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

MAURICE ELEBY, Complainant

MERITER RETIREMENT SERVICES INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9401078, EEOC Case No. 26G941025

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter concluding that the complainant had proven by a preponderance of the evidence that the respondent terminated his employment because of his race in violation of the Wisconsin Fair Employment Act. The respondent filed a timely petition for review. (1)

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, and having consulted the ALJ regarding her assessment of the credibility and demeanor of the witnesses, the commission makes the following:

FINDINGS OF FACT

1. The respondent, Meriter Retirement Services, Inc. (hereinafter Meriter) is an entity of Meriter Health Services. Meriter operates three facilities: a health center, a retirement center and Elderhouse. Linda Lane, a white female, is the director of food and nutrition for the three facilities. At all times relevant herein, Jane Sarafiny, a white female, was the food service supervisor at the retirement center. On the days that Sarafiny did not work, a shift supervisor or lead worker was in charge at the retirement center. Joan Nelson, a white female, was the shift supervisor from October 1992 until about the first of January 1994. Nelson worked a half-time schedule. Lane had the ultimate authority to discharge an employe. Joy Zabel, a white female, was acting personnel manager at the time material herein. Zabel had previously been the full-time personnel manager but opted to take a part-time role. Zabel would typically become involved in situations where there was a potential for disciplinary action or simply a question involving discipline.

2. The complainant is a black male who was employed in a wait staff position at the respondent's retirement center until he was discharged in August 1993.

3. Jane Sarafiny interviewed and recommended to personnel that the complainant be hired at the retirement center. The complainant began working at the retirement center on September 3, 1991. As a wait staff employe, the complainant's duties included setting up the dining room for the residents, setting up the juice and ice cream, setting up the food carts for salads and desserts, taking the residents' orders, delivering the orders to the residents, clearing and cleaning the tables, and keeping a tally sheet record of what the residents had for their meals. There were typically six wait staff, two ware washers, one cook, one cold food person plus a supervisor on a shift when the complainant was employed.

4. The respondent's work rules provide that engaging in one or more types of prohibited conduct including, among other things, the "Unauthorized possession or removal of Meriter Retirement Services property or property belonging to other employes, physicians, patients, residents, visitors or other people affiliated with Meriter Retirement Services," may result in disciplinary action ranging from a verbal warning to immediate discharge. The respondent considered eating or "taking" food without authorization to both be violations of this work rule. The size or amount of food involved made no difference in terms of whether or not a violation of the work rule had occurred.

5. Despite the work rule, it was common for food service employes to eat Meriter food without authorization while working. Eleby himself ate Meriter food without authorization while working.

6. Joan Nelson denied ever observing any conduct by an employe which led her to believe that the employe was eating food, although she "suspected" that employes were eating or "taking" food. It is not clear what caused Nelson to suspect that employes were eating or taking food. The employes Nelson suspected of eating food included Marilyn Williams, Roma Hultgren, Patrick Buckley and Klay Shannon, all white employes. At the time of these suspicions Nelson did not believe that they were sufficient enough to make a "big issue" out of it. Also, from time to time, Nelson would hear rumors about employes eating or "taking" food through overhearing conversations between employes, and this included hearing rumors about Eleby eating or taking food. Nelson was unable to recall any instance in which she had taken rumors of employes eating or "taking" food to Sarafiny or Lane. All combined, Nelson believed there were approximately 20 instances of suspicions and rumors about employes eating or "taking" food. Nelson's response to her suspicions and hearing rumors of employes eating or taking food was to be more watchful.

7. Jane Sarafiny also suspected that employes were eating or "taking" food. Sarafiny stated that she suspected employes of eating food because they were ducking behind posts or turning around with their mouths full and not able to talk. Sarafiny identified Patrick Buckley, Brad Axle, Roma Hultgren, three white employes, as well as the complainant, as employes that she saw with food in their mouths. (2) Sarafiny did not conduct any investigation when she suspected that employes were eating or taking food. She would just say, "If you have something in your mouth and are eating, it's against the work rules. Don't do it. Stop it." Sarafiny did not take any disciplinary action against the employes she suspected of eating, nor did she present this information to Linda Lane. When Sarafiny had suspected the complainant of eating food she dealt with him the same way that she dealt with Buckley, Axle and Hultgren.

8. On or about July 12, 1993, a wait staff employe, Brenda Johnson, believed she had witnessed the complainant take a stack of sliced ham from a cooler in the kitchen, wrap it in a paper towel, tuck it under his shirt and then leave the kitchen. At some point between July 12, 1993 and August 3, 1993, Johnson was discussing the ham incident with a coworker. Johnson was discussing the price of this incident, how she felt about it and whether or not she should tell someone about it. According to Johnson, when discussing this incident with her coworker, shift supervisor Joan Nelson overheard the discussion, approached her and asked what she had observed. Johnson then relayed what she had observed to Nelson. Nelson assumed that Johnson had observed the complainant taking the ham from the cooler that same evening. Nelson asked other employes who were present that evening if they had observed what Johnson was alleging had occurred but no one had witnessed the complainant taking the ham.

