EARNEST CLARK, Complainant

PLASTOCON INC, 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 makes the following:

1. Plastocon is an enterprise engaged in the business of making molded plastic products that is located in Oconomowoc, Wisconsin. In 1997 the President of Plastocon was Edward C. Schams. Among those reporting to Mr. Schams in 1997 was Vice President of Administration Joseph Chmielewski. In 1997, Personnel Administrator Sharon Seeber reported to Mr. Chmielewski.

2. In 1997, Jeff Garcia supervised the approximately thirty people who worked on second shift for Plastocon.

3. In 1997, Plastocon had an Employee Handbook. This handbook included a statement that they were an equal opportunity employer, and listed some of the actions that they considered to be of such a serious nature as to warrant disciplinary action by management ranging from suspension to immediate dismissal. Among the actions Plastocon stated in its Employee Handbook as warranting disciplinary action was, "Acts against common decency."

4. Mr. Clark is a black person who started working for Plastocon on June 8, 1996, and always worked the second shift.

5. Workers at Plastocon had buttons on their machines so that they could call their supervisor without leaving their machines. Mr. Clark was aware of these buttons, and knew they were available for him to use at any time he needed to contact his supervisor.

6. Melissa (1) Nutter is a white person who worked on second shift at Plastocon as a relief worker. Mr. Garcia instructed Ms. Nutter as to when she should relieve which worker.

7. On March 25, 1997, Ms. Nutter came to relieve Mr. Clark. They had an argument. During that argument Ms. Nutter made a comment to Mr. Clark which included the words "black ass," and Mr. Clark made a comment to Ms. Nutter that included the words "fat ass." After this argument, Ms. Nutter left and went to speak to Mr. Garcia. Mr. Clark did not press the call button during or after this argument.

8. After Ms. Nutter went to Mr. Garcia and told him her story, Mr. Garcia came back and asked Mr. Clark what had happened. After listening to both stories, Mr. Garcia reached no conclusion as to the order the comments occurred. He considered both to have acted inappropriately.

9. Mr. Garcia told Mr. Clark that it was not nice to call Ms. Nutter a "fat ass," and told Ms. Nutter that her comment was inappropriate. Mr. Garcia took no other action at that time in response to the dispute between Mr. Clark and Ms. Nutter.

10. On April 1, 1997, Mr. Clark was molding bike locks when Ms. Nutter came to relieve him. Ms. Nutter and Mr. Clark got into a dispute while Mr. Clark was showing Ms. Nutter what to do. During this dispute Ms. Nutter told Mr. Clark to get his "black ass" out of the way. According to Ms. Nutter, Mr. Clark told her to get her "white fat ass" out of the way. After the dispute Ms. Nutter again went to Mr. Garcia and complained that she was having a problem with Mr. Clark. Mr. Clark never pressed the call button to alert Mr. Garcia that he was needed to deal with a problem on this occasion either.

11. If Mr. Clark had use the word "white" in conjunction with the words "fat ass" during the April 1 dispute, Ms. Nutter apparently did not make Mr. Garcia aware of this. Mr. Garcia did not recall it being reported that Mr. Clark had used the word "white" in conjunction with the words "fat ass."

12. Mr. Garcia informed both Mr. Clark and Ms. Nutter that he would not tolerate these kinds of verbal disputes, and that further action could result in discipline.

13. Kathy Knack, Mr. Garcia's immediate supervisor, or Ms. Seeber suggested to Mr. Garcia that he write up a report on the April 1, 1997 incident between Mr. Clark and Ms. Nutter.

14. On April 4, 1997, Mr. Garcia wrote incident reports for both Mr. Clark's and Ms. Nutter's files that stated that each had been involved in verbal conflict where some discriminatory remarks were made by each party, that each had been warned that another incident would call for disciplinary actions and that there had been a prior incident on March 26 or 27, 1997. Subsequently, on or about April 5, 1997, Mr. Garcia discussed his April 4 reports with Ms. Seeber, informing Ms. Seeber that Mr. Clark and Ms. Nutter had engaged in name calling; that Ms. Nutter had called Mr. Clark "black ass" and that Mr. Clark had called Ms. Nutter "fat ass." Mr. Garcia also informed Ms. Seeber that both Mr. Clark and Ms. Nutter claimed that the other person had engaged in name calling first.

