BERNARD LAWRENCE, Complainant

APAC CUSTOMER SERVICE, Respondent

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, except that it makes the following modifications:

The second sentence of Finding of Fact 2 is deleted and the following sentences substituted in order to more completely and accurately reflect the record:

Effective February 1, 2000, complainant transferred to the Los Angeles Times team. While a member of this team, complainant's work performance generally met established attendance, productivity, and quality standards, although complainant's supervisors/team leaders did bring to his attention certain aspects of his performance which they felt could be improved. In July of 2000, complainant's work performance did not meet established attendance, productivity, or quality standards.

The following sentence is added to Finding of Fact 4 in order to more completely reflect the record:

When complainant was advised by Peaslee and another manager of the discipline, complainant stated that it was very discriminatory for them to allow a person of non-color to throw away the property of a person of color.

The following sentence is added to Finding of Fact 5 in order to more completely reflect the record:

When he learned that he had not been promoted to the SME position, complainant complained to operations manager David Johnson that there were no male leadworkers.

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

Dated and mailed February 14, 2003
lawrebe . rmd : 115 : aty 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Essentially, as is the case with most charges of discrimination/retaliation, complainant is contending here that he was treated less favorably than similarly situated whites, females, and co-workers who had not engaged in protected fair employment activities.

Complainant argues that he was treated less favorably than a white female co-worker (Jennifer Boma) when he was disciplined for his role in the March 30, 2000, "cubicle cleaning" incident and she was not. (See Findings of Fact 3 and 4) Complainant contends first in this regard that Boma violated respondent's policy prohibiting the destruction or removal of personal property. However, complainant has not identified any of the personal property which was allegedly destroyed or removed by Boma when she tidied his cubicle at management's direction. Respondent's employee handbook prohibits "stealing, sabotaging, wilful damage, abuse or destruction of . . . property . . . of . . . another employee;" and the new employee orientation list referenced by complainant prohibits "any deliberate act that results in the loss of . . . associates' . . . property, such as taking or keeping property, cash, etc." Complainant has failed to prove that Boma violated either of these prohibitions. In contrast, the record shows that complainant's angry and abusive reaction was grossly out of proportion to what had occurred and inappropriate in a work setting, and respondent's decision to discipline him was justified.

Complainant also takes issue with respondent's failure to promote him to an SME position. (See Finding of Fact 5) Complainant appears to argue that, if respondent actually and without exception enforced the ban on promotions for those against whom a disciplinary action had been taken in the prior six months, Peaslee would not have granted complainant permission to apply for the SME position. However, the record supports the ALJ's finding that respondent consistently enforced this policy and, as a result, complainant was not eligible for promotion at the time he applied for the SME position. It should also be noted that appointments were made to three leadworker positions around the same time, and all of the successful candidates for these positions are male and two of them are black.

Complainant contends that he did not receive bonuses to which he was entitled when he was a member of the "Stop Save" team. However, complainant has failed to show that his work performance was comparable to, or that he was otherwise similarly situated to, those co-workers who did receive such bonuses.

Complainant asserts that he was singled out when directed by a leadworker to limit the length of his personal telephone calls. However, complainant has failed to offer any specifics to show that his co-workers were held to a different standard than he in this regard.

Complainant characterizes the July 29, 2000, incident (See Findings of Fact 6, 7, and 8) with leadworker Broadwater as harassment. Complainant argues that Broadwater's insistence that complainant limit calls to 150 seconds prevented complainant from doing his job. However, it was not complainant's prerogative to define his job. The record shows that respondent's action plan for the Los Angeles Times team, of which complainant was a member, called for calls to be limited to 150 seconds in length and those calls which exceeded 150 seconds to be forwarded to a leadworker. The record also shows that respondent had stepped up efforts to implement and enforce this plan in July of 2000. The other primary basis offered by complainant for claiming he was harassed is the fact that Broadwater sat on complainant's desk as a part of this incident. However, the record shows that, although certain other supervisors/leadworkers agreed with complainant that sitting on the desk of a subordinate is inappropriate, it appears that Broadwater did not single complainant out in this regard. It should also be noted that Broadwater, like complainant, is a black male who had no reason to be aware at the time of the incident that complainant had participated in any protected fair employment activity. Complainant failed to show discrimination/retaliation in regard to this incident.

