DWAYNE S HOPSON, Complainant

ACTUANT CORP, 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 agrees with the decision of the administrative law judge, 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 May 8, 2014
hopsodw_rsd . doc : 164 : 5  762.3  769  

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

This case presents the question of whether the complainant established probable cause to believe that he was subjected to discriminatory terms and conditions of employment based upon his sex, and/or that his sex was a factor in the termination of his employment. The commission agrees with the administrative law judge that the complainant failed to present evidence showing he was discriminated against as alleged.

The complainant testified that his supervisor, Jocelyn Walton, made comments to the effect of "women need to stick together" and that she did not take his complaints about his female co-workers seriously. (1)  However, Ms. Walton's comments about women needing to stick together are insufficient to warrant a conclusion that she engaged in discriminatory treatment towards male employees, and the commission sees no reason to believe this was the case. The complaints regarding his female co-workers that the complainant raised with Ms. Walton related primarily to their work performance, a matter over which the complainant had no authority, and the commission believes that Ms. Walton appropriately exercised her discretion in choosing not to follow up on them. Further, the record established that Ms. Walton had received complaints about the complainant's own conduct and demeanor from a variety of his colleagues, and did not regard the complainant as being as credible as the co-workers in question, with whom Ms. Walton had a longer working relationship and with whose performance she was satisfied.

In his petition for review the complainant disagrees with the administrative law judge's finding that he admitted to Ms. Walton he had a problem in the past because his voice is booming and he uses quick gestures that can intimidate others. The complainant argues that he did not make any such admission and states that he is not an aggressive person. The complainant also makes an argument that it is discriminatory for an employer to give preference to an employee with whom it has many years of experience. Neither of these arguments are persuasive. The administrative law judge's finding that the complainant acknowledged having had a problem in the past related to his demeanor is supported by Ms. Walton's testimony to that effect. Further, the fact that Ms. Walton had worked with the other workers about whom the complainant complained for a significant amount of time could indeed constitute a nondiscriminatory reason for treating them differently than the complainant, assuming that occurred.

The complainant also contends that his employment was terminated based upon his sex. However, the record contains no evidence to support this assertion. To the contrary, the evidence establishes that the complainant was discharged because work was slowing down at the respondent's Marinco distribution center. The respondent dismissed the complainant along with other temporary employees, and the only workers who were retained to perform the manifest job--one male and two females--were permanent employees. While in his petition the complainant argues that there was work available at the respondent's Gardner Bender location and that the respondent could have transferred him back to that location, the evidence in the record does not indicate that this was the case. Further, to find that the respondent's failure to transfer the complainant to an assignment at Gardner Bender, assuming such assignment existed, was for reasons related to his sex would require the commission to engage in pure speculation.

The commission has considered the remaining arguments raised by the complainant in his petition for review, but finds them similarly unpersuasive. Because the commission agrees with the administrative law judge that the complainant failed to establish probable cause to believe he was discriminated against in the manner alleged, the dismissal of his complaint is affirmed.

cc: Attorney Linda Doyle

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(1)( Back ) The administrative law judge relied upon the representations contained in the narrative attached to the complainant's complaint form as a basis to question the complainant's credibility with respect to Ms. Walton's treatment of him, among other matters. However, at the hearing the complainant was not asked to explain any discrepancies between his testimony and what he wrote on the complaint and was not given an opportunity to provide an explanation for any apparent inconsistencies. While the commission would not have relied on the complaint form to impeach the complainant's credibility under these circumstances, it notes that the resolution of this matter does not turn on an assessment of witness credibility.

uploaded 2014/06/09