15. Neither Mr. Clark's race, nor his having complained about Ms. Nutter using the phrase "black ass," were factors in Mr. Garcia giving Mr. Clark a verbal warning or in Ms. Knack or Ms. Seeber instructing Mr. Garcia to write an incident report regarding the April 1, 1997, incident.

16. On May 22, 1997, Steven King, a temporary worker, was informed that he would not be hired on by Plastocon. He was upset about not being hired. After he was informed that he would not be hired, he had a verbal confrontation with Mr. Clark. During that conversation, Mr. King said to Mr. Clark: "Shut your black fuck, I didn't like you since I first seen you." Mr. Clark then said, "You must be a fag then. Get your fag ass out of here." Mr. Clark then told Mr. King that he would "kick his ass." Mr. Clark did not press his call button during or after this incident.

17. (2) Mr. King went to Mr. Garcia and told him that Mr. Clark had called him a "faggot" and said he would kick his ass. Mr. King asked Mr. Garcia to leave because he felt threatened, and Mr. Garcia agreed.

18. After Mr. King left, Mr. Garcia went to Mr. Clark and asked him what was going on. Mr. Clark told Mr. Garcia that when he told Mr. King to stop throwing parts around, that Mr. King had told him to, "shut up, you black fuck." Mr. Garcia then asked Mr. Clark if he had called Mr. King a "faggot," and Mr. Clark admitted that he had. Mr. Garcia then told Mr. Clark that he should not have been involved.

19. Apparently, by May 23, 1997, Ms. Seeber had talked to a representative from Mr. King's temporary service that told her that Mr. King had told him that he "did not need his life threatened."

20. At about 6:30 P.M. on May 22, 1997, Mr. Clark was making bike locks and Ms. Nutter came to relieve him. Mr. Clark and Ms. Nutter got into a shouting match. During this shouting match Mr. Clark told Ms. Nutter to get her "fat ass" away and that he would settle with her at eleven, and Ms. Nutter said that she was sick of his "black ass." Neither Mr. Clark, nor Ms. Nutter, pressed the supervisor call button during or after this incident.

21. After the shouting match between Ms. Nutter and Mr. Clark, Ms. Nutter went to see Mr. Garcia. When she talked to Mr. Garcia, Ms. Nutter was shaking and crying, and told Mr. Garcia that she did not have to take Mr. Clark's mouth, his calling her "fat ass." She also told Mr. Garcia that she felt threatened by Mr. Clark saying that he would settle with her at eleven, so she did not want to be there at the end of their shift. Mr. Garcia agreed to let her leave early, but told her to wait until he wrote up warnings for both her and Mr. Clark.

22. After Ms. Nutter left, Mr. Garcia went back to talk to Mr. Clark. Mr. Clark told Mr. Garcia that Ms. Nutter had used racial slurs again. Mr. Garcia said that he was not going to tolerate that. He also asked Mr. Clark if he had called her a "fat ass," and said that he would settle with her at eleven. Mr. Clark admitted both allegations to Mr. Garcia.

23. On May 22, 1997, utilizing a document titled "Employee Warning Record," Mr. Garcia issued a written "1st Warning" to Mr. Clark and Ms. Nutter. Although this was their first written warning, this was the third time that Mr. Garcia had warned them about their verbal conflicts. In their written warnings, what they said was not specifically mentioned. The warnings stated that they were for "conduct," and focused on having the "verbal conflict."

24. Neither Mr. Clark's race, nor his complaining about Ms. Nutter using the term "black ass," were factors in Mr. Garcia's decision to give Mr. Clark an "Employee Warning Record" on May 22, 1997.

