HENRY A ARVIN, Complainant
C & D TECHNOLOGIES INC, Respondent
An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:
1. The respondent in this matter, C&D Technologies, (hereinafter "respondent"), is a manufacturing firm. The respondent purchased the company from Johnson Controls in 1999. Prior to being owned by Johnson Controls, the company was owned by Globe Union.
2. The complainant in this matter, Henry A. Arvin, (hereinafter "complainant"), is a black male. He began his employment with Globe Union in 1977 and, as of his last day of work, had worked for the respondent and its predecessors for approximately twenty-five years. The complainant worked as a "tricaster," a job which entailed producing grids for batteries using hot molten lead.
3. During the time period at issue, the respondent's human resources manager was Sherry Kopca. Ms. Kopca, who has been the human resources manager since 1995, is responsible for working with supervisors to ensure that discipline is consistent throughout the plant.
4. The respondent's policies provide for three classes of disciplinary offenses, Class A, Class B and Class C. Class A and B offenses result in progressive discipline. A Class C offense is the most serious and warrants immediate discharge. In deciding which level of discipline to impose, the respondent looks at a number of factors including the severity of the incident, uniformity in treatment throughout the plant, and the employee's prior record and length of service at the company.
5. In April of 2000, the complainant filed a grievance with his union in which he alleged racial bias in the scheduling of overtime. Shortly thereafter, Ms. Kopca called the complainant into a meeting, during which she warned him that he could get into trouble for calling someone a racist.
6. In February of 2003 the respondent implemented a rotation policy in the casting department which the complainant believed was applied in an unfair manner that discriminated against black employees. On May 1, 2003, the complainant filed a grievance regarding the policy, which he contended was applied in an arbitrary, capricious and discriminatory manner. The complainant did not specify that by "discriminatory," he meant discriminatory based upon race.
7. On July 16, 2003, the complainant distributed copies of a letter that he had printed at home to approximately thirty second and third shift employees. The letter stated as follows, with emphasis, spelling and punctuation as per the original:
THE FOLLOWING IS A STATEMENT I ATTEMPTED TO READ AT MY 3RD STEP GREIVANCE HEARING IN FRONT OF MIKE CLAYPOOL. CLAYPOOL CUT ME OFF WHEN I ATTACKED HIS PERSONAL STOOGE.
AT MY 2ND STEP GRIEVANACE HEARING I ASKED FOR THE IDENTITY OF THE PERSON OR PERSONS WHO WROTE MY 1ST STEP RESPONSE,SHERRY KOPCA STATED "IT'S THE COMPANY'S RESPONSE THAT'S ALL YOU NEED TO KNOW". I AM AN AMERICAN CITIZEN, I HAVE A RIGHT TO KNOW THE IDENTITY OF MY ACCUSERS. THE COMPANY CLAIMS THE ROTATION PROCEDURE IS A JOINT EFFORT. IT IS A JOINT EFFORT BETWEEN THE COMPANY AND THEIR HAND PICKED STOOGE ED WILLIAMS ,NO INTELLIGENT PERSON WOULD SIGN OFF ON AN AGREEMENT GIVING THE COMPANY THE RIGHT TO DISCRIMINATE ANYTIME THEY WANT FOR ANY REASON THEY WANT. THE COMPANY'S DECIDSION TO ONLY RUN NEG. BANKS ON APRIL 25TH IS A FACTOR NOT UNDER MY CONTROL,UNDER THE ROTATION PROCEDURE I SHOULD HAVE RIGHTFULLY BEEN ASSIGNED TO A POS. BANK.
THE COMPANY EVOKES THE MANAGEMENT RIGHTS CLAUSE TO JUSTIFY THE ROTATION PRIORITY SYSTEM, EVEN IF THERE WAS A CLAUSE IN THE CONTRACT GIVING THE COMPANY THE RIGHT TO DISCRIMINATE ,THE LAWS OF THE U.S. GOVERNMENT WOULD SUPERSEDE IT. I WILL REPEAT,AS I HAVE FOR THE NLRB; BEFORE I FILED MY GREIVANCE NO ONE IN MANAGEMENT SAID ANYTHING TO ME ABOUT MY JOB PERFORMANCE.
