STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
COMMISSIONRICHARD M. DeSPEARS, Complainant,
MILWAUKEE COUNTY, Respondent.
Decision No. 28951-B
Boynton, Earle & Colon, by Attorney Peter Guyon Earle,
2266 North Prospect Avenue, Suite 550,
Milwaukee, Wisconsin 53202, appearing on behalf of the Complainant, Richard DeSpears.
Mr. Timothy R. Schoewe, Deputy Corporation Counsel,
Milwaukee County, Milwaukee County
Courthouse, Room 303, 901 North Ninth Street, Milwaukee, Wisconsin 53233, appearing on
of the Respondent, Milwaukee County.
FINDINGS OF FACT, CONCLUSIONS OF LAW
Daniel J. Nielsen, Examiner: Richard M. DeSpears (hereinafter referred to as the
Complainant) filed a complaint with the Wisconsin Employment Relations Commission on
1992, alleging that Milwaukee County (hereinafter referred to as either the Respondent or the
County) had discriminated against him by suspending him pending discharge for lacking a
drivers license. The complaint alleged that this action constituted interference with protected
and discrimination on the basis of activity on behalf of a labor organization, in violation of
111.70(3)(a)1 and 3, Stats.
After conciliation efforts by a member of the Commission's staff, the matter was
the Examiner, and dates were offered to the parties. The Complainant requested that the
held in abeyance pending the outcome of related litigation. In October of 1993, the
to the parties asking if the complaint could be dismissed. The
Complainant requested that the matter continue to be held in abeyance, and on
December 8, 1993,
a letter confirming this was sent to the Complainant and counsel for the Respondent. In May
the Complainant asked that the contents of the Examiner's file be shared with representatives
Union, and the materials were forwarded via facsimile. In October, the Complainant again
the Examiner and asked that a hearing be scheduled. A letter offering hearing dates was sent
parties on October 31.
On November 4, the County filed a Motion to Dismiss, asserting that the Respondent
be precluded from proceeding with his complaint based on (1) the equitable doctrine of
to the passage of time, (2) failure to exhaust his contractual remedies in that he failed to file
grievance, and (3) claim and issue preclusion in that he pursued the same complaint in other
and failed to appeal the adverse decisions rendered against him. The Complainant
asserting that the complaint should not be dismissed. The Examiner denied the Motion on
On March 4, 1997, a hearing was held in Milwaukee, at which time the parties were
full opportunity to present such testimony, exhibits, other evidence and arguments as were
to the dispute. A transcript was prepared, and was received by the Examiner on March 16,
The parties submitted post-hearing briefs and reply briefs, the last of which were exchanged
the Examiner on June 9, 1997, whereupon the record was closed.
Now having considered the evidence, the arguments of the parties, the statutes and
as a whole, the Examiner makes and issues the following Findings of Fact, Conclusions of
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
FINDINGS OF FACT
1. Milwaukee County, hereinafter referred to as either the County or the
municipal employer providing general governmental services to the people of Milwaukee
southeastern Wisconsin. At the time this dispute arose, one of the services provided by the
was the operation of a public hospital, the Milwaukee County Medical Complex. In 1992,
hospital was privatized and its operations were taken over by Froedert Memorial Lutheran
2. Richard M. DeSpears, hereinafter referred to as the Complainant, is a municipal
From October of 1985 through his suspension in March of 1992, he was employed as a
Worker at the Milwaukee County Medical Complex. He was a member of a bargaining unit
represented by Local 1055, District Council 48 of the American Federation of State, County
Municipal Employees, AFL-CIO, hereinafter referred to as the Union. Throughout his
with the Medical Complex, he received satisfactory evaluations.
3. Michael Zylka was, at all relevant times, the Director of Plant Operations at the
County Medical Complex. Gerald Hausman was, at all relevant times, the Operations
at the Milwaukee County Medical Complex. Hausman was the Complainant's direct
4. In late May or early June of 1991, the Complainant was selected via petition of
his co-workers to act as a steward for his department. This selection was not formally
confirmed by the
Union until February of 1992. In the meantime, however, he functioned as a steward and
involved in a dispute over the overtime equalization policy in the department. The overtime
had been a point of contention within the department for some time. Hausman had told a
steward, Ted Cornuth, that he would go along with a system devised by employes, and as a
department informally adopted an hours-based system for equalizing overtime. In April of
however, an employe named Robert Stout filed a grievance complaining that he had been
fair share of overtime because he had been out on sick leave. In settlement of the grievance,
Hausman agreed to offer Stout all of the overtime until he reached 56.6 hours. A second
the settlement called for representatives of the Union and the maintenance staff to meet and
a fair overtime equalization policy for the department.
