Wis.LIRC ER Decision: Alexander - December 18, 1997 - Race discrimination - promotion; - Retaliation - discrimination because of opposition to discrimination or filing complaint - retaliation for filing a union grievance not protected

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ANDRE ALEXANDER, Complainant

MANDEL CO, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199352370, EEOC Case No. 26G931691

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 modification:

In paragraph 3 of the CONCLUSIONS OF LAW, the reference to section "111.322(2)" of the Fair Employment Act is deleted and "111.322(2m) is substituted therefor.

DECISION

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

Dated and mailed: December 18, 1997
alexaan.rmd : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case involves an allegation by the complainant, Andre Alexander, that he was discriminated against on the basis of race and color because of the respondent's failure to promote him to the position of leadperson journeyman platemaker in March 1993, and a further allegation that he was subjected to harassment by the individual who received the promotion because he filed a union grievance against the respondent over his failure to receive the promotion. Mr. Alexander is black. Gary Kubik, the individual who received the promotion, is white. In a decision in which the administrative law judge makes extensive findings based on the evidence presented, the administrative law judge concluded that Alexander had failed to establish probable cause to believe that the respondent had discriminated against him on the basis of race or color and that his claim of harassment fails to state a claim under the Fair Employment Act because the filing of a union grievance is not protected activity under the Act's nonretaliation provisions. (1 )

Complainant Alexander's petition for commission review does not specifically challenge any of the ALJ's findings of fact as being unsupported by the record, nor does it claim that any conclusions of law made by her are in error. Nevertheless, the record in this matter has been reviewed for the purpose of determining whether the findings of fact and conclusions of law are supported. The commission concludes that they are.

The evidence shows that the respondent selected Kubik for the leadperson position rather than Alexander because it was felt that he was better qualified to meet the demands required of a leadperson. There is no question but that Alexander was an industrious and highly motivated individual, as evidenced by his rise from the part-time janitorial position that he accepted with the respondent in October 1984 to his successful completion of an apprenticeship to become a journeyman platemaker (sponsored by the respondent) in February 1991. However, when selecting the leadperson platemaker in 1993, the respondent sought a platemaker who could evaluate new products and processes, who could develop programs and techniques, and who could troubleshoot when problems arose. Kubik, who had been hired by the respondent in 1986, came to the respondent with 10 years of experience as a journeyman platemaker, had also worked for several years as a journeyman feeder (the next step in the process after platemaking), had been an instructor at the Graphic Arts Institute for several years where he taught a variety of courses, including a platemaking course, and had demonstrated his knowledge of the platemaking and equipment functions at the respondent by introducing new platemaking procedures while employed by the respondent. Further, although Alexander had slightly greater seniority with the respondent (Alexander's seniority date was Aug. 5, 1985, when he began his apprenticeship, versus Kubik's seniority date of July 28, 1986), the collective bargaining agreement under which the respondent operated allowed it to select Kubik as leadperson despite Alexander's greater seniority.

The record fails to present reason to believe that the respondent discriminated against Mr. Alexander because of his race or color with respect to promotion when it selected Mr. Kubik for the leadperson platemaking position. Additionally, since Alexander's claim that he was subjected to harassment because he filed a union grievance over his failure to receive the promotion to the leadperson position is not a protected activity under the Act's nonretaliation provisions, this claim fails to state a claim for relief under the Act.

cc: CURRY FIRST
JAMES S. CLAY

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Footnotes:

(1)( Back ) Paragraph 3 of the ALJ's conclusions of law cites Wis. Stat. �111.322(2) as one of the applicable statutory sections but it is apparent that she intended to cite Wis. Stat. �111.322(2m). Section 111.322(2) concerns the printing or circulating of any statement, advertisement or publication, or the use of any application for employment or inquiry in connection with prospective employment which constitutes a prohibited basis of discrimination as set forth under section 111.321 of the Act. The commission has therefore modified this conclusion of law.