AT THE NEXT STEP IN THIS PROCESS MY EVIDENCE WILL REVEAL IN GRAPHIC DETAIL EXACTLY WHAT MIKE CLAYPOOL DOES NOT KNOW ABOUT CASTING CONSISTANTLY IN SPEC. GRIDS.
MY EVIDENENCE WILL ALSO SHOW A PATTERN OF DISCRIMINATION IN MIKE CLAYPOOL'S OPERATING POLICY.
AT THE NEXT STEP IN THIS PROCESS I WILL REVEAL MIKE CLAYPOOL AND HIS TOP LIEUTENANTS FOR EXACTLY WHAT YOU ARE;LYING,INCOMPETENT,RACIST,HYPOCRITES
HENRY ALEXANDER ARVIN
AKA
DEFIANT AFRICANIN REFERENCE TO ED WILLIAMS;AT MY 2ND STEP GRIEVANCE HEARING ED WILLIAMS ATTEMPTED TO READ MY GREIVANCE ALOUD ,HE STUMBLED OVER DAMN NEAR EVERY WORD,THE WORD "CAPRICIOUS" HE COULD NOT PRONOUNCE TO SAVE HIS LIFE. ED WILLIAMS CAN NOT READ ,THAT MAKES HIM ILLITERATE,THAT MAKES HIM THE PERFECT STOOGE FOR MANAGEMENT,ALSO IN REFERANCE TO ED WILLIAMS ;ED WILLIAMS ABUSES THE PRIVILEGE OF RUNNING OUT OF SPEC. MORE THAN ANY OTHER OPERATOR,ED WILLIAMS RARELY RUNS IN SPEC. IF YOU HOLD UP ED WILLIAMS AS A SHINING EXAMPLE OF WHAT A GOOD NEGRO SHOULD BE I WILL TEAR HIM APART.
8. Sherry Kopca, the human resources manager, first became aware of the letter on July 17, 2003, when several supervisors brought it to her attention. The following day Ms. Kopca showed the letter to some employees in the plant and asked whether they found it threatening. The majority of the employees so surveyed indicated they did not.
9. On Tuesday, July 22, 2003, Ms. Kopca called a meeting with the complainant to discuss the letter. During this meeting Ms. Kopca told the complainant that another employee had filed a harassment complaint against him, but did not elaborate. She asked the complainant whether he had written and the distributed the letter, but the complainant stated he would not answer any questions. Ms. Kopca did not direct the complainant to answer questions, nor did she warn him that there would be any disciplinary consequences if he did not. Ms. Kopca did not specifically ask the complainant to explain what he meant by the phrase "tear him apart" or whether this was intended as a threat. At the end of the meeting Ms. Kopca told the complainant she would finish her investigation and get back to him the next day.
10. At 10:45 p.m. the complainant reported for his 11:00 p.m. work shift, but was not allowed to punch in. He was told to wait in the lobby. After waiting fifteen minutes the complainant had the guard page his supervisor, who stated he could not let the complainant in until Ms. Kopca arrived. The complainant waited another fifteen minutes, then asked the guard to page his supervisor again. The complainant then left the plant. He did not go directly home, and when he returned home a few hours later he found a message on his answering machine stating he was expected back at the plant at 11:45 p.m. The complainant called the plant in the morning and learned that a meeting had been scheduled for 3:00 p.m.
11. The complainant appeared at the 3:00 p.m. meeting on July 23, at which Ms. Kopca, the plant superintendent and a union representative were present. The complainant was told that, upon completion of its investigation, the respondent had determined he had committed four separate Class C violations and a Class B violation. The violations with which the complainant was charged were as follows:
C9 Threatening or intimidating fellow workers, members of management or supervisors, their agents or the welfare of the Company. This can include, but is not limited to foul or abusive language directed toward any of the above individuals.
B8 Deliberately hindering or limiting production, which can include willfully disregarding prescribed and established quality procedures.
C20 Disorderly, immoral or indecent conduct, including the use of profane or abusive language.
C22 Violation of the Company's "No Harassment Policy."
C10 Disobedience, insubordination or refusing to perform work or carry out reasonable assignments or follow instructions.
12. In addition to the rule violations specified above, four of which warranted immediate discharge under the respondent's policies, Ms. Kopca felt that the complainant had falsely accused the respondent of racial bias, and that this warranted termination.