25. On May 22, 1997, Mr. Garcia left copies of the May 22 written warnings that he had issued to Mr. Clark and Ms. Nutter for Ms. Seeber.

26. On May 23, 1997, Ms. Seeber took Mr. Garcia's paperwork regarding the May 22 incident between Mr. Clark and Ms. Nutter and the April 4, 1997 incident reports regarding their previous verbal disputes and met with Mr. Chmielewski to discuss the situation. Mr. Chmielewski had had no prior knowledge of the verbal disputes between Mr. Clark and Ms. Nutter.

27. (This paragraph has been deleted.)

28. Utilizing the written warnings and incident reports prepared by Mr. Garcia, Ms. Seeber related the incident of May 22, 1997 between Mr. Clark and Ms. Nutter, as well as the April and March confrontations between Mr. Clark and Ms. Nutter, to Mr. Chmielewski. Ms. Seeber also related the May 22, 1997 incident between Mr. Clark and Mr. King, but apparently not until after contacting Mr. Garcia for additional information as instructed by Mr. Chmielewski. Mr. Chmielewski did not feel that Mr. Garcia's response to the situation was adequate, considering the escalating nature of Mr. Clark's and Ms. Nutter's verbal confrontations and because a third party was now involved. Mr. Chmielewski understood there to be three incidents where Mr. Clark and Ms. Nutter got into verbal disputes that involved Mr. Clark using the words "fat ass" and Ms. Nutter using the words "black ass." He also understood that there were allegations of threats by both Mr. Clark and Ms. Nutter, and understood Ms. Nutter to have retaliated after Mr. Clark had used the words "fat ass."

29. Mr. Chmielewski decided to terminate the employment of both Mr. Clark and Ms. Nutter because of their continuing verbal conflicts, because of the escalating nature of those conflicts and because their conflicts were disrupting the work environment to the point of people feeling threatened. Ms. Seeber called Mr. Clark and notified him of his discharge sometime during the latter part of the morning on May 23. Mr. Chmielewski notified Ms. Nutter of her discharge. As a courtesy to Mr. Schams, the owner of the respondent, Mr. Chmielewski, with Ms. Seeber in attendance, met with Mr. Schams to advise Mr. Schams what was being done. Mr. Schams asked Mr. Chmielewski to talk to Mr. Garcia to make sure that he concurred.

30. Shortly after noon on May 23, 1997, Mr. Chmielewski talked to Mr. Garcia to see if Mr. Garcia had any facts that would change the decision that was made to discharge Mr. Clark and Ms. Nutter. Mr. Garcia told Mr. Chmielewski that the situation was not going to be fixed and that termination was a viable solution.

31. Neither Mr. Clark's race, or his complaints about Ms. Nutter's or Mr. King's use of racial terms were factors in Mr. Chmielewski's decision to terminate Mr. Clark's employment.

Based upon the above FINDINGS OF FACT, the commission makes the following:

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

2. Mr. Clark failed to prove by a preponderance of the evidence that Plastocon violated the Act by discriminating against him in his terms or conditions of employment because of his race.

3. Mr. Clark failed to prove by a preponderance of the evidence that Plastocon violated the Act by terminating his employment because of his race.

4. Mr. Clark failed to prove by a preponderance of the evidence that Plastocon violated the Act by discharging him because he opposed a discriminatory practice under the Act.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission issues the following:

The complaint in this matter is hereby dismissed.

Dated and mailed April 11, 2003
clarkea . rrr : 125 : 9  

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

Earnest Clark, a black male, alleges that he was discriminated against in his terms or conditions of employment in that he was called racially derogatory names by a coworker, and that he was discharged because of his race and because of his opposition to the coworker's use of derogatory names toward him.

