PUBLISHED OPINION
Case No.: 95-0258
†Petition for
Review Filed
Complete Title
of Case:
RICHARD SIELAFF,
Plaintiff-Appellant,†
v.
MILWAUKEE COUNTY and
RICHARD ARTISON,
Defendants-Respondents.
Submitted on Briefs: January 2, 1996
Oral Argument: ----
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: February 6, 1996
Opinion Filed: February 6, 1996
Source of APPEAL Appeal
from a judgment and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", RESERVE JUDGE: HOWARD
W. LATTON
so indicate)
JUDGES: WEDEMEYER,
P.J., SULLIVAN and FINE, JJ.
Concurred: ----
Dissented: FINE, J.
Appellant
ATTORNEYSFor
the plaintiff-appellant the cause was submitted on the briefs of Robert E.
Sutton of Sutton & Kelly of Milwaukee.
Respondent
ATTORNEYSFor
the defendants-respondents the cause was submitted on the briefs of Mary
Ellen Poulos, principal assistant corporation counsel of Milwaukee.
COURT OF APPEALS DECISION DATED AND RELEASED February 6, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0258
STATE
OF WISCONSIN IN COURT OF
APPEALS
RICHARD SIELAFF,
Plaintiff-Appellant,
v.
MILWAUKEE COUNTY and
RICHARD ARTISON,
Defendants-Respondents.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: HOWARD W. LATTON, Reserve Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
WEDEMEYER, P.J. Richard Sielaff appeals from a judgment and
an order entered after a jury returned a verdict in favor of Milwaukee County
and Sheriff Richard E. Artison on Sielaff's discrimination complaint. Sielaff claims: (1) the trial court
erred in excluding evidence of twelve promotions that Sielaff did not receive;
and (2) that the County's attorney made misstatements of fact about
Sielaff during her opening statement, which were repeated by Artison during his
testimony. Because the trial court did
not erroneously exercise its discretion in excluding evidence of promotions
that did not occur within the 300 day limitation period prescribed by
§ 111.39(1), Stats.,[1]
and because the misstatements did not prejudice Sielaff's case, we affirm.
I. BACKGROUND
In October 1967, Sielaff
began his employment with the Milwaukee County Sheriff's Department as a deputy
sheriff I. In 1980, he was promoted to
sergeant. From July 1988 through
August 1992, Sielaff sought promotion to lieutenant, but never received
the promotion. On February 8,
1991, Sielaff filed an age discrimination complaint with the Equal Rights
Division of the Department of Industry, Labor and Human Relations. He alleged that he had been denied a
promotion from sergeant to lieutenant because of his age in violation of the
Wisconsin Fair Employment Act, § 111.31, et seq., Stats.
Based on the 300 day limitation period contained within
§ 111.39(1), Stats., the
department investigated only those promotions Sielaff did not receive within
this 300 day time frame.
Sielaff sought further
redress from circuit court on his age discrimination complaint, filing against
the County and Artison in August 1992.
The case was tried to a jury in September 1994. During the trial, Sielaff attempted to
introduce denied promotions beyond the 300 day limitation period. He intended to show that he had been passed
over for four promotions prior to the 300 day period and eight promotions
subsequent to the 300 day period. The
trial court determined that evidence of these promotions should not be
introduced and that Sielaff was limited to introducing evidence of the six
promotions he was denied that occurred within the 300 day limitation period.
During her opening
statement, counsel for the County erroneously told the jury that Sielaff had
pleaded guilty to several civil service charges that had been brought against
him by Artison. During his testimony at
trial, Artison also erroneously stated that Sielaff had pleaded guilty. In fact, Sielaff had stipulated to the
underlying facts, but was acquitted of the charges. Counsel for the County acknowledged her error in closing argument
and apologized for making the misrepresentation.
The jury returned a
verdict in favor of the County and Artison.
Sielaff filed postverdict motions requesting that the trial court set
aside the verdict and order a new trial.
The trial court denied the motions.
Judgment was entered and Sielaff now appeals.
II. DISCUSSION
A. 300
day limitation period.
Sielaff claims the trial
court erred in limiting his evidence to the six denied promotions which
occurred within the 300 day limitation period prescribed in § 111.39(1), Stats.
Sielaff contends that the four denied promotions that preceded the 300
day period and the eight denied promotions that occurred after the 300 day
period were relevant evidence showing a pattern of age discrimination.
Our standard of review
on the admission and exclusion of evidence is limited to whether the trial
court erroneously exercised its discretion.
State v. Alsteen, 108 Wis.2d 723, 727, 324 N.W.2d 426, 428
(1982). If a trial court applies the
proper law to the established facts, we will not find an erroneous exercise of
discretion if there is any reasonable basis for the trial court's ruling. Id.; Village of Shorewood
v. Steinberg, 174 Wis.2d 191, 204, 496 N.W.2d 57, 62 (1993); Steinbach
v. Gustafson, 177 Wis.2d 178, 185-86, 502 N.W.2d 156, 159 (Ct. App.