13. Ms. Kopca, the union representative, and the plant superintendent asked the complainant to leave the room while they discussed the situation. When the complainant returned he was told he was discharged. The complainant was not offered an opportunity to keep his job by cooperating with the investigation, offering an apology, or undergoing counseling.
14. The complainant had no history of violent, threatening or harassing behavior.
15. The complainant filed a union grievance with respect to his discharge, but was not reinstated. During the grievance process the complainant submitted a written apology.
16. Dave Herman is a maintenance worker whose race is white. In June of 2003, Mr. Herman engaged in a confrontation with his supervisor over a work assignment, during which he continually interrupted and talked over the supervisor. The supervisor found it necessary to call in a second supervisor for support. The incident resulted in the packing line being shut down for twenty minutes. Mr. Herman received a Class A warning for his conduct, the least amount of discipline allowable under the respondent's policies.
17. In December of 2003, Mr. Herman became angry about something in the workplace, yelled and swore at two co-workers, and deliberately shut off the production line for twenty to thirty minutes. He was assessed two Class A violations for abuse and harassment and two Class B violations for disregard of policy and hindering. As a result, Mr. Herman received a disciplinary suspension and a referral to the EAP.
18. A year later Mr. Herman swore at a female co-worker and deliberately bumped into her. He was assessed a Class B violation for abuse and harassment, and a Class C violation for issuing a threat. He was discharged because of the Class C violation.
19. Dick Wenninger is a maintenance worker whose race is white. In November of 1995, Mr. Wenninger engaged in an angry confrontation with another worker. When called into his supervisor's office to discuss the incident Mr. Wenninger threw his respirator and wrench against the wall and started screaming and swearing. A written summary of the incident prepared by a supervisor noted that this sort of thing had happened in the past with Mr. Wenninger. He received no formal discipline as a result of the incident.
20. In March of 1998, Mr. Wenninger yelled and swore at a co-worker, but was not disciplined.
21. In August of 1999, Mr. Wenninger used abusive language towards a supervisor and was assessed a Class B violation. He was issued a written warning.
22. In October of 2001, Mr. Wenninger threw a wrench at a co-worker and received two Class C violations. He was discharged, but the discharge was converted to a suspension and EAP referral.
23. In April of 2003, Mr. Wenninger unbuttoned his shirt and pulled his pants down in front of a female employee, for which he received a Class B violation with a suspension and a referral to EAP. As of the hearing, Mr. Wenninger was still working for the respondent.
24. Steve Holz is an employee of the respondent's, whose race is white. In April of 2003, he told a co-worker that she looked like a hooker, and was assessed a Class A violation for harassment. He was issued a written warning and required to apologize.
25. In January of 2004, Mr. Holz swore at a supervisor and was assessed a Class A violation. He was issued a final written warning and told to apologize.
26. Paul Prekop is an employee of the respondent's, whose race is white. In August of 2000 he received a single Class C violation for becoming extremely angry, waving his arms, screaming, swearing, using abusive language, slamming doors, throwing things, refusing to work, and causing his co-workers to take precautions for their safety. Mr. Prekop was discharged for his conduct, but returned to work on a last chance agreement.
27. Clyde Gibbs is an employee of the respondent's, whose race is white. He received a Class A violation and a written warning in October of 2004 for disorderly conduct, including use of profane or abusive language.
28. In March of 2005, Mr. Gibbs yelled, swore, and engaged in intimidating conduct towards a female co-worker. The co-worker, who is black, accused him of calling her a "nigger." Mr. Gibbs was initially assessed a Class C violation for threatening and intimidating conduct, but the discipline was reduced to a Class B violation with suspension.
29. In December of 2005, Mr. Gibbs received two Class B violations for hindering production and making nasty comments to his supervisor, at which point he was discharged.
30. There is reason to believe that the fact the complainant accused the respondent of race discrimination was a motivating factor in the discharge.
31. There is reason to believe that the complainant's race was a motivating factor in the discharge.
1. There is probable cause to believe that the respondent unlawfully discharged the complainant based upon his race, in violation of the Wisconsin Fair Employment Act.
2. There is probable cause to believe that the respondent unlawfully discharged the complainant because he opposed a practice of discrimination, in violation of the Wisconsin Fair Employment Act.
