P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

HENRY A ARVIN, Complainant


ERD Case No. 200402097, EEOC Case No. 26GA401353


Pursuant to authority contained in Wis. Stat. § 111.39(5)(c), the commission's order in the above-captioned matter, dated August 27, 2008, is set aside. The administrative law judge's decision dated August 3, 2007, is set aside, and the matter is remanded for further hearing on the issue of probable cause.

Prior to the hearing the parties shall be afforded an opportunity to stipulate to a hearing on the merits, as provided for in Wis. Admin. Code § DWD 221.10(3).

Dated and mailed October 31, 2008
arvinhe2 . rpr : 164 : aty 

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

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).

Notwithstanding the fact that the complainant's burden of proof was not a heavy one, and in spite of the fact that four days of hearing had taken place, the respondent nonetheless made a motion to dismiss at the close of the complainant's case-in-chief and the administrative law judge granted that motion.

The commission has repeatedly advised against the premature dismissal of a complaint before both parties' evidence has been heard. On this point the commission has stated:

"A dismissal at the close of the complainant's case-in-chief contemplates a circumstance in which it is clear that, whether or not the respondent introduces any evidence on its behalf, there is simply no way in which the complainant can reasonably prevail. The commission is of the view that, in all but the clearest and most unambiguous of circumstances, the best practice is to require the respondent to go forward with its case so that the fact-finder may consider all of the relevant evidence. . . ."

Roberge v. Department of Agriculture, Trade and Consumer Protection (LIRC, May 31, 2005). See, also, Cappelletti v. Ocean Spray Cranberries, Inc. (LIRC, Feb. 25, 2008)(". . . the commission strongly recommends that mid-hearing dismissals be granted only after careful consideration and in the most narrow of circumstances."); Holcomb v. American Convenience Products (LIRC, March 25, 1988)("Caution must be exercised in granting a request to dismiss at the close of a complainant's case. Before granting such a request, the Administrative Law Judge must be fully knowledgeable of what facts a complainant needs to present to establish his or her case and exactly what evidence has been presented at the hearing.")

In this case, the complainant presented sufficient evidence to warrant a finding of probable cause such that dismissal at the end of his case-in-chief was clearly inappropriate.

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 complainant demonstrated that he disseminated a written statement to co-workers in support of a grievance, in which he made several references to the "right to discriminate" and a "pattern of discrimination" and in which he contended the respondent's management was racist. The respondent's human resources manager, Sherry Kopca, testified that she understood the document as an attempt by the complainant to raise a concern about racial bias. Ms. Kopca also testified that, although she believed the complainant's accusation was wrong, she did not think he was lying and felt that the statement reflected his perception of the situation. Ms. Kopca further acknowledged that the complainant was discharged, at least in part, for that reason; she testified that she did not believe that company management was racist, and that this was part of why the complainant was discharged.

Where, as here, the complainant presented evidence which demonstrates that he engaged in protected oppositional activity and which shows a clear causal connection between his discharge and his protected activity, he has most certainly met the threshold necessary to withstand a motion to dismiss and to warrant the completion of the probable cause hearing.

B. Race Discrimination

The complainant alleges that his discharge was based upon his race 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.

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 that these rulings were in error. In the first place, the commission disagrees with the administrative law judge's conclusion that the complainant's comparators were not similarly situated. The concept of similarly situated persons does not depend on "precise equivalence in culpability between employees," and 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. See, McDonald v. Santa Fe Trail Transp. Co. 12 FEP 1577, 1581, fn. 11 (Sup. Ct. 1976). Moreover, comparative evidence is relevant in a disparate treatment case, and the appropriate question is not whether such evidence is admissible, but how much weight it should be given. 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 proper basis for excluding the evidence from the record.

The commission has reviewed the documentary evidence the complainant attempted to submit with respect to the disciplinary histories of other workers and believes that that evidence is, indeed, relevant to the complainant's discrimination claim and that, if allowed into the record, would in all likelihood permit a conclusion that there was probable cause to believe discrimination occurred. The commission, therefore, concludes that a dismissal of the complainant's race discrimination claim was in error.


NOTE: On remand the complainant shall be afforded an opportunity to introduce the comparative evidence which he sought to present at the original hearing but which was excluded by the administrative law judge. Because the respondent has argued that the complainant's conduct was distinguishable from or more serious than that of his comparators based upon his use of racially charged language, the complainant shall also be afforded an opportunity to present his evidence with respect to use of racial epithets in the workplace.


Attorney Arthur Heitzer
Attorney Frank A. Gumina

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