MICHELE FIGUEROA, Complainant

KPMG PEAT MARWICK LLP, 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:

1. In line 4 of paragraph 4 of the FINDINGS OF FACT, the word "prepared" is deleted and the word "preparing" is substituted therefor.

2. In paragraph 6 of the FINDINGS OF FACT, the following is added as a possible performance rating: "NM-Did Not Meet Expectations"

3. Paragraph 7 of the FINDINGS OF FACT is deleted and the following paragraph is substituted therefor:

"On Figueroa's first performance evaluation, which Rauls prepared on January 11, 1999, Figueroa's performance was rated as `MS' or Met Some Expectations. A 'MS' rating was considered to be a less than satisfactory rating. Rauls commented in this evaluation that Figueroa `has a very strong project coordination skill set; she needs to focus on deadlines, budgets and communication with the management when working on projects.' "

4. Paragraph 8 of the FINDINGS OF FACT is deleted and the following paragraph is substituted therefor:

"In May of 1999, Figueroa received a performance review rating of 'ME' or Met Expectations. Figueroa conceded, however, that she was told she was being given this rating because she had shown improvement but that her work was still inconsistent. Figueroa understood that a Tax Specialist that had demonstrated satisfactory progress after one year would be promoted to the position of Senior Tax Specialist. However, in May of 1999, Figueroa was told that she would not be promoted to Senior Tax Specialist."

5. Paragraph 9 of the FINDINGS OF FACT is deleted.

6. In paragraph 10 of the FINDINGS OF FACT, the second sentence is deleted and the following sentences are substituted therefor:

"Rauls advised Figueroa that she had inconsistent work product, frequent late arrivals to work and early departures from work, plus frequent scheduled appointments during designated office hours and that no one was able to find her. Figueroa responded that she thought Rauls was 'treating [her] like a child.' "

7. Paragraph 11 of the FINDINGS OF FACT is deleted and the following paragraph is substituted therefor:

"Rauls further advised Figueroa that in the future the following standards would be expected of her: 1) Meet budgets, deadlines, communicate with managers and partners on questions or issues she may have on projects and to complete all work within the expectations for her level; and 2) Be in attendance at work between the hours of 8:30-5:30 during the performance improvement plan period. Rauls also advised Figueroa that all appointments must be made during a normal 1-hour lunch break or for times outside of the designated working hours. Rauls advised her that if she was unable to meet this expectation she must inform her performance manager at least two weeks in advance of the appointment. Rauls explained that these standards, which were expected of all employees, was important because: 1) The manager is not effectively able to manage engagements when the established budgets and/or deadlines are not being met; or when work needs to be redone because the work product includes errors that may have been avoided had she communicated questions and issues to the partner or manager; and 2) Not being at work on time or being available during the day forces the partner or manager to alter his or her plans to properly meet the expectations of the client during her absence. Rauls further advised Figueroa that projects were being passed to other members of the staff to avoid such a conflict with the needs of the client."

8. Paragraph 12 of the FINDINGS OF FACT is deleted and the following paragraph is substituted therefor:

"Finally, Rauls advised Figueroa that if she failed to show immediate and sustained improvement her employment would be terminated, and that her performance improvement plan would be reviewed within 60 days and periodically thereafter."

9. Paragraph 13 of the FINDINGS OF FACT is deleted and the following paragraph is substituted therefor:

"After being placed on the Performance Improvement Plan, Figueroa continued to receive feedback from tax managers/partners that was critical of her work performance. Figueroa admitted seeing the written evaluations that were critical of her performance."

10. Paragraph 15 of the FINDINGS OF FACT is deleted.

The above modifications have been made to make the findings better conform to the evidence and for purposes of clarification.

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

Dated and mailed May 21, 2004
figuemi . rmd : 125 : 9  

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Michele Figueroa, a black female, claims that the respondent discriminated against her on the basis of race and religion in regard to her terms and conditions of employment and with respect to the termination of her employment. Figueroa argues that the ALJ erred in refusing to allow her witnesses to testify about what they observed regarding the working conditions for black people and herself at the respondent, and in granting the respondent's motion to dismiss her complaint of discrimination on the basis of race and religion based solely on what she and her witnesses had testified to. The commission disagrees.

