DUANE P HENDERSON, Complainant
POLARIS INDUSTRIES, 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 June 9, 2011
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
In his petition for commission review the complainant argues that he has only had a coaching for rude behavior, to which he admitted and for which he was sorry and remorseful. The complainant contends that he did not display any further inappropriate behavior and was never confronted about his conduct or subjected to corrective action. He maintains that, in contrast, documents and statements show that Jessica Robinson had past violations and warnings and had displayed inappropriate behavior including swearing and behavior of an inappropriate sexual nature. The complainant states that he was treated more harshly than his female co-worker although he engaged in lesser misconduct, and that the respondent did not apply the same standards and policies and did not discipline employees equally.
The complainant's arguments fail. The evidence adduced at the hearing did not indicate that the complainant and his female co-worker were similarly situated such that they would be expected to receive similar discipline. Contrary to the complainant's assertions, Ms. Robinson did not have past violations or warnings for inappropriate conduct. She engaged in a single instance of misconduct, for which she expressed remorse and for which she was disciplined. Moreover, the respondent's investigation into Ms. Robinson's conduct revealed that it constituted horseplay which, although annoying to other workers, was not regarded as offensive or intimidating. (1) The complainant, on the other hand, had previously been issued an Employee Conversation Log for rude behavior and swearing at a co-worker, and it is clear that the incident which led to his discharge was not a first offense. Further, and more importantly, the respondent's investigation into the complainant's conduct revealed that the complainant had on numerous prior occasions made inappropriate sexual comments to female co-workers and had spoken to female co-workers in a manner that some regarded as offensive and intimidating. While the complainant argues that the respondent's testimony on this point amounted to hearsay, because the female employees who complained about him did not testify at the hearing, the respondent presented credible firsthand evidence establishing that it conducted an investigation during which it received information that lead it to believe the complainant had engaged in the conduct alleged. The respondent's genuine belief, formed after investigation, that the complainant had engaged in conduct that created an intimidating work environment, constituted a legitimate nondiscriminatory reason for terminating his employment that was not a pretext for discrimination.
The complainant also failed to demonstrate that his discharge was in retaliation for having engaged in statutorily protected conduct. Although the complainant contended that he filed a sexual harassment complaint against Ms. Robinson, it is clear from the record that the complainant did not believe he had been subjected to sexual harassment and that he filed the complaint about Ms. Robinson's workplace conduct because she had filed a complaint about him. The complainant told the respondent that he viewed Ms. Robinson's actions as "friendly playing around," giving the respondent no reason to believe that he felt he had been sexually harassed. Under the circumstances, the complainant did not establish that he opposed a discriminatory practice or made a complaint under the Wisconsin Fair Employment Act. Moreover, even if the complainant had engaged in protected conduct, the fact remains that the respondent had a legitimate reason for terminating the complainant's employment that was unrelated to his complaint about Ms. Robinson.
The commission has considered the other arguments raised by the complainant in his petition, but finds them unpersuasive. Because the evidence failed to demonstrate that the complainant was discriminated against in the manner alleged, the dismissal of his complaint is affirmed.
cc:
Attorney Holly S.A. Eng
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