9. Johnson testified that when she had the conversation with Nelson about the complainant taking the ham, that Nelson left the decision up to her as far as pursuing the matter any further, stating that it was her choice to make a statement and that if she chose to do so she should go see Sarafiny. Johnson's recollection was that she had only one conversation with Nelson about this incident. (Testimony by Nelson and Sarafiny indicates Johnson had two conversations with Nelson as their testimony was that Nelson reported the ham-taking incident to Sarafiny who then told Nelson to go back to Johnson and tell her that if she wanted to make a complaint, she needed to put it in writing and stand by what she said before Sarafiny would pursue it any further.) In any case, Johnson went to Sarafiny and prepared a written statement about the incident. Johnson's statement, which was dated August 3, 1993, read as follows:

"On or about Monday July 12 I saw Maurice Eleby taking a Ham Stack out of the cooler. He then wrapped it in paper toweling and stuck it under his shirt and left the kitchen.

As we (Linda Collins, Maurice Eleby and I (sic) were sitting at the 1st six table (sic) finishing menus and tallys (sic) Maurice said `My milk is bad.' Then he got up and went into the kitchen. (Everyone else was already gone) I heard the cooler door opening up so I slanted back the chair to look to see what was going on. (The kitchen door was open) I saw Maurice in the process of taking the ham out of cooler, he also saw me seeing him."

10. Johnson testified that management in no way pressured her into preparing the statement.

11. Sarafiny discussed the statement with Johnson on the same day that she received it. Sarafiny testified that she had no reason not to believe Johnson. Sarafiny stated that after receiving Johnson's statement she also spoke with Linda Collins, who said that she did not see anything. Sarafiny testified that she was not aware that there were any other potential witnesses present when Eleby had allegedly stolen the ham.

12. Sarafiny presented Johnson's statement to Lane. After receiving Johnson's statement Lane called personnel and set up a meeting in which Joy Zabel, Sarafiny and herself would be in attendance. Lane believed Johnson's allegation that the complainant had taken the ham. Lane made the decision to terminate the complainant's employment based on the allegation that he had taken the ham. Lane had reviewed the complainant's personnel file prior to making the decision to terminate the complainant's employment. The complainant's failure to report that he had a conviction  record on his original employment application, which had come to light earlier during the course of his employment, influenced her credibility assessment as between he and Brenda Johnson. Lane considered eating or taking food without authorization to be a violation of the respondent's work rules that warranted termination. Prior to this point in time Lane had never disciplined anyone for eating or "taking" food without supervisory authority because to her knowledge this was not happening.

13. Lane completed the complainant's termination paperwork on August 4, 1993, in advance of a meeting that was scheduled for 3:30 p.m. that day to allow him to respond to the allegation of taking the ham. It was Lane's normal practice to complete the disciplinary paperwork first and then to meet with the employe. If after allowing the employe to respond it was determined that the disciplinary action was still correct, Lane would carry through with the disciplinary action. If it was determined not to be correct, she would not proceed with the disciplinary action. In April 1993, Lane had come to believe that Roma Hultgren, a white female, had provided false information regarding a requested bereavement leave. An investigation was conducted and Lane completed a termination notice for Hultgren prior to giving her advance notice or an opportunity to present her side of the story. Hultgren's explanation did not change Lane's mind during her meeting with Hultgren, and Lane carried through with the termination of Hultgren's employment. Lane's termination paperwork for the complainant, titled Formal Notice of Reprimand or Disciplinary Action, read as follows:

I recently received a report that someone witnessed you removing food from the Retirement Center Kitchen.

Theft is prohibited conduct per Meriter Retirement Services work rules: III Use of Property # B. `Unauthorized possession or removal of M.R.S property or property belonging to other employees, physicians, patients, residents, visitors or other people affiliated with Meriter Retirement Services.'

No food or beverages may be removed for personal use from preparation or storage areas.

This violation of Meriter Retirement Services and Department policy will lead to immediate discharge.

14. At approximately 3:30 p.m. on August 4, Lane and Joy Zabel met with the complainant to present him with the allegations contained in Lane's termination notice and to allow him an opportunity to respond to those allegations. Lane attempted to go through the contents of the disciplinary action report. The complainant became upset, began interrupting Lane and tried to leave the meeting. The meeting ended when the complainant asked if he could have a witness present before he talked about the matter any further. Lane agreed and rescheduled the meeting for the following day at 8 a.m. The complainant neither admitted nor denied taking the ham before the meeting ended on August 4, 1993.

15. After the complainant left the meeting, he contacted an attorney whose office contacted Lane to reschedule the meeting for Friday, August 6, 1993, as the attorney was not available until then. Lane agreed and rescheduled the meeting for 8:30 a.m. on August 6.

16. Beginning at 8:30 a.m. on August 6, Lane and Zabel waited approximately 20 minutes in Zabel's office for the complainant to arrive before Lane had to leave to attend another meeting. The complainant arrived at Zabel's office around 9 a.m. at which time Zabel then met with him. He appeared alone, without a witness or an attorney.

