STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


WILLIE R. BOUNDS, Complainant

UNITED PARCEL SERVICE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199803261, EEOC Case No. 26G982040


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.

DECISION

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

Dated and mailed July 8, 1999
boundwi.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The complainant, Willie Bounds, alleges that UPS violated the Wisconsin Fair Employment Act by terminating his employment on September 17, 1998, in retaliation for having filed previous complaints against UPS with the Equal Rights Division. The ALJ found that Mr. Bounds' employment was terminated because of insubordination in the form of swearing at his supervisor and leaving work on September 16, 1998. The ALJ concluded that Mr. Bounds had failed to establish probable cause to believe that UPS had violated the Act by terminating his employment because he had made or filed a complaint under the Act.

The commission has carefully reviewed this matter and finds that the ALJ's decision is fully supported by the record. As noted by the ALJ at p. 5 of the decision:

"In this case, the Complainant engaged in a confrontation with his supervisor. While he denies having sworn, his use of the exact same language with the union steward right after the initial confrontation and his testimony regarding how badly he needed to go home to avoid escalating the confrontation into an even worse situation support the inference that he did, in fact, swear at his supervisor. Furthermore, he admits that he made the choice to go home, contrary to the union steward's advice and warning. When he grieved this matter, he admitted that going home was a mistake. Based upon this conduct, the Respondent decided to terminate his employment. He was advised that this was the reason for his termination. He denied swearing, but was told that the supervisor was more believable on that issue. The Complainant has failed to offer any evidence, other than speculation, to suggest that the stated reason for the termination was pretextual, much less that it was a pretext for unlawful employment discrimination."

Apparently as support for his claim of retaliation, on appeal Mr. Bounds has submitted various documents relating to a number of matters occurring over the course of his employment with UPS. Except for the copy of his October 2, 1998 grievance filed in connection with the incident on September 16, 1998, and the copy of the August 25, 1998 initial determination issued by the Equal Rights Division regarding the instant retaliation claim (Exhibits 3 and 4, respectively), however, none of these documents were presented at the hearing and therefore may not be considered. The Wisconsin Fair Employment Law, s. 111.39(5)(b), as well as the commission's rules, Wisconsin Administrative Code s. LIRC 1.04, provide that the commission's review shall be based on the evidence submitted at the hearing. The commission has reviewed all the evidence submitted at the hearing and agrees with the ALJ's decision that probable cause has not been shown that UPS violated the Act by terminating Mr. Bounds' employment because he made or filed a complaint under the Act.

cc: Peggy C. Nowicki


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