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



ERD Case No. CR200500835, EEOC Case No. 26G200500852C

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 agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modification:

In paragraph 58 of the administrative law judge's FINDINGS OF FACT the word "never" is inserted between the words "Gruebling" and "told."


The decision of the administrative law judge (copy attached) is modified and, as modified, is affirmed.

Dated and mailed August 26, 2011
gruebla . rmd : 164 : 5


/s/ Robert Glaser, Chairperson

Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


This case presents the initial question of whether the respondent's decision to discharge the complainant for allowing a subordinate employee to submit invalid reimbursement requests, while placing a female manager on a final warning for similar conduct, amounted to discrimination based upon sex. The administrative law judge found that it did not, and the commission agrees. The respondent presented legitimate non-discriminatory reasons for treating the complainant differently than his female comparator, Elaine Fritz. The complainant had a prior disciplinary record including three performance improvement plans, one of which was still in effect at the time of the discharge, which were related, in part, to his failure to carefully review technicians' time sheets. He was the only manager to be denied a raise in January of 2004, because his supervisor was dissatisfied with his performance. Ms. Fritz, by contrast, had no prior discipline and had recently been given an award for performance excellence. The respondent further established that there were mitigating circumstances explaining Ms. Fritz's failure to immediately notice the invalid reimbursement requests and that, once Ms. Fritz noticed the problem, she took immediate action to report it to higher management. The complainant's explanation for his failure to notice the requests -- that he had been having the time sheets approved by his clerical assistant -- was significantly less compelling, as it ignored the fact that the complainant had been previously counseled about the need to more carefully review time sheets, and that the individual in question had had previous invalid reimbursement requests of which the complainant was aware. Moreover, it was contrary to company policy for a manager to delegate the responsibility of reviewing time sheets to a clerical assistant. Given all these factors, it is apparent that the respondent had a legitimate basis for treating the complainant and Ms. Fritz differently when it decided what level of discipline to impose.

In the brief in support of his petition for commission review the complainant argues that the respondent's explanation for its actions contains multiple falsehoods which the administrative law judge disregarded. For example, the complainant maintains that his performance improvement plans did not amount to final warnings and disputes that he had the performance problems cited by the respondent. He also takes issue with the notion that he was a "repeat offender" with regard to approving cell phone reimbursements for Kevin Scroggins, since he was the one who discovered and reported the original problem. The commission disagrees that the respondent's stated reasons for discharging the complainant are false. The salient facts, which are supported by the record, are that the complainant was on notice that he was expected to improve his job performance, that the respondent wanted him to do a better job reviewing time sheets, and that he was aware Mr. Scroggins had made improper requests for telephone reimbursements in the past. In light of those facts -- which set him apart from his comparator, Elaine Fritz -- the complainant should have taken considerably more care to ensure that no improper reimbursement requests were approved.

The commission notes that the complainant presented no other evidence to suggest that the legitimate non-discriminatory reasons discussed above were really pretexts for discrimination based upon sex. As the administrative law judge observed in her decision, all of the decision-makers involved were males, and the record contains no evidence to suggest that they were biased against male managers. To the contrary, the record reflects that six of the eight managers reporting to the complainant's supervisor were males, the individual hired to replace the complainant was a male and, when Ms. Fritz later voluntarily relocated to the Brookfield office, she was replaced by a male. While in his brief the complainant maintains that, under the administrative law judge's rationale, a male manager could never discriminate against a male and, further, if he did not discriminate against "Male A," could not be found to have discriminated against "Male B," this argument is without merit. No one factor is dispositive, but the fact that the individuals who made the disciplinary decision are all males who were not shown to be biased against other male managers is certainly suggestive of a lack of discriminatory animus. These factors, when combined with the fact that the individual hired to fill the complainant's position was also a male, argue against any conclusion that the respondent was motivated to discharge the complainant because of his sex.

A second question presented in this case is whether the complainant's discharge and subsequent replacement by an individual who was not in the protected age group amounted to discrimination based upon age. Again, the commission agrees with the administrative law judge that the complainant did not make such a showing. The respondent credibly explained that the complainant was discharged due to legitimate performance issues. Two of the three individuals who made the decision to discharge the complainant were close in age to the complainant (the age of the third is not in the record), and the record contains no evidence to suggest that they were motivated to get rid of the complainant because of his age. In fact, the commission notes that, although the person ultimately selected to replace the complainant was not in the protected age group, the respondent originally chose an individual in his fifties, who withdrew his application from consideration before he could be offered the job. In addition, it is noteworthy that the person hired to fill Ms. Fritz's position after she transferred to the Brookfield office was also in his fifties.

In his brief the complainant contends that the fact the technician who was making the invalid reimbursement requests was not discharged is evidence of age discrimination, since Mr. Scroggins' conduct was intentional while the complainant's was merely negligent. However, while it might be argued that Mr. Scroggins had a higher level of culpability than the complainant, in order for the complainant to compare his treatment with Mr. Scroggins, he must first establish that he and Mr. Scroggins were similarly situated such that they would be expected to receive the same level of discipline for similar conduct. A similarly situated employee is one who is "directly comparable to [the complainant] in all material respects." Gunty v. City of Waukesha, ERD Case No. 200401540 (LIRC March 31, 2010), citing Grayson v. Oneill, 308 F.3d 808, 819 (7th Cir. 2002). The commission agrees with the administrative law judge that the complainant and Mr. Scroggins were not similarly situated where Mr. Scroggins was not a manager, but a technician and a member of the union. These factors alone warranted different treatment for reasons having nothing to do with age.

The commission has considered the remaining arguments raised by the complainant in his brief, but finds them similarly unpersuasive. Because the commission can see no reason to believe that the complainant was discriminated against based upon his sex or age, the dismissal of the complaint is affirmed.


Attorney E. Campion Kersten
Attorney Laura A. Lindner

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uploaded 2011/09/02