive. Dahlke and Zolkowski do not have either the responsibility or the authority to make hiring and promotion decisions. Despite their rank, they are union members and they are more aligned in interest with "rank- and-file" employes such as Losser than with Respondent's management. In addition, these sergeants' endorsements of Losser were hardly enthusiastic. When asked if Losser or Mohr were more qualified, Dahlke would only say that they were "comparable." Also, as noted by the Administrative Law Judge, the recommendation for promotion to full-time on the June, 1995 evaluation was at the lowest level possible. (2 )

The evidence as to Losser's somewhat argumentative nature and his sometimes-problematic relations with some members of the public was not doubtful. Whether those problems could fairly be characterized as serious or not, they nonetheless clearly existed, and the explanation as to the role this played in the decision on promotion to full-time is considered by the commission to be credible.

Losser alleged that in the heat of his anger upon receipt of the "probable cause" determination, the Chief made a comment to Captain (then Lieutenant) Kopp to the effect that Losser would never work there [full-time] as long as he [the Chief] was working there. The Chief and Kopp both conceded that they probably had a conversation about the "probable cause" determination when it was received, but they denied that comments were made such as Losser alleged. Based on its careful consideration of the record, the commission credits the testimony of the Chief and Kopp as being more credible on this issue. Testimony of both the Chief and Kopp tended to show that they had a practical and realistic view of these types of complaint processes as well as an understanding and appreciation of the right of employes to invoke them. In particular, the commission credits the Chief's testimony about how his previous experience as a union president affected his attitude toward such things. Thus, the commission believes that while the Chief and Kopp probably did retreat to the garage to talk and smoke (as was their regular habit) after the arrival of the Initial Determination, the overtly retaliatory sentiments alleged by Losser were not in fact made.

Additionally, even if the Chief did express some degree of unhappiness about the "probable cause" result in the handicap discrimination case, the commission considers this less significant to the allegation of retaliation than it might otherwise be, because it is clear that this occurred almost a month after the challenged decision (to promote Mohr) was made.

For these reasons, the commission agrees with and adopts the decision of the Administrative Law Judge that Losser's filing of a complaint of handicap discrimination was not a factor in the Respondent's decision to not promote him to the full-time position which went to Officer Mohr.

cc:
Lora Matzke, Richard E. Nell, Attorneys for Complainant
Roger W. Clark, Attorney for Respondent

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Footnotes:

(1)( Back ) The underlying handicap discrimination complaint was heard separately before another Administrative Law Judge, and that issue is not before the commission.

(2)( Back ) In fact, it was actually the "Do Not Recommend For Promotion" box which was checked, but with the words "Do Not" crossed out. The boxes on the form which were intended to be used if promotion was recommended, all included one degree or another of positive comment. The commission can draw no other inference than that Sergeant Zolkowski used the altered "Do Not Recommend For Promotion" box because he could not bring himself to subscribe to even the lowest level of approval noted in any of the other boxes ("Performing well, should be considered for promotion along with contemporaries").