FELICIA BOOKER, Complainant

NMT CORPORATION, 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.

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

Dated and mailed August 27, 2004
bookefe . rsd : 125 : 9 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Felicia Booker petitions for a review of the ALJ's decision which determined that she had failed to show by a preponderance of the evidence that the respondent had violated the WFEA by discriminating against her in terms and conditions of employment or in terminating her employment because of her race. The commission agrees with the ALJ's determination and therefore affirms his decision.

Booker began working for the respondent in May 2000 through a temporary employment agency. The respondent develops and sells computer graphics services and systems and related products. On August 1, 2000, the respondent made Booker a permanent employee. Booker worked in the respondent's scanning department. Booker is a black female.

Apparently, on or about September 25, 2000, Gayle Mellington, Booker's supervisor, completed a performance evaluation for Booker. Mellington is a white female. Mellington recommended that Booker receive a $.30 per hour raise, taking her from an hourly wage of $7.30 to $7.60. Apparently on or about October 9, 2000, Mellington prepared a performance evaluation for William Swartling, a non-minority male, recommending that he be promoted to a lead technician of the department and receive a $1.00 per hour raise, taking him from an hourly wage of $7.30 to $8.30. The $1.00 per hour raise recommended for Swartling included $.30 per hour for becoming a lead technician. Swartling also began employment with the respondent through a temporary employment agency in May 2000, shortly before Booker.

On October 26, 2000, Thomas Connelly, vice president of manufacturing, issued memos to payroll to increase the wages of Booker and Swartling as recommended by Mellington. Connelly made Booker's raise retroactive to September 25, 2000 and Swartling's raise retroactive to October 9, 2000. The only other employee in the scanning department was Sarah Oliver, a Native American. Oliver was hired as a temporary employee in August 2000 and made a permanent employee in November 2000. On January 18, 2001, Connelly approved a wage increase of $.70 per hour for Oliver, taking her from an hourly wage of $7.30 to $8.00. Oliver's raise was made retroactive to January 15, 2001.

Around December 18, 2000, the respondent's scanner broke down. Using the scanner was what Booker did most of the time. Also, by late January and early February 2001, work had slowed down considerably in the scanning department. From January 25, 2001 through February 13, 2001, Booker worked a total of 8 hours (3.75 hours on Jan. 26 and 4.25 hours on Jan. 29). Mellington listed "no work" on notice of absence forms as the reason for Booker's absence from work on January 25, 30 and 31 and February 1, 2, 5, 6, 7, 8 and 9. For the same period, January 25 through February 13, Oliver worked a total of 97.75 hours and Swartling worked 90.25 hours.

On February 13, 2001, Booker telephoned Connelly and asked him why she was not getting any work. Connelly did not know the answer to this question, as the department supervisors were responsible for assigning work to employees. However, Connelly told Booker about an envelope-labeling project in the production department and stated that she could come in to work the next day. Booker worked eight hours on this project on February 14, but she was not happy with this assignment. Booker did not complete this project on February 14. Booker did not report for work on February 15. Instead, she tried to contact Connelly by phone on February 15 to complain about the assignment she had been given but did not get through to Connelly.

During the week to ten days after February 14 Connelly received a total of about five phone calls from Booker. However, Booker's calls were coming in during the time Connelly was out of the office because of a family emergency. Connelly tried a couple of times to contact Booker at the number Booker had left in her messages but was unsuccessful. Connelly gave up trying to contact Booker when his efforts were unsuccessful. During this time Booker did not go to work and did not call Mellington or anyone else at the company to ask if any work was available. Work was available for Booker.

On March 12, 2001, Booker called Connelly and was able to reach him. Connelly advised Booker that her employment had been terminated for not calling in or showing up for work for three consecutive days. A week to ten days after February 14 Booker had stopped calling Connelly. The respondent's company policy states that a no call/no show for three consecutive scheduled work days is considered a voluntary termination.