17. Unbeknownst to Zabel, the complainant began tape-recording the conversation he had with Zabel shortly after arriving for the meeting. Zabel told the complainant that his employment was terminated and that he would be sent a letter informing him of the decision. The complainant protested that this concerned theft and should be talked about now, to which Zabel responded that he had been given this opportunity yesterday and earlier that morning at 8:30. When Zabel reiterated that she would be sending the complainant a letter of termination, the complainant questioned why he was being fired and Zabel told him that Lane had communicated this to him on Wednesday (August 4) and that he had had two opportunities to discuss this. The complainant stated that he did not hear Lane at which point Zabel read from Lane's termination notice, stating that an employe had observed him remove food from the retirement center kitchen, and that this was prohibited conduct under section III of the respondent's work rules and would lead to immediate discharge.

18. After Zabel completed reading the termination notice the complainant continued to question Zabel. He first asked what he had "supposedly taken" and Zabel told him food from the retirement kitchen center. The complainant then asked specifically where he had taken it from, at which point Zabel responded that she did not know and that she was not having this conversation with him. The complainant replied that "Your (sic) going to have it otherwise mam, because I'm going to tell you something." Zabel then stated that he had had his opportunity and the complainant complained that she was not letting him talk. Zabel then announced that she was calling security. After Zabel called security the complainant continued to question Zabel, asking why he was not informed of this by his immediate supervisors, and repeating his inquiries about when, what and where he had taken the food. Zabel continued to respond that he had had his opportunity to discuss this. When the security officer arrived he was asked to escort the complainant out. Zabel provided the complainant with a copy of Lane's termination notice and informed him that she would be sending him a follow-up letter. The complainant continued to ask about having his questions answered and Zabel refused, again repeating that he had had his opportunity for this. When the complainant mentioned having an eye witness seeing and knowing about "management being irresponsible as far as employees," Zabel apparently understood the complainant to be asserting that other employes had engaged in prohibited conduct and told him if it was an allegation about other employes he could submit that and they would investigate it. Zabel then again asked to have the complainant escorted out. Before the complainant left, he asked if he could produce any witnesses regarding the allegations against him and Zabel responded, "No. That's the end of our discussion, please escort him out." The complainant left at that point.

19. In a letter to the complainant dated August 13, 1993, Zabel recounted what had transpired when she and Lane had met with him on August 4, 1993, that this meeting was rescheduled first to August 5 and then to August 6 at 8:30 a.m., that Lane had already left when he arrived on August 6 at 9 a.m., that she (Zabel) read through the reasons for his disciplinary action and gave him a copy, and that this letter served the purpose of communicating to him that as of August 4, 1993, his employment was terminated.

Based upon the above FINDINGS OF FACT, the Labor and Industry Review Commission makes the following:

CONCLUSIONS OF LAW

1. Meriter is an employer within the meaning of the Wisconsin Fair Employment Act.

2. The complainant has failed to prove by a preponderance of the evidence that Meriter discriminated against him with respect to the termination of his employment because of his race in violation of the Act.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the Labor and Industry Review Commission issues the following:

DECISION

The complainant's complaint of race discrimination with respect to his termination of employment filed in this matter is dismissed.

Dated and mailed: August 28, 1997
elebyma.rrr : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

There were a number of factors which persuaded the ALJ to find that the respondent had terminated the complainant's employment because of his race. For instance, the ALJ states that both Joan Nelson and Jane Sarafiny had been aware, based on their own observations, that employes in the retirement center ate Meriter food without authorization. She states that although Nelson testified that she considered eating food to be just as serious a violation as "taking" food, Nelson admitted that she had not brought any suspicions she had or rumors she had heard to Sarafiny in the past. Further, the ALJ dismisses Nelson's assertion that there was a distinction between hearing rumors about employes eating or "taking food" versus hearing that the complainant had "removed food." Also, the ALJ credited Brenda Johnson's account that Nelson overheard her discussion about the alleged incident and approached her versus Nelson's recollection that Johnson had approached her (Nelson) about the incident. The ALJ states that she credited Johnson's version because Nelson had expressed uncertainty in her testimony about who approached whom. The ALJ then concludes that because of Nelson's willingness to approach Johnson about what she overheard her saying about the complainant when she had not pursued past rumors of employes eating or "taking" food, plus Nelson's hastiness in reporting to Sarafiny what Johnson had told her without ascertaining sufficient details from Johnson to even know that Johnson had observed the incident 3 weeks earlier, this indicates that Nelson treated the complainant differently because of his race.

The ALJ also believed that Sarafiny had acted differently in this situation than she had in similar situations in the past because of the complainant's race. With respect to Sarafiny's observations of employes eating food without authorization, the ALJ states that Sarafiny's observations that employes were ducking behind posts and being unable to speak because they had food in their mouths were based on more direct evidence than the account of a nonsupervisor, Johnson, who herself had eaten Meriter food in violation of the work rules. The ALJ cites the testimony of Arthur Morgan, a black former employe of the respondent, who stated that he had witnessed Sarafiny tell a white employe (Patrick Buckley), who was eating in the kitchen, twice within a 10-minute period not to eat Meriter food. The ALJ was also apparently concerned that Sarafiny knew it was too late to determine if any ham was missing because the allegation was made almost 3 weeks after the fact, yet she still took the statement to Lane when Johnson's statement noted she had observed the incident approximately 3 weeks earlier.

