643 Credibility considerations

It is appropriate for an Administrative Law Judge to make credibility assessments at a hearing on the issue of probable cause. Oler v. TTM Technologies (LIRC, 06/23/11).

The Labor and Industry Review Commission believes that it is required to make credibility determinations at probable cause hearings when issues of credibility exist. Sommerfeldt v. AT&T (LIRC, 10/27/93).

The Department is entitled to make credibility determinations at probable cause hearings. In this case, LIRC found the Complainant's testimony about seeking psychiatric help not to be credible and concluded that there was no probable cause to believe that he suffered from a handicapping mental illness. Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992).

The Personnel Commission is entitled to review the credibility of witnesses and the weight of the evidence in determining probable cause. The Personnel Commission is not limited to merely examining whether the Complainant has presented evidence which, if believed, would be sufficient to support his claim. Cozzens-Ellis v. UW-Madison (Wis. Pers. Comm'n, 02/26/91).

The Complainant's testimony was contradicted by one of her own exhibits. Further, her testimony was not supported by one of her own witnesses. Complainant's testimony was also inconsistent on some points. Considering all of the evidence, the Commission concluded that there was no probable cause to believe the Complainant had been discriminated against. Albertson v. Methodist-Meriter Hosp. (LIRC, 09/20/90).

In proceedings limited to the issue of probable cause, the decision-maker is not to weigh the testimony by balancing the credibility of witnesses, but rather merely determine whether Complainant's evidence is believable. (Marshall v. Indus. Comm'n, Dane Co. Cir. Ct., 1 EPD par. 9772 p. 709). The fact that the Administrative Law Judge appears to have engaged in weighing the testimony by balancing the credibility of witnesses leads the Commission to conclude that the Administrative Law Judge decided this case on the merits by application of the "preponderance of the evidence" standard rather than deciding it by application of the lesser "probable cause" standard. Joseph v. Central Parking (LIRC, 08/20/90).

The Complainant was not a credible witness because he testified dishonestly with respect to a document which was received into the record. The document was a collection of daily production sheets on which the employee required data concerning the jobs he had run. The Complainant offered this packet of production sheets as evidence supporting his claim of harassment because of national origin, testifying repeatedly that notations he made on those sheets were contemporaneously made on the same day or at most within a few days of the incident. This testimony was rendered unbelievable by the substance of the notation on the production sheet for December 20, 1985, which concerned a meeting which indisputably took place in March of 1986. This established that the notations were clearly made long after the fact in order to bolster the Complainant’s case. The Complainant’s insistence that this notation was contemporaneously made, even in the face of this impossibility, left the Commission disinclined to credit him as a believable witness. Since his testimony, even standing by itself, could not be believed, it failed to establish to the burden required in a probable cause hearing, that the facts concerning his discharge were as alleged. Saltarikos v. Charter Wire Corp. (LIRC, 07/31/89).

The Commission found it unnecessary to address the question of how credibility issues should be resolved in hearings restricted to the issue of probable cause. Whether the Commission were to follow the test of Marshall v. Indus. Comm'n (Dane Co. Cir. Ct., 02/23/67), followed in Lienhardt v. Pacon (DILHR, 01/21/76), that the decision-maker is not to weigh the testimony by balancing the credibility of witnesses but rather is to merely determine whether the Complainant’s evidence is believable, or the view expressed in McLester v. Wis. Pers. Comm'n (Ct. App., Dist III, unpublished opinion, 03/12/85) that it is appropriate to weigh the credibility of competing witnesses in a probable cause hearing, it would arrive at the same result in this case. Ward v. Programmed Cleaning, Inc. (LIRC, 07/26/89).

The Commission did not have to disregard the testimony of the Complainant’s witness because the witness lives with the Complainant. In this case, any incentive which the witness might have to misrepresent her testimony in favor of the Complainant based upon their living arrangement was offset by her incentive not to misrepresent the facts based upon her continued employment with the Respondent and her resulting dependence on the Respondent for her livelihood. Herling v. Dealer’s Office Equip. (LIRC, 02/18/87).

The Personnel Commission is entitled to review the credibility of witnesses and the weight of the evidence in determining probable cause. The Commission is not limited at the probable cause hearing to merely examining whether the petitioner has presented evidence which, if believed, would be sufficient to support his claim. Rather, the test is whether the Commission believes, upon its examination of the evidence and its view of the credibility of the witnesses, that discrimination has probably occurred. McLester v. Wis. Pers. Comm’n (Ct. App., District III, unpublished opinion, 03/12/85).

In determining whether there is probable cause, DILHR is not to weigh the credibility of the complaining party, but to determine if the complaining party's evidence is believable. Lienhardt v. Pacon (DILHR, 01/21/76).

The Commission is not to weigh the testimony by balancing the credibility of the witnesses, but rather merely determine whether the Complainant’s evidence is believable. Marshall v. Indus. Comm’n of Wis. (Dane Co. Cir. Ct., 02/23/67).