HORST W JOSELLIS, Complainant
PACE INDUSTRIES INC, Respondent
Administrative law judges Rose Ann Wasserman and Allen T. Lawent for the Equal Rights Division of the Department of Workforce Development issued decisions in this matter. A timely petition for review of both decisions was filed.
The commission has considered the petition and the positions of the parties, and the record in this matter. Based on its review, the commission agrees with the decision of ALJ Wasserman and adopts that decision as its own; and agrees with ALJ Lawent that the case be dismissed but substitutes the following for ALJ Lawent's decision in this matter. In making this substitution, the commission has not overturned any of ALJ Lawent's credibility determinations.
The complainant's charge of discrimination was received by the Equal Rights Division of the Department of Workforce Development on January 19, 1999. In this charge, the complainant alleges that he was discriminated against on the basis of his age and his national origin, in violation of the Wisconsin Fair Employment Act (WFEA), Wis. Stat. § 111.31, et seq., in regard to the following actions taken by respondent:
a. ending the complainant's training in September of 1997;
b. issuing a disciplinary contact notice to the complainant on February 2, 1998;
c. issuing a disciplinary contact notice to the complainant on March 16 or 17, 1998;
d. demoting the complainant from Line Monitor 1 to Material Handler effective March 16, 1998;
e. issuing a disciplinary contact notice and three-day suspension to the complainant in May of 1998;
f. denying the complainant's request for promotion to Line Monitor 1 in October of 1998.
g. engaging in verbal harassment.
In a decision dated December 29, 1999, ALJ Wasserman held that the complaint's charge of discrimination was untimely filed as to allegations a., b., c., and d., above. The complainant filed a timely petition for commission review of this decision.
As the result of an appeal by complainant of a department initial determination finding no probable cause as to allegations e., f., and g., above, hearing was held before ALJ Lawent. At the close of the complainant's case in chief, respondent filed a motion to dismiss, contending that the complainant had failed to sustain his burden of proof.
In a decision dated March 15, 2002, ALJ Lawent granted respondent's motion to dismiss allegations e., f., and g. The complainant filed a timely petition for commission review of this decision.
FINDINGS OF FACT
1. Complainant's date of birth is July 6, 1940, and he is of German national origin.
2. The respondent is an employer doing business in the state of Wisconsin.
3. The complainant began working for respondent on February 27, 1996, as a Material Handler.
4. On June 29, 1996, respondent promoted complainant to a Line Monitor 1 position.
5. In a performance evaluation dated February 19, 1997, Al Cheek, respondent's third shift production supervisor, awarded complainant an overall rating of "good." In this evaluation, Cheek stated that the complainant needed to work on communicating with lead technicians and supervisors, to be more aggressive in notifying technicians and asking questions when he had a problem, to get more involved with lead technicians on changeovers and startups, and to improve his attendance.
6. On February 2, 1998, James Helm, complainant's immediate supervisor, issued a contact notice to complainant for "failure to follow instructions." Helm stated in this contact notice that 2,000 pounds of defective product was manufactured because complainant failed to carry out his responsibility as a Line Monitor to review the job sheet before starting or continuing production and to consult a technician or supervisor if he had questions. A contact notice is a form of discipline issued by the respondent when a policy or rule is violated. This contact notice stated that it was a "first warning" and a "counseling."
7. On March 17, 1998, Helm issued a contact notice to complainant for "failure to follow instructions" and "insubordination." Helm stated in this contact notice that the complainant had refused to work with, or take instruction from, Line Monitor 2 Jim Robinson.
8. On March 17, 1998, Earl Kent, respondent's operations manager, notified complainant that he was being demoted from Line Monitor 1 to Material Handler.
9. On May 14, 1998, complainant was directed by third shift lead technician Rick Teske to straighten the sheets of material that were coming off the production line. Complainant ignored this directive. As a result, Helm issued a contact notice to complainant on May 19, 1998, and stated in this notice that the consequence should this conduct recur would be immediate termination.
