HARRY L PATTERSON, Complainant

SPINCRAFT, 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.

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

Dated and mailed November 19, 2004
patteha . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Harry Patterson alleges that the respondent discriminated against him on the basis of his race by paying him at a wage rate of a Machinist 1 when he had been performing the duties of a Tool Room Machinist since the beginning of his employment in January 2001. Patterson is a black male. On August 21, 2001, Patterson filed a grievance through his union against the respondent complaining that he was doing Tool Room Machinist work but not upgraded to that job classification. Patterson also alleges that after filing the August 21 grievance he believes he was harassed in retaliation for filing the grievance because he subsequently received three warnings.

Patterson made these allegations in a February 27, 2002 dated complaint filed with the Equal Employment Opportunity Commission on March 4, 2002, and crossed-filed with the Equal Rights Division on the same date. Following the EEOC's dismissal of his complaint, Patterson requested the ERD to conduct an independent review of his complaint allegations.

The ERD issued an initial determination concluding there was no probable cause to believe that the respondent had violated the Wisconsin Fair Employment Act as alleged in Patterson's complaint. Patterson now seeks review of the ALJ's decision dismissing his complaint after the close of his case at a probable cause hearing. In his petition for review, Patterson asserts that the ALJ's decision was not based on the facts. The commission disagrees.

The record evidence fails to provide reason to believe that Patterson was discriminated against on the basis of race with respect to his compensation. While Patterson asserts that when hired, the plant manager, Lou Baeseman, said he would be "promoted right away," Patterson admits that he was hired for a Machinist 1 position because that was the only position open at the time. Moreover, Patterson admits that three other white employees that all ran the same machines that he was running were all classified as Machinist 1's. Furthermore, Patterson admits that there is a job posting procedure provided under the collective bargaining agreement whereby employees can bid for a job when one becomes available, but there had been no job posting for a Tool Room Machinist when he wanted to become one.

While Patterson asserts in his complaint that he believes he was harassed "in retaliation for filing the grievance," at the hearing he asserted that "At first, they discriminated or retaliated against me because I filed a grievance, but later they discriminated against me because of my race." Patterson's complaint refers to three warnings, which he identified at the hearing as a warning issued on November 1, 2001, and two in January 2002, the last of which occurred on January 24, 2002. If Patterson is claiming that because he had opposed alleged racial discrimination with respect to his compensation the respondent retaliated against him by issuing him three warning notices, the evidence fails to establish probable cause to believe this claim. In order to establish probable cause to believe that he was retaliated against in violation of Fair Employment Act, Patterson must first show reason to believe that the respondent had reason to believe that alleged racial discrimination was being alleged by his August 21, 2001 grievance. Patterson's August 21 grievance does reference the "Non Discrimination" provision under Article XV of collective bargaining agreement in connection with his pay and classification, but this non-discrimination provision provides not only that there shall be no discrimination, for example, because of race, but also because of union activities. Clearly, filing a grievance against the respondent through his union would constitute a union activity. Moreover, at the hearing Patterson admitted that it was not until he had filed a second grievance on January 25, 2002, which was after the third warning he received, that he first referred to his race as a reason for why he believed he was being discriminated against.

In any event, even assuming Patterson had made it known to the respondent that he was opposing alleged racial discrimination, the evidence fails to provide reason to believe that the respondent discriminated against him by issuing him the three warnings.

Patterson received his first warning on November 1, 2001, for taking too long to set up the CNC-S7 lathe machine. Patterson asserts this warning was unfair because he had not been trained on this machine. However, Patterson admitted that he had previously worked as a CNC machinist for the respondent for at least a year and a half starting in 1982, that he believed the work assignments for a CNC Machinist, Tool Room Machinist and a Machinist 1 were all the same, and he admits that it took him two days to set up the CNC-S7 machine before he could start making parts. Patterson also did not file a union grievance about this warning.

Patterson received a second warning notice on January 22, 2002, for failing to call the respondent to report his absence on January 21, 2002. Patterson had told his union steward that he was taking off work on January 21 for Martin Luther King day. However, Patterson admitted that his union steward had told him that this was not a holiday recognized by the respondent. Further, he admitted that he had not told the respondent he was taking off work that day, only the union steward, and he admitted that he did not file a grievance about this warning because he knew that it was justified.

Finally, Patterson was given a 3-day suspension on January 24, 2002, because he had completed only two machine pieces instead of three during his shift that day. A 3-day suspension was the next step after a second warning under the respondent's progressive disciplinary process. Patterson filed a union grievance about the 3-day suspension on January 25, 2002. In the grievance, Patterson asserted that the work order for the job stated that it took one hour of setup and four hours of operation to make each piece and that he made two pieces in eight hours, but Baeseman says he should have made three. Patterson asserted that a "paper trail" of harassment began when he filed his first grievance on August 21, 2002. Patterson concluded his grievance by referencing the non-discrimination clause of the union contract, the Civil Rights Act, the National Labor Relations Act, and "any other applicable municipal, state and/or federal laws." However, in the respondent's answer to Patterson's grievance dated February 4, 2002, Timothy Schulz, the respondent's operating manager, stated that the company maintained that Patterson took excessive time to complete the assigned work, and that it came to conclusion without consideration of his race. Schulz then went on to state that in an effort to resolve the matter the company was willing to reduce the status of the discipline given to Patterson to a second warning. Furthermore, Patterson's grievance was subsequently dropped by the union and this matter was not pursued any further.

In his petition for review, Patterson also asserts that a "key witness," Lou Baseman, was absent from the hearing. However, information in the case file indicates that Patterson knew early in July 2003 that Baeseman possibly might not be in attendance at the hearing. Further, information in the case file indicates that the ERD had provided Patterson notice by a letter dated March 18, 2003, certifying his case to hearing, that "You or your attorney should arrange to have any witnesses present you feel will help to prove your claim. If a witness is reluctant to appear, you may have that person subpoenaed."

cc: Attorney Jonathan T. Swain

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uploaded 2004/11/29