DAVINA A PIERCE-JENKINS, Complainant

GREAT LAKES CHEESE OF WISCONSIN, 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 conclusions in that decision as its own, except that it makes the following modifications:

The second sentence in paragraph 6 of the FINDINGS OF FACT is deleted and the following sentence is substituted therefor:

"Mr. Lenoir's treatment resulted from the fact that a more senior person that should have been considered for the promotion had not been considered and was not related to his race."

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

Dated and mailed October 10, 2003
piercda . rmd : 125 : 9  

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

Davina Pierce, a black female, was employed by the respondent from October 1999 until June 19, 2000, when the respondent terminated her employment. Pierce alleges that the respondent discriminated against her on the basis of her race with respect to her terms and conditions of employment, termination of employment and in retaliation because she opposed a discriminatory practice under the Fair Employment Act.

The administrative law judge concluded that the respondent had not subjected Pierce to less favorable terms and conditions of employment nor terminated her employment either because of her race or her opposition to a discriminatory practice, within the meaning of the Act. The ALJ therefore dismissed Pierce's complaint.

Pierce disagrees with the ALJ's decision. She argues that evidence and testimony in her behalf was not taken into consideration by the ALJ. She argues that the decision was the result of the "biased opinion and [inherent] prejudices of a [C]aucasian Administrative Law Judge."

On May 25, 2000, Pierce was scheduled to begin work at 7:30 p.m. Pierce admits that during the afternoon on that date she was at a bar drinking but she denies having smoked any marijuana. The respondent's Drug Free Workplace policy provides that no employee shall report for work or remain on duty while under the influence of alcohol or any controlled substance. While in the company parking lot at approximately 6:30 p.m. on May 25, Pierce backed into a parked vehicle belonging to Anthony Kromke, causing about $1,300 damage to the parked vehicle. Her supervisor, Brad Harper, required her to submit to an alcohol and drug test and took her to a local hospital. The results of the hospital's blood alcohol test, which was received that evening, showed that Pierce's blood alcohol content was .128. The results of the drug test did not become available until about two weeks later, however. Harper took Pierce back to the respondent but did not allow her to work for safety reasons. Pierce drove herself home.

Pierce argues that a white male, Marty Comardelle, was treated more favorably than she because on May 19, 2000, when he came to work intoxicated he was not required to take a drug and alcohol test, Harper simply warned him before he punched in that he could lose his job and sent him home. However, Pierce and Comardelle were not similarly situated in that unlike Pierce, Comardelle had not been involved in an accident on company property which caused property damage.

Pierce argues, however, that the respondent had no right to force her to take a drug and alcohol screen because she had not violated any company policy. Citing the Drug Free Workplace written policy in the Employee Handbook as it existed at the time in question, Pierce asserts that she was not reporting for work and that she had not had an accident requiring medical treatment beyond first aid. She also asserts that her accident did not involve damage to company property but to an individual's personal property. Further, she asserts that the ALJ failed to consider or mention the fact that an officer called to the scene of her accident on May 25, 2000, had given her a Breathalyzer (at her request) which produced a reading of .08. Pierce's arguments fail. First, the evidence fails to show that Harper was present when Pierce was given the Breathalyzer, or otherwise aware that she had been given one. Indeed, Pierce herself testified that Harper was the first person to come to see what had happened, that he said he would call the police to file a report about the accident and that after the police officer left Harper came back out and had her go to the hospital for the drug and alcohol screen. Similarly, Harper testified that he saw that Pierce had backed into Kromke's truck, that he paged Kromke to the parking lot, that he went back into the plant to get a drug/alcohol kit and that upon returning to the parking lot he told Pierce he was taking her to have a drug and alcohol test because of the damage done on company property. In any case, Pierce herself admitted that the officer who documented the accident told her he could have cited her for driving while intoxicated but he chose not to. Second, contrary to Pierce's argument that the respondent had no right to force her to take a drug and alcohol test, it did. Pierce was employed by the respondent, she was on company property and while on company property she was involved in an accident that caused damage to property on the company's property.

