Wis.LIRC ER Decision: Johnson, Ella - February 13, 2001 - Race discrimination - no evidence to support complainant's belief that she was treated unfairly and that others were treated more favorably

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

ELLA M JOHNSON, Complainant

INNOVATIVE FAMILY PARTNERSHIPS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199901394, EEOC Case No. 26G991084

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:

FINDINGS OF FACT

1. The complainant, Ella M Johnson, (hereinafter "complainant") is black.

2. The complainant began working for the respondent in March of 1998 as a case manager. The complainant was responsible for managing cases involving child abuse and foster care. Her responsibilities included making court appearances, preparing documentation, and keeping files on the families.

3. The complainant was paid $26,000 a year, and her hours of work were 8:00 a.m. until 5:00 p.m. with some overtime.

4. The complainant's supervisor was Perry Scharhatz. Mr. Scharhatz was responsible for making sure the case managers got direction as to how to handle their cases. Mr. Scharhatz is not black.

5. Approximately eight to ten months into her employment Mr. Scharhatz sent the complainant an e-mail notifying her that her service logs, showing her contacts with either the biological or foster families, were behind and that she needed to bring them up to date and start keeping them on schedule. Mr. Scharhatz notified the complainant that she needed to block off time for this function and suggested she do her service logs on Fridays. Mr. Scharhatz sent a copy of this e-mail to his supervisor, Sharon Dossette.

6. After receiving Mr. Scharhatz' note, the complainant notified him that she was starting to turn in her service logs and bring them up to date. No more was said about her service logs after that point.

7. Although the complainant believed that other case managers were behind on their service logs without being sent similar e-mails, she presented no competent evidence demonstrating this was the case.

8. At some point Ms. Dossette gave the complainant a directive to complete the transfer of four cases to the county. The complainant had two weeks in which to get this accomplished, but did not complete the task, in part because she had a toothache which required her to take time off of work. However, the complainant failed to inform Ms. Dossette of her health problem.

9. In addition to her failure to complete the transfer of the files, the complainant also failed to obtain a birth certificate requested by a foster mother. The complainant indicated that she did not believe foster parents were allowed to have a copy of the birth certificate and did not think there was a good reason why the foster mother would need it.

10. On or about April 12, 1999, Ms. Dossette notified the complainant that she was discharged because her work was not up to standard.

11. Near the same point in time, the complainant's supervisor's employment was also terminated. However, unlike the complainant, Mr. Scharhatz was given the option of resigning rather than being discharged. The complainant believed that she, too, should have been given the option of resigning. However, Mr. Scharhatz was a supervisor and had different duties and responsibilities than the complainant. It was not established that the circumstances of his termination were similar to the complainant's.

Based upon the FINDINGS OF FACT made above, the commission makes the following:

CONCLUSIONS OF LAW

1. That there is no probable cause to believe the respondent discriminated against the complainant with respect to the terms and conditions of her employment based on her race, in violation of the Wisconsin Fair Employment Act.

2. That there is no probable cause to believe the respondent discriminated against the complainant by terminating her employment based on her race, in violation of the Wisconsin Fair Employment Act.

Based upon the CONCLUSIONS OF LAW made above, the commission issues the following:

ORDER

1. That the complaint in this matter is dismissed with prejudice.

Dated and mailed February 13, 2001
johnsel.rrr : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review the complainant argues that the administrative law judge was very rude to her and that the hearing lasted only fifteen minutes. She indicates that the administrative law judge told her that he had not read any of the legal reports sent to him and maintains that, after reviewing all the legal documents, she is more than sure that she has been discriminated against and her employment terminated without cause. The complainant's arguments lack merit. The commission has reviewed the hearing transcript, but sees nothing to indicate that the administrative law judge was rude to the complainant or that she received anything other than a full and fair hearing on the merits of her case. Although the hearing was short, this was not the result of unfairness or a lack of due process, but was because the complainant had little to offer in support of her assertion that she was the victim of unlawful discrimination. Indeed, the complainant's entire case consisted of her own testimony that she believed she was treated unfairly and that others were treated more favorably. The complainant did not present any witness testimony or documentary evidence on her behalf, and refused the opportunity to elaborate upon her testimony or to speak in opposition to the respondent's motion to dismiss. Because the evidence adduced at the hearing failed to establish any reason to believe that the complainant was discriminated against in the manner alleged, the dismissal of her complaint must be affirmed.

NOTE: The administrative law judge's decision contains numerous findings of fact that are not supported by the record, and which appear to have been based upon a review of documents in the case file that were not presented at the hearing. The commission has, therefore, rewritten the decision in order to limit the findings of fact to those which can be directly supported by the record. Even as rewritten, however, those findings of fact do not support a conclusion that discrimination occurred.

cc: Robert K. Sholl

Appealed to Circuit Court. Appeal dismissed on procedural grounds May 24, 2001.

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