PAUL J MUCH, Complainant
LES STUMPF FORD INC, 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 respondent, Les Stumpf Ford, Inc. (hereinafter "respondent"), is a new car dealership and body repair shop.
2. The complainant, Paul J. Much (hereinafter "complainant"), began working for the respondent in September of 2007 as an auto body technician. At all relevant times the complainant's supervisor was Russ Pierce, the body shop manager.
3. The complainant's race is white. From approximately May of 2008 through October of 2010, the complainant dated a black woman.
4. In November of 2008 the complainant complained to the human resources officer, Pamela Duchateau, that his supervisor, Russ Pierce, had told him he could not bring his black girlfriend to the Christmas party. The human resources officer responded that the complainant could bring any guest of his choice to the party. The complainant ultimately did bring his girlfriend to the party.
5. During his employment the complainant and his supervisor had a variety of conflicts and disputes:
6. During the course of his employment Pierce would occasionally alter the complainant's time cards to change the "RO" number the complainant had written down. The complainant believed that because of this practice he was not being paid correctly for the jobs he had performed. However, part of Pierce's job was to review all the time cards and make sure people were paid based upon industry standards known as a "flat rate" system. Pierce did this for all the employees, and not just the complainant.
7. The incidents and events described in paragraphs 5 and 6 above were not related to the complainant's complaint in 2008 regarding the Christmas party.
8. The respondent has a policy on employee discounts that provides, in relevant part:
"Parts and supplies normally stocked by the dealership can be purchased at dealer cost plus 10%. The part must be for the employee's vehicle or for a vehicle in the employee's household. . ."
The respondent also has a policy covering personal service work and use of its facilities which provides:
"Service technicians are permitted to use Stumpf Motor Co. facilities for work on their personal vehicles at no charge.
"The facilities are available during regular Service Department business hours, subject to customer work scheduled. The Service and Parts areas will be closed and secured after regular hours and all day Sunday; and no work, except emergency retail work, will be allowed.
"In order to use the facilities for personal work, we require the following:
9. On June 29, 2011, the complainant ordered a fender from the parts department. Because the complainant paid for the fender using his employee discount, the part cost $107.97, rather than $144.28 which would have been charged to the general public. The fender was not for the complainant's personal vehicle, but was for his cousin. The complainant had some leftover paint from other jobs he had worked on that day which he used to paint the fender in the respondent's spray booth. He performed the work after hours.
10. The complainant's actions were in violation of several aspects of the respondent's policies. First, the complainant's cousin did not reside in the complainant's household and therefore was not entitled to the discount. Further, the complainant did not write out a repair order, seek advance approval, or make arrangements with the service manager for use of the facilities. Finally, he performed the work after business hours, in violation of the policy.
11. The following day, June 30, 2011, another employee told Pierce about the fender. Pierce asked the complainant about it, and the complainant admitted that he had stayed and painted a fender for a relative with the respondent's paint and using its spray booth. Pierce told the complainant that the respondent regarded his actions as theft and that he was being suspended for two days, during which time the respondent would make a decision about his continued employment status.
12. The complainant responded that he was going to file a grievance against Pierce for harassment and threats, for altering his time cards, and for racial discrimination. The complainant then went to human resources and complained about a variety of conduct on Pierce's part that the complainant considered to be threatening or harassing. The complainant told the respondent he had been discriminated against.
13. Pamela Duchateau, the respondent's human resources officer, and Jeff Teske, the vice president of finance, met with the complainant and took extensive notes regarding his allegations. At the conclusion of the meeting, Teske told the complainant to go home and come back in two days, at which time the respondent's owner would be returning to the country and would make a decision about the complainant's status.
14. Over the next two days Teske investigated the complainant's allegations. Teske's investigation consisted of talking with the individuals involved and reviewing pay information. Based on his investigation, Teske concluded there was nothing of substance to the allegations.
