MARGE L WILKS, Complainant

ST JOSEPH'S REHABILITATION CENTER, 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, except that it makes the following modifications:

The administrative law judge's Memorandum is deleted.

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

Dated and mailed February 28, 2013
wilksma.rmd : 164 : 5 622.3 622.4

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

This case presents the question of whether the complainant was subjected to discriminatory terms or conditions of employment and/or discharged based upon her race, black. The evidence indicates that on February 9, 2009, the complainant received an oral warning advising her to always punch in and out for her lunch breaks and to avoid exceeding the allotted break time.  Subsequently, on October 9, 2009, the complainant took a 51-minute lunch break, although she was only entitled to half an hour, and did so without punching out.  She was discharged shortly thereafter for what the respondent characterized as a falsification of time records.  The complainant presented no evidence to establish that the respondent's proffered explanation for its actions was a pretext for discrimination.   While the respondent erroneously described the complainant's conduct as a falsification of records when, in fact, no records were falsified, it is clear that the reason it discharged the complainant was its legitimate belief that she had taken an extended break without signing out, after having received a prior warning.  There is no evidence in the record to suggest that the respondent treated employees of other races more favorably under similar circumstances, and the commission can see no reason to conclude that race was a factor in the respondent's decision to terminate the complainant's employment.   Accordingly, the dismissal of her complaint is affirmed.

NOTE: The administrative law judge's memorandum opinion focused on the question of whether the complainant established a prima facie case of discrimination.  However, the commission has consistently held that once the respondent has articulated a legitimate nondiscriminatory reason for discharge the question of whether the complainant has established a prima facie case becomes moot. See, Theusch v. Steel Craft Corp. of Hartford, ERD Case No. 199601535 (LIRC May 22, 1998),  citing Gentilli v. Badger Coaches (LIRC, July 12, 1990), affd. sub nom. Gentilli v. LIRC, (Dane Co. Cir. Ct. Jan. 15, 1991) and U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 71 1, 715 (1983); Binversie v. Alaark Mfg. Corp., ERD Case No. 199901928 (LIRC June 27, 2001).  Once a legitimate nondiscriminatory reason is articulated, the burden of proof reverts to the complainant to show this reason is a pretext for discrimination.  Naill v. Western Wisconsin Technical College, ERD Case Nos. 199404088, 199600370 (LIRC Feb. 12 1999), citing Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172.(Ct. App. 1985), supra, 126 Wis. 2d at 172. As explained in the commission's memorandum opinion, above, the complainant did not meet that burden in this case.

cc:
Attorney Cheryl Gill
Attorney Jessica Kirchner

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