Wisconsin Personnel Commission's             Digest of Decisions        March, 1999 Version

Sections 726 through 730

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726 Issue for hearing

The proposed decision erred where it addressed matters outside the scope of the notice of hearing. Complainant claimed he was discriminated against based on arrest and conviction record. The statement of the issue was phrased in terms of whether respondent discriminated on the basis of arrest or conviction record in connection with the last paragraph of a letter it issued to complainant. The letter stated that it served as a last chance warning to complainant that "any subsequent driving while intoxicated or similar charges" would result in termination of his employment. The statement of the issue did not provide adequate notice to the parties that the Commission would consider whether respondent's conduct violated §111.322(2), Stats, which prohibits circulating any statement which implies or expresses any limitation, specification or discrimination; or an intent to make such limitation, specification or discrimination because of any prohibited basis. The original charge of discrimination did not mention the circulation issue. The initial determination also did not mention that issue, nor had either party addressed that issue prior to the issuance of the proposed decision and order. Williams v. DOC, 97-0086-PC-ER, 3/24/99

Where the hearing examiner erred in deciding, in a proposed decision and order, an issue that was not properly noticed, circumstances were consistent with a remand for further proceedings before the hearing examiner. Williams v. DOC, 97-0086-PC-ER, 3/24/99

Adjudicative bodies should decide cases on the basis of the result the law requires, regardless of whether the particular legal theory is brought to bear by the parties or, sua sponte, by the adjudicative body, so long as the parties have sufficient notice and an adequate opportunity to be heard on the issue in question. Williams v. DOC, 97-0086-PC-ER, 3/24/99

The only unilateral action available to a complainant who is appealing a no probable cause finding in an initial determination is the request for a hearing on the issue of probable cause, rather than a hearing on the merits. §PC 2.07(3), Wis. Adm. Code. The complainants did not request waiver of the investigation of their complaints so unilateral waiver of the probable cause determination by complainants was not available. Kumrah & Pradhan v. DATCP & DER, 94-0146, 0147-PC-ER, 2/27/97

Even though the complainant had failed to amend her complaint or otherwise raise, as a claim per se, her argument that respondent retaliated against her by tampering or interfering with her witnesses, such allegations could be considered because it could affect the witnesses' testimony and otherwise compromise the integrity of the hearing process. Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96

Pursuant to §PC 2.07(4), Wis. Adm. Code, after a mixed initial determination of probable cause and no probable cause, a complainant may not unilaterally decide to proceed directly to a hearing on the merits as if probable cause had been found as to all claims. Only if the parties agree can complainant bypass a no probable cause hearing as to those claims for which the initial determination found no probable cause. Volovsek v. DATCP & DER, 93-0098-PC-ER, 4/16/96

It is consistent with principles of judicial economy to convene one hearing to include claims that are still at the probable cause stage as well as claims for which probable cause has been found. Volovsek v. DATCP & DER, 93-0098-PC-ER, 4/16/96

Complainant's request to amend the issue for hearing to add a claim under the whistleblower law was denied where the request was filed four months after the parties had stipulated to an issue limited to sex discrimination and was also filed three days after closure of discovery. Complainant failed to show any reason for the delay and failed to show that the stipulation as to the issue resulted from inadvertence or mistake, and there was no allegation of whistleblower retaliation in the original complaint. Florey v. DOT, 91-0086-PC-ER, 9/16/93

Complainant's proposed issue, that "General treatment… during her… employment was sexual discrimination" was rejected as vague. Complainant's request to reserve the right to add issues in the future was rejected where 2.5 years had elapsed since complainant was last employed by respondent. Schmit (Klumpyan) v. DOC, 90-0028-PC-ER, 91-0024-PC-ER, 9/3/92

In an appeal from an initial determination of no probable cause, the Commission refused to adopt the complainant's proposed issue which failed to reflect the probable cause context of the hearing. Acharya v. DOR, 89-0014, 0015-PC-ER, 7/14/89

Where at the close of a hearing in a matter noticed for hearing under §230.44(1)(d), the parties entered into a discussion which had the effect of modifying the agreed upon issue for hearing to include a claim of handicap discrimination, the Commission construed the conduct of the parties as a joint waiver of the investigation and an agreement to a hearing on an issue of probable cause rather than a hearing on the merits. Lauri v. DHSS, 87-0175-PC, 11/3/88

