ALLEN LEONARD LUECK, Complainant

COUNTY OF LA CROSSE, 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 November 13, 2014
lueckal_rsd . doc : 107 :  133

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The complainant alleged that the respondent retaliated against him by discharging him in January 2011 because he had filed discrimination complaints against the respondent in the past, most recently in 2002. The complainant's filing of prior discrimination complaints was a protected act under the WFEA, and there is no dispute that the complainant suffered an adverse employment action, discharge, in 2011. The complainant, however, failed to show probable cause to believe that there was a causal relationship between the two.

The primary reason for the complainant's failure to show probable cause was the lack of evidence that the individual who made the decision to discharge him even knew that he had filed a discrimination complaint in the past. Respondent's witness Keith Back testified that he made the decision to discharge the complainant. Back acknowledged that he consulted with the county's corporation counsel and personnel director to make sure that policies and procedures were being followed, but the decision to discharge was his own. Back repeatedly testified that at the time he decided to discharge the complainant he had no knowledge that the complainant had ever filed a discrimination complaint. The complainant did not rebut this assertion. Generally, if an employer does not know that the complainant filed a prior complaint of discrimination, the employer cannot be motivated by that fact when deciding to take some adverse action against the employee. Crook v. County of Vernon, ERD Case No. CR200100052 (LIRC Feb. 23, 2004). The exception to this general rule is the case where an unwitting employer acts as a conduit of someone's retaliatory motivation by relying on information from the prejudiced individual. Thobaben v. County of Waupaca, ERD Case No. CR200602483 (LIRC Dec. 23, 2011). There was no evidence that this was the case here. The only individual identified as someone who might have harbored some animosity toward the complainant because of his prior complaints was former supervisor Dennis Osgood. Back specifically testified that he did not consult with Osgood about discharging the complainant, and there was no evidence that any information from any other source on which Back relied had been influenced by Osgood.

The fact that Back did not know of and was not influenced by the complainant's prior discrimination complaints is sufficient to defeat the complainant's retaliation claim. Setting this aside, the complainant's case still would have failed because the complainant did not rebut the legitimate, non-retaliatory reason offered by the respondent for discharging the complainant, namely, that it believed the complainant: 1) committed theft at work by taking an ATV ramp that belonged to one of his supervisors; 2) gave misleading statements to law enforcement officers investigating the theft; and 3) asserted to law enforcement that his supervisor picked up the ramp and failed to turn it in according to proper procedure, without reasonable grounds for making such an assertion.

In his petition for commission review, the complainant argued that the respondent's asserted reason for discharging him should be disbelieved because the respondent failed to present "real proof" that the ramp belonged to his supervisor, or that the complainant had ever taken personal possession of it. This argument is based on a misunderstanding of the burdens of proof and production. The burden of proof to show retaliation is on the complainant, not the respondent. Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989); Engen v. Harbor Campus, ERD Case No. CR200400475 (LIRC Feb. 22, 2008). If the complainant had met his initial burden of showing a causal link between his prior discrimination complaints and his discharge (he did not, as noted above), the burden to produce evidence, not the burden of persuasion, would have fallen on the respondent to articulate a legitimate non-retaliatory reason for the discharge. Engen, supra. The nature of the respondent's duty would have been to explain its reasons for discharge. It is perfectly acceptable for the respondent to offer third-party statements at this stage, because such evidence would not be offered to prove the content of the statements, but to show that the person who received those statements believed and relied on them in making the employment decision. Jones v. Milwaukee County House of Correction, et al., ERD Case No. 9122168 (LIRC Apr. 6, 1995). Here, the respondent offered statements of law enforcement officers and the investigative report of its deputy corporation counsel, David Lange, as grounds for concluding that the complainant had stolen the ATV ramp and had made misleading statements to law enforcement officers who questioned him about the ramp. The complainant would then have borne the burden of showing that the non-retaliatory explanation for the discharge was a pretext for retaliation. The focus of such an inquiry would be on whether the respondent's stated reason for discharging the complainant was honest, not whether it was accurate. Ebner v. Dura Tech, ERD Case No. 200504645 (LIRC Apr. 23, 2009). The complainant failed to meet this burden. It appeared that the respondent was genuinely motivated by the information it received from its internal investigation and from the statements of law enforcement officers. Even if the complainant had succeeded in making a prima facie case, then, he would have failed to prove that the reason offered by the respondent was a pretext for retaliation.

cc: Attorney Ann M. Pepelnjak

Aff'd, Lueck v. La Crosse Co. and LIRC, La Crosse Co. Cir. Ct., 04/13/2016.

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