Pierce argues that the fact that Susan Isbell, a white female, was not required to submit to a drug and alcohol test on May 20, 2000, when she injured her thumb at work and had to be taken to the hospital for stitches is evidence of racially discriminatory treatment. This argument also fails. No drug and alcohol test was performed on Isbell on May 20 because Tom Lewandowski, the supervisor involved in that situation, was in his first week of employment and had assumed that the hospital, knowing that the person was employed by the respondent, would automatically conduct a drug and alcohol screen. That had been the practice at Lewandowski's previous employer. When Lewandowski spoke to Walter Ehret, the plant manager, the following week on May 22nd or 23rd, Lewandowski was advised that there was paperwork he should have taken with him to the hospital so that Isbell could have been screened for drug/alcohol use. Isbell was screened for drugs and alcohol on Tuesday, May 30, 2000. Pierce nonetheless attributes a discriminatory motive to the situation involving Isbell. She questions why it took from May 20 to May 30, 2000, before Isbell was given a drug and alcohol test. Pierce asserts that the reason was because when she (Pierce) was given a 3-day suspension on May 30 she had complained that Isbell was not required to take a drug and alcohol test on May 20 when Isbell sustained an injury to her finger requiring treatment beyond first aid. Pierce asserts that the respondent gave Isbell a drug/alcohol test on May 30 to "cover their tracks." Pierce's assertions are simply conjecture on her part, however. As noted above, the respondent did not discover Isbell had not been given a drug and alcohol test until May 22 or 23. Also, May 30 was the first work day following Memorial Day, which fell on Monday, May 29. By May 22 it was too late to give Isbell an alcohol test to determine whether she had been under the influence of alcohol at the time of her May 20 accident but it was not necessarily too late to test her for use of controlled substances. Isbell's May 30 test for controlled substances was negative. Moreover, the evidence shows that because of Pierce's disagreement with her disciplinary suspension on May 30, by letter dated June 5, 2000, Ehret offered Pierce a chance to present in writing her concerns to Beth Wendell, the vice president of human resources, if she felt that her discipline was inappropriate. Pierce did not provide any written concerns to Wendell, or any other supervisor, following receipt of Ehret's letter.

Testimony by Ehret, Wendell and Dale Weber, the production supervisor at the time, established that as a result of the Comardelle incident and the incident involving Pierce having occurred within a week's time, a decision was made to suspend both employees, for three days, to send a message to its employees that it was serious about its drug and alcohol policy.

Pierce, however, attempts to cast suspicion on whether or not Comardelle had in fact been suspended. She argues that it was not until August 2000, after she filed her complaint (July 18, 2000) against the respondent, that the respondent noticed that paperwork documenting Comardelle's suspension had not been completed, even though "from the day of my accident until my employment was terminated on June 19th, 2000...I always compared my situation to Marty Comardelle and Susan Klar-Isbell." This argument fails. Pierce had compared her situation to Comardelle by questioning why he had not been taken in for a drug and alcohol test on May 19, 2000. The mere fact that Pierce was "comparing her situation" to Comardelle would have provided the respondent no reason to suspect that the paperwork documenting Comardelle's suspension had not been completed. Second, the evidence indicates that the reason paperwork documenting Comardelle's suspension had not been completed was because it was inadvertently overlooked due to the fact that he was not on duty when advised of his suspension. Moreover, the testimony of Pierce herself indicates that on June 19, 2000, during the meeting when notified of the termination of her employment as a result of her positive drug test, she was also advised that Comardelle had been suspended for his incident of May 19, 2000. There is no evidence that Pierce had compared her situation to Isbell prior to May 30, 2000. As noted above, the respondent discovered that Isbell had not been given a drug and alcohol test on May 22 or 23, 2000, and took her in for testing on May 30, 2000.

Further, Pierce argues that assuming Comardelle was suspended it had no impact because it took place at the same time he was scheduled to be on an unpaid family medical leave. Pierce argues that her suspension had an impact on her because she lost pay. Pierce did not establish that Comardelle's suspension took place at the same time as his family medical leave. Comardelle was on vacation after May 29, 2000 (Memorial Day), and planned to take family and medical leave when his wife gave birth to their child. The respondent learned that Comardelle's wife gave birth to their child while they were away on vacation. Ehret testified that it was not known how long Comardelle intended to be off on family and medical leave so Comardelle's three-day suspension was imposed prior to the start of Comardelle's family medical leave. Comardelle testified that he was told when he returned from vacation in June that he was being suspended for the incident on May 19, 2000. Like Pierce, Comardelle served his suspension without pay.

Pierce also argues that the ALJ fails to mention that Comardelle came to work intoxicated again on November 16, 2000. Pierce argues that if the respondent is so committed to enforcing its drug and alcohol policy why was it that Comardelle was not discharged and "not only got off once but, (sic) twice." Ehret explained that as a result of the previous incident with Pierce in the parking lot there was a corporate directive that, in the absence of aggravating circumstances such as an accident, the respondent would wait until an employee suspected of being under the influence clocked in and have two supervisors make a judgment about whether the employee was under the influence before taking any disciplinary measures. Comardelle never clocked in and left the company premises before two supervisors could observe him. In any case, the respondent's handling of the November 2000 incident involving Comardelle offers no insight into the respondent's motives for the actions it had taken with respect to Pierce some six months earlier. The respondent had suspended both Pierce and Comardelle for coming onto company property under the influence of alcohol in May 2000. Pierce does not assert, nor does the evidence show, that while on company property in November that Comardelle had caused any damage to property or that he was involved in an accident that required treatment beyond first aid. Furthermore, the respondent's reason for terminating Pierce's employment in June 2000 was based on its policy and past practice of terminating the employment of anyone with positive drug test results.