10. After his demotion, complainant's work performance and attitude did not show improvement.
11. In September or October of 1998, complainant requested that he be promoted to Line Monitor 1. Based on his supervisors' conclusion that complainant's work performance and attitude had not improved after his demotion, respondent denied this request on or around October 16, 1998.
12. Between August of 1997 and August of 1999, of the twenty Line Monitors other than complainant who were issued contact notices by the respondent, all were younger than complainant, and at least fifteen were under the age of 40 at the time. The other Line Monitor who was issued a contact notice for failure to follow instructions was under the age of 40 at the time.
13. Between August of 1997 and August of 1999, of the three Line Monitors other than complainant who were demoted, two were under the age of 40 at the time.
14. Between August of 1997 and August of 1999, of the twenty-three employees promoted to Line Monitor, five were over the age of 40, i.e., as of August 1, 1997, these five employees were 43, 45, 47, 50, and 50 years of age.
15. During the relevant time period, Helm did not make a negative comment about complainant's national origin or age, and did not state that he disliked foreign people.
16. Co-worker Floyd Gills made a remark about Adolph Hitler and a related gesture in complainant's presence. Complainant reported this incident to Helm and stated or implied that he was offended by it. Helm discussed the incident with Gills and told him it was unacceptable. Gills did not repeat this conduct.
17. Respondent provided complainant with more extensive training than generally provided to those in Material Handler and Line Monitor 1 positions.
18. After his promotion to Line Monitor 1 in 1996 and through October of 1998, although complainant generally demonstrated sufficient technical ability, he often failed to accept responsibility for his actions, argued with superiors when given instruction, failed to communicate effectively with co-workers or superiors, refused to work with certain co-workers, and did not show initiative or efficiency in completing assigned tasks.
CONCLUSIONS OF LAW
1. The complainant, as a person of German national origin over the age of 40 years, is protected from discrimination by the Wisconsin Fair Employment Act (WFEA), Wis. Stat. § 111.31 et seq.
2. The respondent is an employer within the meaning of the WFEA.
3. The complainant has the burden to prove that there is probable cause to believe that he was discriminated against on the basis of his age and national origin as alleged.
4. The complainant failed to sustain this burden.
This case is dismissed.
Dated and mailed August 31, 2004
joselho . rmd : 115 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
It is obvious that none of the incidents underlying allegations a., b., c., and d., above, occurred within the WFEA's actionable 300-day filing period. Wis. Stat. § 111.39(1). Complainant argues that the complaint should be regarded as timely filed in regard to them through application of the continuing violation doctrine. The commission disagrees.
Discrete employment actions are not susceptible to application of the continuing violation doctrine regardless of whether they are related in some way to employment actions which took place during the actionable period. AMTRAK v. Morgan, 536 U.S.101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). (1) In this decision, the Supreme Court identifies two classes of employment actions, i.e., discrete acts and harassing acts underlying hostile work environment claims. Its basic holding is that discrete acts are generally not subject to application of the continuing violation doctrine but that harassing acts are. The Court identified the following as examples of discrete acts: termination, failure to promote, denial of transfer, refusal to hire, denial of training, written counselings, and award of compensation. The Court addressed the EEOC's and certain circuits' prior application of the continuing violation doctrine to serial or systemic violations and concluded that, "There is simply no indication [in the relevant language of Title VII] that the term 'practice' converts related discrete acts into a single unlawful practice for the purpose of timely filing. . We have repeatedly interpreted the term 'practice' to apply to a discrete act or single 'occurrence' even when it has a connection to other acts." As an example, the Court cites to its decision in Bazemore v. Friday, 478 U.S. 385, 92 L.Ed 2d 315, 106 S.Ct. 3000 (1986) where, in considering an allegedly discriminatory salary structure, it concluded that, "each week's paycheck that delivered less to a black than to a similarly situated white is a wrong actionable under Title VII."
Applying these principles to the present allegations, it would have to be concluded that respondent's denial of training, written discipline, and demotion of complainant were discrete acts not falling within the actionable period and not susceptible to application of the continuing violation doctrine.
