ERD Case No. 8752356, EEOC Case No. 26G880241

An Administrative Law Judge for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on May 25, 1989, holding that there is no probable cause to believe that Respondent violated the Wisconsin Fair Employment Act by terminating the employment of Complainant because he had previously filed a discrimination complaint against them, and dismissing the complaint.

Based upon a review of the applicable law, records and evidence in this case, the Commission hereby


that the Administrative Law Judge's decision dated May 25, 1989, in the above-entitled matter be set aside, and that the matter be remanded to the Equal Rights Division for further testimony and decision in this matter.

The Equal Rights Division shall schedule further hearing before an Administrative Law Judge to provide:

(1) Respondent with opportunity to articulate and provide evidence concerning the reasons for its actions;

(2) Complainant with opportunity to meet his burden of proceeding by showing that Respondent's asserted legitimate reasons were in fact a pretext for discriminatory conduct and by fulfilling his overall burden of establishing discrimination.

Dated and mailed April 6, 1990

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner


The Commission considers that in this case it was error to grant Respondent's motion for dismissal made at the end of Complainant's case in chief.

Proof of retaliation, like other claims of alleged discriminatory treatment, is governed by the general framework establishing discrimination as set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 5 FEP Cases 965 (1973).  Initially, the complainant must present prima facie proof of retaliation. To establish a prima facie case of retaliation the complainant must show (1) that he engaged in statutorily protected activity; (2) that the respondent has taken an adverse employment action; and (3) that a causal connection exists between the two. Secondly, if a prima facie case has been established the employer must then rebut the complainant's evidence with a legitimate, nondiscriminatory reason for its actions. Third, if the employer carries its burden of production, the complainant then must have an opportunity to show that the respondent's asserted legitimate reasons were in fact a pretext for discriminatory conduct.

The hearing in this matter never arrived at the second stage, i.e., proof beyond the prima facie case stage, because the complaint was dismissed upon Respondent's motion to dismiss when Complainant, the only witness, ended his testimony concerning his prima facie proof. The Respondent made no attempt to rebut Complainant's testimony. It must be recognized that at this point in the case the Complainant was not required to show that the employer's reasons were pretextual because no such reasons had been introduced. As the case was dismissed at this early juncture and there was no full hearing, the issue is whether or not Complainant presented prima facie proof of retaliation.

Section Ind 88.01(1), Wis. Adm. Code, provides the standard of proof for probable cause as follows:

"(8) 'Probable cause' means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that discrimination or unfair honesty testing probably has been or is being committed."

"Probable cause" cases, therefore, require a quantum of proof that is less than that of a case on the merits.

There is no dispute the Complainant filed a Fair Employment Act complaint in June 1987, or that he was subsequently discharged in October 1987.

The focus here is whether Complainant has satisfied the third element, i.e., the causal connection. "Causation may be inferred from the proximity in time between the protected action and the alleged retaliatory discharge . . . Alternatively, the plaintiff can prove causation. by providing direct evidence of retaliatory motive . . ." Miller v. Fairchild Industries, Inc., 797 F.2d 727, 41 FEP Cases 809, 811 (9th Cir. 1986); (decided after remand at 876 F.2d 718, 49 FEP Cases 1713 (9th Cir. 1989)); Jalil v. Avdel Corp., 867 F.2d 163, 49 EPD par. 38,673 (3d Cir. 1989); Burrus v. United Tele. Co., 683 F.2d 339, 29 FEP Cases 663 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).

The synopsis includes the following information. Complainant has a bachelor's Degree in electrical engineering and has performed some work towards a Master's. He was hired by Respondent in 1982 and was an application engineer in the metallurgy department.

Complainant's problems began when Borje Nilsson, a Swedish native, arrived in 1985 as the manager of the engineering section. Borje Nilsson composed the written evaluations of Complainant's job performance. Prior to June 1987, Complainant's evaluations were good and above average. He was never disciplined nor given written criticism. In. March 1986 Borje Nilsson commented that he didn't like Complainant's kind and wanted Complainant out of the department.

In March 1986 or 1987, Complainant complained to Bob Buzzell, personnel manager, that he wasn't being assigned any work and he perceived that he was discriminated against because he was black. He was the only black in the office of 10-12 engineers and technicians. He complained again (of lack of assignments and perceived discrimination) in the fall of 1986 and this time to Barry Hartland (new general manager from June 1986 through October 1987). When Hartland took over, the situation was quiet for awhile, but then the memos and the harassment started again.

In June 1987 Complainant filed a race complaint on conditions of employment. He complained that Respondent used a Swedish national to perform the work he had been performing. The basis for his complaint was that when he complained to management the situation worsened. He had no discussion with management concerning the race complaint until he was discharged.

After filing the complaint Complainant was informed that "they" did not like his two-page rebuttal to a recent evaluation. In June or July Ken Lunstrom, his immediate supervisor, commented that he, Complainant, probably would be fired for filing the complaint.

On October 30 or 31, 1987, Complainant was summarily called into a meeting with Bob Buzzell (personnel manager), and Ake Nilsson (newly appointed general manager), where he was instructed to sign some papers and was informed of his discharge. One paper stated he would be paid through the end of the year. Another stated his claims would be paid if he dropped the lawsuit (ER complaint). He was informed that Respondent was paying his salary through 1987 because he was a good worker or that they were trying to be fair. His performance may have been mentioned.

Complainant established the causal connection between the June 1987 FEA complaint and the October discharge. First there is the proximity in time between the two actions; second there is his supervisor's comment that Complainant probably would be discharged for the June complaint; and third there is Respondent's attempt to settle the claim at the discharge conference.

From the establishment of the prima facie case, the inference of retaliatory motivation is drawn for purposes of determining probable cause. Note is made that an employer's true motivation is an elusive factual question the determination of which is difficult to ascertain and generally unsuitable for summary disposition on an employe's claim of retaliatory discharge. See Miller v. Fairchild Industries, Inc., supra, 49 FEP Cases 1713, 1718 (9th Cir. 1989).


cc: Attorney Alfred E. Heon

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