P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. CR200101450, CR200101245, EEOC Case No. 26ga11056, 26ga10969

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:

1. In the second line of paragraph 6 of the FINDINGS OF FACT, the phrase "outside the garbage room" is deleted and the phrase "in a non-smoking area" is substituted therefor.

2. In the third line of paragraph 8 of the FINDINGS OF FACT, the word "change" is deleted and the word "chance" is substituted therefor. Also, in the fourth line of this paragraph, the name "Mr. Pruitt" is deleted and the name "Mr. Piggee" is substituted therefor.


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

Dated and mailed April 21, 2003
piggeza . rmd : 125 : 9 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner


On April 11, 2001, the complainant, a black male, was sent home from work after he was observed smoking in a non-smoking area at a time when he was not on a scheduled break. The general manager instructed the complainant to report back the next day at 9 a.m. The complainant states that when sent home he told the general manager that the lead worker, a white female, was not sent home for smoking when she should not have been smoking.

The complainant states that on April 12, 2001, the general manager informed him that human resources said to terminate his employment but the general manager said he would give him another chance if he signed a document. The complainant states that when he said he wanted someone to take a look at the document before signing it the general manager tore it up and told him that he was terminated.

The complainant alleges that the respondent violated the Fair Employment Act by discriminating against him in his terms or conditions of employment on the basis of his race and sex and by discharging him because he had made a prior complaint under the Act against the respondent. The complainant filed complaints of discrimination against the respondent on January 18, 2001 and on April 11, 2001. There was no evidence to show that the respondent had received notice of the April 11, 2001 complaint by 9 a.m. on April 12.

The ALJ concluded that even in the absence of an appearance by the respondent the complainant failed to prove his allegations by a fair preponderance of the evidence, and therefore dismissed his complaint. The ALJ noted in the memorandum opinion attached to his decision, that when questioned about exactly what happened, the complainant got confused and changed his testimony. Further, the ALJ noted that the complainant was not a clear witness, nor was he convincing on critical points, including his claim that he told Mr. Pruitt (general manager) that Karen Barnes (lead worker) was smoking in the coffee room when she was supposed to be working.

The commission agrees that the complainant has not proven his allegations by a fair preponderance of the evidence. First of all, with respect to his claims of race and sex discrimination, the complainant has not established that he and the lead worker were similarly situated. In fact, for example, in his April 11, 2001 complaint, the complainant indicated that the lead worker was smoking in a designated smoking area. Not only was the complainant smoking when he should not have been smoking, he was smoking in an area where smoking was prohibited. Second, the evidence fails to establish that it was more likely than not that the respondent terminated the complainant's employment because he had filed a prior complaint against the respondent. The complainant himself asserts that despite advice by the human relations department that he be discharged, the general manager was willing to give him another chance provided he signed a document. While it is understandable that the complainant may have wanted to have someone else review the document before signing it, the very fact that the general manager was willing to give the complainant another chance suggests that his previous complaint was not the reason for his discharge. Additionally, the fact that nearly four months had elapsed between the complainant's January 2001 complaint and his discharge militates against his claim that he was discharged because he filed a previous complaint against the respondent.

The complainant asserts on appeal that the ALJ "reversed" the decision of an equal rights officer who had found probable cause to believe that the respondent had discriminated against him in violation of the Act. He asks how this can happen when no new evidence was submitted by the company to "overturn" the original decision. However, the ALJ does not "reverse" or "overturn" decisions of the equal rights officer. A probable cause determination by the equal rights officer simply meant that there was reason to believe there was sufficient information to warrant a hearing on the complaint of alleged discrimination. Whether in fact discrimination in violation of the Act has occurred must be established on the basis of the evidence presented at the hearing before an administrative law judge. At such hearing the complainant must prove, by a preponderance of the evidence, that a violation of the Act has occurred. The commission agrees with the ALJ's determination that the complainant failed to prove his allegations at the hearing by a preponderance of the evidence.


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uploaded 2004/06/15