The racially derogatory names of which the complainant complained occurred on three occasions when coworker Melissa Nutter, a white female, was sent as a relief worker to the machine where he was working. Each time the complainant and Nutter became embroiled in an argument. The complainant alleges that Ms. Nutter did not want him showing her how to operate the machinery, called him a "black ass" and stated that she hated blacks. The complainant alleges that he called Nutter a "fat ass" in response to being called a "black ass." Additionally, the complainant alleges that during the third incident Ms. Nutter had him pinned up against a table, was pointing her finger in his face and had a bar in her right hand.

The first incident took place sometime during the last week of March 1997. After the incident Nutter complained to the shift supervisor, Jeff Garcia, about having a problem with the complainant and Garcia returned to inquire about the incident. The respondent has a work light at each machine that employees can turn on to signal the supervisor if they are having a problem. The complainant was aware of this but did not turn on the light to signal Garcia. Garcia is Hispanic. Garcia could not recall much about the nature of this verbal altercation between the complainant and Nutter. The complainant himself, however, recalled that Garcia told him that calling Nutter a "fat ass" was not nice, to just disregard what she had said and that Garcia was going to tell Nutter that her conduct was inappropriate.

On April 1, 1997, a dispute again erupted between the complainant and Nutter in which there was name-calling by each of them. However, again the complainant did not turn on the call light and it was Nutter who went to Garcia to state that she was having a problem with the complainant. After listening to Nutter's version of what happened Garcia went to the complainant to get his side of the story. Garcia again verbally warned both the complainant and Nutter that their conduct was unacceptable, but this time he told them that another outbreak like that would call for disciplinary action. On April 4, 1997, Garcia prepared incident reports for the complainant and Nutter in which he noted that they had been involved in a verbal conflict on April 1 where discriminatory remarks were made by both parties, that they were both told that another outbreak like that would call for disciplinary action and that there had been a prior altercation between the same parties on March 26 or 27. On April 5, 1997, Garcia discussed the incident reports with the personnel administrator, Sharon Seeber. Among, other things, Garcia told Seeber that the complainant said Nutter called him a "black ass" and that Nutter said the complainant called her a "fat ass," but that Garcia did not know which had come first.

Early during the work shift on May 22, 1997, the complainant got into a verbal altercation with a temporary worker, Steven King. The complainant told King to stop throwing parts around on the floor. According to the complainant King responded by stating, "You black fuck, I didn't like ya the first time I seen ya," and that he then responded by telling King that he must be a "fag" and to get his "fag ass" out of there. Apparently, King was throwing parts on the floor because he was upset after having been told that he would not be hired as a permanent employee. King approached Garcia after this altercation and told Garcia that the complainant had called him a "faggot" and said he would kick King's "ass." Garcia then went to the complainant who stated that King was throwing parts around and that King was upset about not being hired. The complainant told Garcia that King had called him a "black fuck." The complainant also admitted to having called King names. Garcia told the complainant that he should not have been involved in this himself, that the complainant should let him know there was a problem going on with an employee. King did not finish the remainder of his shift. King requested to leave work, stating that he felt threatened and did not feel he could be responsible for his actions for anything else that transpired.

Later during the evening on May 22, 1997, the complainant and Nutter again became embroiled in a shouting match after Nutter had been sent to give the complainant a break. (3)   Once again, the complainant did not press the call light to indicate that he was having a problem; it was Nutter who went to Garcia to report that she was having a problem with the complainant. (4)   Garcia observed that Nutter was visibly upset and crying. Nutter told Garcia that she was not going to work with the complainant anymore, that she did not need to take the complainant's attitude about how to do the job and calling her a "fat ass." Nutter also told Garcia that the complainant said he would take care of matters after work. When Garcia questioned the complainant he told Garcia that Nutter was trimming parts wrong, started pushing him around and calling him a "black ass," and that he didn't need to take that. The complainant admitted to Garcia that he told Nutter to "get her fat ass out of the way." Garcia testified that the complainant also admitted that he told Nutter "they would settle things later on" when Garcia asked if he had stated this. (5)   Approximately an hour or two later, Nutter came up to Garcia crying and stated that because the complainant had said he would take care of matters after work at 11 p.m., she did not want to be there at 11 p.m.