5. No agreement was reached on a new overtime equalization policy, and in June
directed that the existing policy be set aside and that all overtime be offered to employes in
seniority, without regard to equalization. On August 1, DeSpears filed a grievance,
the old policy be restored. On August 12, following a meeting with officers of Local 1055,
directed that the maintenance department follow the negotiated overtime policy in effect at
Health Complex. This created an uproar among the department's workers, who were divided
the issue. Hausman, officers of the Local, and DeSpears continued to discuss the overtime
although Hausman sometimes refused to deal directly with DeSpears. In October of 1991,
proposed a system of rotation through the seniority list, an option that Hausman rejected.
November 6, DeSpears proposed a modified version of this system, using rotation in the first
and then offering overtime to the person with the least number of overtime hours. Hausman
rejected it, taking the position that he would not agree to any policy that did not have 100%
among the members of the maintenance staff. The issue lingered for a period of time, and in
Spring of 1992, DeSpears demanded that the Union advance it to the third step. On May 12,
Henry Zielinski, the Director of the Department of Labor Relations, issued his third step
DeSpears' August grievance and ruled that Hausman exceeded his authority by altering the
equalization system. Zielinski ordered that the old policy be reinstated, and the Union
6. As noted in Finding No. 5, above, Hausman was reluctant to deal directly with
Complainant on the overtime issue during the late summer and the fall of 1991. He told
that this was based on the fact that he had never been formally notified of his appointment as
although he told Carol Stegall, the Secretary of Local 1055 that it was due to the experiences
he had had with DeSpears becoming abusive in meetings on the
overtime issue. Other managers complained to Stegall that they had the same
DeSpears and also refused to meet alone with him. Hausman did, however, deal with
directly in October and November. When Hausman rejected the November 6 proposal, and
demanded 100% agreement among the employes on any new policy, DeSpears filed another
against him, asserting that this interfered with the Union's right to represent the employes.
7. The job description for maintenance worker sets forth the requirements of the
Included among those requirements is possession of a valid drivers license.
8. The maintenance department had one county vehicle assigned to it. This vehicle
for picking up supplies, and for driving to and from the gates in the parking lot when they
had to be
opened or closed. During the first shift on weekdays, there are in excess of thirty
employes, housekeeping employes and tradespeople available to drive the vehicle. On
maintenance employes are scheduled to work alone, and this duty rotates among the
9. DeSpears had a long-standing drinking problem, and was convicted of driving
intoxicated four times. He lost his drivers license to a several month suspension for drunken
at the end of 1987, and regained it in February of 1988. His license was suspended again in
of 1990. In each of these instances, he advised the Hospital of the suspension and told them
seek an occupational license. He was not disciplined, although he was advised he was not to
County vehicles when working alone on a weekend without a license. He did not obtain an
occupational drivers license after his 1990 suspension, and in June of 1991, he was notified
license was revoked for five years when he was adjudicated as a habitual traffic offender.
habitual offender, he was not eligible to apply for an occupational license for at least a year
10. Prior to 1992, the Hospital did not have a systematic method for checking
maintenance employes had a valid drivers license. Instead, they relied on employes to keep
advised, and on occasional visual checks by supervisors. Zylka and Hausman became aware
DeSpears' license was revoked in June of 1991. Zylka was directed by the Hospital's
not to allow him to work alone on weekends until he had a license. During this period of
DeSpears indicated to Hausman that he would be able to get an occupational license, but he
obtain such a license. In January of 1992, Hausman brought charges against DeSpears,
he did not have a valid license as required by his job description. In response to these
sent a memo to DeSpears directing him to get an occupational license by March 1 or face
DeSpears' attorney wrote to Hausman after this memo was issued, indicating that he would
the license. He was not able to obtain an occupational license, and Zylka initiated discipline
him. While the discipline was pending, Zylka offered him the option of accepting a
demotion to a job
not requiring a valid drivers license. The Complainant refused this option, and Zylka
11. A hearing was held before Assistant Hospital Administrator Minnie Linyear on
13. Linyear issued a written report on March 18, summarizing the arguments made before
recommending termination for failure to meet the requirements of the job description.
this effect were filed with the Personnel Review Board on March 26, and DeSpears was
without pay pending the PRB's decision.