After reciting the above, the ALJ states that she believes Nelson and Sarafiny were "unconsciously" influenced by the complainant's race in the way that they latched on to Johnson's account of seeing the complainant take ham from the cooler. The ALJ states that she believes that because the complainant is African- American, Nelson and Sarafiny made stereotypical assumptions about the veracity of Johnson's account and consequently, failed to fully investigate her account, to weigh the significance of the length of time that had passed since Johnson witnessed the incident, and to consider the fact that they had been handling similar situations with white employes differently.

The commission is not persuaded that the evidence supports the ALJ's conclusion that Nelson and Sarafiny treated the complainant differently because of his race.

First of all, the record fails to show that Nelson had observed any employe eating Meriter food. Nelson denied ever observing any conduct by employes which led her to believe that employes were eating Meriter food. Nelson did admit that there were past occasions where she heard rumors and "suspected" that employes were eating and "taking" Meriter food which she had not brought to Sarafiny's attention. But the record shows (and the ALJ also found), that the complainant himself had also been one of those employes that Nelson had heard rumors in the past about eating or "taking" Meriter food and not brought to Sarafiny's attention. (See finding of fact no. 13 of ALJ'S decision) If Nelson was biased against the complainant because of his race, why had she treated him the same as other white employes in the past when hearing rumors that he was eating or "taking" food? Secondly, assuming that Nelson had in fact approached Brenda Johnson, the record shows that it was while Johnson was discussing the price of the incident involving the complainant's alleged taking of a stack of ham from the cooler, how she felt about it and whether or not she should tell someone about it, that Nelson approached Johnson. Overhearing an employe talking about the price of some incident and whether or not the employe should tell someone about it would only seem to be something that would naturally pique a supervisor's curiosity and cause him or her to inquire further about the matter. Furthermore, regardless of how Nelson became aware of the alleged incident, Nelson left the decision up to Brenda Johnson about pursuing the matter further. Johnson testified to this fact herself, stating that she was told it was her choice whether or not to make a statement and that management in no way pressured her into preparing a statement. It would seem that if Nelson had been intent on discriminating against the complainant because of his race, she would not have left it up to Johnson to bring a complaint that she had seen the complainant take a stack of ham from the cooler.

Similar evidence also exists which raises considerable doubt that Sarafiny had been influenced by the complainant's race. One factor, for instance, is that it was Sarafiny who had been responsible for the complainant's hire. Another is that the record shows that the complainant was among the employes that Sarafiny had personally observed in the past "ducking behind posts and were unable to speak because they had food in their mouths" which caused her to suspect employes were eating Meriter food without authorization. Furthermore, the record shows that when Sarafiny had suspected the complainant of eating food in the past, her response had been the same as she had taken with white employes suspected of eating, to tell him "If you have something in your mouth and are eating, it's against the work rules. Don't do it. Stop it." Also, Sarafiny had not pressured Johnson into making a statement.

Additionally, both the complainant and Arthur Morgan admitted that they had never heard Nelson or Sarafiny say anything negative about black individuals.

Based on the above evidence, the commission believes that while Meriter's work rule made no distinction between the size or amount of the food eaten or "taken," that Sarafiny, and perhaps Nelson, too, had in the past simply "overlooked" it when an employe was caught (or suspected) with something in their mouth, but perceived the complainant's alleged conduct of removing a ham-stack out of the cooler to go beyond what could be overlooked. It is difficult to arrive at any other conclusion since the evidence shows that Nelson and Sarafiny had previously treated the complainant the same as all other employes when he had been rumored or suspected of eating Meriter food without authorization. As a matter of fact, Sarafiny's admission that she had suspected that employes were "eating or taking food" all relate to having seen those employes "ducking behind posts" and with their mouths so full that they were unable to speak. There was no evidence that at the time of the complainant's discharge that either Nelson or Sarafiny had been aware or suspected that employes were removing quantities of food, such as a stack of ham, from the cooler. In fact, both denied awareness of any such conduct at the time of the complainant's discharge. And Lane had not even been aware that employes were eating Meriter food. In short, the conduct in which Nelson and Sarafiny believed that the complainant had been involved, was not similar to the conduct that they heard rumors of or suspected about other employes. Because the alleged conduct by the complainant involved the removal of a stack of ham out of the cooler, it is not surprising that Sarafiny took Johnson's statement to Lane even though it had been made almost three weeks after the fact. Moreover, the evidence showed that Sarafiny had no reason to question Johnson's credibility.

As for Lane, the ALJ accepted her testimony that she had never heard any rumors about employes eating Meriter food and concluded that given her ignorance of the widespread practice of eating food, the report about the complainant taking ham out of the cooler sounded all the more shocking. However, the ALJ nevertheless concludes that Lane was also influenced by the complainant's race in handling the events that led up to his discharge and the termination decision itself. The ALJ states that she was troubled that Lane would base the termination of an employe on a coworker's report that she had observed the complainant steal ham 3 weeks earlier and that Lane would make that decision without ever talking to the complainant. Further, the ALJ rejects the respondent's contention that it gave the complainant ample opportunity to present his side of the story, stating that she believed Lane fully intended to terminate the complainant's employment on August 4 if he had not requested an opportunity to come back with a witness. The ALJ characterizes Lane as being predisposed to believe Brenda Johnson's account and there being nothing the complainant could say or do to refute Johnson's allegations.

