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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                     This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
November 24, 2004
A party may file with the Supreme Court a
                                                                                    Cornelia G. Clark                                                  petition to review an adverse decision by the
                                                                                    Clerk of Court of Appeals                                          Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                       and RULE 809.62.
                                                                                                                                                       Cir. Ct. No.   02CV001826
Appeal No.                                                                          04-0034
STATE OF WISCONSIN                                                                                                                                     IN COURT OF APPEALS
                                                                                                                                                       DISTRICT II
JOSEPH E. SABOL,
PETITIONER-APPELLANT,
V.
WISCONSIN PERSONNEL COMMISSION AND UNIVERSITY
OF WISCONSIN - EAU CLAIRE,
RESPONDENTS-RESPONDENTS.
APPEAL  from an  order  of  the  circuit  court  for  Racine  County:
CHARLES H. CONSTANTINE, Judge.   Affirmed.
Before Anderson, P.J., Brown and Snyder, JJ.
¶1                                                                                  PER CURIAM.    Joseph E. Sabol appeals from an order affirming a
decision  of  the  Wisconsin  Personnel  Commission  that  the  University  of
Wisconsin-Eau Claire (UWEC) did not unlawfully discriminate or retaliate when
it failed to hire Sabol for a  2002-2003 faculty position.   He claims there were




No.   04-0034
procedural  irregularities  and  improper  evidentiary  restrictions  in  the  hearing
before  the  commission  and  that  UWEC’s  reasons  for  not  hiring  him  were
pretextual.   We affirm the order of the circuit court.
¶2                                                                                        Sabol was hired by UWEC’s chemistry department to fill a one-year
faculty vacancy for the 1997-1998 school year and again for the 1998-1999 school
year.    In  November  1998,  Sabol  sent  an  email  to  several  of  his  colleagues
reporting that he had found unsafe chemical storage in a teaching laboratory and
asking them to double-check that reagent bottles were tightly sealed when lab
sections were finished.   Sabol was not hired for a 1999-2000 faculty position for
which he applied.   He filed a complaint with the commission alleging age and sex
discrimination  and  retaliation  for  protected  OSHA                                    (Occupational  Safety  and
Health Act) reporting activity (the November  1998 email).   His complaint was
dismissed and the decision affirmed on appeal.   See Sabol v. State Pers. Comm’n,
No.  02-1190, unpublished slip op.  (WI App May 1,  2003), review denied  (WI
July 9,                                                                                   2003).                                                                   In   2001,  Sabol  pursued  three  other  complaints  before  the
commission when he was not hired for other positions in the UWEC chemistry
department.
¶3                                                                                        In  August  2001,  UWEC began recruitment  to fill a vacancy for
a tenure track assistant professor of inorganic or analytical chemistry.   For priority
consideration,  completed  applications  were  to  be  postmarked  no  later  than
October 19,  2001.    Sabol’s application materials were postmarked October  19,
2001.     However,  he  had  not  included  his  curriculum  vitae                        (CV),  and  the
application was deemed incomplete.   Sabol was not considered for the position.
¶4                                                                                        In  February  2002,  Sabol  filed  a  complaint  with  the  commission
alleging  that UWEC  had discriminated against him because  of  age, retaliated
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No.   04-0034
against him for having engaged in protected activities under the Wisconsin Fair
Employment  Act  (WFEA),  and  retaliated  against  him  for  having  engaged  in
activities protected by state OSHA laws.   The commission found that a prima facie
case  was  established  because  two  individuals  outside  the  age-protected
classification had been offered the position and Sabol’s rejection occurred within
some proximity to his protected activities.   UWEC explained that Sabol was not
considered because his application was not timely completed.   The commission
found  this  to  be  a  legitimate,  nondiscriminatory  explanation  for  the  hiring
decision.   Sabol argued that the reason was pretextual and that the handling of his
application had been manipulated by department chair, Jack Pladziewicz, or chair
of the search committee, Jason Halfen, for reasons of personal animus relating
back to the November 1998 OSHA report.   The commission concluded that there
was not sufficient evidence of pretext and dismissed Sabol’s complaint.
