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

ROBERT HUFF, Complainant

BENCHMARK HOSPITALITY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200000701, EEOC Case No. 26GA00800


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 December 27, 2001
huffro . rsd : 125 : 9 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The respondent, a property management company, manages properties called The Council House and Lakeshore Towers.

On June 29, 1999, the respondent's general manager, Edward French, issued written guidelines regarding employee use of the company's two vans. Guidelines for use of the company vehicles existed prior to that date but had not been put into writing. French, who became general manager in March 1999, issued written guidelines because the van logs were not being completely filled out and there was confusion over who could use the vans and when they could be used. Included in French's written guidelines on van usage was a requirement that employees receive approval from an Operations Team Member, that the Council House Key Usage Log be filled out by the employee prior to taking the vehicle and upon returning the vehicle, and that vehicle usage be limited to business purposes only.

On Friday, August 6, 1999, the complainant, Robert Huff, was assigned to work at Lakeshore Towers. Huff received permission from Operations Team Member Joe Golebiowski to use a van, and Huff signed the key usage log on August 6 to show that he had taken the van. Golebiowski was Huff's immediate supervisor.

On Saturday, August 7, 1999, French was notified that the key and the van Huff had been assigned were missing and unaccounted for. French learned from Golebiowski that day that Huff had been assigned a task at the Lakeshore facility on August 6 but that he should have completed this task early that evening. On Sunday, August 8, 1999, French was advised that Huff returned the keys and the van at 8:35 that morning.

On Monday, August 9, 1999, French met with Golebiowski and the Human Relations Representative, Christine Lamberton, to discuss what course of discipline to take regarding Huff's use of the van. French concluded that Huff was guilty of inappropriate use of a company vehicle in violation of company policy. Further, French determined that because of Huff's past disciplinary record, which included written employee warning notices in 1998 and 1999, Huff's employment should be terminated.

Huff filed a complaint alleging that his employment was terminated because of his race and age. Huff is black. He was age 55 when French terminated his employment with the respondent. Following a hearing on his complaint the ALJ concluded that Huff had failed to establish by a preponderance of the evidence that the respondent had terminated his employment because of his age or race.

In his petition for review, Huff argues that his attorney was incompetent in not ensuring that Kevin Tandy, and other individuals that were potential witnesses, appeared at the hearing. Huff claims that Tandy, a white male, was guilty of the same offense as he but was not discharged, and that there were witnesses who would substantiate his claim.

Huff's argument fails. Assuming for purposes of argument that Huff's attorney was incompetent, this would not provide an adequate basis for overturning the ALJ's decision. Patek v. Waukesha Engine Div., Dresser Indus. (LIRC, 08/31/95); Neuberger v. Twin City Storm Sash Co. (LIRC, 01/22/92). The truth of the matter, though, is that Huff's claims fail for reasons having nothing to do with his attorney. The primary shortcoming of Huff's claim is that there had never been any report made to French that Tandy had violated the policy on use of company vehicles. French therefore had no reason to believe that Tandy had violated the policy on use of company vehicles and thus no basis for disciplining him. But even if Tandy had violated that policy and French been made aware of it, Huff's circumstances cannot be compared to Tandy's. French concluded that the termination of Huff's employment was warranted because of Huff's violation of the policy on use of company vehicles, in conjunction with his prior work performance problems. Tandy had had no prior work performance problems. In short, Huff and Tandy were not similarly situated employees.

Huff next argues that the June 1999 employee warning notices are false documents. Huff argues that he was not made aware of these documents and that they were written after his discharge. This argument also fails. French understood that Huff had been issued the June 1999 employee warning notices and considered those warning notices when making the decision to terminate Huff's employment. There is no reason to believe that the June 1999 warning notices were false or concocted as a pretext for age and race discrimination. French testified that he had consulted with Huff's immediate supervisor, Golebiowski, at the time of the June 1999 warnings. Moreover, French testified that in addition to his involvement with the June 1999 warnings that he also personally had oral conversations with Huff concerning improvement of his work performance. It is evident from the ALJ's decision that he had no reason to question French's credibility, and the commission finds no reason to either.

cc: Attorney Ted D. Meyer


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