The Commission established an issue for hearing in a case arising from the reallocation of the complainant's positions in comparison to the classification of certain other positions. Conrady & Janowski v. DILHR & DP, 81-PC-ER-9, 19, 3/27/85

An issue established for hearing may reflect the Commission's authority to consider a charge that a classification survey and resultant position standards operated to discriminate on the basis of sex and with respect to compensation. Conrady & Janowski v. DILHR & DP, 81-PC-ER-9, 19, 3/27/85

The Commission declined to grant complainant's request to expand the scope of a probable cause hearing to include an allegation of sex discrimination where the notice of hearing only referred to discrimination based on race, color and handicap, where the request was filed two days before the scheduled hearing, where there was no attempt to show why the request wasn't made earlier and there was no basis on which to relieve complainant of the stipulation by counsel as to the issue for hearing. Allowing a complainant to completely bypass the investigation stage would increase the likelihood of unnecessary hearings and decrease the opportunity for conciliation. Johnson v. DHSS, 83-0032-PC-ER, 1/30/85


728.3 Role of hearing examiner/substitution

Complainant had the burden of proof in his age discrimination case arising from the decision not to appoint him to a faculty position. The Commission has no authority to prosecute the case on complainant's behalf. Huff v. UW (Superior), 97-0105-PC-ER, 3/10/99

The Personnel Commission has the authority to require a certain standard of decorum in its proceedings. Benson v. UW (Whitewater), 98-0179-PC-ER, 11/20/98

Where complainant had been warned repeatedly about using inappropriate language in his filings and where he had failed to make use of an express opportunity to correct the inappropriate language, his complaint was dismissed due to complainant's failure to maintain an appropriate level of decorum. Benson v. UW (Whitewater), 98-0179-PC-ER, 11/20/98

There is no precedent or other basis for calling, as a witness in a subsequent hearing, the hearing examiner who prepared a decision issued in a previous case in order to provide his or her interpretation of that decision. The decision speaks for itself. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98

Respondent's request for substitution of the hearing examiner was granted where a party had identified the examiner as a witness regarding events which had reasonable probative value. Hinze v. DATCP, 91-0085-PC-ER, 7/13/93

The Commission denied the complainant's request for a new hearing, where complainant argued that she had been without counsel and that the examiner had had a duty to assist her. The Commission noted that the examiner's impartial role precludes acting as an attorney or advocate for the complainant, but that the examiner could and did assist the complainant with respect to explaining matters of evidence and procedure, that the complainant was not denied a fair hearing, and that the absence of counsel alone cannot be the basis for a new hearing. Cole v. UW, 79-PC-ER-50, 1/13/81


728.8 Transcript

Complainant's request that a copy of the transcript of the hearing be provided him without charge was denied where complainant failed to show legal need for the transcript. The request was made at the conclusion of the hearing and after the parties had agreed to make closing arguments rather than to submit post-hearing briefs. No transcription of the hearing existed and the only recording was on magnetic tape. The complainant's arguments as to need related to a potential use of the transcript after the Commission issued a decision. Pugh v. DNR, 86-0059-PC-ER, 7/13/88


728.9 Other

It is not necessary that a party engaged in an oral argument concerning a proposed decision explicitly address every argument of the opposing party to avoid a conclusion of waiver or admission of that party's arguments. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98

Complainant's request to move the hearing location from a correctional institution to a city hall was denied, without prejudice, where complainant failed to show that inmates would testify more truthfully if the hearing was held off institution grounds. Complainant contended the inmates would not freely testify in a case against prison management if the hearing would be conducted in the prison administration building adjacent to the inmate resident dormitories or cells. Egan v. DOC, 96-0111-PC-ER, 3/11/98

Complainant’s request that respondent’s post-hearing brief be disregarded as untimely filed and improperly captioned was denied where the due dates of all briefs were to be measured by postmark date, not be actual date of receipt, the actual date of receipt by complainant was just one day after the date by which the brief was to be mailed, resulting in the conclusion that the brief was not untimely filed, and neither the date of receipt nor the incorrect captioning impaired complainant’s ability to meet his timetable for filing a response. Holubowicz v. DOC, 96-0136-PC-ER, 4/24/97

