SAM OMOWAYE, Complainant

WISCONSIN BUILT, 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 conclusions in that decision as its own, except that it makes the following modification:

In FINDING OF FACT #16, add the following sentence after the first sentence:

The three Caucasian employees had more seniority with the company than Omowaye did.

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

Dated and mailed April 30, 2013 
omowasa : 120 : 5  125.3

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ Robert Glaser, Commissioner

/s/ C. William Jordahl, Commissioner

In his petition for commission review, the complainant objects to the ALJ's decision for a number of reasons, stressing that it is based on favoritism and that the ALJ made it sound like Wisconsin Built (WB) has only 15 employees, rather than more than 135 Caucasian employees. The commission, having made an independent review of the record, is aware of WB's size, and notes that the ALJ's finding of fact that WB employed more than 15 employees is a typical factual finding made in cases involving discrimination allegations under Title VII of the Civil Rights Act of 1964.

It is unclear precisely what the complainant is referring to in his assertion that the decision is based on favoritism, although he states in his petition that after the hearing was closed, WB's attorney asked the ALJ "I hope that you will be lenient?" and the ALJ responded "I will see what I can do." As a result of this allegation, the last portion of the recording was reviewed. However, the recording ended with the closing of the hearing by the ALJ. Therefore, the commission is without any evidence upon which to base a response, including whether this allegation is accurate. Notwithstanding that fact, the commission has reviewed the entire record, and has come to its independent conclusion based on that review and without any bias or favoritism toward either party.

The complainant insists that his skills, experience, and job performance equaled that of any of his coworkers, and that WB had no reason to discharge him. However, he agreed at the hearing that WB was laying off workers in 2009-2010 because of a work shortage, and he was not able to refute the testimony of WB's president that the three Caucasian workers discharged on the same day that he was had more seniority than he did. Further, WB's president testified that the workers who were retained had more training, skills, and experience in the kinds of work WB needed at that time. The ALJ credited his testimony, and there is nothing in the record that persuades the commission otherwise. Finally, one of the two workers hired during the complainant's layoff period was also African American, undercutting the complainant's allegations that he was discharged due to race or color.

As the ALJ noted in his memorandum, the burden of proof under the law is on the complainant to establish probable cause to believe that he was discharged due to his race, color or national origin. He did not carry that burden.

The commission also agrees with the ALJ that the complainant did not establish probable cause to believe that he was harassed based on race, color, or national origin. The one incident, in April, 2009, in which a coworker directed racially offensive names at the complainant, although inexcusable, took place in a highly charged situation during which the coworker complained that the complainant repeatedly asked him personal questions even though he had asked the complainant to stop. In fact, it was the coworker who complained about the incident to the plant supervisor, not the complainant. In any case, a single isolated incident such as this does not, in and of itself, constitute unlawful harassment based upon race, color, or national origin. See, e.g., Clark v. Plastocon Inc., ERD Case No. CR199703063 (LIRC April 11, 2003), citing Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372 (7th Cir. 1986); Saltarikos v. Charter Wire Corporation, ERD Case. No 8652598 (LIRC July 31, 1989). As to the conduct of the supervisor in the finishing department, there was no evidence presented that his abruptness with the complainant was anything other than annoyance that the complainant was not following the procedure set up for dropping products off for finishing. The complainant did not establish probable cause to believe that the supervisor's conduct toward him was based on his race, color, or national origin.

cc: Attorney C. Wade Harrison

Appealed to Circuit Court.  Affirmed, May 29, 2014.

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