762.2 Admissibility

Pre-hearing deposition of a Respondent-manager taken by the Complainant’s attorney, and offered into evidence at hearing by Respondent, was admitted over the Complainant’s objection. The deponent had died prior to hearing and was therefore unavailable under Wis. Stat. sec. 908.04. Gruss v. County of Dane (LIRC, 08/13/2019).

Complainant sought to prove that a former employer retaliated against him by giving bad references to his prospective employers, but his only evidence was a report from a reference-checking service purporting to give the former employer’s answers to reference questions. The report was hearsay, and although it might have been a record of regularly conducted activity under the hearsay exception of Wis. Stat. § 908.03(6), the Complainant failed to provide a foundation for the report through the testimony of the custodian of the report or another qualified witness. Although it may be admissible, hearsay evidence cannot be the entire support for a critical finding of fact. Germaine, John v. Sussek Machine Corp. (LIRC, 02/13/14).

Testimony offered not for the truth of the matter asserted but instead for the purpose of showing what the employer believed, and thus what motivated the employer in making an employment decision, is not hearsay. In this case, the ALJ properly allowed testimony from the Respondent’s witnesses when such testimony was not offered for the truth of the matter, but was offered as an explanation of what the Respondent’s witnesses had been told or what they understood had occurred and, thus, what motivated their actions in the employment decisions they made relating to the Complainant. Barnes v. Miller Brewing Co. (LIRC, 05/14/12).

It was not error for the Administrative Law Judge to refuse the admission of the Respondent’s counsel’s response to the investigator into the record. The attorney’s statement about why the Complainant was not considered for employment was hearsay. Further, the attorney may have misunderstood the facts, or simply have not been in possession of all the facts at that point in his involvement in the case. The attorney’s response did not identify any specific personnel of the Respondent as the source of the statement he provided. Nor did the attorney’s response provide any reason to conclude that a manager’s later testimony about the reason the Complainant was not considered for employment was false. Jackson v. USF Holland (LIRC, 02/25/09).

An Administrative Law Judge improperly refused to allow the Respondent to offer and move the Complainant’s discovery deposition into evidence. Sec. 804.07(1)(b), Stats., states that “the deposition of a party. . . may be used by an adverse party for any purpose.” Engen v. Harbor Campus (LIRC, 02/22/08).

In order for the attorney-client privilege to apply, a party has to satisfy the following three-part test: (1) The communication must be between a client and his attorney, (2) the communication must be confidential in nature, and (3) the communication must be made for the purpose of facilitating legal services. Absent any of the three criteria, there is no privilege. In this case, the Administrative Law Judge improperly sustained the Respondent’s objections to testimony between the Respondent’s attorney and an alderman on the grounds of attorney-client privilege. The alderman was overheard telling the Respondent’s attorney that, “We’ll fire that motherfucker if he files that claim,” referring to the Complainant’s filing a complaint under Ch. 109 of the Wisconsin Wage Payment Act. The Respondent did not establish that this statement was made for the purpose of facilitating legal services. Gunty v. City of Waukesha (LIRC, 03/29/07).

An Administrative Law Judge may consider evidence consisting of an employer’s testimony about statements made to them by a third-party declarant if they are offered not to prove the truth of the matter asserted by the declarant, but as evidence of what the employer believed and, thus, what motivated the employer in making a challenged decision. Stichmann v. Valley Health Care Ctr. (LIRC, 06/14/05).

Sec. 804.07, Stats., does not allow the Complainant to use his own discovery deposition to support factual assertions in his brief. It is only the adverse party (in this case, the Respondent), that is free to use the opposing party’s deposition for any purpose. Greco v. Snap-On Tools (LIRC, 05/27/04).

“Hearsay” is a statement, other than one made by the declarant while testifying at the hearing, offered in evidence to prove the truth of the matter asserted. In employment discrimination cases, the important question is the motivation of the person making the challenged decision (specifically, whether they were motivated by an impermissible factor such as race, sex or age). Evidence about something a decision-maker was told by another person can be important in understanding what the decision-maker’s motive was, and it is appropriate for it to be considered for that purpose. Therefore, it is acceptable to consider evidence consisting of an employer’s testimony about statements made to them by a third-party declarant, not to prove the truth of the matter asserted by the declarant, but as evidence of what the employer believed and, thus, what motivated them in making a challenged decision. Kleinsteiber v. Eaton Corp. (LIRC, 03/15/04).