The commission disagrees with the ALJ's conclusion that Lane was influenced by the complainant's race in handling the events that led up to his discharge. First, the commission is not quite sure why the ALJ attaches significance to the fact that the termination was based on a report by Johnson of what she had observed 3 weeks earlier. Lane had no reason to question Johnson's credibility. Additionally, Lane was undoubtedly influenced by the fact that Johnson had prepared a written statement regarding her allegation about the complainant taking ham out of the cooler. Moreover, Lane, who was not aware that employes were eating food, considered eating or "taking" food without authorization to be a violation of Meriter's work rules that warranted termination. As the ALJ herself acknowledges, the report about the complainant taking ham out of the cooler was "shocking" to Lane.

Secondly, while the ALJ was troubled that Lane would make the termination decision without talking to the complainant, it was Lane's normal practice in cases involving employe discipline to conduct an investigation and complete the disciplinary papers in advance of obtaining the employe's side of the story. After the disciplinary papers were completed Lane would meet with the employe to allow him or her to respond. After allowing the employe to respond Lane would carry through with the disciplinary action if it was determined that the prepared disciplinary action was still correct, or not carry through with the disciplinary action if it was determined not to be correct. For example, earlier in April 1993, Lane had come to believe that Roma Hultgren, a white female, had provided false information regarding a requested bereavement leave. An investigation was conducted and Lane completed a termination notice for Hultgren prior to giving her advance notice or an opportunity to present her side of the story. Hultgren's explanation did not change Lane's mind during her meeting with Hultgren, and Lane carried through with the termination of Hultgren's employment. Because of Lane's practice with respect to employe discipline, it would always be true that she "fully intended" to impose discipline when she meets with an employe alleged to have engaged in misconduct. Whether or not Lane's procedure for handling discipline represents a good management practice is not the issue. As noted in Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 at n. 3, 38 FEP Cases 1141 (8th Cir. 1985), speaking about the wisdom of Monsanto's policy of discharging all employes accused of stealing who have less than five years of seniority, the court stated, "It is an employer's business prerogative to develop as many arbitrary, ridiculous and irrational rules as it sees fit. Our only concern is that the employer must apply its rules in an even-handed, nondiscriminatory manner."

Furthermore, the commission believes that the complainant was given ample opportunity to present his side of the story. Consistent with her normal practice, Lane, along with Joy Zabel, met with the complainant on August 4, 1993, to allow him the opportunity to respond to the ham-taking allegation. When presented with the allegation, the complainant became agitated, interrupted Lane and tried to leave the meeting. At no time did he ever admit or deny having taken the ham. At the complainant's request, Lane agreed to adjourn the meeting until 8 a.m. on August 5 in order that he might have a witness present. The complainant then contacted an attorney whose office contacted Lane and requested that the meeting be rescheduled to 8:30 a.m. on August 6, as the attorney was not available until then. Again, Lane agreed to this request. Subsequently, on August 6, Lane and Zabel waited approximately 20 minutes for the complainant to arrive before Lane had to leave to attend another hearing. When the complainant did eventually appear shortly before 9 a.m., he appeared without a witness or an attorney. No explanation appears on the record for his failure to timely meet with Lane on August 6. Lane had thus made herself available for the complainant to present his side of the story on two occasions after their initial August 4 meeting. The commission believes that this reflects ample effort on the part of Lane to accommodate the complainant so that he could present his side of the story.

The ALJ also concludes that Lane was "predisposed" to believe Brenda Johnson's account and that there was nothing that the complainant could do or say to refute Johnson's allegations. However, if Lane was predisposed to believe Johnson's account, the record shows that this was because Lane had no reason to question Johnson's credibility whereas Lane knew about the complainant's past dishonesty in lying on his employment application about not having a conviction record. The fact of the matter is, however, any predisposition that Lane may have held did not preclude the complainant from a chance to refute Johnson's allegations as Lane provided the complainant with ample opportunity to present his side of the story. He did not admit or deny the ham-taking allegation when he met with Lane on August 4. He failed to appear to present his side of the story at 8:30 a.m. on August 6 as agreed.

Moreover, what appears to be rather convincing evidence that discredits any notion that Lane harbored any racial bias against the complainant is the fact that she did not discharge him when it was previously discovered that he had falsified his employment application. It would seem that Lane would have seized this occasion to discharge the complainant if she had held any racial animus against him. Instead, she only gave him a 3-day suspension.

Also, the complainant himself admitted that he had no recollection of any negative comments made by Lane which were derogatory to black individuals. Similarly, Morgan testified that he was not aware that Lane had ever said anything negative about black individuals.

Lastly, the ALJ has included Joy Zabel's handling of the case as being influenced by the complainant's race because she never gave him a chance to talk about the allegations on August 6 before she called security to escort him out. The commission does not believe that Zabel can be faulted for concluding that the complainant's chances for an opportunity to present his story were over when he appeared before her shortly before 9 a.m., however. First of all, it was not Zabel but Lane who had made the decision to discharge in this case. Further, Zabel knew that Lane had made herself available for the complainant to present his side of the story over the course of 3 days but the complainant had failed to exercise his opportunity to do so during that time.