15. When the complainant returned to work after the conclusion of his two-day suspension he punched in at 8:00 a.m., but was told by Pierce to go home for a few hours while Pierce met with the owner of the company to make a decision about the complainant's employment status. The complainant protested that he wanted to be part of the meeting, but was not permitted to do so. The complainant left and returned two hours later, at which point he was told that the respondent had zero tolerance for stealing and that he was fired for not getting a work order number and not getting permission to paint the fender.
16. The decision to discharge the complainant was not related to the complainant's complaint made on June 30, 2010 that he was being harassed, threatened and discriminated against, or to the earlier 2008 complaint regarding the Christmas party.
17. Subsequent to his termination the complainant filed a wage and hour complaint. Investigation into the complaint revealed that, due to an accounting error, the complainant had not been paid for 0.2 hours. The respondent therefore issued him a check for a total of $3.20.
18. On July 13, 2011, the complainant filed a complaint of discrimination with the Equal Rights Division alleging that the respondent discriminated against him in the terms and conditions of his employment and discharged him because he opposed a discriminatory practice under the Wisconsin Fair Employment Act. The complaint also alleged that the respondent discriminated against the complainant in the terms and conditions of his employment because of race. The incidents of race discrimination are alleged to have occurred from November of 2008 through May of 2010.
Based upon the above FINDINGS OF FACT the commission hereby makes the following:
1. That the complainant failed to establish probable cause to believe that the respondent discriminated against him in the terms and conditions of his employment and/or discharged him because he opposed a practice of discrimination, in violation of the Wisconsin Fair Employment Act.
2. That the complainant's claims that he was discriminated against in the terms and conditions of his employment because of race are dismissed as untimely.
Based on the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission hereby issues the following:
The complaint in this matter is hereby dismissed with prejudice.
Dated and mailed July 31, 2014
muchpa_rrr . doc : 164 : 125.1 133.1
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Race discrimination claims - jurisdiction
In his complaint, and at the hearing, the complainant alleged that he was discriminated against based upon race. The administrative law judge found that the Division lacked jurisdiction over the matter because the complainant's allegations involved the race of his girlfriend, and the Wisconsin Fair Employment Act (hereinafter "Act") does not cover claims of discrimination because of the race of a person the complainant was associating with. In support of this conclusion, the administrative law judge cited Bammert v. Don's Super Valu, ERD Case No. 199703978 (LIRC March 6, 1998), aff'd, Bammert v. LIRC et al., 232 Wis. 2d 365, 606 N.W.2d 620 (Ct. App. 1999), for the proposition that the Act does not include protection from discrimination based on the identity of one's spouse. The commission disagrees with this analysis.
The instant case is a race case, and does not include a claim of marital status discrimination. The administrative law judge's reliance on Bammert is therefore misplaced. In Bammert, the commission held, and the court of appeals agreed, that discrimination based upon the identity of one's spouse is not covered by the Act, which is meant to protect the status of being married in general rather than the status of being married to a particular person. The employee in Bammert had alleged that she was discharged because her husband, a police sergeant, had participated in the arrest of her employer's wife. Thus, the allegation was that the complainant was discriminated against because she was married to a particular individual, and not because she was married to someone in a protected class. Bammert does not stand for the proposition that the law allows an employer to discriminate against someone based on the race of their spouse.
To the contrary, in an earlier decision, Miner v. Blunt, Ellis and Loewi, ERD Case No. 8701977 (LIRC May 29, 1991), the commission stated:
"Discrimination against a person because they are engaged in an interracial marriage is race discrimination. Bryant v. Automatic Data Processing, Inc., 151 Mich. App. 424, 390 N.W.2d 732, (Mich. Ct. App. 1986); see also Holiday v. Belles Restaurant, 409 F.Supp. 904 (W.D. Pa. 1976); Whitney v. Greater New York Corporation of Seventh Day Adventists, 401 F.Supp. 1363 (S.D. N.Y. 1975); 35 A.L.R. 3rd 859 "Civil Rights -- Indirect Discrimination." This was also recognized by the Wisconsin Supreme Court in Kessler, 131 Wis. 2d at 209, citing Whitney and Holiday. All that the Commission holds herein [in Miner], is that if it is not illegal for an employer to take action against an employee because of a particular characteristic of that employee, then it is also not illegal for the employer to take action against that employe because the employee's spouse has that particular characteristic. This does not open the door to discrimination against persons because their spouses have some protected characteristic under the Act."