12. The Personnel Review Board conducted a hearing and took testimony on the
at its November 24, 1992 meeting. The PRB determined that the Complainant should not be
discharged, but should be demoted to Custodial Worker I and placed at the top pay range of
classification, as soon as a then-existing hiring freeze was lifted. The PRB's order was
November 24, 1992. A Custodial Worker I position came open in the housekeeping
the hospital in December, and DeSpears was given the job. He was allowed to use
time to cover the time between the PRB decision and the December 21 starting date in the
Thus the effect of the PRB's order was to suspend DeSpears without pay from March 26,
through November 29, 1992, and demote him effective November 30. Although he had the
appeal via a writ of certiorari, DeSpears did not seek review of the PRB order in circuit
the six-month appeal period.
13. After the PRB issued its decision, the Complainant filed a suit against the
federal district court, alleging a violation of the Americans with Disabilities Act in that he
discriminated against on the basis of his alcoholism. The District Court for the Eastern
Wisconsin granted the County's motion for summary judgment on November 22, 1994. On
15, 1995, the Seventh Circuit Court of Appeals affirmed the district's court's decision.
14. The instant complaint was filed on July 14, 1992, prior to the PRB's decision to
and demote the Complainant, rather than discharge him. It was held in abeyance pending the
outcome of the PRB and federal litigation. In October of 1996, DeSpears asked that a
scheduled. The County filed a Motion to Dismiss based upon issue and claims preclusion.
Motion was denied. A hearing was held on March 4, 1997.
15. The Milwaukee County Personnel Review Board does not have jurisdiction over
complaints of discrimination in violation of Sec. 111.70.
16. The U.S. District Court for the Eastern District does not have jurisdiction over
complaints of discrimination in violation of Sec. 111.70.
17. The substance of the Complainant's claim of discrimination in violation of Sec.
was not litigated before either the Personnel Review Board or the U.S. District Court.
18. The Complainant, Richard DeSpears, was engaged in concerted activity when he
as a steward in the maintenance department in 1991 and 1992.
19. The County, through Hausman and Zylka, was aware of the Complainant's
concerted activity as a steward.
20. Although there was personal friction between Hausman and DeSpears as a result
DeSpears' abrasive style, Hausman was not hostile to DeSpears' protected concerted activity.
21. Zylka was not hostile to DeSpears' protected concerted activity.
22. The discipline imposed upon DeSpears was motivated by his failure to possess a
drivers license, contrary to the requirements of his job description, and not by hostility to his
involvement in protected concerted activity.
On the basis of the above and foregoing Findings of Fact, the Examiner makes the
CONCLUSIONS OF LAW
1. The Respondent, Milwaukee County, did not interfere with the exercise of
of the Complainant, Richard DeSpears, in violation of Sec. 111.70(3)(a)1.
2. The Respondent, Milwaukee County, did not discriminate against the
Richard DeSpears, in violation of Sec. 111.70(3)(a)3.
On the basis of the above and foregoing Findings of Fact and Conclusions of Law,
Examiner makes and issues the following
The instant complaint is hereby dismissed in its entirety.
Dated at Racine, Wisconsin, this 23rd day of July, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Daniel Nielsen, Examiner
FINDINGS OF FACT, CONCLUSIONS OF LAW
ARGUMENTS OF THE PARTIES
The Complainant takes the position that the County discriminated against him because
involvement in protected concerted activity. The Complainant was a shop steward, actively
aggressively engaged in representing his co-workers. The County's claim that he was never
appointed is beside the point, since his supervisor admits that DeSpears was functioning in
capacity and was treated as a steward in the department. He filed grievances, and proposed
settlements of employe disputes, most notably a series of grievances connected with the
effort to change the overtime policy. His supervisor, Hausman, was clearly shown to have
hostile to the Complainant's activity on behalf of his fellow employes. Hausman refused to
with the Complainant, constantly changed his positions, and admitted that meetings about the
overtime policy degenerated into shouting matches. Hausman attempted to undermine the
by ceasing to do business with him.