Having decided to proceed pro se, a complainant does not have the right to recess the hearing whenever he decides he wants to consult with counsel. Smith v. DOC, 95-0134, 0169-PC-ER, 11/14/96

A party does not have the right to insist on a private conference with the examiner in the middle of a hearing at which the other party appears. Smith v. DOC, 95-0134, 0169-PC-ER, 11/14/96

Complainant’s final post-hearing brief was not considered where he failed to take adequate steps to ensure that he remembered the due date correctly and where a letter from the examiner to the parties recited the revised due dates. Krueger v. DHSS, 92-0068-PC-ER, 7/23/96


730 Evidence

Where testimony of complainant and of respondent's witness, who interviewed the applicants for the vacancy in question, did not differ in a substantive way, it would be inappropriate to apply a jury instruction, requested by complainant, that the failure to produce a document within a party's control raised an inference that the document contained evidence unfavorable to that party's case. Complainant had contended the jury instruction should be applied because respondent had lost complainant's application materials. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99

A response that was required by the Commission pursuant to §PC 2.04, Wis. Adm. Code, as part of its investigation of an equal rights complaint, would not generally be regarded as the type of pleading presumptively considered part of the factual record for decision purposes. Enke v. DOT, 97-0202-PC-ER, 12/16/98

A chart compiled by complainant to reflect the results of a telephone survey he had made to state agencies to obtain statistical information relating to the use of a resume screen procedure as part of a selection process, was not received in the record, after objection, because complainant could offer no supporting documentation concerning the survey. Therefore, the document was a compilation of summaries of hearsay statements to complainant and could not reasonably be relied on for the purpose complainant intended. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98

Information a party provides in response to an interrogatory is not controlling as to that information. While the party propounding the interrogatory is free to rely on the information by offering the answer in evidence, or by not objecting to the answering party's offer, he also can dispute the information contained in the interrogatory answer. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98

There is no precedent or other basis for calling, as a witness in a subsequent hearing, the hearing examiner who prepared a decision issued in a previous case in order to provide his or her interpretation of that decision. The decision speaks for itself. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98

Where complainant, who was asked to resign from her employment as an assistant district attorney (ADA) after her arrest for operating a vehicle while intoxicated and while on call and carrying an office beeper, contended she was held to a different standard while carrying the beeper than two male ADAs, complainant was entitled to offer evidence tending to show differential treatment of the two male ADAs with respect to other terms and conditions of complainant's employment, including caseload and performance expectations. However, evidence relating to caseloads and performance standards for other ADAs (i.e. other than the complainant and the two specified males) and by the district attorney was cumulative, repetitive and too tangential to the essence of complainant's contentions to have reasonable probative value. Evidence relating to the manner in which drunk driving arrests of employes were handled by other employers would not have reasonable probative value. Respondent's motion in limine was denied in part and granted in part. Christie v. Office of the District Attorney of Fond du Lac County, 96-0003-PC-ER, 2/25/98

In a case arising from a decision to appoint someone other than complainant, on an acting basis, to the position of director of administrative computing, evidence relating to the subsequent permanent appointment of the same candidate to the position was relevant. The evidence showed that the permanent appointment was made without any kind of recruitment or competition and because the candidate who had been selected for the acting position had done a good job while in that capacity. This evidence was admitted because the parties disagreed as to whether complainant’s failure to have been appointed on an acting basis should be considered as an adverse personnel transaction. Chiodo v. UW (Stout), 90-0150-PC-ER, 6/25/96; affirmed by Dane County Circuit Court, UW v. Wis. Pers. Comm., 97-CV-3386, 9/24/98

Complainant’s answers to interrogatories were properly admissible as exhibits at hearing rather than being admitted only for purposes of impeachment. Van Zutphen v. DOT, 90-0141-PC-ER, 12/20/96

Even though the complainant had failed to amend her complaint or otherwise raise, as a claim per se, her argument that respondent retaliated against her by tampering or interfering with her witnesses, such allegations could be considered because it could affect the witnesses' testimony and otherwise compromise the integrity of the hearing process. Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96

