RUDY ACEVEDO, Complainant

OSHKOSH CORPORATION, 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 March 29, 2012
aceveru . rsd : 164 :

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 attempts to supplement the hearing record with factual assertions and exhibits that were not introduced at the hearing. The complainant also attempts to raise new allegations, such as age discrimination, that were not part of his original complaint and that were not heard by the administrative law judge. By law the commission is required to base its review solely upon the evidence that was presented at the hearing before the administrative law judge. It will, therefore, neither consider nor address those factual assertions and documents which the complainant could have submitted at the hearing, but has presented for the first time with his petition for review. Similarly, the commission will not consider additional allegations that are not part of the complaint and that were not addressed at the hearing. The sole issues before the commission are whether the complainant was discriminated against in the terms or conditions of his employment (i.e. harassed) and/or discharged based upon his race, and the commission's decision is limited to a review of the evidence adduced at the hearing as it pertains to those allegations. Based upon its independent review of the record, the commission agrees with the administrative law judge that the complainant failed to show probable cause to believe that he was discriminated against in the manner alleged.

The requirements to establish a case of race-based harassment were laid out in Valentin v. Clear Lake Ambulance Service, ERD Case No. 8902551 (LIRC Feb. 26, 1992), in which the commission stated, in relevant part:

. . . an employer cannot be found responsible for racial or religious harassment unless it is carried out directly by the employer or, if carried out by co-employes, the employer knows or should reasonably know of it and fails to take reasonable action to prevent it. Crear v. LIRC, 114 Wis. 2d 537, 542, 339 N. W. 2d 350 (Ct. App. 1983). It is also well established as a matter of law that the occasional and sporadic use of racial slurs, albeit deplorable, may still not rise to the level of a violation of law. See, Saltarikos v. Charter Wire Corp. (LIRC, July 31, 1989). . . .

In this case, the complainant alleges that he was harassed by co-workers. The respondent learned about the matter the same day, and then took reasonable and prompt steps to address the situation and prevent further such conduct. It cannot be seriously argued that the respondent's actions in counseling the individuals involved and suspending them for a week without pay, putting one of them on a three-month probation, notifying the complainant that the matter was taken care of and advising him that any repeated conduct should be reported, offering him an opportunity to transfer to a different facility, and giving the complainant three days off work with pay while it conducted its investigation did not constitute a reasonable attempt to address the objectionable conduct. It is hard to see what more the respondent could or should have done.

Moreover, the harassment to which the complainant was subjected fell short of creating a hostile or intolerable work environment for which the respondent could be held liable. The complainant alleged a single instance of race-based conduct which, while serious enough to warrant the respondent's intervention, was not aggravated or egregious, and was perpetrated by individuals with whom the complainant had gotten along in the past and who were sincerely apologetic about their conduct. Although it is clear from his petition that this matter has had a great emotional effect on the complainant, the fact remains that this case involves an isolated incident that was not severe and that was promptly and appropriately addressed by the employer. Under the circumstances, the commission can see no probable cause to believe that the complainant was discriminated against in the terms and conditions of his employment, as alleged.

With respect to the allegation that the complainant was discharged based upon his race, it seems clear from the record that the reason the complainant was discharged was that he missed three consecutive days of work without notice to the respondent. While in his petition the complainant contends that he called the respondent on March 26, 2008, to report his absence, but the respondent cut him off deliberately and did not record the phone call, the commission does not find that argument persuasive. The respondent credibly testified that it never received any contact from the complainant during his last three days of absence. Moreover, even accepting the complainant's assertion that he attempted to report an absence on March 26, but was cut off, the discharge letter instructed the complainant to tell the respondent if he had a legitimate reason for failing to provide notice of his absences, and the complainant did not do so. The record contains absolutely no evidence to suggest that the respondent's decision to discharge the complainant was based on anything other than its legitimate belief that he had failed to report an absence for three consecutive work days. Consequently, there is no probable cause to believe that the complainant was discharged because of his race.

NOTE: In his petition the complainant requests a new hearing on the ground that the transcript of the original hearing is incomplete and inaccurate because certain portions of the testimony were inaudible. However, the fact that some portions of the digital recording are inaudible is not a circumstance requiring a new hearing. The hearing office was able to prepare a synopsis of the hearing, and the complainant has not shown that the synopsis contains material omissions or inaccuracies. Moreover, even if the complainant could have made such a showing, his remedy would have been to request the commission to prepare a transcript and to base its review upon the transcript rather than the synopsis. See Wis. Admin. Code § LIRC 1.04(4).
Dated and mailed

cc: Attorney John Haase

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