As was the case with the April 1 incident, Garcia could not determine who was at fault for the conflicts between the complainant and Nutter on May 22, 1997.

On May 22, 1997, Garcia issued both the complainant and Nutter a written warning, which indicated that they had been involved in a verbal conflict and had been previously warned about this conduct. Garcia left copies of these warnings in Seeber's mailbox.

On May 23, 1997, Seeber reviewed with Chmielewski all of the documentation that she had from Garcia regarding the verbal disputes between the complainant and Nutter. Seeber also obtained more information from Garcia. Chmielewski did not believe that Garcia's response to the situation was adequate, considering the escalating nature of the complainant's and Nutter's verbal confrontations and because a third party was now involved. After discussions were held with a number of management personnel, Chmielewski determined that both the complainant and Nutter should be discharged because of their continuing verbal conflict, the fact that those conflicts were escalating and because these conflicts were disrupting the work environment to the point of people feeling threatened.

After hearings held on July 7 and December 19, 2000, the ALJ issued a decision in which he concluded that the complainant failed to establish that the respondent violated the Wisconsin Fair Employment Act, and dismissed the complainant's complaint. (6) The complainant petitions for a review of the ALJ's decision.

At the core of the complainant's petition for review is the argument that the ALJ committed error because he made no finding one way or another whether there was a hostile work environment. A review of the record indicates that the ALJ indeed did not view a hostile work environment claim as an issue in the case. This was error.

The Wisconsin Fair Employment Act prohibits an employer from "discriminat(ing) against any individual.in terms, conditions or privileges of employment." ".on the basis of.race." (Wis. Stat. § § 111.321-111.322(1)). In interpreting the same phrase "terms, conditions, or privileges of employment" under Title VII, in Meritor Savings Bank v. Vinson, 477 U.S. 57, the United States Supreme Court made clear that this language included a protection against hostile environment harassment. (7)    The Court noted that "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult." Id. at 65. The Court quoted with approval an earlier decision in Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), which stated in part that "[T]he phrase `terms, conditions or privileges of employment' in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.." 477 U.S. at 66 (internal citation omitted).

Was the complainant subjected to a racially hostile work environment and thus discriminated against in his terms, conditions or privileges of employment in violation of the law?

In order to prove a racially hostile work environment claim under Title VII, an employee must show that: 1) he was subject to unwelcome harassment; 2) the harassment was based on his race; 3) the harassment was severe or pervasive so as to alter the conditions of the employee's environment and create a hostile or abusive working environment; and 4) there is a basis for employer liability. Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1045 (7th Cir. 2002); Mason v. Southern Illinois University at Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000).

Occasional or sporadic instances of the use of racial or ethnic slurs do not in and of themselves constitute a violation of the law. Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372 (7th Cir. 1986).

"When the workplace is permeated with discriminatory intimidation, ridicule, and insult [ ] that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris v. Forklift Systems, 510 U.S. 17, 21 (1993). (Internal quotations and citations omitted). To prevail on a racially hostile environment claim, the employee must also show that his work environment was both subjectively and objectively hostile. Id. at 21.

Whether a work environment is hostile or abusive can be determined only by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating; or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.

The complainant herein complains of three incidents where he was subjected to racial harassment by a coworker. Two of those incidents occurred within a relatively short time of each other during the period of late March and early April 1997. The third incident took place on May 22, 1997. Even if it is accepted that the complainant subjectively found that being called a "black ass" by Nutter on three occasions was offensive, the evidence does not suggest that these utterances were so objectively severe or pervasive that it altered the conditions of the complainant's employment and created a hostile or abusive working environment. Clearly, these utterances were inappropriate. However, the infrequency of these utterances, the fact that these utterances were made by a single employee and the fact that these racial remarks came in the context of a dispute over how the work they were performing was to be done all militate against a showing that the complainant established the existence of a hostile work environment.