On appeal, the respondent argues that the ALJ's decision is absolutely contrary to established law because a party alleging discrimination must prove that an employer intentionally discriminated against him, while the ALJ finds that the respondent "unconsciously" (or "may not have been aware of it" but) had discriminated against the complainant on the basis of his race when it terminated his employment.

In response, the complainant asserts that the respondent misstates the correct legal standard, that the ALJ's references to unconscious discrimination were not the only statements or conclusions contained in the decision. The complainant asserts that there is no requirement under disparate treatment analysis which places a burden upon him to prove "conscious" discrimination, that intent is currently inferred by the trier of fact when a complainant proves by a preponderance of the evidence that a respondent's proffered reason is pretextual and without merit and conceived to mask a discriminatory animus.

Both parties have acknowledged in their written arguments to the commission that in a disparate treatment case such as this, that the complainant has the ultimate burden of proving intentional discrimination. Therefore, rather than entertain arguments about whether the complainant must prove that the respondent "consciously" discriminated against him, or whether discrimination may be proved based on acts which were done "unconsciously," reference need only be made to the burden- shifting method of proving discrimination originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973), and later clarified in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981) and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 62 FEP Cases 96 (1993).

Before beginning a discussion of the McDonnell Douglas analysis, however, it should be noted that after the close of the briefing schedule the complainant apparently changed his position about whether he must prove there was intentional discrimination. As support for his new position, the complainant offered the case of Waid v. Merrill Area Public Schools, 91 F.3d 857, 71 FEP Cases 577 (7th Cir. 1996), as standing for the proposition that "intent" is not an element of proving discrimination under the Wisconsin Fair Employment Act. In that case, Tana Waid prevailed on a claim of sex discrimination before the Equal Rights Division and then filed a lawsuit in federal court which included a 42 U.S.C. § 1983 claim that two named defendants had, under color of state law, deprived her of her rights under the Equal Protection Clause of the Fourteenth Amendment by intentionally discriminating against her, and a claim that Merrill Area Public Schools (MAPS) had violated Title IX of the Education Amendments Act of 1972, 20 U.S.C. sec. 1681, et seq. Title IX, among other things, prohibits schools that receive federal funds from engaging in intentional discrimination in employment. As an employe of an educational institution that received federal funds, Waid had a statutory right under Title IX that was essentially identical to her constitutional rights against intentional discrimination.

One question before the court was whether the Equal Rights Division's fact-finding on the issue of discrimination should preclude relitigation of that issue in federal court. The court first stated that "The Equal Rights Division engaged in fact- finding with respect to the question of discrimination, although it did not consider any questions of intent." (emphasis added) After concluding that the division had conducted its fact-finding in roughly the same legal context as the district court would, the court concluded that the division's fact-finding on the issue of discrimination should preclude relitigation of that issue. The court then went on to state that:

We hasten to point out that Waid has not won her Title IX claim simply by prevailing on the question of issue preclusion. To prove her claim in the district court, Waid must show that MAPS intentionally discriminated against her. The decision of the Equal Rights Division precludes relitigation of the question whether MAPS discriminated, but Waid still must prove that MAPS intended to do so. (emphasis added)

Apparently based on the highlighted language cited above, the complainant has now taken the position that he need not establish that Meriter intentionally discriminated against him. The complainant's argument fails. Speaking on the requirement of a need to show discriminatory intent in the context of a § 1983 claim, this is what Lex K. Larson states in Employment Law, Second Edition, Vol. 6 (April 1997):

§ 102.09 Proof in § 1983 Cases
(1)--Requirement That Discriminatory Intent Be Shown

To the extent that § 1983 operates as the statutory vehicle for enforcement of the Fourteenth Amendment, it is now clear that a plaintiff must prove discriminatory motive or intent as a part of his or her § 1983 case. Some early cases had applied Title VII proof standards to § 1983 litigation. In 1976, the Supreme Court in Washington v. Davis (426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597), decided that Title VII standards did not apply to actions brought under the Fifth or Fourteenth Amendments of the U.S. Constitution, and that discriminatory intent must be shown....

The principal effect of applying the constitutional standard is to eliminate the pure "disparate impact" claim from the arsenal of the § 1983 plaintiff. In other words, more is required of a plaintiff than the mere proof that a neutral factor, such as a height-weight requirement, has a disparate impact upon a particular group. Actual evidence that the requirement was motivated by, say, considerations of race or sex, is required....

(2)--Do Title VII Standards Apply?

Turning to the individual disparate treatment case, does the "intent" requirement impose a heavier burden on the plaintiff than that prescribed in Title VII litigation under the Supreme Court's McDonnell Douglas decision? The great majority of courts have said no and have recognized the McDonnell Douglas elements of a prima facie case as a means of creating an inference of discriminatory intent...."