The Kessler case cited in Miner addresses a company's rule prohibiting romantic relationships between an employee of one sex with a married employee of the opposite sex, which the complainant had contended constituted discrimination based upon marital status. The Wisconsin Supreme Court disagreed with the complainant. In doing so, it rejected an argument by the complainant that the employer's rule was similar to one which prohibited white male employees from associating with black employees of the opposite sex. The Court stated that "federal courts have recognized that such rules provide affected whites, as well as blacks, standing to raise claims of racial discrimination," and cited Whitney, supra, at 401 F.Supp. 1363, for the proposition that:
"Manifestly, if Whitney was discharged because, as alleged, the defendant disapproved of a social relationship between a white woman and a black man, the plaintiff's race was as much a factor in the decision to fire her as that of her friend. Specifying as she does that she was discharged because she, a white woman, associated with a black, her complaint falls within the statutory language that she was 'discharge[d]. . . because of [her] race'."
Consistent with the above, the commission believes that, if the facts demonstrated that the complainant was discriminated against because his girlfriend is black, he would have a cause of action under the Act.
Race discrimination claims - statute of limitations
The complainant has raised three separate allegations of race discrimination. First, he contends that his supervisor told him he could not bring his black girlfriend to the company Christmas party. Second, he contends that his supervisor threatened to fire him if he and his girlfriend were seen hugging and kissing in the workplace, although other employees were permitted to engage in such conduct. Third, he alleges that his supervisor told him he needed to see a white girlfriend. (1)
Prior to and during the hearing the respondent raised the statute of limitations defense, arguing that the complainant's race claims were time-barred. The administrative law judge found this argument persuasive, and the commission agrees. The complaint in this matter was filed on July 13, 2011. Thus, any allegations occurring prior to September 17, 2010 are more than 300 days old. All of the alleged discrimination occurred from November of 2008 to May of 2010. The complainant acknowledged that he was aware of the incidents at the time they occurred and that he regarded them as discriminatory, and has provided no explanation as to why he waited until 2011 to file a complaint. Under these circumstances, the commission concludes that the complainant's allegations of race discrimination are time-barred. It, therefore, declines to make any factual findings or legal conclusion concerning those claims.
Retaliation
The remaining issue in this case is whether the complainant established probable cause to believe that he was discriminated against with respect to the terms and conditions of his employment and/or discharged in retaliation for protected conduct. The complainant has contended that he engaged in statutorily protected conduct on three separate occasions: First, he maintains that in 2008 he told the human resources director that his supervisor would not allow him to bring his black girlfriend to the Christmas party. Second, he maintains that in June of 2010, after his employment was suspended, he filed a formal complaint with the human resources department regarding past incidents of discrimination. Third, he maintains that his complaint about not being permitted to attend the meeting on July 5, 2010, which he contends was tantamount to not being permitted to participate in the investigation of his discrimination complaints, amounted to protected conduct.
In his decision the administrative law judge found that the complainant never engaged in any protected conduct during his employment. The commission disagrees. The final meeting on July 5, 2010 did not pertain to the complainant's discrimination complaint, but was for Pierce and Teske to discuss the matter of the fender with the owner of the business and decide how this would affect the complainant's employment status. The complainant's actions in protesting Pierce's refusal to allow him to sit in on this meeting cannot reasonably be described as protected conduct. However, the other two instances can be. A complaint to human resources that the complainant's supervisor was subjecting him to discriminatory terms and conditions of employment based upon race, by not allowing him to bring a black girlfriend to a company party, is considered statutorily protected opposition. Similarly, the complaint made on June 30 which included allegations that the complainant was subjected to race discrimination is also reasonably viewed as protected opposition.
