TAMEIKA S LEWIS, Complainant
MID-STATES EXPRESS INC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. The complainant (Lewis) worked ten months as a payroll/customer service clerk for the respondent (MSE), a trucking company.
2. Lewis, who identifies her race as African-American, was hired by Steve Anderson (Anderson), MSE's terminal manager and Lewis's immediate supervisor.
3. On May 25, 2005, Lewis received a written warning from Anderson for unsatisfactory attendance. This warning stated that, during the previous five months, Lewis had been absent for nine days and punched out early seven times, and that "[a]ny additional unexcused absentees [sic] will force me to take additional disciplinary action up to possible termination."
4. MSE's attendance policy requires an employee to call in an absence at least two hours before the start of a shift, classifies an absence as unexcused when this notice is not provided, and states that two unexcused absences will result in termination. This policy also provides that absences for illness with proper medical documentation will be excused.
5. On November 9, 2005, Trent Nelson (Nelson), Lewis's boyfriend, dropped by the MSE offices at 7:30 a.m.. on his way to work, and gave Anderson a medical slip excusing Lewis from work that day due to "iritis," an eye condition. Lewis was scheduled to begin work at 7:30 a.m. on November 9. Lewis could not have provided earlier notice of her absence that day because she did not have a telephone.
6. Later on November 9, Nelson dropped off a second medical slip with MSE's dispatcher, Rick McIlqham (McIlqham). This medical slip excused Lewis from work from Wednesday, November 9 to Monday, November 14, 2005, due to iritis.
7. Lewis did not provide any other notice of her absences on November 9, 10, and 11, 2005.
8. Lewis reported to work on Monday, November 14. Anderson told her at that time that her absences the prior week were unacceptable, and gave her both a disciplinary letter imposing a 5-day suspension to be served November 14 through 18 for failing to provide a two-hour notice of her November 9 absence; and a termination letter, based upon an unexcused no call/no show absence on November 10, to be effective Monday, November 21, 2005.
9. McIlqham, who is white, was absent without notice the week of October 17, 2005, but was not terminated by MSE.
1. Respondent MSE is an employer within the meaning of the Wisconsin Fair Employment Act.
2. Complainant Lewis sustained her burden to prove that probable cause exists to believe that she was discriminated against on the basis of race when she was suspended by respondent MSE.
3. Complainant Lewis sustained her burden to prove that probable cause exists to believe that she was discriminated against on the basis of race when she was terminated by respondent MSE.
The decision of the ALJ is reversed. This matter is remanded to the Equal Rights Division for hearing on the merits of the complainant's charge.
Dated and mailed May 8, 2008
lewista . rrr : 115 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Wisconsin courts, in the absence of the Wisconsin Fair Employment Act's (WFEA's) establishment of a specific procedure by which a complainant must prove a claim of employment discrimination, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc., v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985). As stated by the court in Puetz:
McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).
To establish a prima facie case of a discriminatory suspension/discharge, the complainant must show that she is a member of a protected group because of her race, she was suspended/discharged, and others not in the protected class were treated more favorably or she was replaced by someone not within the protected class. Puetz, supra.
Lewis established a prima facie case of race discrimination. The record shows she is a member of a protected class based upon her race (African-American); she suffered adverse employment actions when she was suspended and then terminated for being absent, allegedly without notice, for a medical reason; and an inference of discrimination is created because McIlqham, a white employee who was absent without notice for five days for a medical reason the month before, was not terminated.
The burden would then shift to MSE to articulate a legitimate, non-discriminatory reason for its actions. The record establishes that MSE's reason for suspending and then terminating Lewis was her allegedly unsatisfactory attendance record, including her violation of notice requirements, and this reason is legitimate and non-discriminatory on its face.
The burden would then shift to Lewis to establish that this reason was a pretext for discrimination.
Lewis essentially offers two pretext arguments: (1) her suspension and termination were not reasonably justified, and (2) she was treated less favorably than McIlqham, the white dispatcher, who was not terminated despite the fact that he was absent without notice the week of October 17, 2005.