Specifically, Figueroa argues that the ALJ erred in barring Jeffrey Howard, a black male previously employed by the respondent, from testifying that he felt that whites were hostile to Figueroa in not giving her work for more favored whites, that from what he saw Figueroa's work product was just as good as white employees, that he observed white staff members coming to work late and to his knowledge they never suffered any repercussions, and finally, most importantly, that "his department was reorganized, but the only person terminated was him; and the only persons in his department, two women (white) were given other jobs"

These arguments fail. First of all, with respect to "not giving her work for more favored whites," the evidence shows that in January 1999, the very next month after Howard's employment ended, Figueroa received an unsatisfactory performance evaluation for her first six months of employment. In this evaluation her performance manager commented that Figueroa "needs to focus on deadlines, budgets and communication with the management when working on projects." Further, when placed on the Performance Improvement Plan in August 1999, Rauls advised Figueroa that her not being at work on time or being available during the day forced managers and partners to alter their plans to properly meet the expectations of the client in her absence and that projects were being passed to other members of the staff to avoid such a conflict. Second, as to Howard's views about the performance of Figueroa and other white employees, the evidence shows that Howard held a position that was subordinate to Figueroa's, and therefore he was not in a position to offer competent testimony as to the work performance of Figueroa or anyone similarly situated to her. Third, as for Howard's barred testimony regarding his observations of white staff members coming to work late without repercussion, there is no indication that these white employees held positions that made them similarly situated to Figueroa. Furthermore, the evidence shows that Rauls' concerns about Figueroa's attendance were not just limited to coming to work late, but also included concerns about Figueroa leaving work early and frequently scheduling appointments during designated hours. Finally, while allegations about alleged discriminatory treatment of other members of a complainant's protected class may in some circumstances assist the fact finder in drawing inferences regarding a complainant's treatment, Howard's barred testimony regarding his termination of employment does not. Howard's termination of employment was not related to work performance, whereas Figueroa's employment termination was related to work performance. Figueroa has failed to show that there were similarly-situated white employees who had similar performance and attendance problems as she that were treated more favorably by the respondent. Furthermore, the evidence, as discussed further below, fails to show that Rauls, who made the decision to terminate Figueroa's employment, was motivated by a discriminatory reason in terminating Figueroa's employment.

Figueroa argues that the ALJ erred in barring Tanya Turner, a black female, formerly employed as a clerical staff member from testifying about the errors white staff made and how the white employees used a "buddy system" to cover up for each others mistakes, about Figueroa's timeliness and attendance as compared to white staff, that when she requested a different starting time to accommodate school she was denied this but a white employee's hours had been altered to accommodate her schooling, that she and Figueroa complained to HR about "their treatment" from white staff, but nothing ever happened and given all the circumstances she resigned, that white employees often confused their (Turner and Figueroa's) identities, and that when she resigned only two people attended her going away party, one of which was Figueroa, while almost the entire staff attended the going away party of a white clerical staff member with less seniority than she.

These arguments also fail. First, while Turner may have observed errors that white staff made, she did this from a clerical perspective, as she was not in a position from which she could judge the substantive work performance of professional level employees. Furthermore, Figueroa's work performance issues did not involve making "errors," they involved meeting deadlines and budgets, communicating with management when working on projects and attendance. With respect to attendance, it was apparently Turner's contention that Figueroa did not come to work any later than other employees. (Turner also apparently contended that she had never observed Figueroa come in later than her normal start time. However, even Figueroa has not claimed that she never came to work later than her normal start time.) Like the shortcoming in Howard's testimony, however, there is no indication that any of the employees Turner allegedly observed held positions that made them similarly situated to Figueroa. Further, Figueroa's attendance was a problem because in addition to coming to work late, she was leaving work early and frequently scheduling appointments during designated hours. Moreover, even Figueroa herself, who named three employees she believed came to work late, admitted that she did not know what the assigned work hours were for these individuals or whether they had been spoken to regarding their attendance. Also, in view of the evidence regarding Figueroa's performance and attendance problems, and, absent any allegation that Rauls was involved in Turner's alleged denial of a request for a different starting time to accommodate school, Turner's claim of alleged discriminatory treatment is not probative evidence that Figueroa was discriminated against. Figueroa has failed to identify what "treatment" from white staff that she and Turner complained to Human Resources about but nothing ever happened.