But, for purposes of argument, even assuming that the complainant had established the existence of a racially hostile environment, notwithstanding argument by the complainant, the evidence fails to establish a basis for employer liability. An employer is liable for a hostile work environment created by the employee's coworkers when the employee shows that the employer has "been negligent either in discovering or remedying the harassment." Mason, 233 F.3d at 1043. The complainant apparently argues that employer liability exists, asserting that the respondent did not take adequate measures to restrain Nutter when it had notice of the racial slurs she was making; that the respondent had merely warned her the first two times after it was reported that she had called the complainant a "black ass." These arguments fail.

First of all, the respondent was unable to determine who was at fault in causing the verbal disputes between the complainant and Nutter. The complainant and Nutter presented Garcia different stories as to what happened. The respondent did not know whether Nutter had called the complainant a "black ass" first, or whether the complainant had called Nutter a "fat ass" first. Further, the respondent was also cognizant of the fact that despite the existence of a call light at the complainant's machine that allowed him to signal Garcia if he was having a problem, the complainant had never signaled Garcia to indicate that he was having a problem. It was always Nutter who approached Garcia to complain that she was having a problem with the complainant. Second, in spite of the inability to determine who was at fault during the verbal disputes, Garcia verbally warned both Nutter and the complainant that their conduct was inappropriate after the first incident, and after the second incident, he not only verbally warned them that their conduct was unacceptable, he also notified them that a another such incident would call for disciplinary action. This second warning apparently took hold for a period of time, as there were no further incidents between them until a third incident on May 22, 1997, after which both were discharged. The warnings issued by the respondent after the first two incidents and its decision to terminate both the complainant and Nutter were reasonable, given the fact that the respondent could not determine who was at fault for causing the offensive language.

Additionally, the complainant complains that the ALJ denied him the right to make a record regarding his timeliness in subpoenaing witnesses to the hearing. This complaint is apparently in regard to the subpoenas served on Edward Schams and Sharon Seeber to appear at the July 7, 2000 hearing. In the case of Schams, he had apparently been served with a subpoena less than 24 hours before the July 7 hearing. The respondent requested that the subpoena for Schams be quashed. The complainant presented his argument for enforcement of the subpoena and the respondent presented its argument for quashing the subpoena. The complainant then wanted to respond to the respondent's argument but the ALJ would not allow him to do so, stating that the parties were allowed "one shot" to argue their position. (8)   In the case of Seeber, the complainant apparently had, at 2 p.m. on July 7, served a subpoena on her to appear at the July 7 hearing at 2:30 p.m. Noting, among other things, that the hearing would not be completed on July 7, the ALJ ruled that the subpoena for Seeber could be carried over to the continued hearing date, prior to the respondent ever stating its objection to the subpoena. The respondent was then allowed to state its objections to the subpoena for Seeber, and the respondent included an assertion that the complainant's counsel should be sanctioned for this conduct, but the ALJ did not allow the complainant to respond. The ALJ did not permit the complainant to respond because his ruling to allow Seeber to be subpoenaed was in the complainant's favor and because he had no authority to sanction the complainant's counsel. To the limited extent that the complainant was not permitted to make a record regarding his subpoenaing of witnesses, the complainant has not shown that he was harmed in any way by the refusal to allow him to make a record regarding his subpoenaing of witnesses.

