VICTTOR L ZUELZKE, Complainant

ROUSH TRANSPORT INC, Respondent

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 makes the following:

1. The respondent, Roush Transport, Inc. (hereinafter "respondent"), is a trucking company doing business in Wisconsin.

2. The complainant, Victtor Zuelzke (hereinafter "complainant"), began working for the respondent in February of 2007 as a truck driver. The complainant's supervisor was John Brend.

3. During the course of the complainant's employment Brend subjected him to unwelcome conduct of a sexual nature. On one or more occasions Brend pulled down his pants down and flashed the complainant. In another instance, Brend put his hands in his pants and fondled himself, then put his hands in the complainant's face. Brend would also call the complainant into his office to show him videos of monkeys having sex.

4. The complainant was born in the United States, but self-identified as Mexican due to his mother's ancestry.

5. Brend would make discriminatory remarks about Mexicans. On one or more occasions Brend showed a video of Caucasian men picking up a bunch of immigrants for work in a pick-up truck and then driving them to the immigration office.

6. The complainant was not allowed to smoke in Brend's office, and believed that this was because he was Mexican, since other employees who were not Mexican were permitted to do so.

7. In December of 2007 the complainant contacted the respondent's safety director, Mary Elizabeth Van Skiver, and complained to her about Brend's conduct. The complainant told Van Skiver that he was being discriminated against and sexually harassed. Van Skiver took the complainant's information and passed it along to the zone manager, Joseph Wellman.

8. On January 9, 2008, Wellman came to the Milwaukee depot to investigate the complainant's complaint. Wellman met with the complainant, who described the problems he was having with Brend, including the incident where Brend put his hand in his pants, and told Wellman that Brend was discriminating against him because he was Mexican. The complainant also brought up other work issues, including issues involving work assignments and complaints that other drivers were not taking care of their trucks.

9. Wellman talked with Brend, who denied that the incidents occurred. He also spoke with some of the complainant's co-workers, who did not corroborate the complainant's allegations.

10. After Wellman's visit to the Milwaukee depot there were no further incidents of offensive sexual conduct or negative remarks about Mexicans by Brend. However, the complainant continued to call Wellman to complain about a variety of issues. After each telephone call, Wellman would call Brend and notify him that he had had a call from the complainant with a complaint.

11. Following Wellman's visit to the Milwaukee depot, Brend continually complained to the complainant about his conduct in making complaints about Brend. Most recently, on March 11, 2008, Brend talked to the complainant about his actions in "going to corporate" with harassment complaints.

12. On March 12, 2008, the complainant telephoned the Milwaukee depot and left the following message:

"Yeah, this is Victtor. I won't be in today. Make sure John gets this message. John, I've had enough of your crap. I'm filing my complaints with the city and the state and my attorney. Beth is aware of what's going on. If you have any concerns give her a call. Don't even bother talking to me about any of these issues. I've had enough of your shit. Please be advised I will not be in today. I know you don't understand English too good. This is March 12, Wednesday. My attorney will be in contact with corporate on the next proceedings. I'm not putting up with your shit no more."

13. When the complainant attempted to punch in on March 13 he found a letter on the time clock, signed by John Brend, stating that he was no longer employed at Roush. The letter contained no explanation for the discharge and Brend was not present at the time. On the following day the complainant called Brend to ask what was going on, but received no response.

14. Brend's unhappiness with the complainant's actions in complaining that he was being harassed by Brend was a motivating factor in the decision to discharge the complainant.

Based upon the above FINDINGS OF FACT the commission hereby makes the following:

1. That the respondent unlawfully discharged the complainant because he opposed a discriminatory practice, in violation of the Wisconsin Fair Employment Act.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission hereby issues the following:

1. That the respondent shall cease and desist from discriminating against the complainant because he opposed a discriminatory practice.

2. That the respondent shall offer the complainant instatement into a position substantially equivalent to the position he held when he was discharged in March of 2008. This offer shall be tendered by the respondent or an authorized agent and shall allow the complainant a reasonable time to respond. Upon the complainant's acceptance of such position, the respondent shall afford him all seniority and benefits, if any, to which he would be entitled but for the respondent's unlawful discrimination, including sick leave and vacation credits.

3. That the respondent shall make the complainant whole for all losses in pay the complainant suffered by reason of its unlawful conduct by paying the complainant the amount he would have earned as an employee from March 13, 2008, until such time as the complainant begins employment with the respondent or would begin such employment but for his refusal of a valid offer of a substantially equivalent position. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter. Any unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory set-offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.

4. That within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats. § § 111.395, 103.005(11) and (12).

Dated and mailed December 28, 2012
zuelzvi . rrr : 164 : 5 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The complainant's underlying complaints of sexual harassment and harassment based upon national origin were dismissed as untimely, and the dismissal of those complaints is final. Consequently, it is not necessary to decide whether the complainant was subjected to harassment, in violation of the statute; the only issue before the commission is whether the complainant was discharged in retaliation for having opposed a practice of discrimination.

In a retaliation case, the employer's motivation is the ultimate issue. Callaway v. Madison Metro. School Dist., ERD Case No. 9101304 (LIRC Nov. 27, 1996). In order to establish unlawful retaliation, an employee must initially prove (1) that he or she engaged in statutorily protected conduct, (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).  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. Notaro v. Kotecki & Radtke, S.C., ERD Case No. 8902346 (LIRC July 14, 1993), citing Frierson v. ASHEA Industrial Systems (LIRC, April 6, 1990).  If a prima facie case has been established, the respondent must then articulate a legitimate, nondiscriminatory reason for its actions. Monroe v. Birds Eye Foods Inc., ERD Case No. CR200304303 (LIRC March 31, 2010).  If the respondent carries its burden of production, the complainant then must show that the respondent's asserted reasons were in fact a pretext for retaliatory conduct. Id.  A finding in the complainant's favor will result when the prima facie case of discrimination is not rebutted by the articulation of a non-discriminatory reason. Foust v. City of Oshkosh Police Dept., ERD Case No. 9200216 (LIRC April 9, 1998).

In this case, the complainant met his burden of establishing a prima facie case of retaliatory discharge.  The complainant proved that he engaged in protected opposition to discrimination when he notified the respondent's safety director and zone manager that his supervisor was sexually harassing him and discriminating against him based upon national origin, and that he was discharged.  The complainant also established that his supervisor was unhappy the complainant had complained about him, having most recently expressed this sentiment two days prior to the discharge. These facts demonstrate a causal connection between the complainant's protected oppositional activity and the discharge.  The respondent failed to present any reason for the discharge, let alone a legitimate, nondiscriminatory reason. Therefore, the complainant's prima facie case of discrimination went unrebutted.  Under the circumstances, the commission concludes that the discharge was motivated by retaliatory animus against the complainant for having engaged in protected oppositional activity, such that a finding of discrimination is warranted. See, Foust, and cases cited therein.

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor prior to reversing. The commission's reversal is not based upon an assessment of witness credibility. Rather, as set forth above, the commission concludes that the complainant's unrebutted prima facie case of discrimination warrants a finding on his behalf.

cc: Attorney Richard Dawson

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