Complainant also contends that, although his demotion was effective on March 17, 1998, he did not learn of it until March 23, 1998. (2) However, neither March 17 nor March 23, 1998, fall within the actionable 300-day filing period.
Finally, complainant asserts in his arguments that, in December of 1998, he wrote a letter to the EEOC, and the date this letter was received by the EEOC should be the date from which the 300-day filing period is measured. However, this letter does not appear in the record or in the case file. Moreover, the fact that the Equal Rights Division proceeded to investigate this complaint suggests that an earlier complaint was not filed with the EEOC.
The proper standard to be applied in deciding a motion to dismiss offered by a respondent at the close of a complainant's case in chief in a probable cause proceeding is whether, based on the evidence of record, the complainant has sustained his burden to prove that probable cause exists to believe that discrimination occurred as alleged. The facts to be relied upon in deciding such a motion are not those viewed as most favorable to the complainant, but instead those established by the credible evidence of record. See, e.g., Vaisman v. Aldridge, Inc., ERD Case No. 8751142 (LIRC Oct. 21, 1991). The commission has applied this standard and carefully reviewed the hearing testimony and the exhibits referenced in such testimony (3) in reaching its factual findings, conclusions of law, and decision.
The complainant's burden here is to prove that probable cause exists to believe that discrimination occurred as alleged. Although the complainant argues that he should prevail if any credible evidence exists to support his claim, this "any credible evidence" standard was expressly rejected in Boldt v. LIRC, 173 Wis.2d 469, 496 N.W.2d (Ct. App. 1992). See, Tourdot v. Thompsons Jewelry, Inc., et al., ERD Case No. 199502951 (LIRC Dec. 10, 1997).
National Origin Discrimination
Respondent contends that complainant effectively withdrew his charge of national origin discrimination during the course of these proceedings. However, since this charge was noticed for hearing and litigated by the parties, and since the complainant appears pro se and it is not clear that he intended to waive this issue, the commission, as did the administrative law judge, will proceed to decide it.
Complainant charges that he was discriminated against on the basis of national origin when he was harassed by supervisor Helm and co-worker Gills, and when he was disciplined in May of 1998 and denied promotion in October of 1998.
Complainant claims he was harassed when Helm stated in 1998 that he "didn't like foreign people," and when Gills made a remark about Adolph Hitler and a related gesture in 1997. Even if these incidents occurred as alleged, given their nature and frequency, and the fact that respondent took immediate steps to address and correct Gills' conduct, they would not support a conclusion that respondent engaged in or condoned illegal harassment on the basis of complainant's national origin.
In reviewing disparate treatment claims such as those advanced by the complainant here, the commission has adopted the burden-shifting method of analysis originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973). Under the McDonnell Douglas analysis, first the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981).
In regard to the May 1998 contact notice, in order to prove a prima facie case of national origin discrimination, the complainant is required to show that he belongs to a protected group, he suffered an adverse employment action, and the relevant circumstances create an inference that he was treated less favorably in regard to this action because of his national origin.
The complainant is protected due to his German national origin, and suffered an adverse employment action when he was issued a disciplinary contact notice and a three-day suspension.
The complainant, however, failed to show that the circumstances under consideration created an inference of unlawful national origin discrimination. The evidence of record does not show that other production workers who ignored a work directive or engaged in other acts of insubordination were disciplined less severely or otherwise treated more favorably than the complainant was. The commission concludes as a result that the complainant failed to show a prima facie case of national origin discrimination in regard to this allegation.
If, however, the complainant had proved a prima facie case of national origin discrimination in regard to his May 1998 discipline, (4) the burden would shift to the respondent to articulate a legitimate, non-discriminatory reason for its actions. The respondent contends that it issued the discipline based on complainant's disciplinary history and on the fact that he violated its rules and policies by ignoring a directive from a superior. This reason is legitimate and non-discriminatory on its face.
