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

ZE LEE, Complainant

PACKERLAND PACKING CO, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199803551, EEOC Case No. 26G990167

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 February 16, 2000
leeze.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Ze Lee, is of Hmong descent. Lee was employed by the respondent, Packerland Packing beginning on July 6, 1992. Lee terminated his employment on October 8, 1998.

In 1997 or early 1998, Lee had filed a complaint of discrimination with the Equal Rights Division in which he alleged that his former supervisor and coworkers were harassing him, that the respondent failed to address his complaint of harassment because of his race and that the respondent retaliated against him because of his opposition to the harassment. The division issued an initial determination concluding that there was no probable cause to believe that the respondent violated the Act by discriminating against Lee and dismissed his complaint. Lee did not appeal this determination.

In a complaint filed following his termination of employment on October 8, 1998, Lee alleged that several coworkers continued to harass him, that the respondent told him to "either live with the disease or leave the company," and apparently that he left the company because he knows the company is allowing the harassment and retaliated against him "because my initial complaint was found to be no probable cause."

Lee's complaint is that his coworkers harassed him by pointing to him and saying that he smells. Lee complained about this shortly before the start of his second shift work on October 8, 1998, to Barb Lietzke, director of quality control. Lee informed Lietzke that he did not know the names of the individuals that had engaged in this behavior. Previously in May 1997 and August 1998 Lee had reported alleged harassment to Lietzke whereupon investigations were conducted but Lee's allegations could not be substantiated. When Lee complained to Lietzke on October 8, 1998, Lietzke contacted Lee Davis, vice president of human resources, and was instructed to have Javier Delarosa, general foreman, go out onto the floor, have Lee point out the employes who were harassing him and for Delarosa to write down the names of those Lee pointed out.

On October 8, 1998, Lee pointed out the employes he thought were talking about him and Delarosa wrote their names down. The names of 17 employes was obtained. All 17 were Hispanic. Most could not speak English. That same day, October 8, 1998, Teri Kapla, human resources analyst, with Delarosa assisting as translator, and Rick Deniel, second shift production supervisor observing, interviewed all 17 employes individually. A lot of the employes stated that they did not know Lee. All 17 employes denied ever having said that Lee smells and provided written statements to that effect.

Kapla passed along the statements of all employes interviewed to Davis on October 9, 1998. Davis concluded that there was no evidence that Lee was being harassed.

Lee decided to quit his employment with the respondent after completing his shift on October 8, 1998. Apparently Lee quit on October 8 because he had not gotten any response about his complaint of harassment. However, Lee did not inquire if any action had been taken on his complaint nor did he advise anyone in management that he was quitting. Lietzke learned that Lee had quit when she came in to work on October 9, 1998. She had no information as to why Lee quit.

The evidence fails to establish probable cause to believe that the respondent violated the Act by discriminating against Lee on the basis of his race and/or ancestry. The respondent immediately began an investigation into Lee's complaint that he was being harassed when he brought this to the attention of management on October 8, 1998. The investigation failed to uncover any evidence that employes were pointing to Lee and saying that he smelled. On appeal Lee asserts that the harassment directed at him was witnessed many times by Soua Vue. There is no indication that Lee ever identified Soua Vue as a witness when he complained about harassment to the respondent. Lee also failed to present Soua Vue as a witness at the hearing in this matter. Moreover, even if Lee's coworkers had been engaging in the conduct that he claims they did, there is no reason to believe that they had acted in this manner toward Lee because of his race or ancestry. The respondent employed a significant number of other Hmong employes in Lee's work area and no Hmong employe other than Lee had complained of being harassed. Lee argues on appeal that the only reason no other complaints were filed by other Hmong employes is because they have little or no English skills to do anything about it. However, Lee failed to present any evidence to show that other Hmong employes were being harassed. And assuming for purposes of argument that they were, he failed to show that this harassment had ever been brought to the attention of the respondent.

Lee failed to identify what management official told him to "live with the disease or leave the company," or to otherwise present any evidence to support this claim. Lee has failed to establish that his working conditions were so intolerable that he was justified in quitting his employment.

Finally, Lee has failed to show that he suffered any adverse action by the respondent which could be construed as retaliation against him because of his filing an earlier complaint of discrimination. The alleged conduct by his coworkers was not adverse action by the respondent nor was it shown that the respondent had allowed such alleged conduct.

cc: Thomas W. Scrivner

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