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

SABAH I. FOUAD, Complainant

UNIQUE INDOOR COMFORT INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199800052, EEOC Case No. 26G980556

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 October 22, 1999
fouadsa.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Sabah Fouad, who is of Iraqi national origin, appeals from the ALJ's dismissal of his complaint alleging that the respondent discriminated against him on the basis of his national origin with respect to his terms and conditions of employment, and termination of employment. The ALJ concluded, in large part on grounds of credibility, that there was not probable cause to believe that the respondent had discriminated against Fouad in violation of the Fair Employment Act. Specifically, the ALJ determined that occasionally coworkers made comments to Fouad about his Iraqi background, some of which he considered to be derogatory, but that he never told his coworkers that he found their comments offensive, never complained about these comments to management, nor had these comments been of sufficient frequency or severity to have risen to the level of unlawful harassment within the meaning of the Act. Further, the ALJ determined that Matthew Phillips, vice-president of operations, made the decision to terminate Fouad's employment solely based on his belief that Fouad had made threatening statements to Monica Alioto, the respondent's accountant and office manager, on November 20, 1997, in connection with Fouad's claim for unemployment benefits, and that Phillips advised Fouad on November 21, 1997, that his employment was terminated because of the threatening statements. Alioto, as the respondent's accountant, had supplied information to the Unemployment Insurance Division regarding Fouad's claim for unemployment insurance for the week ending October 4, 1997, stating that he had called in sick during that week. Fouad spoke with Alioto in her office about his unemployment insurance claim on November 20, 1997. Immediately after Fouad left her office, Allioto spoke to Phillips because she felt threatened by statements Fouad made when he spoke to her about his unemployment insurance claim.

On appeal Fouad apparently asserts that because Alioto's November 21, 1997 written statement of what he had said on November 20 was that "he would have to wait outside the office for her and smash her windows and face," while Phillips' November 21, 1997 written statement of what Allioto told Phillips was that "he would have to wait outside in the parking lot for Allioto and smash her truck windows and ruin her tires while she watched" but fails to mention "smashing her face," these statements are contradictory and show a lack of truth about the reason for termination of his employment. Fouad's assertion fails. The record is clear that after Fouad had spoken to Allioto on November 20, she appeared at Phillips' office visibly shaken with tears in her eyes, that she felt threatened by what Fouad had stated to her, and that Phillips reasonably could have believed that a threat had been made. Moreover, there is no evidence that Allioto or Phillips harbored any discriminatory bias against Fouad because of his national origin, and the ALJ found both Allioto and Phillips to be credible witnesses.

Fouad has also asserted on appeal that he first learned of the reason for the termination of his employment during a telephone conversation with an individual at the Unemployment Insurance Division, not on November 21, 1997. However, Phillips, who the ALJ found to be a credible witness, testified that on November 21, 1997, he told Fouad that the respondent could not tolerate one employe threatening another and therefore the respondent no longer needed his services.

Apparently in reference to his claim about his terms and conditions of employment, Fouad asserts that "It is very clear from (Robert) Zalewski's testimony that derogatory remarks about his national origin used to be normal practice." This assertion also fails. While Zalewski did testify that there were jokes made by employes about Fouad's national origin, Zalewski also testified that Fouad himself made jokes about being from Iraq, and that Fouad did not appear to take offense to the comments about his national origin. Fouad himself also testified that his coworkers "sometimes" made comments about his Iraqi national origin. Phillips testified that he never heard any employe make any derogatory comment about Fouad's national origin, nor had Fouad complained to him about derogatory remarks being made by other employes. While derogatory comments about Fouad's national origin were inappropriate, the record fails to support a showing that such comments were of sufficient frequency or severity to have risen to the level of unlawful harassment under the Act.

cc:
M. Christine Cowles

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