Further, the complainant argues that the ALJ "crippled" the presentation of his case. First, the complainant argues that the ALJ did this by erroneously refusing to "allow any impeachment of Sharon Seeber by prior inconsistent statements made by her in a pre trial deposition based on an alleged 'abuse' of impeachment by complainant's counsel, which itself, never occurred." What the record shows is that after three instances where the complainant cited prior deposition testimony by Seeber in an attempt to impeach her testimony at the hearing, deposition testimony that the ALJ did not view as prior inconsistent testimony, the ALJ refused to permit further impeachment efforts by the complainant except by way of making an offer of proof. The ALJ's determination that Seeber's hearing testimony was not inconsistent with her prior deposition testimony was not clearly erroneous. The first attempt to impeach Seeber by her prior deposition testimony followed Seeber's hearing testimony that Melissa Nutter had been disciplined for making racial slurs (i.e., in the form of "black ass") before May 22, 1997, by having been "written up on a document, same as Clarke was, she was reprimanded by her supervisor and ultimately she was terminated." (Exhibit C-8, was supervisor Garcia's April 4, 1997 documentation that stated the complainant and Nutter were involved in a verbal conflict on April 1, that both were verbally told that another outbreak like that would call for disciplinary action and that there had been a prior altercation between them during the prior week on March 26 or 27.) In addition, Seeber testified at the hearing that during her discussion with Garcia following his April 4 documentation Garcia stated he had warned both employees and let them know that he was not going to tolerate that kind of behavior from either one of them. Subsequent to this testimony, Seeber responded affirmatively to the question whether she as the human relations director would be involved in any disciplinary action that might have to be taken against Nutter for making racial slurs. The complainant then referenced Seeber's deposition testimony (page 55, lines 1-12) wherein she states that she spoke to Garcia when Garcia brought the April 1 incident to her attention but did not do anything else. Apparently, the complainant believed that this constituted inconsistent testimony because Seeber testified at the hearing about a reprimand being given on April 4 but did not mention anything about a reprimand being done by her in the cited deposition testimony. Seeber's hearing and deposition testimony were not inconsistent. Seeber did not state at the hearing that she had reprimanded Nutter or the complainant. In fact, she testified that the supervisor handled the April 1 incident. Moreover, nowhere in the deposition testimony cited by the complainant was Seeber ever asked whether any reprimands were given to Nutter or the complainant.

The complainant's second attempt to impeach Seeber's hearing testimony by alleged prior inconsistent deposition testimony concerned whether there was a "group discussion" by management when the decision was made to terminate the employment of the complainant and Nutter. Seeber testified that after talking to Chmielewski and then with Garcia on May 23, 1997, when she talked with other management personnel she believed this was done individually and possibly with Chmielewski. Seeber testified that she never talked to them (i.e., all of the management personnel together) as a group. The complainant referenced the transcript of Seeber's deposition testimony beginning at the bottom of page 39 and continuing on to page 42 as proof that there was a "group discussion." However, the transcript of Seeber's deposition shows that it was the complainant's counsel, not Seeber, that had characterized the discussions in which Seeber was involved as a "group discussion." In any event, regardless of whether Seeber's discussions occurred individually and possibly with Chmielewski or with all management personnel as a group, this can hardly be seen as significant inconsistent testimony from which one could reasonably conclude that Seeber was not a credible witness.

The complainant's third attempt to impeach Seeber's hearing testimony by alleged prior inconsistent deposition testimony concerned Seeber's testimony about what was discussed in the offices of Chmielewski and Schams. Asked at the hearing what was said in Chmielewski's office, Seeber testified that they discussed the incident report and that she indicated a concern for the safety of other employees with two employees (complainant and Nutter) arguing and threatening each other. Asked what was said in Schams' office, Seeber stated that she did not recall exactly, but again indicated that the incident report, the employee warnings and concern for the safety of the respondent's other employees was discussed. In the deposition testimony of Seeber cited by the complainant (p. 59, line 23 through p. 60, line 7), when asked what was said in Schams' office by her or anybody Seeber testified that she did not recall. When asked what she said in Chmielewski's office Seeber stated that she did not recall, and when asked what was said by anybody she stated that she did not recall exactly what was said. Seeber's testimony at the hearing about what was discussed in Chmielewski's and Schams' offices, which indicates a somewhat better recall of what was discussed, does not make her hearing testimony inconsistent with her deposition testimony. Indeed, even in the deposition testimony of Seeber noted above at pages 39-40, which the complainant cited as proof that there was a "group discussion," Seeber indicated that the incident report about what happened on March 26 or 27 and April 1, 1997, between the complainant and Nutter was discussed during the meetings.