The decision of the administrative law judge is reversed. This matter is remanded to the Equal Rights Division for further proceedings.
Dated and mailed August 27, 2008
arvinhe . rrr : 164 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
This case is before the commission on probable cause. In Buska v. Central Bldg. Maintenance (LIRC, Sept. 28, 1995), the commission provided the following description of the complainant's burden in a probable cause proceeding:
The standard of proof at a probable cause hearing has been described as "low," see, Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992). It is somewhere between preponderance and suspicion. Hintz v. Flambeau Medical Center (LIRC, 08/09/89). It is a burden to show a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that discrimination occurred. Herling v. Dealers Office Equip. (LIRC, 02/18/87).
Based upon its review of the voluminous record in this case, the commission is satisfied that the complainant has submitted sufficient evidence to warrant a finding of probable cause on both issues and, thus, an opportunity for a hearing on the merits.
A. Retaliation
The complainant alleges that he was discharged, in part, because he opposed a discriminatory practice under the Wisconsin Fair Employment Act (hereinafter "Act"). To establish unlawful retaliation for opposition, an employee must initially prove (1) that he or she engaged in statutorily protected opposition, (2) that the employer took an adverse action against the employee, and (3) that a causal connection exists between these two things. Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989). While the Act protects conduct in opposition to what an employee believes to be a discriminatory practice, conduct is only protected if it is supported by a good faith belief that discrimination in fact occurred. Roncaglione v. Peterson Builders (LIRC, Aug. 11, 1993), aff'd. sub nom. Roncaglione v. LIRC (Dane Co. Cir. Ct., May 6, 1994). It is not necessary that the employee have been objectively "right" about a belief that an action opposed was prohibited discrimination, but it is necessary that the employee have had a good faith belief that the action he opposed was prohibited discrimination. Notaro v. Kotecki & Radtke, S.C. (LIRC, July 14, 1993). At least for purposes of making out a prima facie case, the "causal connection" element can be established by showing that the adverse employment action followed within a fairly short period of time after the protected opposition activity. Frierson v. ASHEA Industrial Systems (LIRC, April 6, 1990). It has also become well established that proof of unlawful retaliation for opposition must include proof that the employer actually had the perception that the conduct engaged in by the employee, which is claimed to have caused the retaliation, was an attempt by the employee to oppose alleged discrimination. Cangelosi v. Larson & Associates (LIRC, November 9, 1990).
The respondent argues that the complainant did not engage in any protected conduct. It maintains that the statement in the complainant's union grievance that the rotation system was applied in an arbitrary, capricious and discriminatory manner is not a statement based on race and that, in the context of labor relations, discrimination may have other meanings. The respondent further contends that the complainant's statement in support of his grievance is not protected opposition, because it is not a complaint or expression in opposition to race based discrimination. The respondent states that merely calling management "lying, incompetent, racists, hypocrites," without explanation, is not a complaint in opposition to a discriminatory practice under the Act.
The respondent is correct that the complainant's union grievance, in which he contended the respondent applied its rotation policy in a discriminatory manner, does not specify that the discrimination being opposed is discrimination based upon race. It is also true that the comments in the complainant's supporting statement are somewhat vague, in that he makes several references to the "right to discriminate" and a "pattern of discrimination," without explaining that he means discrimination based upon race. However, when reading the entire statement in context, including the reference to management as being racist, the complainant's meaning is clear. The complainant had filed a prior grievance in 2000 in which he alleged race discrimination, and it is clear from the record that the complainant's most recent grievance centered on a practice which he believed was racially discriminatory, notwithstanding his failure to specify as much in the grievance. The statement in support of the grievance noted that the respondent engaged in discrimination and was racist, and the complainant signed the note "defiant African." Under all the circumstances, it is reasonable to infer that the complainant was accusing the respondent of engaging in a practice of race discrimination.
At the hearing the respondent acknowledged that it read the statement as a complaint of race discrimination. In answer to a question as to whether she understood the document as being an attempt by the complainant to raise a concern about perceived racial bias, Ms. Kopca testified, "Yeah, it's stated here. Yes. Racial bias." (TR, at 276-277). The respondent cannot expect to prevail on its argument that the complainant did not engage in any protected activity where its own witness conceded that she believed his letter constituted a complaint of racial bias. Moreover, Ms. Kopca specifically testified that, although she believed the complainant's accusation was wrong, she did not think he was lying and felt that the letter reflected his perception of the situation. Based on the foregoing, the commission is satisfied that the complainant engaged in conduct that is protected under the Act.