The Administrative Law Judge properly admitted statements made by third parties which were offered in evidence not to prove the truth of their contents, but to prove that the person who heard them believed and relied upon them in making a subsequent, challenged employment decision. Cook v. Community Care Resources (LIRC, 01/13/03).

Where a declarant’s statement is offered for the fact that it was said, rather than for the truth of its content, it is not hearsay. Potts v. Magna Publications (LIRC, 02/27/01).

The Administrative Law Judge properly admitted written “feedback forms” regarding the Complainant into the record. These forms were prepared by a number of mentors and trainers who had been working with the Complainant prior to her termination. The forms were admissible as records of regularly conducted activity under sec. 908.03(6), Stats. An adequate foundation for the receipt of these documents was provided by the evidence that it was a regular business practice of the Respondent to have such feedback forms prepared, and that they are used in the regular course of Respondent’s business as a training tool. McGee v. Society’s Assets (LIRC, 02/13/01).

In a sexual harassment case, testimony by the Complainant’s coworkers that their supervisor, who was accused of sexual harassment, had acted inappropriately towards them could not be used to show the supervisor’s proclivity for bad conduct or bad character. However, this testimony was relevant and admissible for purposes of establishing a generally hostile work environment. Harsh v. County of Winnebago (LIRC, 11/06/98).

Testimony regarding statements by a third-party declarant to the employer were not hearsay when offered only to show how the statements influenced the employer’s beliefs as to what had happened, and not to prove the truth of the matter asserted. Voelz v. Kimberly-Clark (LIRC, 06/06/97).

While an administrative law judge may consider hearsay to which no objection has been made at hearing to the extent it has probative value, crucial or critical findings of fact should not be based on uncorroborated hearsay. Rutherford v. J & L Oil (LIRC, 06/06/97).

Evidence of events occurring outside of the statute of limitations may be admitted as proof of a state of mind for acts occurring during a relevant time; i.e., one within the statute of limitations. Abbyland Processing v. LIRC, 206 Wis. 2d 309, 557 N.W.2d 419 (Ct. App. 1996).

A Complainant who has been harassed on only a few occasions may be allowed to offer evidence of harassment suffered by other employees in order to show that harassment was pervasive. An employee can be intimidated or oppressed by witnessing an employer harass her co-workers, or by hearing about such behavior. Olson v. Servpro of Beloit (LIRC, 08/4/95).

Where statements made by third parties are offered in evidence not to prove the truth of their contents, but to prove what the person who heard them believed and relied upon them in making an employment decision, they are not inadmissible hearsay. Jones v. Milwaukee County (LIRC, 04/06/95).

Generally, where no objection is made to hearsay it is admitted as evidence and may be used as proof to whatever extent it may have rational persuasive power. Although an Administrative Law Judge may not base a finding solely on hearsay, the ALJ has the discretion to allow hearsay testimony at a hearing. Higgins v. Total Petroleum, Inc. (LIRC, 07/25/94).

A letter sent by an agent for the Respondent to the ERD investigator stating that the Complainant was not rehired when she applied for her old job back because it was discovered that she had falsified information on her employment application was not a binding admission, since it was not made in a formal discovery process. It was merely some evidence as to the reason for the challenged action. It is not necessarily error for an Administrative Law Judge to refuse to receive into evidence a letter from a representative of the Respondent to the investigator explaining why some challenged action was taken where that representative does not testify at the hearing. Geske v. H.C. Prange Co. (LIRC, 12/09/93).

The Initial Determination should not be received as evidence at hearing because it is a hearsay document reflecting the conclusions of the investigator following an ex parte investigation. Geske v. H.C. Prange Co. (LIRC, 12/09/93).

Where third party statements, whether or not the statements are true, are offered to demonstrate that the Respondent relied upon the statements to make a hiring decision, the third-party statements are not inadmissible hearsay. Vandeveer v. Brown County (LIRC, 06/28/93).

The Administrative Law Judge properly admitted medical evidence obtained by the Respondent after the Complainant's termination. Meacham v. Sunburst Youth Homes (LIRC, 02/04/93).

Hearsay testimony received into the record without objection can be considered by the trier of fact to whatever extent it is found to have probative value. Campbell v. A.J. Sweet of Madison, Inc. (LIRC, 08/29/92).

Where hearsay evidence is not objected to at hearing, it may be used by the trier of fact as a basis for findings to whatever extent it is viewed as having probative value. Schanandore v. Roddiscraft, Inc. (LIRC, 06/19/92).