With respect to her claim of retaliation, Pierce argues that the respondent did terminate her employment "because of my opposition to their discriminatory practices and because of my race."

In April 2000 Pierce overheard coworker Carla Rogers uttering racial slurs. This was reported to Harper who suspended Rogers. Subsequently, on or about May 2, 2000, Pierce and coworker Glen Anderson, a black male, met with Ehret and Weber, and Wendell via telephone, regarding the respondent's investigation of the incident involving Rogers. The respondent advised Pierce that Rogers had been terminated because of her conduct. Pierce was satisfied with the action taken by the respondent but brought up two other situations in which she felt that blacks had been treated unfairly. One of the situations Pierce spoke about involved Anthony Lenoir, a black male. The Lenoir situation involved Weber's posting of a sheet of paper announcing that Lenoir was awarded a promotion and then changing it to state that it had been given to another person whose race was white. The other situation Pierce raised was that Anderson and a white male had both been responsible for causing damage to a machine but only Anderson had been demoted.

Pierce attributes significance to Weber's hearing testimony that the Lenoir situation "was not handled properly." Pierce questions how Weber, employed as the plant supervisor for many years, could have misinterpreted the rules regarding promotion as found by the ALJ. It was not really a matter of misinterpretation of the rules regarding promotion, however. At the respondent employees lose their chance to bid on another position if they have bid on and received another position within a year's time. Weber failed to consider a more senior person (a female) for the promotion because he understood her to have bid on and been placed in a position within a year's time. Weber changed the announcement to state that the promotion was going to the more senior female after she advised him that she had not bid on another job but had simply been placed in another job because no one else had wanted it.

Pierce was engaged to Anderson at the time of the May meeting with the respondent's representatives when Pierce spoke about blacks being treated unfairly. By the fall of 2000, however, Pierce and Anderson had broken off their relationship. At the hearing on Pierce's claims of discrimination, Anderson testified that he did not feel the respondent's actions were racially motivated. The ALJ accepted this testimony by Anderson and issued a finding of fact stating that Anderson did not feel the respondent's actions were racially motivated. Pierce questions the ALJ's reliance on Anderson's testimony, asserting that Anderson's whole purpose for attending the May meeting was to discuss the treatment of blacks. Pierce argues that Anderson testified as he did because he was bitter because she had left him and caused him to be incarcerated for domestic abuse. While Pierce's assertions offer one perspective on Anderson's testimony, it is equally plausible that his testimony was simply the product of 20-20 hindsight. As a matter of fact, Anderson acknowledged at the hearing that at the time of the incident with the machine he did not know how the problem happened, and that the supervisor was upset with both him and the white coworker but he did not understand why the supervisor was upset with him as he had not done anything. What Pierce ignores, however, is that Anderson also testified that he asked to be removed from the machine until the respondent figured out what happened and that after the respondent's investigation he was put back on the machine, testimony that was not controverted by Pierce.

In support of her claim of retaliation Pierce argues, "The different treatment I received at [the respondent] did not begin until I spoke up about the racism at [the respondent]. I was a very good worker." Pierce's argument fails. First of all, Pierce did not establish that she was treated differently. Second, while Pierce did oppose what she perceived as discriminatory practices by the respondent, the record contains no persuasive evidence of any connection between that opposition and the fact she was required to take a drug and alcohol test, the respondent's issuance of a three-day suspension to her or the respondent's decision to terminate her employment. The respondent articulated legitimate, non-discriminatory reasons for the actions taken against Pierce. Harper made a judgment decision that Pierce needed to take a drug/alcohol test on May 25, 2000, because she had caused an accident on company property. The next day upper management decided, because of Comardelle having reported to work under the influence of alcohol and its belief that Pierce too was reporting to work under the influence of alcohol, to suspend both in order to send a message to other employees that it was serious about its drug and alcohol policy. However, the respondent would have made the same decision to suspend Pierce even if she had not been reporting for work because she had come on company property under the influence of alcohol and caused property damage. Thereafter, when the results of Pierce's drug test disclosed that she had tested positive for drugs the respondent terminated Pierce's employment as the respondent has a zero tolerance policy with respect to employees who test positive for drug use. Pierce has not shown by a preponderance of the evidence that the respondent's stated reasons for its actions taken with respect to her were merely a pretext for race discrimination, or in retaliation in response to her opposition to what she believed to be a discriminatory practice by the respondent.

In reaching its decision in this matter the commission has considered the arguments presented on appeal by Pierce in their entirety but it is not persuaded by her arguments.

Finally, the commission has no reason to believe that the ALJ's decision was the result of bias or prejudice on the part of the ALJ as alleged by Pierce. The commission has carefully examined the record in this case and it finds the ALJ's determination that the respondent did not subject Pierce to less favorable terms and conditions of employment or terminate her employment either because of her race or her opposition to a discriminatory practice, to be fully supported by the record.

cc: Attorney Andrew A. Jones

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uploaded 2003/10/22