Hausman's hostility is further shown by the fact that his stated reason for suspending
Complainant -- lack of a valid drivers license -- is clearly a pretext. While there was a rule
books (in the form of the job description) requiring maintenance personnel to have a drivers
this rule has not been enforced and the ability to drive is not an essential part of the job.
in which an employe's license was suspended did not result in disciplinary action, including a
instance involving the Complainant. In this case, the County knew for two years that the
Complainant did not have a drivers license, and still he was judged a satisfactory employee
evaluations. There was no job function that the Complainant could not perform without a
The County did not launch any investigation into the driving status of employees until after it
discipline on the Complainant, and it did so then only as cover for the action against the
The only identifiable cause for the County's abrupt decision to enforce the drivers license
was Hausman's increasing hostility to the Complainant's Union activism.
The Complainant rejects the County's claim that this complaint is precluded by the
before the PRB or the federal courts. The PRB is an arm of the County, and its rules do not
representation of the accused by counsel, unless the PRB consents to such representation.
process rights of the Complainant before the PRB are clearly not the same as they are before
WERC. Moreover, the Complainant did not need to raise his Sec. 111.70 claims to the
instant complaint was already pending when the PRB hearing was held, and the PRB does
jurisdiction to decide union animus complaints.
Instead it is limited to determining whether an employe is fit for duty. Thus there can
preclusion as a result of the PRB proceedings, since they do not allow for full litigation of
they did not and could not have addressed the substantive claims of the Complainant.
federal courts dealt with the Complainant's handicap discrimination claims through summary
judgment, without making any factual findings, and thus the disputed issues in this case
been conclusively determined in the federal case.
Inasmuch as the County clearly violated Sec. 111.70, the Complainant argues that he
be made whole for his losses by virtue of the suspension and demotion he suffered, be
the level of maintenance worker, and have his record cleared of all reference to this
The County asserts that the Complainant has failed to make out any case. While he
that management did not deal with him as a Union representative, the fact is that they did,
though the Union never bothered to inform the County that he had any standing as a steward
February of 1992, well after he anointed himself to act in this capacity. It is true that the
took steps to avoid meeting with him alone, but this was done only to avoid his abusive
was a reasonable response to that behavior. Thus the County is obviously innocent of the
The discrimination charge is likewise unproved. First the County notes that the
had full due process in his hearing before the Personnel Review Board, which routinely hears
involving employes who have lost their drivers licenses. Indeed, this is the second most
offense heard by that Board. He did not dispute the substance of the charges, nor did he
possession of a license is a requirement of his job. The suspension and demotion he received
customary responses to this offense. He did not grieve his demotion or suspension, and his
should be barred as he has failed to exhaust his contractual remedies. Moreover, he did not
challenge the PRB decision, electing instead to go to federal court on a handicap
charge. He lost. The instant claim is an effort to get a third bite at the apple, and should be
by the doctrine of preclusion. Preclusion applies where an agency adjudicates a disputed fact
before it, and the parties are provided with an adequate opportunity to litigate. The PRB is
appropriate body for this type of dispute, the parties have had an opportunity to litigate the
and the PRB has ruled. The discipline was upheld and the decision was not appealed.
preclusion, the Complainant had an obligation to raise all of his substantive theories
transaction before the PRB, and the fact that he failed to raise anti-union discrimination there
his federal suit effectively bars him from raising the issue now. Issue preclusion also
applies, in that
the issue of the County's motive for disciplining the Complainant has already been litigated
before the PRB and in federal court. The WERC cannot act without regard to the statutory
the PRB or the uniformly applicable principles of preclusion. Thus the Examiner should
Complainant's efforts to collaterally attack the findings of the PRB, and should dismiss this
in its entirety.
The Examiner has previously considered and denied the County's efforts to dismiss
based upon the prior history of the litigation:
The assertion that the passage of time bars
the complaint is not persuasive, since the basis for
holding the complaint in abeyance was known to the Respondent and, if the Respondent
proceed with a hearing, it could have invoked its rights to a prompt hearing under Section
The commission shall fix a
time for a
hearing on such complaint, which shall be not less than 10
nor more than 40 days after the filing of such complaint...