The burden would then shift to the complainant to demonstrate pretext. Although the complainant asserts that he did not hear the directive because he was not facing Teske and it was noisy in the production area, the more credible evidence of record shows that the complainant was facing Teske, that he was aware of the directive at the time it was stated, and that he chose to ignore it. The record also shows in this regard that respondent took insubordination seriously and routinely disciplined employees for engaging in it. The complainant has failed to demonstrate pretext in regard to this allegation.
The complainant also alleges that he was discriminated against on the basis of his national origin when he was denied promotion in October of 1998. Due to the fact that other employees, presumably of non-German national origin, were promoted to Line Monitor 1 positions during the relevant time period, an inference of national origin discrimination is created and it is concluded as a result that complainant succeeded in proving a prima facie case in regard to this allegation.
The burden would then shift to the respondent to articulate a legitimate, non-discriminatory reason for its denial of complainant's promotion request. The respondent explains that it denied complainant's promotion request due to continuing deficiencies in complainant's work performance and attitude, and his recent disciplinary history. This reason is legitimate and non-discriminatory on its face.
The burden would then shift to the complainant to demonstrate pretext. It appears that the complainant is arguing in this regard that his work performance was satisfactory and his recent discipline not justified, or, in the alternative, that his work performance and disciplinary record were comparable to those of employees who were promoted during the relevant time period. However, the evidence of record supports a conclusion that the complainant failed over a period of time to conform his work performance to the respondent's expectations. Moreover, the complainant failed to show that other employees with comparable work records and other relevant qualifications were promoted to Line Monitor 1 positions during the relevant time period. The complainant has failed to demonstrate pretext in regard to this allegation.
Complainant charges that he was discriminated against on the basis of age when he was harassed by supervisor Helm, and when he was disciplined in May of 1998 and denied promotion in October of 1998.
He alleges that supervisor Helm on one occasion referred to the complainant as an "old man." Even if this incident occurred as alleged, it would not be sufficiently severe or pervasive to support a conclusion that respondent engaged in illegal harassment.
The evidence and argument offered by complainant to support his age discrimination claim in regard to the May 1998 discipline parallel that advanced in regard to his national origin claim. As the commission concluded above, this evidence is insufficient to support a conclusion that he was discriminated against as alleged.
In regard to complainant's claim that he was discriminated against on the basis of his age in regard to respondent's denial of his October 1998 request for promotion, the fact that younger employees were promoted to Line Monitor 1 positions during the relevant time period creates an inference of illegal age discrimination sufficient to support the conclusion that a prima facie case was demonstrated; and respondent's explanation that complainant was denied promotion due to continuing deficiencies in his work performance and attitude, and his recent disciplinary history, is legitimate and non-discriminatory on its face.
The burden then shifts to complainant to demonstrate pretext. He contends that pretext is demonstrated by the fact that, during the relevant time period, younger employees with qualifications inferior to his were promoted to Line Monitor 1 positions. However, complainant fails to prove that any of these younger employees had continuing deficiencies in work performance and attitude, or recent disciplinary histories, comparable to his. As a result, complainant has failed to show pretext in this regard.
The commission understands that the complainant is contending that the administrative law judge's failure to enforce the subpoena the complainant served on potential witness Tanya Jacenko, and her resulting failure to appear at the hearing to offer testimony, was a denial of due process. It should first be noted that neither the administrative law judge nor the commission has the authority to enforce a subpoena. Wis. Stat. § 885.11; Wis. Adm. Code § DWD 218.15. The complainant could have initiated a judicial action to enforce the Jacenko subpoena, but failed to do so. Moreover, in order to justify conducting further hearing for the purpose of taking Jacenko's testimony, the complainant would have to demonstrate that the content of her testimony would be sufficiently strong to reverse or modify the decision of the discrimination issue as its relates to the failure to promote allegation, i.e., that such testimony would show that, despite the fact that her work performance and disciplinary histories were comparable to complainant's, she was promoted by respondent during the relevant time period. In his offer of proof in this regard, complainant does not indicate that this would be the focus or outcome of Jacenko's testimony.