The Administrative Law Judge erred in rejecting an exhibit which both parties wished to have received into evidence. The Administrative Law Judge also erred in not receiving the deposition of the Complainant. Sec. 804.07(1)(b), Stats., provides that the deposition of a party may be used at trial by an adverse party for any purpose. Catley v. Benjamin Air Rifle Co. (LIRC, 06/21/91).

Even though administrative proceedings are not bound by the same rules of evidence that govern trials, some evidentiary restrictions may apply, including those concerning hearsay not subject to a recognized exception. A document entitled “Entry Level Vision Requirements Validation Study” was properly excluded as hearsay. The document did not qualify as a scientific treatise under sec. 908.03(18), Stats., nor did it qualify as a public record or report under sec. 908.03(8), Stats. Brown County v. LIRC (Phillips & Grinkey) (Ct. App., Dist. III, unpublished opinion, 02/27/90).

Hearsay testimony which is received into the record without objection can be considered by the trier of fact to whatever extent it is found to have probative value. Maline v. Wis. Bell (LIRC, 10/30/89).

The Commission reversed the Administrative Law Judge’s ruling that testimony regarding events which occurred after the date the complaint was filed were inadmissible, where such evidence was relevant to the issue of whether the employer failed to take appropriate action within a reasonable time. Vervoort v. Central Paper (LIRC, 01/25/89).

Exclusion of testimony under sec. 804.12(2)(a)2, Stats. is proper where the Respondent failed to answer the Complainant's interrogatories regarding that testimony. Golden v. Heinen & Vernoski (LIRC, 12/29/88).

It was not error for the Administrative Law Judge to refuse to receive into evidence a letter written by counsel for the Respondent to the Equal Rights Division's investigator during the course of the investigation which outlined the position of the Respondent on why the Complainant was terminated. Tassotti v. LIRC (Kenosha Co. Cir. Ct., 02/23/88).

The Administrative Law Judge has discretion to allow hearsay testimony at a hearing, but no findings may be based on such testimony. Levanduski v. Visiting Nurse Ass’n of Sheboygan (LIRC, 02/10/88).

Although a finding of retaliation was based on a hearsay statement to the effect that “the county does not hire people who are suing the county,” the hearsay statement was within the exception provided in sec. 908.01(4), Stats. for statements of a party. The hearsay statement was made by an assistant to the County Executive, and the statement was made while he was so employed. Milwaukee County v. LIRC (Milwaukee Co. Cir. Ct., 12/16/87).

Where an earlier incident which resulted in the filing of a complaint of retaliation was thereafter resolved by a settlement agreement which provided that the Respondent did not admit any violation, that the Complainant would not sue the Respondent on the matters raised in the complaint, and that the agreement was to operate as the complete and final disposition of the complaint, the Commission would not consider evidence of the incident in a subsequent proceeding on another retaliation claim when the earlier incident was argued to be relevant. v. Madison Metro Bus Co. (LIRC, 02/12/87).

Sec. 904.04, Stats., does not preclude the admission, in a proceeding concerning allegations of sexual harassment, of evidence that the accused harasser engaged in sexual harassment towards others on other occasions. Schwantes v. Orbit Resort (LIRC, 05/22/86).

A hearing examiner has broad discretion as to what evidence to admit at hearing, and the scope of review is limited to abuse of discretion. Kasun v. LIRC (Kearney & Trecker) (Milwaukee Co. Cir. Ct., 11/05/83).

Where the employer introduced a doctor's letter as part of its exhibits, it waived whatever valid hearsay objection it may have had to the exhibit. Janz v. Jos. Schlitz Brewing (LIRC, 09/10/81).

A letter was rejected as evidence where it was written by a person who was available but who did not appear at the hearing. Baker v. Northern Sash (LIRC, 08/09/78).

Although the Equal Rights Division is not bound by the statutory rules of evidence, it may voluntarily apply such rules and accept an employee's admissions made within the scope of his employment. Appleton Elec. v. DILHR (Kreider) (Dane Co. Cir. Ct., 11/07/77).

Although hearsay documents should not be received at an administrative hearing where direct testimony is available, they may be used as proof to whatever extent they have rational persuasive power where an employer fails to object; and such failure prevents raising the objection on appeal to the circuit court. Olin v. DILHR (Hoadley) (Dane Co. Cir. Ct., 07/11/77).

Although hearsay is admissible at a hearing and the Wisconsin Supreme Court has not ruled on the extent to which administrative agencies may ground decisions on hearsay evidence, the Department cannot base "crucial" or "essential" finding upon hearsay alone. Hunt v. City of Madison (DILHR, 02/11/75).