1993). Appellate courts generally look
for reasons to sustain discretionary determinations. Steinbach, 177 Wis.2d at 185-86, 502 N.W.2d at 159.
In the instant case, the
trial court admitted only the six denied promotions occurring within the 300
day limitation period for several reasons.
First, Sielaff, who was relying on federal case law in support of his
contention that the denied promotions outside the 300 day scope were
admissible, failed to provide the trial court with copies of the case law on
which he relied.[2] Second, after the trial when the trial court
had an opportunity to review all the federal case law relied on by Sielaff, the
trial court concluded that none of the case law supported allowing into
evidence the denied promotions which occurred subsequent to the 300 day
period. Third, in the instant case,
Sielaff was armed with evidence of six denied promotions that occurred within
the 300 day period. The trial court
felt that six cases were sufficient evidence to show a pattern of
discrimination, if one existed, and the additional promotions were merely
redundant.
Further, the trial court
agreed with the County's position that allowing evidence of the four denied
promotions occurring before the 300 day limitation would have forced the County
to defend actions which are time-barred, and allowing evidence of the eight
denied promotions occurring subsequent to the 300 day limitation would have
required the County to defend actions which had not been filed with the Equal Rights
Department, which is a condition precedent to suit.
It is clear from the
reasons set forth that the trial court did not erroneously exercise its
discretion in excluding the denied promotions that were not within the 300 day
period. The trial court set forth a
reasonable basis for ruling the way that it did. Accordingly, we must uphold its ruling.
B. Misstatement
of fact.
Sielaff also argues that
the misstatement of facts made about him by the County's counsel and Artison
require a reversal of the judgment. We
disagree.
In her opening
statement, counsel for the County told the jury that Sielaff had pled guilty to
a number of civil service charges that had been brought against him. In his testimony, Artison told the jury that
Sielaff had pled guilty to the charges.
The charges included violating orders of a supervisor, failing to
perform duties and filing false criminal reports. All of these charges, however, were dismissed after a hearing in
September 1989. This was indisputedly
proven at trial. Counsel for the County
conceded that her earlier statements to the contrary were made in error. Specifically, she said:
I
made this mistake and I apologize to you.
I apologize to counsel and I apologize to Richard Sielaff. I thought he had pled no contest to the
charges in 1989.... I was wrong and I
apologize to you. He's pointed it
out. I am apologizing, and I was wrong. We all make mistakes.
In
ruling on Sielaff's motion for a new trial on the grounds that these
misstatements prejudiced the case, the trial court noted:
As to
the misstatement of facts, it's pretty common knowledge that for an attorney to
make a statement as to what he or she intends to prove and fails to be able to
prove it is a very devastating weakness to the person who makes the
misstatement, not to the other side because they usually are able to capitalize
on it. I wasn't here at the closing
statements, but the testimony that came in pretty well established what the
facts were and if she admitted in her closing statement that she made a
mistake, why that certainly would not appear to this judge to be prejudicial to
the plaintiff.
We
agree with these sentiments. The
misstatements did not prejudice Sielaff's case and, therefore, constitute
harmless error. Town of
Geneva v. Tills, 129 Wis.2d 167, 185, 384 N.W.2d 701, 708
(1986). Moreover, it is clear from the
record that Sielaff strategically chose to allow counsel for the County to
operate under its mistaken belief.
Sielaff used the County's counsel's errors to its advantage and
attempted to discredit the County's defense and credibility on the basis of its
mistaken belief.
By the Court.—Judgment
and order affirmed.
No. 95-0258(D)
FINE, J. (dissenting). Richard Sielaff claims that he was denied a
promotion because of illegal age discrimination. The action was brought within the 300-day statute of limitations
established by § 111.39(1), Stats. See Milwaukee County v. LIRC,
113 Wis.2d 199, 204–205, 335 N.W.2d 412, 415–416 (Ct. App. 1983) (provision a
statute of limitations). The trial
court invoked § 111.39(1) to prevent Sielaff from introducing evidence
that he had also been denied promotions before and after the 300-day
period. Although Sielaff could not seek
age-discrimination redress in connection with those denied promotions, the
evidence is clearly relevant to show both a pattern of discrimination and an
intent to discriminate. See Stewart v. CPC Int'l, Inc.,
679 F.2d 117, 121 (7th Cir. 1982). I
would reverse.
[1] This statute provides
in pertinent part:
The department may receive and investigate a complaint charging discrimination, discriminatory practices, unfair honesty testing or unfair genetic testing in a particular case if the complaint is filed with the department no more than 300 days after the alleged discrimination, unfair honesty testing or unfair genetic testing occurred.