(1) Lack of reasonable justification for suspension and termination
The record shows that Lewis was suspended for five working days for failing to give at least a two-hour notice of her absence on November 9, even though she did not have a telephone and her boyfriend provided Anderson with a medical excuse for her absence at the start of her shift that day. The record further establishes that, later on November 9, Lewis provided MSE a medical excuse for November 10 and 11, but, despite this notice, was terminated by MSE for failing to call in on November 10, and for missing work on November 10 and 11 even though her absences on those days were medically excused. The record fails to establish that MSE was reasonably justified in suspending or terminating her.
(2) Less favorable treatment than white coworker
The most that the evidence of record establishes in regard to McIlqham's attendance is that he was absent without notice the week of October 17, 2005, for a medical reason and was not terminated.
The evidence of record does not justify or even explain the difference in treatment between Lewis, who was suspended and then terminated for failing to provide proper notice of her medical absences, and McIlqham, her white coworker, who was not. In fact, the record shows that Lewis's failure to provide a two-hour notice of her absence on November 9 was reasonably justified given that she did not have a telephone; and that she exercised reasonable diligence in having her boyfriend provide a medical excuse to Anderson at the start of her shift that day. The record further shows that Lewis did provide proper notice of her absences on November 10 and 11 when, later on November 9, a medical excuse for those days was submitted to MSE's dispatcher. In contrast, in regard to McIlqham, the evidence of record shows only that he failed to provide proper notice of his five days of medical absence the week of October 17, but does not explain or justify this failure.
Lewis has demonstrated pretext. The record does not show that MSE was reasonably justified in suspending and terminating Lewis based upon her attendance record, or for treating Lewis and McIlqham differently in regard to their absences.
In addition to this indirect evidence of race discrimination, the record also sets forth direct evidence.
Lewis and one of her witnesses (Mynelious Magee) testified without rebuttal that, during an argument, Anderson called Lewis a "black cunt." Such a statement constitutes direct evidence of a discriminatory racial animus. Although it is noteworthy that Lewis did not mention this statement in her charge of discrimination, and that Magee did not include it in his written memo concerning the argument, this would only matter if there was conflicting evidence as to the statement, or if it were inherently incredible that Anderson would have made such a statement. Neither of these circumstances exists here. In fact, even though Anderson was present at the hearing, he did not testify. Nor did any other witness dispute Lewis's or Magee's version of this event. In addition, it is not inherently incredible that Anderson would have made such a statement.
The indirect and direct evidence of discrimination in the record support a conclusion that probable cause exists to believe that race discrimination occurred as alleged, and this matter is remanded to the department for a hearing on the merits of Lewis's charge of discrimination.
The commission notes that, in reversing the decision of the ALJ, it did not overturn any of his credibility determinations. Its reversal was instead based upon a different view as to what the evidence of record actually established, and upon a different view as to the applicable law.
Specifically, the ALJ made certain findings relating to McIlqham's circumstances which are not supported by the evidence of record. These include the final two sentences of his Finding of Fact 8. (1) and all of Finding of Fact 9. (2) As discussed above, the most that the evidence of record establishes in this regard is that McIlqham was absent without notice the week of October 17, 2005, for a medical reason and was not terminated. A witness named Jill Alsuwailih (Alsuwailih) testified that, "Mr. Anderson was instructed by Mr. Baker to terminate Mr. McIlqham, but Mr. McIlqham had documentation of his hospitalization where he was unable to speak and his termination was overturned." However, the record does not establish how Alsuwailih acquired this information, or even what her position with MSE was. This is an inadequate foundation upon which to base a key finding of fact.
In addition, the ALJ failed to even mention the "black cunt" statement. Even though Lewis did not claim in her charge that she had been subjected to harassment, such a statement constitutes direct evidence of a discriminatory racial animus relevant, as here, to a claim of disparate treatment.
cc: Joe Baker, Director of Operations
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