Either party may at any time assert the right
to a speedy hearing, as was noted in the General
Counsel's July 15, 1992 letter to the Chairman of the Milwaukee County Board forwarding a
of the complaint and inviting the parties to participate in conciliation efforts. In 1992 and
Respondent was notified of the Complainant's intention to keep the prohibited practice
alive before the Commission, and to defer prosecution of the claim pending the outcome of
FAILURE TO EXHAUST
The County asserts that the Complainant
may not pursue his discrimination claim before the
Commission unless he has first exhausted his avenues for redress under the collective
agreement. Even though the discrimination claim may overlap to an extent with the claims
under a just cause standard, it is rooted in the statute and not in the contract. The
long held that it has the authority to make determinations and order relief in cases involving
non-contractual unfair labor practices, even despite, contrary to, or concurrently with the
the same matters. An employee can pursue grievance arbitration alleging a contractual
the employer while contemporaneously citing the same employer action as the basis for a
an unfair labor practice by the Commission. Given that the claims may be pursued
follows that failure to file a grievance will not preclude the filing of a complaint.
ISSUE AND CLAIMS PRECLUSION
Issue and claim preclusion require an
identity of issues and parties. The claim in this case is that
the County sought to interfere with the Complainant's exercise of protected rights, and to
against him on the basis of his membership or activity in a labor organization. Under
an otherwise valid action may still be found violative of MERA if it is motivated in part by
animus. The elements of a successful claim under Section 111.70 (3)(a)3 include:
(1) that the employe has engaged in
protected, concerted activity;
(2) that the employer was aware of such
(3) that the employer was hostile to such
(4) that the employer's complained of
conduct was motivated at least in part by such hostility.
The conclusion of the Personnel Review
Board that the grievant violated Rule VIII, Section 4(l)
and (t) of the Civil Service Rules of Milwaukee County does not answer the question of
alleged, the County's decision to enforce the rule against the Complainant was motivated "at
part" by hostility towards him for protected activity. Likewise, the conclusion that the
was not discriminated against on the basis of some handicap or membership in a suspect
does not settle the question of possible Union animus.
DeSpears v. Milwaukee County, Dec. No.
28951-A (Nielsen, 12/17/96) (Footnotes omitted)
Having once again considered the County's preclusion arguments, the Examiner
Claim preclusion is the term now applied to what used to be known as res
judicata. This doctrine
establishes that "a final judgment between the parties is conclusive for all subsequent actions
those same parties, as to all matters which were, or which could have been, litigated in the
from which the judgment arose." Dane County v. AFSCME Local 65, 210 Wis.2d 268,
N.W.2d 540 (CtApp, 1997). Claim preclusion generally requires an identity of parties.
Issue preclusion is the term now applied to what was formerly referred to as
estoppel. It is "a flexible doctrine that is bottomed in concerns of fundamental fairness and
that one must have had a fair opportunity procedurally, substantively and evidentially
to litigate the issue before a second litigation will be precluded." Dane County,
issue preclusion does not require an identity of parties, it does require actual litigation of an
necessary to the outcome of the first action.
Both claim preclusion and issue preclusion are recognized and accepted doctrines
Commission. See, for example, Wisconsin Telephone Company, Dec. No. 4471 (WERB,
Mark Benzing v. WEAC, Dec. No. 28543-A (McGilligan, 9/16/97). Having said that,
these doctrines is applicable to the case at hand. Granting that the Complainant has brought
other actions related to the discipline imposed upon him, this is the first time he has appeared
forum having jurisdiction to hear, decide and remedy a claim based upon discrimination for
activity. Even though the Wisconsin courts have adopted a "transactional" approach to
whether there is an identity of cause of action for the purpose of claims preclusion, the
requires a final judgment by a tribunal of competent jurisdiction. Racine Unified School
Dec. No. 29184 (Shaw, 11/25/97) citing Northern States Power Co. v. Bugher, 189 Wis.2d
541, 550 (1995). The WERC's jurisdiction to hear Sec. 111.70(3)(a)3 claims is not
exclusive. It is
concurrent with the jurisdiction of the circuit courts of this state, should a party invoke the
jurisdiction. Racine Unified School District, supra. The Complainant has not taken recourse
to the circuit courts to this point. The County's Personnel Review Board does not have a
mandate to hear prohibited practices, nor do the courts of the federal system. Thus there has
no final judgment by a court of competent jurisdiction that has addressed or could have
question of whether the County's actions were motivated in part by anti-union animus.