Complainant further argues at least by implication that his supervisor's (Steele) mis-characterization of complainant's actions during the July 30, 2000, meeting not only undermines Steele's credibility but also demonstrates respondent's efforts to discredit complainant. The record shows that Steele, in a memo he authored describing what occurred at the meeting (Exhibit R-Q), stated that complainant "started going 'crazy,' he stood up threw the chair all over shoved around the table and just walked out." The record further shows that, during the meeting, complainant became very angry and aggressive, picked up a chair, appeared as though he was going to throw it but hesitated, put the chair back on the floor and shoved it roughly, and left the meeting and the workplace without proper notice. Both versions of the event show that complainant showed an angry and aggressive response to supervisory direction during this meeting, which respondent was justified in concluding was unacceptable. The difference between "throwing a chair all over shoved around the table" and picking up a chair, appearing as though you're going to throw it, and then roughly shoving it around the floor in anger is insufficient to justify a conclusion that Steele was not credible or that respondent was trying to discredit complainant.

Complainant further contends that he was singled out for less favorable treatment when respondent ran a background check on him. (See Findings of Fact 11, 12, and 13) It should first be noted and emphasized that complainant admits that he was convicted of knowingly violating a domestic abuse order, battery, assaulting a police officer, and violating the terms of his bail (all of these felonies or misdemeanors), and that he indicated on his application for employment with respondent that he had never been convicted of a felony or misdemeanor other than a minor traffic violation. This alone would be sufficient to justify respondent's decision to terminate him.

Complainant argues, however, that respondent singled him out by failing to do any background checks on employees for three years until they did one on him. The record, however, supports the ALJ's finding that, early in 2000, once human resources director Hughes was assigned responsibility for the LaCrosse facility in which complainant was employed, and discovered that background checks were not being done there, she directed senior recruiter Sommers to begin doing so for all current employees as well as future hires. Although it is not clear from the record that respondent accelerated complainant's background check once he voluntarily disclosed to Hughes that he couldn't go back to Chicago because he had been involved in drug activities there and that he'd had problems with the LaCrosse police, respondent certainly would have been justified in doing so based on complainant's representations in his employment application.

Complainant argues further in this regard that the fact that two white employees who had been hired prior to his employment with respondent and who had misrepresented their criminal histories on their employment applications were terminated after he was demonstrates that he was singled out for less favorable treatment. However, the record shows that the process for completing background checks on 600 current employees as well as new hires was a lengthy and time- consuming one that did not start until the beginning of 2000 and was still not done by the end of 2000. As a result, the fact that complainant's background check was completed in October and these other employees' not until November and December is not surprising or significant here. Complainant also argues that, since respondent received his background check results in February of 2000, the fact that he was not terminated until October of 2000 demonstrates that he must have been retaliated against for the protected fair employment activities in which he participated in the spring and summer of 2000. However, the record shows that, although respondent may have requested and/or received preliminary information relating to complainant's background check in February of 2000, the final results were not received until October 3, 2000, and that this time lapse was consistent with that experienced by respondent throughout the background check process.

Complainant takes issue with the fact that he was required to go on administrative/investigative leave after he complained of harassment in writing on July 31, 2000, but certain female employees who had reported that they were the victims of sexual harassment were not required to do so. It should first be noted that complainant was placed on paid, not unpaid, leave. Moreover, complainant has provided nothing in support of his claim of disparate treatment here other than a general and conclusory statement in his testimony, with no specifics as to names, dates, or circumstances.

Complainant also asserts in his petition that the fact that an agent for respondent lied to an unemployment insurance investigator for the Department of Workforce Development about complainant's employment history shows that respondent did not deal with him in good faith. However, this matter is not part of the record in this case and the commission, as a result, may not consider it.

Finally, it was not clear from the record or from complainant's submissions whether he was claiming as his protected fair employment activity only the writing of July 31, 2000 (See Finding of Fact 9), or whether he was also claiming two oral complaints he made to respondent's management, one in March of 2000 to manager J.D., and one in the spring or summer of 2000 to David Johnson (See modifications to Findings of Fact 4 and 5). Regardless, the record does not support a conclusion that complainant was retaliated against in regard to the subject termination, failure to promote, or terms or conditions of employment.

cc: Attorney Ellen Ramsey-Kacena

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uploaded 2003/03/03