GERALD E WAGNER, Complainant

TIMBER WOLF LUMBER & HARDWARE, 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 conclusion in that decision as its own.

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

Dated and Mailed May 26, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

In his petition for commission review the complainant argues that he was misunderstood and viewed as an employee who refused jobs that were not specifically listed in his job description. The complainant contends that he was constantly doing whatever he could, whether it was his job or someone else's, and that he worked as hard or harder than any employee. The complainant maintains that six of the "warnings" he received were made up and/or unsigned and undocumented. The complainant also denies that he refused to plow snow and explains that he merely informed the respondent that he had previously been told that plowing was not his job and that there was a separate contract between Brian and the condominium owners. The complainant contends that the respondent gave no indication it considered his remark to be a refusal to work or that it had any problem with it. He maintains that, had he known his job was on the line, he would have plowed, and that his only regret is in sticking up for himself.

The issue presented is whether the respondent's explanation as to why it discharged the complainant -- that he was failing to perform assigned tasks -- was really a pretext for discrimination because the complainant filed two wage complaints.  The evidence presented at the hearing indicates that, prior to filing his wage complaints, the complainant received several warnings for performance-related issues.  Although the complainant denies having seen the warnings and suggests they were fabricated, at the hearing he stipulated that the warnings were filled out by the yard manager on the date indicated and admitted to having engaged in some or all of the conduct at issue.  The record establishes that the respondent believed there were performance issues even before the complainant filed his wage complaints.  Shortly after the complainant filed his complaints, he was asked on two separate occasions to plow snow, but refused each time.  In the second instance the request came directly from the owner of the business.  The complainant admitted that he refused to plow snow because it was not in his job description and testified that, if snowplowing was going to be an additional duty, he wanted more money.

Although the complainant may have thought he was standing up for his rights and did not realize his actions could cost him his job, the complainant's motivation is not relevant to the outcome of the case;  in deciding whether discrimination occurred, it is the respondent's state of mind that is at issue, not the complainant's.  The respondent's owner testified that he decided to discharge the complainant because he refused to perform work when requested, and that the complainant's wage complaint was not a factor in the decision.  The yard manager supported this testimony.  He stated that he was not part of the decision to discharge the complainant, but believed the owner did so because the complainant had repeatedly refused to plow snow.  Finally, the individual who was hired to replace the complainant testified that he was told he would be replacing someone who would not perform duties outside of his job title, and was asked whether he would be willing to do things not in his job description.  That testimony further supports a conclusion that the complainant was discharged because he refused to plow snow, and not in retaliation for having filed a wage complaint.

cc:
Attorney Patrick H. Finlan
Attorney Matthew E. Yde

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uploaded 2011/06/10