¶5                                                                                      We review the commission’s decision and not that of the circuit
court.   Board of Regents v. State Pers. Comm’n, 2002 WI 79, ¶25, 254 Wis. 2d
148,  646  N.W.2d  759.    The  determination  of  the  employer’s  motivation is a
finding of ultimate fact.   St. Joseph’s Hosp. v. Wisconsin Employment Relations
Bd., 264 Wis. 396, 400-01, 59 N.W.2d 448 (1953).   The commission’s findings of
fact are conclusive if supported by substantial evidence in the record.   Sieger v.
Wisconsin Pers. Comm’n,  181 Wis.  2d  845,  855,  512 N.W.2d  220  (Ct. App.
1994).                                                                                  “Substantial evidence, for the purpose of  reviewing an administrative
decision, is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”   Mews v. DOC, 2004 WI App 24, ¶11, 269 Wis. 2d 641,
676 N.W.2d 160.   The commission determines the weight of the evidence and the
credibility of the witnesses.   Ide v. LIRC, 224 Wis. 2d 159, 165, 589 N.W.2d 363
(1999).
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No.   04-0034
¶6                                                                                          The commission found that Sabol did not send his CV with his
application postmarked on the due date, and therefore, his application was not
complete by the deadline for priority consideration.   Substantial evidence supports
this  finding.    Patricia  Jenneman,  the  staff  person  responsible  for  processing
applications,  testified  about  her  regular  practice  of  determining  whether
applications were complete.   She could not find Sabol’s CV with his application.
She looked on her desk and later double-checked all materials she had handled
that day to be sure the CV had not been misplaced or slipped out unnoticed.   She
asked  Halfen  to  look  at  Sabol’s  submitted  materials  to  determine  if  she  was
mistaken about the missing CV.    Halfen confirmed that no CV was included.
Halfen  directed  Jenneman  to  send  Sabol  a  letter  indicating  that  his  CV  was
missing from the application.   Halfen’s testimony confirmed that the CV was not
included and Jenneman made a thorough search for it.   Another chemistry faculty
and  search  committee  member  testified  that  he  came  into  the  office  when
Jenneman was looking for the CV and determined that Sabol’s application was
incomplete.   The commission believed this testimony despite Sabol’s insistence
that he had included his CV.   Indeed, the commission noted that Jenneman had no
animus against Sabol.
¶7                                                                                          The finding that Sabol’s application was in fact incomplete by the
priority  deadline  is  conclusive.    The  record  further  establishes  by  substantial
evidence  that  the  UWEC  search  committee  did  not  consider  applications  not
complete by the priority deadline.   Jenneman explained that only the applications
complete by the priority date were turned over to the search committee.    The
committee did not ask to see the incomplete applications.    Thus, there was a
legitimate and nondiscriminatory reason for not considering Sabol’s application.
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No.   04-0034
¶8                                                                                         Sabol attempted to show pretext by the fact that other applicants
submitting incomplete applications were allowed to correct omissions or were
more timely notified that the application was incomplete.   However, Jenneman’s
records indicate that even though the transcripts of one applicant were not stamped
with  the  date  they  were  received,  the  application  submitted  was  marked  as
complete before the priority deadline.   Another applicant was sent a letter well
before the deadline indicating his application was incomplete and the applicant
responded by email asking that he be informed if additional materials were not
received by the end of the week.   His application was made complete before the
deadline.   Thus, the incompleteness of Sabol’s application was handled the same
as others’ incompleteness.   Since Sabol’s application was postmarked on the last
day and not received until after the deadline, he could not make it complete within
the deadline.
¶9                                                                                         Sabol’s argument that the search committee failed to keep records of
its review meetings and failed to meet with the affirmative action officer misses
the mark.   His application was not complete by the priority deadline and was not
submitted for consideration to the committee.   There is no connection between
Sabol not being  considered  for  the  position  and the  failure  to exactly follow
procedures, if any, subsequent to submission of completed applications.