The complainant also takes issue with the administrative law judge's denial of his request to conduct further discovery after the probable cause hearing had been commenced. The commission agrees with the administrative law judge's ruling that the complainant had full and fair opportunity to conduct discovery before hearing, and no further discovery should be permitted as a result.
The complainant contends that the administrative law judge abused his discretion when he excluded from the hearing record a decision in a related unemployment insurance (UI) proceeding which held that the respondent failed to prove good cause, for UI purposes, for its May 1998 disciplinary suspension of complainant. However, given the different allocations of burdens of proof in these two types of proceedings and the different statutory schemes under which they are decided, as well as the fact that the two forums are relying upon different record evidence in reaching their decisions, the commission has declined to give preclusive effect, or even accord significant weight, to UI decisions (Moncrief v. Gardner Baking Company, ERD Case No. 90203231 (LIRC July 1, 1992)), and, as a result, the commission agrees with the administrative law judge's ruling.
The complainant argues that he was prejudiced by the administrative law judge's failure to grant his postponement requests before and during the course of the hearing. However, as the administrative law judge concluded, complainant had a lengthy period of time to prepare for hearing and offered no persuasive reason for being unprepared to go forward.
The complainant contends that it was error for the administrative law judge to exclude the testimony of potential witness Gills. However, complainant failed to include Gills' name on the list of potential witnesses he submitted prior to hearing, and the commission agrees that it was appropriate for the administrative law judge, in the exercise of his discretion, to exclude Gills as a hearing witness as a result.
Finally, based on the available information, it is not evident that the mileage portion of the witness fee paid to witness Kent by complainant failed to comport with Wis. Stat. § 814.67 and Wis. Adm. Code § DWD 218.15(1), i.e., it is not clear from such information whether Kent's place of residence on July 10 and 11, 2001, should be considered to be Reedsburg, Wisconsin, in which case the fee would presumably be sufficient, or Muncie, Indiana. As a result, the commission agrees with the administrative law judge that an award of additional fees to Kent is not merited.
cc: Attorney Joseph Gumina
Appealed to Circuit Court. Affirmed September 15, 2005. Appealed to the Court of Appeals. Affirmed in unpublished per curiam decision, March 1, 2007.
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(1)( Back ) The commission has looked to federal court decisions in Title VII cases for guidance on continuing violation and other timeliness issues even though, for example, Title VII refers to "practice" while the WFEA refers to "discrimination." See, e.g., Josellis v. Pace Industries, Inc., ERD Case No. CR200100081 (LIRC June 21, 2002).
(2)( Back ) See complainant's correspondence to ERD dated June 17, 1999.
(3)( Back ) Although the administrative law judge apparently did not rule on objections to certain referenced exhibits, which were not, as a result, received into the hearing record, the commission carefully reviewed all referenced exhibits and considered those having reasonable probative value in reaching its decision here. The objections offered were to the admissibility of certain of the complainant's exhibits, and consideration of such exhibits, as a result, operated to the benefit of the complainant, the petitioner here.
(4)( Back ) There are several reasons for continuing the analysis beyond the prima facie stage. First, the burden of establishing a prima facie case of disparate treatment is not intended to be onerous. The policies served by the prima facie case are to eliminate the most common nondiscriminatory reasons for the adverse employment action, and to provide an opportunity for the complainant to prove discriminatory intent indirectly. Burdine, supra.; Foust v. City of Oshkosh Police Department, ERD Case No. 9200216 (LIRC April 9, 1998). In addition, the question of whether the complainant has made out a prima facie case is no longer relevant once the respondent responds to the complainant's proof by offering evidence of the reasons for the action taken. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 31 FEP Cases 609 (1983); Gentilli v. Badger Coaches (LIRC July 12, 1990), aff'd sub nom. Gentilli v. LIRC (Dane Co. Cir. Ct. Jan. 15, 1991); Binversie v. Alaark Mfg. Corp., ERD Case No. 199901928 (LIRC June 27, 2001). The respondent's reasons for its actions, and defense to the claim, may be established through evidence presented as part of the complainant's case in chief.