Finally, while Figueroa has attempted to portray the respondent as being indifferent to blacks and treating them less favorably than white employees, Figueroa ignores the favorable treatment and encouragement that she received from the respondent, and in particular from Rauls. For instance, when the respondent was recruiting employees at the UW campus, the respondent agreed to Figueroa's request to be considered separately from the UW campus recruitment efforts, as she was unavailable on the day that the respondent was recruiting, and the respondent allowed her to spend nearly an entire day at the respondent's office. Further, Figueroa admits that during her employment Rauls had suggested that one of her performance evaluators "be taken out of the equation (because there had been complaints about the way this individual evaluated other tax staff) and that I no longer work with her to see if my evaluations improved." Further, Figueroa admits that Rauls had encouraged her to recruit for the respondent at the National Black Accountant's Association conference that she attended in late October 1999.

With respect to her religion, Figueroa apparently contends that the respondent had concerns about her not working on Saturdays, but she could not work on Saturdays due her religion as a Seventh Day Adventist. This argument fails. While Figueroa did testify that Rauls questioned her as to why she never worked on Saturdays, there is no evidence that Figueroa's failure to work Saturdays was a factor in Rauls' decision to terminate her employment, or that this had ever been raised in any performance review or the Performance Improvement Plan leading up to her termination. In fact, Figueroa admitted at the hearing that she was not told that she had to work Saturdays, that Rauls only talked to her about work hours from Monday through Friday, and that she was never told she would be disciplined for not working Saturdays, nor was this brought up when her employment was terminated.

With respect to her termination on November 3, 1999, Figueroa argues that during the time she was on the Performance Improvement Plan she met every condition. In addition, Figueroa references her hearing testimony that on or about October 27, 1999, she had received an e-mail from Rauls stating that "the other partners within the tax management section thought I was doing well," and she also asserts that Rauls gave her no reason for her termination. These arguments also fail. First of all, contrary to argument by Figueroa, she did not meet every condition of her Performance Improvement Plan. One of the conditions Figueroa was required to meet was that she complete all work within the expectations for her level. Further, she was to show "immediate and sustained performance improvement" or the consequence was termination of her employment. Figueroa admitted at the hearing that after being placed on the Performance Improvement Plan, there were a number of written evaluations by the tax managers/partners that were "negatively critical" of her work. Second, it was Rauls who terminated Figueroa's employment, the very same individual that had been involved in hiring Figueroa. The fact that Rauls had hired Figueroa in the first place makes it difficult to conclude that Rauls had been motivated by Figueroa's race in her decision to terminate Figueroa's employment. Additionally, in this regard, although Figueroa testified that she did not remember Rauls calling to encourage her to take the job after her daylong recruitment visit at the respondent, she did remember Rauls calling. While Figueroa describes this call as "more of a follow-up courtesy call," the fact that Rauls made this call to Figueroa is nevertheless evidence that Rauls held no racial animosity towards her. Furthermore, as noted above, Figueroa also admitted that during her employment Rauls had suggested that one of her performance evaluators "be taken out of the equation (because there had been complaints about the way this individual evaluated other tax staff) and that I no longer work with her to see if my evaluations improved." Further, Figueroa admits that Rauls had encouraged her to recruit for the respondent at the National Black Accountant's Association conference that she attended in late October 1999.

Also, with respect to religious animosity, as noted above, Figueroa admitted at the hearing that she was not told that she had to work Saturdays, that Rauls only talked to her about work hours from Monday through Friday, and that she was never told she would be disciplined for not working Saturdays, nor was this brought up when her employment was terminated.

Finally, as noted by the respondent, while giving a false reason for an employment decision can lead to an inference of discrimination, failing to give a reason at the time of termination does not. There is no requirement in the WFEA or otherwise that an employer provide a reason at the time it terminates an employee.

cc: 
Attorney Rocky L. Coe
Attorney Susan Maisa

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