The Complainant was initially discharged, and on review was suspended and
demoted, on the
grounds of not having a valid drivers license as required by his job description. The
asserts that the County disciplined him for his aggressive representation of other workers on
overtime dispute, and that the lack of a valid drivers license is nothing but a pretext. As
in order to succeed on a claim of unlawful discrimination, a Complainant must show by a
satisfactory preponderance of the evidence that:
(1) the employe has engaged in protected,
(2) the employer was aware of such
(3) the employer was hostile to such
(4) the employer's complained of conduct
was motivated at least in part by such hostility.
In this case, there is no question but that the Complainant was engaged in protected
when he functioned as a steward and pursued the overtime equalization issue with Hausman.
is there any doubt that management was aware of his activities. With respect to the third
the record shows little evidence of hostility to the Complainant's protected activity. The
evidence of hostility falls into three categories: (1) Hausman's changes in position on the
equalization policy; (2) Hausman's refusal to meet alone with the grievant; and (3) the
against the grievant.
The changes in the overtime policy were triggered by a successful grievance brought
of the Complainant's co-workers in April of 1991. The Complainant did not become the
late May or early June. At the end of June, Hausman unilaterally changed the equalization
in response to the failure of the employes and the Union to agree upon a replacement policy.
is no evidence that this change had anything to do with the Complainant. Indeed the
evidence is that
his relationship with Hausman was good at the outset. The subsequent change, in August,
DeSpears filed a grievance over the June change, but it came as a consequence of a meeting
Hausman, officers of the Local and maintenance department employes, not as retaliation for
grievance. (See, Complainant's Exhibit #5, and transcript, pages 54-55). In late October,
raised objections to the settlement proposed by the Complainant, and when a modified
submitted in November he said he would not agree to any system that was not agreeable to
all of the
members of the department staff. This was precisely the same position he had taken when
system was originally adopted, and essentially the same position that was agreed upon in the
settlement of the Stout grievance. The Complainant might have felt that Hausman was
respect his position as steward by insisting that the employes agree to the system, but that
show hostility. Instead, it reflects the fact that the overtime equalization issue had frustrated
attempts at resolution, in large part because the workers could not agree amongst themselves.
The second item offered to show hostility is that Hausman refused to meet alone with
Complainant after August or so, and insisted that other Union officers be present. Hausman
conceded that he did not wish to meet with DeSpears. He attributed this to the need for
Union involvement, and to the fact that DeSpears was not formally confirmed as a steward at
time. However, he told Stegall that it was due to DeSpears' abusive attitude in discussions
issue. Both Hausman and DeSpears conceded that some of the meetings degenerated into
matches. I conclude that Hausman's reluctance to meet with the Complainant was
attributable to both
a desire for higher level involvement and a distaste for the manner in which he pursued his
Distaste for his personal manner is not the same as hostility to the activity. It must also be
DeSpears himself testified that he and Hausman did meet in October and early November to
DeSpears' proposal for resolving the overtime issue. Thus it is not factually correct that
flatly refused to deal directly with DeSpears.
