VAL E WALLACE, Complainant

CERTIFYING SERVICE EXPRESS, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

1. The complainant, Val E. Wallace (hereinafter "complainant"), began working for the respondent, Certifying Service Express (hereinafter "respondent"), on October 31, 2001, as a mig welder. The complainant's race is white.

2. The complainant worked first shift, from 6:00 a.m. until 2:00 p.m., as part of a two-person team. The complainant's team was expected to produce 510 parts per day, which was referred to as "making rate."

3. On June 4, 2002, the complainant was teamed up with a worker named Ronnell Payne. Mr. Payne's race is black. The complainant and Mr. Payne produced approximately 452 parts that day.

4. On June 5, the plant manager, John Holstlaw, and the lead person, Eric Pallesen, questioned the complainant as to why he and Mr. Payne did not make rate the day before. The complainant was asked if they had stopped early. The complainant denied stopping early.

5. The complainant provided the respondent with an explanation for the failure to make rate. He stated that Mr. Payne was an inexperienced welder and that, for the first half hour of the day, he had to be shown how to do the job. Because Mr. Payne's job was to make the parts, then put them on the table to give them to the complainant, this meant that for the first half hour the complainant had no parts to weld. The complainant also explained that when Mr. Payne started making parts he was burning holes in them and they could not be used. Finally, the complainant explained that Mr. Payne left the work station several times during the day for personal reasons, and that on those occasions the complainant had nothing to weld. The complainant indicated that while Mr. Payne was away from the work station he went over and did Mr. Payne's job so that there would be parts ready for him when Mr. Payne returned. The complainant's position was that, had he not done this, he and Mr. Payne would have produced even fewer parts.

6. After this conversation Mr. Holstlaw and Mr. Pallesen directed the complainant to return to work. However, a few minutes later they informed the complainant that he was discharged because he caused his partner not to make his quota for June 4.

7. Mr. Payne was not discharged for his role in the team's failure to make rate.

Based on the FINDINGS OF FACT made above, the commission makes the following:

1. There is probable cause to believe that the respondent unlawfully discharged the complainant based upon his race, in violation of the Wisconsin Fair Employment Act.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:

Dated and mailed December 13, 2004
wallava . rrr : 164 : 9

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The complainant met his burden of establishing a prima facie case of discrimination. The complainant, who is white, testified that he was performing his job satisfactorily and that he was discharged, while his partner, who is black, was retained. The burden then shifted to the respondent to produce a legitimate nondiscriminatory reason for its actions. However, the respondent did not appear at the hearing and no evidence was presented on its behalf. While the complainant indicated that he had been told he was discharged because he caused his partner not to make rate, he denied having done so and testified, without rebuttal, that prior to his discharge he explained to the respondent that his team's failure to make rate was related to his partner's inexperience and his actions in taking numerous breaks. The record contains no evidence from the respondent explaining why, in light of this information, it decided to discharge the complainant while retaining his partner. The complainant's burden of proof in a probable cause proceeding is low. Buska v. Central Bldg. Maintenance (LIRC, Sept. 28, 1995). The commission believes the complainant has demonstrated a reasonable ground to believe that discrimination occurred, and that he should be given an opportunity to present his case on the merits.

NOTE: The commission did not confer with the administrative law judge regarding his impressions of witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of witness credibility, but is as a matter of law based upon the complainant's unrebutted testimony.

In reversing, the commission notes that the administrative law judge appears to have based some of his factual findings on representations contained in exhibits 2, 4 and 5. It is not clear from the record whether these documents were presented by the complainant in support of his case, or whether they were introduced by the administrative law judge. In any event, none of the documents were prepared by the complainant or authenticated at the hearing by anyone with firsthand knowledge, and the factual representations contained in the documents were rebutted by the uncontroverted testimony of the complainant. The commission, therefore, considers it inappropriate to resolve this matter on the basis of factual representations contained in the hearing exhibits.

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