JAMES AKHIDENOR OGBEIDE, Complainant
STATE OF WISCONSIN DHFS
MENTAL HEALTH INSTITUTE, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed September 19, 2008
ogbeija . rsd : 115 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
At a prehearing conference conducted by the ALJ, the complainant withdrew his charge insofar as it related to incidents occurring prior to July 17, 2004. This would include the two allegations in his charge related to the terms and conditions of his employment. All that remained was that part of the complainant's charge relating to his termination.
The probable cause standard of proof is applicable here.
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 discharge, the complainant must show that he is a member of a protected group, he was discharged, and others not in the protected group were treated more favorably or he was replaced by someone not within the protected class. Puetz, supra.
The complainant failed to sustain his burden to establish a prima facie case of discrimination based on his race, color, or national origin, i.e., he did not prove that similarly situated workers who the respondent reasonably concluded had used excessive force with a patient were not discharged, or that he had been replaced by an individual of a different race, color, or national origin.
Moreover, even if the complainant had proved a prima facie case of discrimination, the respondent articulated a legitimate, non-discriminatory reason for his discharge, his use of excessive force with a patient, and the complainant failed to show that this reason was pretextual.
The complainant asserts that pretext is demonstrated by the fact that the respondent, in concluding that he had engaged in excessive force despite his denial, relied upon statements given by three coworkers who had a motive to retaliate against him (Vana, Johnson, Wear) rather than three workers who had no such motive (Schimming, Stephens, and Klabacka).
However, the record shows that Vana, Johnson, and Wear were directly involved in the incident and their statements were detailed and generally consistent. Each of them indicated in their contemporaneous statements, their statements to respondent's investigator, and their hearing testimony that the complainant struck patient MH in the head several times with a closed fist.
In contrast, Schimming indicated in her statements and testimony that she was positioned behind the complainant and did not have a good view, and had not seen punches thrown by either party, although she did hear the complainant using a loud voice in addressing MH, and MH had later reported to her that the complainant should be fired because he had hit him.
Stephens indicated in her statements and testimony that she was focused on clearing the area of patients during the incident and did not observe most of what occurred during the physical contact between the complainant and MH.
Finally, Klabacka did not testify at hearing and any statements she may have made did not become part of the hearing record, so it is not possible to determine whether her version of events would support the complainant's.
It is obvious that it was reasonable for the respondent to rely upon statements made by those who directly participated in the incident and who had a detailed recollection of what occurred, rather than those who did not, and this reliance does not demonstrate pretext.
In addition, it should be noted that the reason the complainant asserts that Vana, Johnson, and Wear were motivated to retaliate against him related to his claimed chastising of them for engaging in criticism of a supervisor. However, even if this were true, the source of this retaliatory motive does not relate in any way to the complainant's race, color, or national origin.
The complainant also asserts that pretext is demonstrated by the respondent's failure to transfer patient MH out of the unit to which the complainant was assigned, or to transfer the complainant out of the unit, despite MH's targeting of the complainant. The complainant claims that he requested that MH be moved but his supervisor told him that it would take too much paperwork and MH would be remaining in the unit. The complainant, however, testified that the respondent had previously moved a different patient out of the unit to which the complainant was assigned after this patient poured coffee on the complainant's head when he was denied a second snack. This tends to demonstrate that the respondent's denial of the complainant's request that MH be transferred was motivated by something other than the complainant's race, color, or national origin.
The more credible evidence of record shows that the respondent was not motivated by the complainant's race, color, or national origin when it justifiably discharged him for unnecessarily striking a juvenile patient in the head several times and otherwise escalating the incident.
cc: Attorney Paul Harris
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