The third item of evidence offered to show hostility is the fact that the Complainant
disciplined for not having a drivers license in January of 1992, when he had been without a
for two years, and that in the past employes, including the Complainant, had been
the loss of a license. The Complainant also asserts that the ability to drive is a very minor
part of the
job. These items of proof are more properly characterized as going to the question of
was animus underlying the decision to discipline him. In determining whether a decision is
by unlawful animus, the Commission must determine whether the reasons given for that
genuine or are instead pretextual. CESA 4, Dec. No. 13100-E (Yaffe, 12/29/77)
at page 43. Here
there is no dispute that the Complainant's job description required him to possess a valid
license, nor is there any dispute that employes are required to abide by the requirements of
descriptions. (See transcript, pages 32-34)
While failure to possess a drivers license is the second most common basis for
the Personnel Review Board (transcript, page 217), the record shows that no one had been
for this in the maintenance department prior to the Complainant's case. The record also
however, that the Complainant was the first employe in the department who was adjudged a
traffic offender, and the first to lose his license for five years. Hausman and Zylka both
employes who lost their licenses would usually be able to get an occupational permit within a
reasonable period of time, and thus the degree of accommodation required for those
be substantially less than that required for the Complainant. As a habitual offender, the
would not even become eligible for an occupational license until mid-1993. (See,
Exhibit #19, page 2, item 7). Hausman testified that one reason he took no action after the
Complainant lost his license in 1990 was that he kept saying that he would be getting an
permit, and that his court date was continuously adjourned. The Complainant denied telling
he would get an occupational permit, but I find Hausman the more credible witness on this
part because his version would be consistent with what appears to have been the policy in
The Complainant also sought to prove that having a drivers license was not relevant
vast majority of his duties, and the record generally supports this contention. Hausman
there were ample employes on the first shift during the week to cover any driving needs.
problem identified for the Complainant was his ability to work alone on weekends, when a
was needed for opening and closing parking lot gates, so that the maintenance employe could
promptly respond to pages. Zylka testified without contradiction that in 1991, after it was
that the Complainant's license had been revoked, he had been directed by the hospital
not to allow the grievant to work alone on weekends without a license. Zylka also explained
permanently exempting him from weekend coverage would have created problems with all of
other employes, who would as a consequence be required to work additional weekends.
is evidence that the Complainant had been scheduled for weekends without a license in the
work was overtime when he would not have been there alone. Also, as noted above,
there is a
rational difference between making a relatively short-term accommodation and entering into
arrangement that might stretch for a period of five years.
In evaluating the claim of pretext, I have taken into account several points which are
inconsistent with a desire to simply be rid of the Complainant. The evidence of hostility in
is weak, but to the extent that it exists, it primarily focuses on Hausman. Yet it was Zylka
actually issued the ultimatum to him in January to get an occupational license or be
did so on Hausman's recommendation, but in the end it was he who pursued discipline. I
that he did not summarily impose discipline, even though the Complainant was clearly out of
compliance with the job description. Instead, he gave the Complainant two and a half
obtain an occupational license. There is no evidence in the record to suggest that Zylka
Complainant could not obtain a license, and in fact the Complainant's attorney wrote to him
memo was issued, telling him the Complainant would obtain the license. In addition, the
held the Complainant's job open for a period of eighteen months after he was suspended.
to Zylka, the latter portion of this eighteen-month period was attributable to budget
initially it was held open so that he could return if he obtained a license. None of these
consistent with a plot to discharge the grievant for some reason other than his lack of a
The Complainant bears the burden of proof, and viewing the record as a whole, I
that he has failed to carry that burden. The Complainant was clearly engaged in protected
activity in 1991, and the County was aware of his activities. There is scant evidence that the
was hostile to his activities, although his personal style did lead to a degree of friction with
The discipline imposed upon him was in response to an admitted violation of his job
lack of a drivers license. While the department had accommodated persons in the past for
of their licenses, there is no evidence that the County ever knew of anyone having their
revoked and being unable to obtain an occupational license. While driving is a very small
the job, it is necessary if an employe is going to work alone on weekends, and exempting the
from that duty would have generated an additional controversy within the department's other
employes. The evidence is not completely clear-cut, 1/ but taking the record as a whole, I
that the loss of his drivers license was merely a pretext for discriminating against the
Accordingly, I have dismissed the complaint in its entirety.
1/ In arriving at the overall conclusion in this
case, I have considered the fact that there are a variety of
inconsistencies between the testimony of Zylka and Hausman. However, I do not find these
on their overall credibility or their motives for imposing discipline on the Complainant. The
fact is that the
complaint was filed a year after some of the critical conversations, and the Complainant then
asked that this case
be held in abeyance for some five
(footnote continued on Page 15)
(footnote continued from Page 14)
more years, so that he
could pursue other litigation. Hausman had retired by the time that the hearing was
held, and Zylka had moved on to the Department of Public Works. With the passage of that
much time, it is
inevitable that memories will fade and inconsistencies will appear in the
Dated at Racine, Wisconsin, this 23rd day of July, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Daniel Nielsen, Examiner