The admission of hearsay evidence is discretionary with the examiner pursuant to §PC 5.03(5), Wis. Adm. Code. Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96

The examiner did not abuse his discretion in 1) admitting statements by witnesses about what students had said about complainant, where those statements presumably went to respondent's state of mind or the information it had before it reached the decision not to retain complainant and 2) sustaining objections to testimony by complainant about comments that students had made to her about what respondent's decision-maker had said to the students about complainant, where those comments presumably went to the truth of the matters asserted. Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96

Petitioner was denied the opportunity to present 35 rebuttal witnesses for the purpose of asking them whether they had ever heard him say an offensive remark where the relevant inquiry was not whether petitioner actually lacked interpersonal skills, but whether the interviewers who believed he had such problems had an explanation for their belief other than discrimination, illegality or an abuse of discretion. Postler v. DOT, 94-0016-PC, 94-0024-PC-ER, 10/16/95; affirmed by Dane County Circuit Court, Postler v. Wis. Pers. Comm., et al, 95CV003178, 10/9/96; affirmed by Court of Appeals, Postler v. Wis. Pers. Comm., 96-3350, 1/27/98

Evidence was properly admitted relating to the instances cited by the interview panel members as the basis for the opinion that petitioner lacked interpersonal skills. The concept of hearsay was inapplicable to the extent that such testimony was offered to show the basis of an interviewer's belief, as opposed to the truth of the matters asserted. Postler v. DOT, 94-0016-PC, 94-0024-PC-ER, 10/16/95; affirmed by Dane County Circuit Court, Postler v. Wis. Pers. Comm., et al, 95CV003178, 10/9/96; affirmed by Court of Appeals, Postler v. Wis. Pers. Comm., 96-3350, 1/27/98

Complainant's summary of information gleaned from a second document was ruled inadmissible where complainant failed to provide a complete version of the second document. Complainant's attempt to submit the entire second document after hearing was rejected Gygax v. DOR & DER, 90-0113-PC-ER, 12/14/94

Respondent's motion in limine to exclude the testimony of a former employe who claimed respondent discriminated against him in a manner similar to that alleged to have been done to complainant was denied where the former employe had worked for respondent 8-10 years earlier, the alleged discriminator was the same in both situations, and complainant's situation involved the same work site. The length of time since the events could affect the weight given the testimony by the examiner. Weaver v. UW-Madison, 93-0022-PC-ER, 12/8/93 (ruling by examiner)

Respondent's motion in limine to exclude evidence regarding complainant's earlier charge of discrimination which resulted in a settlement agreement was denied to the extent that complainant was permitted to establish, as a basis for his claim of FEA retaliation, that he had filed the earlier complaint and that the alleged retaliators were aware of the complaint. Weaver v. UW-Madison, 93-0022-PC-ER, 12/8/93 (ruling by examiner)

Respondent was allowed to submit evidence regarding complainant's alleged behavior, in reaction to what was negotiated during settlement discussions, which respondent contended could corroborate impressions or beliefs held by those involved in the hiring process, i.e. to validate a factor already considered by the appointing authority. Sec. 908.04, Stats., which creates a general prohibition in court proceedings to evidence of settlement offers, did not prohibit presentation of such testimony at hearing before the Commission. Hinze v. DATCP, 91-0085-PC-ER, 7/13/93

Respondent's motion to give preclusive effect to a recent arbitration award determining the contractual grievance of complainant's discharge was denied. The arbitration decision did not address complainant's claims of race or arrest record discrimination. It was not possible, at the motion stage, to disentangle the more general findings by the arbitrator, i.e., that there was just cause for the discharge, that there was a nexus between complainant's actions and the demands of his job, and that the discipline was not excessive, from the issues of race and arrest record discrimination which were not involved in the arbitration. However, the arbitration award and record could be used in evidence at the discrimination hearing, citing Dohve v. DOT, 84-0100-PC-ER, 11/3/88. Whitley v. DOC, 92-0080-PC-ER, 7/9/93

Contemporaneous statements should provide a more reliable indication of a person's subjective intent at the time than statement made later, after a complaint of intentional discrimination has been filed, and the matter has been prepared for hearing. Thomas v. DOC, 91-0161-PC-ER, 4/30/93