¶10    Sabol also contends that UWEC’s reliance upon the missing CV was
pretextual  because  it  was  only  a  technical  omission  that  could  have  been
disregarded.   He explains that information included on a CV could be found in
other parts of his application materials, that he had a CV on file with UWEC by
virtue of prior employment, and that his qualifications were well known to the
chemistry department.   The department chair, Pladziewicz, testified that it would
not  be  a  good  practice  to  take  a  previously  submitted  CV  and  add  it  to  an
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No.   04-0034
application missing a CV because applicants write a CV specific to a job.   He
indicated it would be a disservice to the applicant.   He further explained that it
would not be proper for the search committee to rely on personal knowledge of an
applicant’s qualifications since there was a process to follow and fairness required
that all applications be reviewed with the same minimal requirements.   Halfen also
indicated it would not be appropriate to use a previously submitted CV on a new
application since information can change and that is why a new CV is required.
He confirmed that reliance on personal knowledge of an applicant’s qualifications
in the absence of a CV would violate the procedures set up to review applications.
In light of these concerns, Sabol’s application could not be made complete by
reliance on other sources for the missing CV.    The failure to do so was not
pretextual.                                                                                    The  commission’s  conclusion  that  UWEC  did  not  engage  in
discriminatory or retaliatory conduct in not hiring Sabol must be affirmed.
¶11    Sabol contends that he was denied a full and fair opportunity to
present critical evidence by the hearing examiner’s narrow view of what was
relevant evidence.   Sabol wanted to offer evidence regarding events that occurred
immediately after his November 1998 OSHA report such as UWEC’s failure to
hire him for a 1999-2000 position and the department chair’s failure to support
Sabol’s research proposal.    With respect to the exclusion of an affidavit of a
retired member of the chemistry department, Sabol was not prejudiced by the
ruling  because  the  affiant  testified  at  the  hearing.    With  respect  to  the  other
evidentiary  exclusions,  we  conclude  Sabol  was  not  prejudiced  since  he  was
afforded a complete and fair hearing on the controlling factual finding—whether
his CV was included in his application.   The other evidentiary materials were not
relevant in light of the finding that Sabol’s application was not completed before
the priority consideration deadline.
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No.   04-0034
¶12    We reject Sabol’s remaining claim that a procedural error occurred
because the commission made its decision on the merits and did not employ the
probable cause standard with respect to his age and WFEA retaliation claims.   Just
two  weeks  before  the  hearing  date,  Sabol  filed  an  appeal  from  the  initial
determination of no probable cause with respect to those claims.   He claims that at
the hearing he only had the burden to demonstrate probable cause on those claims.
However, it was anticipated that the age and WFEA claims would go to hearing on
the merits.   The hearing on the OSHA part of Sabol’s complaint was set within a
required  expedited  deadline.    At  a  prehearing  conference,  the  matters  were
consolidated in the interest of judicial economy.   It was discussed whether the
hearing would proceed on the merits of the age and WFEA claims or with regard
to the pending probable cause determination.   Sabol did not object to the statement
of the issue being whether he had been discriminated against on the basis of age,
retaliation under WFEA, or retaliation for OSHA activity.   Sabol knew the age and
WFEA claims would be heard on the merits.   Although Sabol filed his appeal from
the no probable cause determination before the hearing, he did not object to the
statement of the issue.   Neither at the commencement of the hearing nor in his
opening statement did Sabol indicate that only probable cause was at issue on
those claims.   He waived the claim that only probable cause was to be addressed.
¶13    Moreover, because Sabol had a full evidentiary hearing, the failure
to explicitly address whether probable cause existed was not prejudicial and of no
consequence.   Sabol had a hearing on the merits.   There is no suggestion of any
evidence he was holding back because he believed he needed only to establish
probable cause.
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No.   04-0034
By the Court.—Order affirmed.
                                This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                       (b)5.
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