It was after the complainant's third attempt to impeach the hearing testimony of Seeber based on alleged prior inconsistent deposition testimony that the ALJ stated this was not impeachment and that if this was what complainant's counsel considered impeachment, he was not going to allow it. Chapter 227.46(1)(e) provides that hearing examiners may regulate the course of the hearing. Also, whether what a witness says on the stand is inconsistent with a prior statement lies within the discretion of the trial judge. State v. Lenarchick, 74 Wis. 2d 425, 435, 247 N.W.2d 80 (1976). Based on this record, there is no indication that the ALJ erroneously exercised his discretion to foreclose the complainant from further attempts to impeach Seeber's hearing testimony.

The complainant also contends that the ALJ crippled his case by considering the incident involving Steven King. The complainant argues that he never alleged the employer was responsible for King's conduct. The complainant argues that this matter was totally irrelevant and immaterial. The complainant's arguments fail. The fact that the complainant had also had a verbal altercation with King, in addition to the altercations with Nutter, was a consideration in Chmielewski's decision to discharge the complainant. The complainant apparently contends that because the complainant's separation notice does not include a reference to the King incident that the incident with King was not considered. However, it was Chmielewski, not Garcia, who had made the decision to discharge. Garcia had merely prepared a separation notice for the complainant sometime after Chmielewski had made the decision to discharge the complainant. Chmielewski testified that the incident with King was a consideration in his decision to discharge the complainant. The commission finds no reason to question Chmielewski's credibility in this matter.

The commission has also closely considered the remaining arguments made by the complainant but finds them unpersuasive in proving the existence of a hostile environment claim.

Finally, the complainant has not presented any argument in support of his claims that he was discharged because of his race and because he had opposed Nutter's calling him a derogatory name. The commission finds that the evidence fails to support his claims that he was discharged because of his race and because of his opposition to being called a derogatory name. The commission's findings with respect to the basis for the respondent's decision to discharge the complainant have been fully set forth above and need not be repeated here.

cc: 
S. A. Schapiro
Robert K. Bultman

Appealed to Circuit Court. Affirmed February 12, 2004.

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(1)( Back ) Where bold text appears in this decision, this represents a modification that the commission has made to the ALJ's decision. All other text appears as originally written by the ALJ.

(2)( Back ) The order of paragraphs 17-19 of the ALJ's decision has been rearranged.

(3)( Back ) This was the second of two conflicts the complainant and Nutter had that evening. The first was apparently a minor conflict.

(4)( Back ) At the hearing the complainant testified that he did "turn the call light on" during the second and third incidents with Nutter. The ALJ found otherwise in his decision and memorandum opinion, and the ALJ's memorandum opinion also notes that he did not find the complainant to be a credible witness.

(5)( Back ) At the hearing the complainant also asserted that he never suggested to Nutter or anyone that he would meet Nutter at 11 o'clock.

(6)( Back ) This was the second ALJ decision issued on the complainant's complaint of discrimination. The first ALJ's decision issued on March 26, 1999, was set aside by the commission on September 28, 1999, because of the inadequacy of the record made of the original hearing.

(7)( Back ) While Wisconsin Courts considering claims of discrimination under the WFEA are not bound by decisions of the federal courts under Title VII, they have looked to such federal decisions for guidance in applying the state's fair employment law. Hamilton v. DILHR, 94 Wis. 2d 611, 620, 288 N.W.2d 857 (1980).

(8)( Back ) Later during the hearing, complainant's counsel was allowed to assert that he had given Schams' subpoena to the sheriff to serve at least eight days prior to July 7, 2000. In addition, after it was determined that the hearing would have to be continued because it would not be completed on July 7, the complainant's counsel was advised that Schams could be subpoenaed to appear at the continued hearing, provided that Schams was issued a subpoena at least 30 days before the continued hearing date.

uploaded 2003/04/25