The salient issue is not whether the complainant engaged in protected conduct, but whether he has shown that he was retaliated against as a result. The commission concludes he has not. With regard to the initial report to human resources in 2008, the complainant has not established that such report resulted in any adverse consequence to him. Upon complaining to human resources he was told that he could bring a guest of his choice to the Christmas party, and he did so. The incidents that the complainant complained about thereafter, mostly entailing conflicts with his supervisor, all occurred a year and a half or more after the Christmas party complaint, and none were shown to have any connection to that conversation.
The complainant did not again complain about discrimination until such point as his job was already in jeopardy based upon the fender incident. While at the hearing the complainant testified that Pierce told him he would be fired if he made the complaint, there is no other support for this in the record, and as the administrative law judge noted in his decision, the complainant's overall credibility is somewhat weak. Further, the facts do not support a conclusion that the respondent was motivated to discharge the complainant based on his complaint. The evidence indicates that the respondent interviewed the complainant extensively about his complaints and then conducted an investigation, but did not find any support for the complainant's allegations. (2) The respondent was already considering discharging the complainant at the time he made the complaint based upon its belief that he had violated its policies and engaged in theft, and had already suspended his employment pending the return of the employer's owner, who was out of the country. Under all the circumstances, the commission finds it credible that the discharge was related solely to the fender incident and was not for a retaliatory reason.
Petition for review
In his petition for commission review the complainant contends that two of the respondent's witnesses lied under oath at the hearing. He further maintains that the respondent contacted one of his witnesses prior to the hearing and intimidated him. The complainant argues that these circumstances should entitle him to a new hearing. The commission disagrees. The administrative law judge found the respondent's witnesses to be credible and, based upon its independent review of the evidence, the commission sees no compelling reason to find otherwise. The fact that the complainant disagrees with the respondent's version of events is not a circumstance that would warrant further hearing. With respect to the complainant's contention that the respondent intimidated one of his witnesses, the commission has no way of ascertaining the truth of that allegation, which appears to have been raised for the first time in the petition for review. However, even if true, the complainant had a remedy in that he could have arranged for the witness to appear by subpoena. The complainant did not do so. Finally, the complainant has not established any reason to believe that testimony from the witness in question would have affected the outcome of the case. Given these circumstances, the commission can see no basis to order another hearing.
In his petition the complainant also attempts to reargue his wage claim. He maintains that the respondent altered his time cards and that its actions were both unlawful and contrary to the respondent's own policies. The commission takes no position with respect to the legality or propriety of the respondent's payroll practices; the issue before the commission is not whether the complainant was paid correctly, but rather whether the respondent altered his time cards in retaliation for his having engaged in protected conduct. Absent any reason to believe this was the case, the commission finds it did not.
Finally, the complainant argues that he did not steal from the respondent. He contends that, in order for anything to be stolen something of value must be taken, but he merely used old paint that was going to be thrown out. Again, the question in this case is not whether the complainant engaged in theft, but whether the respondent acted out of a retaliatory motive when it decided to terminate the employment relationship. The evidence established that the complainant engaged in conduct that violated the respondent's policies with regard to employee discounts and personal service work, and the respondent's witnesses credibly testified that they regarded his actions as theft. While the complainant may disagree with the respondent's characterization of his conduct and with its decision to discharge him as a result, the evidence indicates that the respondent's actions were based on a genuine belief that the complainant violated policies and engaged in an act of theft, leaving no reason to conclude that they were discriminatory.
The commission has considered the remaining arguments raised in the complainant's petition, but finds them similarly unpersuasive. Because the commission agrees with the administrative law judge's ultimate finding that the complainant failed to establish probable cause to believe discrimination occurred, the dismissal of the complaint is affirmed.
NOTE: The commission has rewritten the administrative law judge's decision to more accurately set forth the relevant findings of fact and the legal basis for dismissal of the complaint.
cc:
Attorney Bruce Deadman
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