Concluding that the complainant engaged in protected oppositional activity, the question to decide is whether his discharge was related to that activity. Here, again, Ms. Kopca's testimony makes it clear that it was. Not only did Ms. Kopca agree that she read the statement as raising a concern about racial bias, but she acknowledged that the complainant was discharged, at least in part, for that reason. Ms. Kopca stated that the complainant's "name-calling," in which he referred to the respondent's management as "lying, incompetent, racist hypocrites," amounted to false accusations and violated company policy. She specified that she did not believe that company management was racist and that this was part of why the complainant was discharged. (TR, at 168-169). The foregoing establishes a causal connection between the complainant's discharge and his protected oppositional activity which warrants a finding of probable cause.
In finding that the complainant was not retaliated against, the administrative law judge focused on the fact that the complainant was given an opportunity to explain his complaint, but refused to do so. However, where the respondent acknowledged that it read the complainant's letter as a complaint of racial bias in the workplace, that it believed the allegation was made in good faith, and that it discharged the complainant, at least in part, because of his allegation, the fact that the complainant failed to provide a further explanation of the document does not prevent a conclusion that the respondent violated the Act.
B. Race Discrimination
The respondent contends that it had a legitimate, nondiscriminatory reason for discharging the complainant, in that he violated several Class C rules. The complainant, however, maintains that the respondent's explanation is a pretext for discrimination and that, had he been a white employee, he would not have been discharged for engaging in the same conduct. In support of his assertion the complainant attempted to present comparative evidence showing that white employees have engaged in serious misconduct with lesser disciplinary consequences.
The commission explained the role of comparative evidence in Krueger v. Wis. DOT (LIRC, Oct. 4, 1982):
Comparative evidence is crucial in most disparate treatment cases because, as courts have noted, "direct evidence of discrimination. . . is virtually impossible to produce." Gates v. Georgia- Pacific Corp., 2 FEP 978, 979 (D. Ore. 1970), aff'd. 7 FEP 416 (9th Cir. 1974). See also Grossman and Schlei, Employment Discrimination Law, 16. The use of comparative evidence "is based on the concept of similarly situated persons. . ." which "generally means that the persons who are being compared are so situated that it is reasonable to believe they would receive the same treatment in the context of a particular employment decision." Grossman and Schlei, id.
At the hearing the respondent objected to the introduction of the complainant's comparative evidence on relevance grounds. The crux of the respondent's objection was that the complainant's comparators must be comparable in all material respects, but that the complainant's conduct was distinguishable from that of other employees because it was premeditated, racially charged, physically threatening, and because the complainant was uncooperative and showed no remorse. The administrative law judge sustained these objections and, as a result, much of the complainant's comparative evidence was rejected.
The commission believes, however, that these rulings were in error. Comparative evidence is relevant in a disparate treatment case, and the question is not whether such evidence is admissible, but how much weight to assign it. The respondent's belief that the workers to whom the complainant compares himself are distinguishable from the complainant goes to the strength of the complainant's pretext argument, but is not a basis for excluding the evidence from the record. (1)
Having concluded that the comparative evidence submitted by the complainant should be considered, the question to decide is what that evidence shows. In Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-618 (7th Cir. 2000), which was cited by the administrative law judge in his decision, the court explained what type of comparative evidence will be considered probative:
. . . in disciplinary cases -- in which a plaintiff claims that he was disciplined by his employer more harshly than a similarly situated employee based on some prohibited reason -- a plaintiff must show that he is similarly situated with respect to performance, qualifications, and conduct. Byrd v. Ronayne, 61 F.3d 1026, 1032 (1st Cir. 1995). This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them. Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). . . . As to the relevant factors, an employee need not show complete identity in comparing himself to the better treated employee, but he must show substantial similarity. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).
