STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


JOHN SALTARIKOS, Complainant

CHARTER WIRE CORPORATION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8652598, 8651682
EEOC Case No. 260863692, 260871514


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations  issued a decision in the above-captioned matter on November 11, 1988. Complainant filed a timely petition for review by the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

The decision of the Administrative Law Judge is modified as follows:

1. In the first sentence of FINDING OF FACT number 16, replace "1985" with "1986."

2. In the first sentence of FINDING OF FACT number 17, replace "1985" with "1986."   At the end of FINDING OF FACT number 17, add the following:

"Saltarikos had used vulgar and obscene language to Siekert when he spoke to him that day."

3. In FINDING OF FACT number 19, replace "1985" with "1986."

4. In  FINDING OF FACT number 20, replace "1985" with "1986."

As modified, the decision of the ALJ (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed at Madison, Wisconsin July 31, 1989.

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The Commission has concluded that there is no probable cause to believe that the Respondent in this case discriminated against John Saltarikos because of his national origin because, with the exception of Saltarikos' claim about the use of the term "Greek" to refer to him, there is no evidence in the record suggesting that his national origin was a motivating factor in any action for which the employer was responsible.  At most, Saltarikos presented a bare prima facie case of national origin discrimination by introducing evidence of some adverse actions and by introducing evidence of the fact of his own national origin.  However, the mere articulation of a bare prima facie case is generally not adequate to establish probable cause except in cases in which the employer has offered no evidence to rebut that prima facie case.  See, Gunderson v. Bonded Spirits Corp. (LIRC, 7/17/86).  Here Charter Wire Corporation offered evidence tending to rebut the prima facie case articulated by Saltarikos.  Therefore, something more was needed to establish the existence of probable cause.

In his complaint, Saltarikos alleged that he was subjected to slurs connected with his national origin by his supervisor, Guzowski.  Saltarikos not only failed to prove this allegation at the hearing, but he actually repudiated it.  Although there was some evidence which, if credited, would tend to establish that other employes, not in a supervisory capacity, had called Saltarikos "Greek" or "John the Greek" at work, the Commission agrees that there is no probable cause to believe that the employer discriminated against Saltarikos  because of national origin.   These incidents were at best sporadic.  Occasional or sporadic instances of the use of racial slurs by co-workers do not in and of themselves constitute discrimination.  Kennedy v. Pick 'N' Save (LIRC, 9/22/88), Nazaire v. TransWorld Airlines, 807 F.2d 1372 (7th Cir. 1986), 41 EPD par. 36,670.

The Commission agrees with the findings of the Administrative Law Judge as to the events of December 9, 1986 which precipitated Saltarikos' discharge, even though those findings are essentially contrary to the testimony of Saltarikos, because the Commission concluded that Saltarikos was not a credible witness.  The principal reason that the Commission found Saltarikos' testimony not to be credible was that he clearly testified dishonestly with respect to the document received into the record as Complainant's Exhibit 26.  This was a collection of daily "production sheets" on which the employe recorded data concerning the jobs he had run.  He offered this packet of production sheets as evidence supporting his claim of harassment, relying on written comments on the sheets purporting to relate to events happening on the days that the sheets were prepared for.  Saltarikos testified, consistently and repeatedly, that the notations he made on these sheets were contemporaneously made, on the same day or at most within a few days of the incidents.  However, this testimony was rendered unbelievable by the substance of the notation on the production sheets for December 20, 1985, which concerns a meeting with Ed Krautner which indisputably took place in March 1986.  Therefore, the notations on the lower part of the December 20, 1985 page in Complainant's Exhibit 26 could not possibly have been contemporaneously made.  The notations were clearly made long after the fact, to bolster the employe's case.   Saltarikos' insistence, in the face of this impossibility, that this notation was contemporaneously made, left the Commission disinclined to credit him as a believable witness.  Since his testimony, even standing by itself, could not be believed, it failed to establish to the burden required in a probable cause hearing that the facts concerning his discharge were as he alleged.

110


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