PETER M STARCK, Complainant

MIDWEST AIRLINES 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Finding of Fact #7 is modified to read as follows, for purposes of clarification:

Based on this HIV (human immunodeficiency virus) positive diagnosis, the complainant qualifies as an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA).

The word "of" is deleted from Finding of Fact #9 in order to correct an error.

In Finding of Fact #17, to correct errors, the apostrophe is deleted from the word "relation's" in the first sentence; the word "company's" is substituted for the word "companies" in the third sentence; and the final clause in the sixth sentence is modified to state "and that he was not eligible to apply for any other job opportunity."

The word "inappropriate" is substituted for the word "appropriate" in Finding of Fact #23 in order to correct an error.

One of the identical phrases "to ask him" is deleted from the first sentence of Finding of Fact #24 in order to correct an error.

In Finding of Fact #25, the reference to "two agents" is changed to "another agent" to more accurately reflect the record.

In order to more accurately reflect the record, the first sentence of Finding of Fact #26 is modified to read, "After the complaint of Mr. Starck's co-worker, Ms. Martin called Mr. Starck and asked him to come to her office."

The MEMORANDUM OPINION section is deleted and the following substituted:

The respondent does not dispute that the complainant qualifies as an individual with a disability within the meaning of the WFEA or that the complainant's sexual orientation is that of homosexual.

The complainant contends that he was harassed based on his disability and sexual orientation when his supervisors offered him the option of resigning and when they criticized his attitude and work performance.

Even if a harassment analysis were an appropriate one given the subject actions, the complainant did not sustain his burden to show that such actions were sufficiently severe or pervasive to support a conclusion that illegal harassment occurred. See, Thompson v. Ashley Furniture Industries, Inc., ERD Case No. CR199903292 (LIRC July 16, 2003). The record shows that complainant's conduct was inconsistent with the respondent's interpretation of its employee performance and attitude expectations, and it was his supervisors' obligation to bring this to complainant's attention, to attempt to correct it, and to take action, including offering him a chance to resign, if not corrected.

The complainant also contends that he was discriminated against based on his disability and sexual orientation when he was not offered a transfer in September of 2001 and January of 2002; and when he was suspended with pay on October 11, 2001, and May 1, 2002, and terminated on May 6, 2002.

However, it was the complainant's burden to prove that, in September of 2001 and January of 2002, there were vacant positions which the respondent was seeking to fill and for which he was qualified and had applied but was denied transfer. The complainant failed to sustain this burden.

To sustain his burden to prove disparate treatment, the complainant must show that he was treated differently in regard to his suspensions and termination, based on his disability or his sexual orientation, than similarly situated employees. Although, viewed in isolation, the respondent's performance and attitude expectations and its interpretation of them could seem unusually exacting, there is no evidence which would support a conclusion that they were not uniformly applied and enforced. Moreover, the record shows that the subject actions, including but not limited to the complainant's acknowledged snippiness to a customer, and, after warning, his sarcastic message for his supervisor and his "tongue-in-cheek" response to an earnest management directive, violated these expectations. The complainant failed to show that the respondent's reliance on his violation of its expectations to suspend and then terminate him was a pretext for discrimination. In fact, Opdahl, one of the respondent's key decision-makers here, had no reason to even be aware of complainant's disability or sexual orientation at the time the suspension and termination decisions were made.

Finally, in his petition for commission review, the complainant asserts that he was not represented by counsel at hearing, but now has sufficient evidence to prove discrimination. However, the commission's review is based on the existing hearing record, and the complainant has offered no persuasive reason for granting further hearing in this matter.

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

Dated and mailed June 18, 2004
starcpe . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc: Attorney Shelly A. Ranus

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/06/21