In this case, it was not shown that the employees with whom the complainant compares himself had the same supervisor, and since at least some of them worked in the maintenance department, it can be assumed they did not. However, all of the employees in question were subject to the same standards of behavior. It is clear from the record that the plant disciplinary rules were meant to apply to all employees and that discipline was supposed to be uniform and consistent. Moreover, while the administrative law judge's ruling on the complainant's comparative evidence prevented some of the facts from coming to light, disciplinary notes for the employees in question indicate that Ms. Kopca had direct involvement in at least some of the disciplinary decisions at issue. Consequently, based upon the available information, the commission is satisfied that, for the purposes of determining whether workers engaging in similar conduct were subject to similar discipline, it is appropriate to compare the complainant with the employees in question.
With regard to the question of comparable conduct, Radue, supra, does not contemplate that the employees will have engaged in an identical offense in order to be considered comparable, but only that their conduct was "similar." This approach is consistent with that of the United States Supreme Court, which has held that the concept of similarly situated persons does not depend on "precise equivalence in culpability between employees" and that evidence that other employees not in the protected class were involved in acts of comparable seriousness against the employer but nevertheless retained is adequate to permit an inference that the employer's reliance on the complainant's misconduct as grounds for discharging him was a pretext for discrimination. McDonald v. Santa Fe Trail Transp. Co. 12 FEP 1577, 1581, fn. 11 (Sup. Ct. 1976). Where, as here, the complainant established that other workers engaged in conduct involving the same or similar rule violations as those with which the complainant was charged, the commission sees no reason why his conduct cannot be compared with that of those employees.
In its brief to the commission the respondent reiterates the argument it made at the hearing that the complainant's conduct included several "unique" factors that warranted different treatment from that of his comparators: his statement contained racially charged language; it contained a threat of violence; it was premeditated; it resulted in a formal harassment complaint against him; he refused to cooperate in the investigation, and he did not express remorse. The commission has considered each of these factors, but is unpersuaded that any provide a basis for disparate treatment.
The complainant described the respondent's management as "racist," referred to the possibility that the respondent considered Ed Williams to be a "good Negro," and signed his letter "defiant African." While this language may be "racially charged," in that it references race, the complainant used no racial epithets of the sort that would have violated the respondent's harassment policy. Calling someone "racist" is not in itself racist, nor can the complainant's description of himself as a "defiant African" be reasonably regarded as a racial slur. While the reference to Mr. Williams being seen as a "good Negro" by management might reasonably be deemed offensive, that term, which is used in this context by one African American individual to describe another, does not actually constitute a racial slur, and it is questionable whether it would be considered a violation of the respondent's harassment policy.
Moreover, the complainant's so-called "racially charged" language does not seem to be any more severe or serious than the language white employees have used towards their supervisors and co-workers without receiving similar discipline. Dick Wenninger swore at and used abusive language towards his supervisor and co-workers on more than one occasion, Steve Holz told a co-worker she looked like a "hooker," and Clyde Gibbs allegedly called a co-worker a "nigger." In addition, at the hearing the complainant attempted to present evidence, that was again excluded on relevance grounds, showing that racial epithets were common in the work place. Given the foregoing, the commission is unpersuaded that the respondent genuinely believed that the complainant's use of "racially charged" language was a matter warranting more severe discipline than that given his comparators or that the termination of his employment can be explained on that basis.
The commission is similarly unpersuaded by the argument that the complainant's conduct warranted harsher treatment because it amounted to a threat of violence. The respondent acknowledged that it surveyed the complainant's co-workers as to whether they felt the complainant's language was threatening, and the majority indicated they did not. (2) The complainant testified that the phrase "tear him apart" was meant to refer to "tearing apart" Williams' credibility and, in the context of the letter, the commission agrees that it is most reasonably read as something other than a threat of physical violence. Moreover, the respondent did not react in a manner consistent with a belief that the complainant had threatened violence. Sherry Kopca learned of the complainant's letter on July 17, yet the complainant was permitted to work on July 18, July 21, and July 22. The fact that the respondent did not suspend the complainant from the workplace when it learned of the letter or take other steps to increase security in the workplace suggests that the respondent did not find the letter genuinely threatening. The respondent acknowledged that the complainant, although a long term employee, had no past history of threats or violence. By contrast, another employee, Dick Wenninger, actually threw a wrench on two occasions--once at a co-worker--but was not even disciplined until the second incident. Mr. Wenninger's record suggests that he had a long history of such conduct, yet he was permitted to engage in violent conduct on several occasions. While he was ultimately discharged, his discharge was converted to a suspension and he was retained.