Employment Law, Vol. 6, pp. 102-80-86. (emphasis added)

Secondly, Wisconsin case law shows that intent is an element under the Wisconsin Fair Employment Law. As noted by the court in Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707(Ct. App. 1991):

"Wisconsin law recognizes two theories of employment discrimination--the disparate impact theory and the disparate treatment theory. (citation omitted) The disparate impact theory is invoked to attack facially neutral policies which, although applied evenly, impact more heavily on a protected group. (citation omitted) Under the disparate treatment theory, the complainant must show that the employer treats some people less favorably than others because they belong to a protected class. (citation omitted) Thus, a complainant asserting a disparate treatment theory must prove discriminatory intent to prevail, while a complainant asserting a disparate impact theory need not offer any such proof. (citation omitted)(emphasis added)

Based on the foregoing, discriminatory intent is an element of a disparate treatment case, such as the present one, under the Fair Employment Act, and discriminatory intent can be inferred using the McDonnell Douglas standard.

Under the McDonnell Douglas analysis, first the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Burdine, 450 U.S. 248, 252-253.

Where the employer has articulated its legitimate nondiscriminatory reason for its actions, whether a prima facie case of discrimination has been proven is no longer relevant; the only issue that remains is the ultimate factual issue of whether the employer intentionally discriminated against the plaintiff. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 31 FEP Cases 609 (1983). Meriter's articulated legitimate, nondiscriminatory reason for the complainant's discharge was that he had taken (i.e., stolen) food from the retirement center kitchen in violation of work rule 3B. The complainant may establish that the respondent's articulated reason was a pretext for discrimination either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. 248. The ultimate burden of persuading the trier of fact that the respondent intentionally discriminated against him is retained by the complainant at all times. Burdine, 450 U.S. 253. The fact- finder's disbelief of the reasons put forth by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons, will permit the trier of fact to infer the ultimate fact of discrimination, and upon such rejection, no additional proof of discrimination is required. Hicks, 62 FEP Cases at 100.

The complainant argues that he met his ultimate burden of proving discrimination because he has shown by a preponderance of the evidence that the reasons advanced by the respondent for his termination were pretextual. As support for his position, the complainant argues that on adverse examination the respondent initially contended that he was fired solely for the alleged theft of Meriter food in violation of the work rules but after he clearly showed that management knew that white employes regularly violated the same work rule, the respondent recanted this statement and alleged that it had taken his past disciplinary action into account when Lane fired him.

The complainant misstates the evidence. Lane did not recant her assertion that the complainant was discharged solely for the theft of Meriter food to state that the past disciplinary action taken against him was also a reason to discharge him. What Lane stated was that the complainant's personnel file, which contained all prior disciplinary actions against him, including discipline for falsely stating on his employment application that he had no conviction record, was reviewed prior to making the decision to discharge as this was the normal practice, that there was a credibility call that she had to make as between the complainant and Brenda Johnson, and that her decision to discharge was influenced by the fact that the complainant had not been honest about having a conviction record when completing his employment application.

The complainant also argues that evidence that it was common knowledge white employes routinely "took" or ate Meriter food in violation of work rule 3B and were not disciplined, while he was discharged, constitutes evidence of a pretext for race discrimination. But this argument by the complainant ignores the fact that it was Lane who made the decision to discharge him and that she was not aware that other employes were eating or "taking" Meriter food. The complainant himself has acknowledged that it was Lane who had the absolute and ultimate decision making authority with respect to discipline and had made the decision to discharge him, while the undisputed evidence shows that Lane had no knowledge that anyone other than the complainant had "taken" or eaten Meriter food in violation of work rule 3B.

As noted by the respondent, courts in discrimination and retaliation cases have uniformly dismissed claims where the decision-maker lacked the requisite knowledge to support a finding of discrimination, citing as example, Trotter v. Board of Trustees of Univ. of Alabama, 91 F.3d 1449, 71 FEP Cases 1175 (11th Cir. 1996)(Directed verdict was properly granted to employer that paid newly hired white secretary more than black secretaries, where no reasonable juror could conclude that only person to whom racial animus has been attributed had any involvement in determination of white secretary's compensation, and there is no evidence that person who made salary decision knew that other employes were black or that blacks in same unit were being paid less); Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, (7th Cir. 1995)(Court affirmed trial court's dismissal of plaintiff's ADA claim based on employer having no knowledge of plaintiff's disability); and Wenner v. C.G. Bretting Mfg. Co., Inc., 917 F.Supp. 640, 69 FEP Cases 774 (W.D. Wis. 1995)(Plaintiff's retaliation claim fails as a matter of law because the decision-maker did not have knowledge of any prior protected activity by the plaintiff.) It was thus impossible for Lane to have discriminated against the complainant on the basis of race by allegedly treating him differently with respect to discipline where she had no knowledge that any other worker was eating or taking Meriter food in violation of the work rules. Moreover, there was absolutely no evidence which would indicate that Lane was motivated by racial animus in her decision to discharge the complainant.

Apparently recognizing this fatal flaw in his case, the complainant references the testimony by Sarafiny and Nelson that they had suspected and/or heard rumors that employes were eating or "taking" food and had either never investigated or disciplined the employes in these instances with only a verbal warning, and argues that because Lane, Sarafiny and Nelson are all agents of the respondent that this satisfies the requirement that the actual decision-maker had knowledge of those facts giving rise to the discrimination claim. However, Sarafiny and Nelson were not the decision-makers in the decision to discharge.

