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

ANGEL T CASTRO, Complainant


ERD Case No. 200103786, EEOC Case No. 26GA200130

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.


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

Dated and mailed June 25, 2004
castran . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


Angel Castro alleges that the respondent discriminated against him because he is Mexican-American when the respondent terminated his employment. Castro was employed as a machinist for the respondent. Second shift supervisor, Randy Connell, notified Castro that his employment was terminated on August 30, 2001, when Castro reported for work on the third shift.

Castro's termination on August 30 followed an incident on the previous night where all of the parts that he had made on his shift were bad because they were out of tolerance. Castro alleges that he was discriminated against because he was discharged for making bad parts on August 28 and 29, whereas a white worker on the preceding shift had also made bad parts on the same machine but only received a reprimand.

Castro, however, failed to establish that he was discharged because of the incident in which he made bad parts on August 28 and 29. The respondent's president, Joe Moser, testified that he decided to discharge Castro on August 24, 2001, after discovering that he was running a machine with a broken cutter on August 24. Moser testified that he decided to discharge Castro at that time because of this incident, his perception through a group called the material review board (MRB) of Castro having a history of defective material reports (DMRs), reports which showed that he had made bad parts, and because based upon his forty years of machining knowledge it was his opinion that Castro was not "cut out" to be a machinist. Moser denied having any knowledge about the incident involving the bad parts made on August 28 and 29 when he gave instructions that Castro be discharged. Connell denied speaking to Moser about the bad parts before Castro was discharged. Castro admits that Moser was very upset about the broken cutter on August 24. Castro also admits that Connell did not know the reason for his discharge and had told him to talk to Moser if he wanted to know the reason for his discharge. Further, Castro admits that when he contacted Moser to ascertain the reason for his discharge that Moser stated he did not think he (Castro) was "cut out" to be a machinist.

However, even if there had been evidence to support Castro's claim that he was discharged for making bad parts on August 28 and 29, Castro has not established that he and the white co-worker were similarly situated. As stated by the court in Radue v. Kimberly-Clark, 219 F.3d 612, 617-618 (7th Cir. 2000), in disciplinary cases in which a plaintiff claims to have been disciplined more harshly, determining whether the employees are similarly situated normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them. There were different decision-makers involved in the disciplinary action taken against Castro and the second shift white worker. When "different decision-makers are involved, two decisions are rarely similarly situated in all respects." Radue, 219 F.3d at 618. In Radue, the court noted that the simple reason for the same supervisor requirement was that different supervisors may exercise their discretion differently. Id. As noted above, it was Moser's opinion, based upon the August 24, 2001, broken cutter incident, his perception of Castro's performance through the MRB and his forty years of machining knowledge, that Castro was not "cut out" to be a machinist. Connell, on the other hand, decided to give the white worker a verbal warning because he had had very few DMRs in the course of the last year, his attendance was great, his attitude was good and he hardly ever had problems with the machines and they were always running.

Furthermore, there was no evidence presented to show that Moser, who made the decision to discharge Castro, even knew that Castro was Mexican-American at the time of the termination. Moser denied that he was aware that Castro was Mexican-American when he made the decision to discharge Castro.

Based upon the above-stated reasons, the commission finds that Angel Castro has failed to prove by a preponderance of the evidence that the respondent discriminated against him because of his race and national origin/ancestry in violation of the WFEA when it terminated his employment.


NOTE: The commission notes that while the introductory paragraph of the ALJ's decision correctly states the issue in this case, it incorrectly states the following: the date the complainant filed his complaint in this matter; the conclusion of the initial determination and the date this determination was issued; the date the hearing (on the merits) was held; that the complainant appeared in person and without counsel; and the name of the attorney and law firm that appeared on behalf of the respondent.

Attorney Todd R. Korb
Attorney Mark A. Johnson

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uploaded 2004/06/29