STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JEANNE ANDERSON, Complainant

AMERICAN MATERIALS CORP, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200000934, EEOC Case No. 26GA00917

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.

DECISION

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

Dated and mailed January 26, 2005
anderje . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The issue noticed for the probable cause hearing encompassed a disability discrimination allegation and a fair employment retaliation allegation. In her appeal to the commission, the complainant references only the retaliation allegation. Since, however, the disability discrimination issue was litigated before the department, the commission has not deemed it to have been waived, and has fully examined it in the course of its review. See, Racine Unified School District v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

Based on the record before it, the commission concludes, as did the administrative law judge, that, even if the complainant sustained her burden to prove that she would qualify as an "individual with a disability," within the meaning of the WFEA, she failed, based on the rationale articulated below in regard to the retaliation issue, to prove that there was probable cause to believe that the respondent was motivated by this disability in terminating her employment.

The complainant was terminated for failing to report an accident and for engaging in horseplay which led to significant damage to the equipment she was operating.

The complainant first contends that it was not her responsibility to report the accident, and that she trusted that her foreman would do so, as he had promised. However, this contention is inconsistent with the complainant's hearing testimony that she was aware from safety meetings she had attended that every driver/operator involved in an accident or incident is required to complete an accident report. It is undisputed that the complainant did not complete such a report after the August 19 accident until she was directed to do so by Safety Director Gates on August 30.

The complainant next argues that she could not have reasonably expected her joking statement over the CB radio to co-worker Grace Buswell to lead foreman Clarence Yeager to engage in the actions which ultimately damaged her equipment. However, the complainant made a statement, which she knew Yeager could hear on his CB radio, that clearly communicated that the load she had dumped had partially blocked Yeager in and that, if Buswell hurried to the site, she could dump her load in a manner which "would block him in." This statement is clearly a call to participate in "horseplay" with potentially dangerous heavy equipment, to which Yeager, the intended target, responded in kind by trying to block the complainant's equipment. In view of the complainant's testimony as to Yeager's "bullish" disposition, her testimony that she could not have expected him to react this way, is not credible. Moreover, the complainant's contention that the respondent permitted horseplay of the type at issue is not persuasive. The incidents cited as examples included bringing a sheep to a company party, and kidding that a witch's broom was an appropriate means of transportation for the complainant. However, these examples, one of which occurred off duty, and neither of which implicated the use of the respondent's heavy equipment, are not comparable to the actions under consideration here.

The complainant further argues that, since she was led to believe on August 27 by Stuhr, the respondent's vice president, that the only likely consequence of the August 19 incident would be Yeager getting "his ass chewed," and since the only thing that occurred between August 27 and August 31, the date of her termination, was her report of Yeager's sexual harassment, her termination had to be in retaliation for making this report. However, this was not the only thing that occurred between August 27 and August 31. On August 30, Safety Director Gates completed his investigation of the August 19 incident and communicated to Stuhr for the first time his findings as to what had actually occurred on August 19, and his conclusion, based on these findings, that the complainant and Yeager had failed to report the incident as required, and had participated in horseplay which created an unsafe work environment and which resulted in significant damage to company equipment.

The commission agrees with the administrative law judge that the record does not support a conclusion that the respondent was motivated by a discriminatory or retaliatory animus in terminating the complainant's employment.

cc:
Attorney J. Drew Ryberg
Attorney Victoria L. Seltun


Appealed to Circuit Court. Affirmed November 25, 2005.  Appealed to the Court of Appeals.  Appeal dismissed, unpublished decision, October 3, 2006.

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2005/01/31