The complainant also argues, however, that there is substantial further evidence upon which to infer intentional discrimination because Zabel and Sarafiny testified that even after learning at his unemployment hearing that white employes frequently violated the same work rule that warranted his termination, no investigation had been called for and there has been no change in policy. Further, the complainant asserts that, in fact, subsequent to his termination Sarafiny has suspected people of eating or taking food and has not investigated nor disciplined any white employe under work rule 3B. As for the first argument, the complainant has distorted the actual facts regarding this matter. The complainant's unemployment insurance hearing was held on September 17, 1993. Lane testified that when she read the transcript of the unemployment hearing (the date she read it was not established), at that time she learned the name of one specific employe, Brenda Johnson, who had allegedly eaten food and that Johnson was no longer employed by the respondent then. Lane testified that it was not until she read the complainant's deposition testimony (taken in connection with his complaint of discrimination) on June 26, 1995, that she learned the names of other individuals alleged to have eaten food, and that none of those individuals were still employed by the respondent at that time. Further, Lane testified that as soon as she read the unemployment insurance hearing transcript she got together with all of her supervisors, reiterated the rules, and directed them to talk to each and every employe to make sure that it was understood that eating and taking food was against Meriter work rules. Sarafiny also testified that this was done. As for Zabel, she would not likely have known what Lane had done upon reading the unemployment hearing transcript since she was no longer employed at Meriter beginning in October 1993.

The second assertion by the complainant also fails. When Sarafiny was asked if she had had any suspicions of people eating or "taking" food since the complainant's termination, she did respond, "Most likely, yes, not specific." However, Sarafiny then went on to explain that this had occurred before it had been reiterated to the employes that eating of food was not appropriate. Moreover, Sarafiny's continued failure to investigate suspicions of employes eating or "taking" food prior to Lane's reiteration to employes that eating or taking food was not appropriate, only reinforces the commission's belief that the complainant's alleged conduct for which he had been discharged had been viewed by Sarafiny as something entirely different than what she had suspected other employes were doing but did not investigate.

Finally, as additional alleged evidence of pretext, the complainant has further argued that the respondent's basis for terminating his employment is not worthy of belief because the respondent failed to follow its own established investigative policies and procedures involving claims of misconduct, and failed to show that he violated work rule 3B. The commission finds these arguments by the complainant to be without merit. Essentially, the complainant attempts to suggest that: 1) the respondent failed to conduct a proper investigation into the claims against him because no inquiry was made into Brenda Johnson's possible motive for bringing the allegation against him, because Johnson was not questioned if she was engaging in the same conduct she was alleging against him and because he was not allowed the opportunity to respond to the allegations and present his side of the story; and 2) the respondent failed to prove that he violated the work rule. The evidence shows, however, that the respondent conducted a proper investigation. It spoke with the individual that was an eyewitness to the alleged incident, Johnson, and received a statement from her providing details of her observations of the ham-taking allegation. Further, the respondent queried others believed to be potential eyewitnesses, including Linda Collins. Also, contrary to argument by the complainant, the respondent allowed him several opportunities to respond to the allegations and present his side of the story. That the respondent did not question Johnson about a possible motive for bringing the allegation is not indicative of a failure to conduct a proper investigation. There was nothing in Johnson's past work history that gave the respondent reason to question Johnson's motives. And since not even Sarafiny or Nelson, who admitted to suspecting and/or hearing rumors that several employes were eating or taking food, included Johnson as an employe that was either suspected or rumored to be eating or taking food, there was no reason to question if Johnson had engaged in the same conduct that she was alleging about him. As for proving that the complainant had violated work rule 3B, the respondent's questioning of the eyewitness of the alleged incident, together with her written statement detailing her observations, provided sufficient corroboration that he had violated the work rule.

Based upon all of the above, the commission concludes that the preponderance of the evidence in this case fails to show that the respondent discriminated against the complainant because of his race when it terminated his employment on August 4, 1993.

NOTE: The commission's consultation with the ALJ revealed that the basis for her decision did not involve any issue regarding assessment of the witnesses' credibility and demeanor. The ALJ stated that she reached the result that she did because she believed that had the complainant not been black he would not have been discharged. The commission views the evidence differently, however, as set forth above in its memorandum opinion.

cc:
Thomas D. Arnot
Michael J. Modl
Victor M. Arellano

Appealed to Circuit Court, which reversed April 8, 1998. The Circuit Court decision was appealed to the Court of Appeals, which reversed it and reinstated the commission's decision December 17, 1998. The Court of Appeals' decision was not published.

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Footnotes:

(1)( Back ) The ALJ had also concluded that the complainant failed to prove that the respondent had unlawfully discriminated against him on the basis of race or sex in his terms or conditions of employment or that the respondent had terminated his employment because of his sex, but the complainant has not appealed these findings of no discrimination.

(2)( Back ) The commission notes that the transcript shows Sarafiny identifying the employes seen with food in their mouths as "Patrick Buckley, Brad Axle, Roma Hultgren (and) Laurie Sulgren." See Tr. Vol. II, p. 33. A review of the hearing tape of Sarafiny's testimony shows, however, that the employes named were "Patrick Buckley, Brad Axle, Roma Hultgren (and) Maurice Eleby."