STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MARYANN L WARDEN, Complainant

GMAC MORTGAGE CORP, Respondent

FAIR EMPLOYMENT DECISION
ERD Case Nos. CR200401698, CR200402892
EEOC Case Nos. 26G200401247C, 26G200401681C


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 conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed September 19, 2008
wardema . rsd : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


In a charge filed on April 27, 2004, the complainant alleged that she was discriminated against on the basis of sex and conviction record, and retaliated against for engaging in a protected fair employment activity, in regard to the following:

(1) reassignment out of the GM plant office on March 18, 2004;
(2) investigatory suspension from March 31 through April 4, 2004;
(3) alleged failure to receive effective assistance from office support staff.

In a charge filed on July 14, 2004, the complainant alleged that she was discriminated against on the basis of sex, and retaliated against for engaging in a protected fair employment activity, when she was discharged on June 24, 2004.

The probable cause standard of proof is applicable here. 
 

Reassignment

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).

By establishing that Bill Quigley (Quigley), a male, was permitted to remain in the GM plant office after March 18, 2004, the employee established a prima facie case of sex discrimination.

The respondent explains that the complainant was reassigned because she and Quigley had failed to establish an effective working relationship and Quigley, as the more senior employee, was permitted to remain at the plant while the complainant was placed in the Woodgate office and given exclusive access to other customer bases.

This explanation is legitimate and non-discriminatory on its face. The burden then shifts to the complainant to establish pretext.

The complainant has failed to sustain this burden. The complainant does not appear to dispute that she and Quigley had not worked effectively together, and, although she does not take responsibility for this failure, it is apparent from the record that, through her frequent criticism of Quigley and her confrontational style, she contributed to it. The respondent selected the less senior employee for the reassignment, a common and reasonable personnel practice.

As of the date of the reassignment, the respondent was only aware of the conviction record information the complainant had supplied at the time of her hire. Since the respondent had hired the complainant with this knowledge, it is improbable it would have then used it to discriminate against her when it made the reassignment.

Finally, the complainant did not engage in a protected fair employment activity until the respondent had already made the reassignment decision, and, as a result, the reassignment could not have been in retaliation for this protected activity. 
 

Suspension

Because the record does not show that the complainant was treated less favorably than similarly situated employees not in the protected groups relevant here, she failed to sustain her burden to establish a prima facie case of discrimination or retaliation in regard to her suspension.

If the complainant had established a prima facie case of discrimination/retaliation, the burden would then shift to the respondent to articulate a legitimate, non-discriminatory/retaliatory reason for the suspension. The respondent explains that it discovered the complainant had provided incomplete information regarding her conviction record when she was hired, and it suspended her in order to investigate whether this discovery merited further action. This explanation is legitimate and non-discriminatory/retaliatory on its face.

The burden would then shift to the complainant to demonstrate pretext, which she failed to do. The complainant appears to be contending that she did not misrepresent her conviction record during the hiring process. However, the record shows that the only conviction the complainant disclosed at that time was one for battery when in fact she was convicted both of battery and criminal trespass. In addition, as the administrative law judge found (finding of fact 5.), the complainant indicated orally, when asked during the hiring process about the battery conviction she had disclosed, that "...she slapped her ex-husband and the charges against her were dismissed." However, in fact, her battery and criminal trespass convictions were not related to contact she had with her ex-husband but instead to contact she had with her ex-husband's girlfriend, Christine Tiffany. The complainant had also been charged for battery for striking her ex-husband, but this charge did not result in a conviction.

Given these discrepancies, the respondent was justified in suspending the complainant until it had an opportunity to determine whether the elements of the offenses were reasonably related to the duties and responsibilities of the complainant's position. 
 

Administrative support

The record does not show that Kym or Stephanie Peterson, the administrative support staff, had reason to be aware of the complainant's conviction record or protected fair employment activities. As a result, it would not be possible for them to be motivated by these factors in their work relationship with the complainant.

The complainant contends that Jensen, who was aware of her conviction record and protected fair employment activities, directed Kym and Stephanie not to support her, but the evidence of record does not establish this.

The complainant also contends that Jensen spoke of her conviction record in front of Kym and Stephanie, but the commission finds Jensen's testimony denying that this occurred more credible than the contrary testimony of the complainant and her husband.

In addition, as females, it is improbable that Kym or Stephanie would have been motivated to discriminate against the complainant based on her sex. See, Gustavus v. State of Wisconsin Department of Corrections, ERD Case No. 200303640 (LIRC May 8, 2008).
 

Termination

By establishing that she was replaced by a male after her discharge, the complainant has established a prima facie case of sex discrimination.

The burden then shifts to the respondent to articulate a legitimate, nondiscriminatory reason for the discharge, which it has satisfied by explaining that the complainant forwarded the respondent's business mail to her home address.

The complainant has not sustained her burden to prove this explanation is a pretext for discrimination/retaliation.

The record shows that, when she failed to receive one piece of personal mail directed to her Woodgate office address, the complainant, without notice to or permission from the respondent, filed a series of forwarding orders with the post office that any mail addressed to her at the Woodgate address be forwarded to her home address and, in one forwarding order, that any GMACM mail addressed to the Woodgate office be forwarded to her home address.

It defies reason why, without notice or permission, the complainant would take it upon herself to divert business mail from the office, where she was not the sole employee, to her home to address a problem with the receipt of a piece of personal mail. The respondent was reasonably justified in regarding this as a substantial disregard by the complainant of the respondent's business interests, and discharging her as a result.

The complainant asserts that Jensen had, in January 2004, given her permission to do this. The administrative law judge did not credit this assertion and the commission has found no reason in the record to overturn this credibility determination.

The complainant also asserts that pretext is demonstrated by the fact that loan originators in other offices were permitted to receive business mail at their homes. However, the record shows that these loan originators were working out of their homes after their offices had been closed, and were receiving business mail at their homes with the full knowledge and consent of the respondent.

Finally, the complainant asserts that an email statement on June 23, the day before her discharge meeting, by one of the respondent's attorneys to the effect that she had "been released" establishes pretext. Three facts, however, suggest that this email statement was more likely the result of misinformation or mistake, and a final discharge decision had not yet been reached. First, the respondent and complainant were scheduled to meet on June 24. In addition, during this June 24 meeting, the complainant was given an opportunity to explain the mail forwarding orders, and Jensen and Steinman met privately to consult with counsel before informing the complainant she had been discharged. Finally, early on June 24, the respondent's attorney retracted the statement he had made in his June 23 email. However, even if the respondent had already made the discharge decision and the purpose of the June 24 meeting was simply to communicate it to the complainant, this does not establish pretext. The respondent had in its possession early on June 23 the written forwarding requests which it had obtained from the postal service, and these written requests indicate they had been completed by the complainant, actions reasonably considered by the respondent to be unacceptable and as justifying the complainant's discharge.

The complainant asserts in her petition that the respondent was aware prior to June 23 that she was receiving business mail at her home address, and offers witness Kym Peterson's testimony in support. However, Kym Peterson testified only (see page 22 of summary of proceedings) that complainant "brought in a stack of company mail" on or around June 23 "and said she had received it at home;" had not told her prior to June 23 that "she had received GMACM mail at her home;" and, prior to June 23, had "never said GMACM mail was delivered to her home address."

The complainant also asserts in her petition that Bill Quigley had his mail going to "his home address, GMA Plant office, and the Woodgate Office." However, this is not in the record.

The record does not establish a connection between the complainant's sex or fair employment activities and her discharge.

 

cc: Attorney Shannon A. Allen



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