Next, the commission has considered the respondent's argument that the "premeditated" nature of the complainant's conduct warranted different treatment than that of his comparators. The commission finds incredible the notion that the respondent would consider it more objectionable for an employee to deliberately write and distribute a letter of protest, as the complainant did, than to fly into an unexpected, spontaneous fit of rage at the workplace, as Mr. Herman or Mr. Wenninger were each permitted to do.
The argument that the complainant's actions warranted different treatment because they resulted in a formal harassment complaint is similarly unconvincing. While the respondent contends that Mr. Williams filed a formal harassment complaint, no evidence was presented to establish that such a complaint was filed. The only evidence on this point was a letter written by Mr. Williams on August 6, 2003, after the complainant had already been discharged, in which Williams stated, in part:
"I received the letter finding it to be threaten, disrespecting, and slander. After thinking about the matter I decided I should file a complain with the Human Resource Department, which I did."
(EX R1). When asked about the matter at the hearing, Sherry Kopca testified, without providing any specifics about a complaint by Mr. Williams, that any time someone raises an issue with her, she automatically treats the matter as a formal complaint. In response to a question about whether there is a complaint form that she prepares, Kopca responded that she takes notes on a pad of paper. (3) Given these facts, the commission is unpersuaded that a formal complaint was actually filed by Mr. Williams any time prior to the complainant's discharge. The commission further notes that, if indeed Ms. Kopca considers every instance in which an employee raises an issue as being tantamount to a "formal complaint," then the complaint that Mr. Holz told a co-worker she looked like a "hooker" should also have been considered a "formal complaint" and treated with the same degree of seriousness as the complaint against the complainant.
Regarding the allegation that the complainant's failure to cooperate in the investigation warranted different treatment than his co-workers, the commission notes that the record contains little to establish whether the co-workers at issue were or were not cooperative in the respondent's investigations of their misconduct. Moreover, while the record does indicate that the complainant was uncooperative in the investigation, it does not appear that he was asked any specific questions regarding the content of his letter, nor was he told that failure to cooperate would cost him his job. The commission finds no support in the record for the administrative law judge's conclusion that the complainant could have remained employed had he cooperated in the investigation, and it appears that prior to the beginning of the July 23 meeting, at which the complainant was notified he was being discharged, the respondent had already decided to assess four Class C violations, all but one of which were based upon conduct the complainant had engaged in before the investigation began.
Finally, the commission notes that the complainant was not asked to apologize until after he was discharged and had filed a grievance, at which point his union directed him to apologize and the complainant complied. The one non-black comparator who was shown to have received a lesser degree of discipline because he expressed remorse did so on two occasions when he was directed to apologize.
The commission does not find the respondent's attempts to explain away the lighter disciplinary treatment of the complainant's comparators based upon the "unique factors" discussed above to be convincing. Ms. Kopca testified that her job is to make sure there is consistent disciplinary action throughout the plant and that, in deciding which level of discipline to impose, the respondent looks for uniformity in treatment, and at the employee's prior record and length of service at the company. Yet Ms. Kopca could not think of any other instance where an employee was assessed four violations for a single act of misconduct, and could not offer any reasonable explanation as to why the complainant's white comparators' threats and/or acts of harassment were treated as Class A and B violations while the complainant's were considered Class C terminable offenses. (4) It appears from this record that the complainant, a black employee with twenty-five years of service and a clean disciplinary record, received significantly harsher discipline than similarly situated white employees who engaged in as serious, or more serious, misconduct, some of them repeatedly. Based on the above, the commission believes that the complainant presented sufficient evidence to permit a prudent person to believe that discrimination based upon race probably occurred, and to warrant a remand for a hearing on the merits.
NOTE: In its responsive brief to the commission the respondent suggests that an arbitrator's award issued with respect to the complainant's termination should preclude the complainant from going forward with this claim. The commission disagrees. The arbitrator's award with regard to whether there was just cause for the complainant's termination did not address the complainant's discrimination complaint and did not affect his rights under the Wisconsin Fair Employment Act.
The commission did not confer with the administrative law judge regarding his impressions of witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of witness credibility, but is as a matter of law.
cc:
Attorney Arthur Heitzer
Attorney Frank A. Gumina
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