The fact that a test (Minnesota Multiphasic Personality Inventory), which served as a basis for a psychiatric evaluation, had been lost did not preclude testimony by the psychiatrist about the evaluation or the test, but could affect the weight accorded the testimony. Motion in limine denied. Boinski v. UW-Milwaukee, 92-0233-PC-ER, 92-0702-PC, 4/19/93 (Ruling by examiner)

Although the Commission is not bound by an evidentiary rule applicable to a "civil proceeding," the Commission is not required to disregard it in determining whether or not evidence be admitted as part of the hearing record or in determining the weight to be accorded admitted evidence. Butzlaff v. DHSS, 90-0097, 0162-PC-ER, 4/2/93

Complainant was permitted to testify relating to the substance of unwitnessed conversations he allegedly had with his supervisor, as direct evidence of an intent by the supervisor to discriminate/retaliate against complainant, even though the supervisor had died after the complaints were filed. Respondent was aware the supervisor was terminally ill and was aware of the complainant's intent to use the substance of the conversations in his case, yet took no action to preserve the supervisor's testimony prior to his death. The weight of the complainant's testimony regarding the conversations would be limited, however. Butzlaff v. DHSS, 90-0097, 0162-PC-ER, 4/2/93

In a handicap discrimination claim, evidence of complainant's employment after his termination could be relevant to the issue of complainant's ability to perform the duties of the position from which he was discharged and to the issue of accommodation, in terms of complainant's ability to perform other positions to which he could have transferred. Respondent's motion in limine was denied. Keller v. UW-Milwaukee, 90-0140-PC-ER, 3/19/93

An objective standard is used to determine if the employer was correct in concluding that a handicapped employe is unable to effectively perform and that no accommodation is feasible. That the employer may have acted in good faith in assessing the handicapped employe's abilities is not a defense. Accordingly, evidence which postdates the personnel transaction which may have no relevance to the employer's intent when the employer made its assessment, may be admissible as relevant to the employe's capacity to perform and accommodation. Respondent's motion in limine was denied. Keller v. UW-Milwaukee, 90-0140-PC-ER, 3/19/93

Petitioner's motion in limine with respect to evidence relating to her visits to the Personnel Commission, her conversations with Commission staff as well as conversations about the petitioner amongst Commission staff was denied where the Commission could not conclude that evidence concerning the observations and concerns of Commission staff that were transmitted to the employer would have no probative value, where they were allegedly part of respondent's motivation for requiring a psychological exam of the petitioner and were allegedly cited in the termination letter. The evidence sought did not fit within the confines of conciliation efforts and no other recognized privilege had been asserted or appeared to be involved. Iwanski v. DHSS, 89-0074-PC-ER, etc., 12/2/91

Because the question of document enlargement involved a technical, specialized field outside the realm of a "generally recognized fact" and there had been no foundation in the record of what the "established technical or scientific facts" were, the Commission could not take official notice of the degree of document enlargement necessary in order for a document to be read by complainant who had 20/200 vision. Betlach-Odegaard v. UW-Madison, 86-0114-PC-ER, 12/17/90

The investigator's conclusion that there was a prima facie case as to one of complainant's charges is not binding on the Commission. The Commission is not precluded from reaching an opposite conclusion depending on the nature of the evidence presented at the hearing. Acharya v. DOR, 89-0014, 0015-PC-ER, 7/14/89

A typewritten transcription of complainant's handwritten notes was not relevant in light of the fact that the events reported in the document were not alleged to have occurred until after the complaints of discrimination had been filed with the Commission. Jones v. DATCP & DER, 86-0067, 0151-PC-ER, 4/28/89

In determining whether respondent discriminated against the complainant based on handicap when it terminated his employment as a Correctional Officer 2, the Commission may consider a re-injury suffered by the complainant shortly before his termination, even though the respondent was unaware of that particular re-injury, where complainant's physician was aware of the injury at the time he wrote respondent that complainant "will most likely never return to his old job duties" and where the physician's letter precipitated the decision to terminate complainant's employment. Conley v. DHSS, 84-0067-PC-ER, 6/29/87

The hearing examiner properly refused to accept the initial determination in evidence for other than jurisdictional purposes. Berryman v. DHSS, 81-PC-ER-53, 8/1/84


While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.

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