Booker asserts that she believes she was treated differently because of her race because she was assigned to work in the vault more than Swartling and Oliver, in the amount of the pay raise she was given, in the number of hours of work she received starting at the end of January and in her termination of employment.

Booker complains that after becoming a permanent employee she was assigned to work in the vault more than Swartling and Oliver. Booker asserted that the heating system in the vault was not working well as winter approached and that the vault was so cold that she had to wear a hat and gloves while working. Mellington agreed that she assigned Booker to work in the vault more often than Swartling or Oliver, but explained that she made job assignments depending on what work was available and what she needed each person to do. As noted above, on or about December 18, 2000, the respondent's scanner had broken down and using the scanner was what Booker had been doing most of the time. Further, Mellington testified that after learning to scan and do quality control, then an employee would work putting away cards in the vault. Mellington testified that she trusted Booker working in the vault because she was fairly accurate and if she had a problem she would check it out before proceeding. The respondent was attempting to repair the heating system in the vault. Mellington told Booker to come out of the vault when she got too cold. Booker herself stated that Mellington told her that Swartling and Oliver were needed in other areas when she asked why she was assigned to the vault more often. The evidence does not support a showing that Booker was assigned to the vault more often because of her race.

A thirty to fifty-cent per hour raise is considered an average wage for an employee at the respondent. A raise of seventy cents is considered to be exceptional. Connelly testified that an employee's performance review would have to have "mostly 'excellents' and nothing 'average.' All 'excellent' and 'good.' " Connelly testified that employees normally receive a raise 60 days after being hired by the respondent. That is, 60 days from their hire by the respondent, not 60 days from the date they were placed with the respondent by the temporary employment agency. Swartling and Oliver's performance reviews were not entered into the record at the hearing. Swartling and Oliver both received raises of seventy cents per hour. Swartling testified that he did not remember if he was rated "excellent" in each area. He testified that "I would assume I had some 'goods' and 'fairs.' " There is no indication that Oliver's review may have included any ratings other than "excellent" and "good." Connelly and Mellington testified that Swartling and Oliver received raises of seventy cents per hour because they caught on to job tasks quickly, were more accurate in their work and because they retained the skills taught for each task without the need to later ask a lot of questions. Mellington testified that Booker was a good employee but she received only a 30-cent raise because it took her longer to learn things. The respondent's explanations for the wage increases given Swartling, Oliver and Booker are legitimate, nondiscriminatory reasons for the wage increases they received.

Booker argued before the ALJ that it was undisputed that Swartling's hiring by the respondent was delayed due to his attendance problems, that Swartling testified his performance review contained some "good" and "fair" ratings and that these types of ratings are not usually present for an "excellent" employee. Booker argued that if these employees were so "excellent" why didn't the respondent introduce their evaluations to substantiate their claim. Booker also argued that the "glowing" letters of reference provided her by Mellington and Tami Mathison, a production supervisor, undercut any testimony on their part that Booker's raise was less than half of Swartling and Oliver's because of a disparity in their work performance.

First of all, while Swartling's hiring by the respondent may have been delayed due to his attendance problems while a temporary employee, the evidence indicates that an employee's raise is based on their performance after 60 days of employment as a permanent employee of the respondent. Connelly testified that employees normally receive a raise 60 days after being hired by the respondent. That is, 60 days from their hire by the respondent, not 60 days from the date they were placed with the respondent by the temporary employment agency. Similarly, Mathison testified that an employee's first raise comes after the completion of their probationary period of 60 days. Second, even assuming Swartling may not have received all "excellents" and "goods" on his performance review, the evidence fails to show that the difference between his (or Oliver's) wage increase and that of Booker's was based upon their race. The evidence shows that their respective wage increases were based upon their abilities as employees. The evidence showed that Swartling and Oliver caught on to job tasks quickly, were more accurate in their work and retained the skills taught for each task without the need to later ask a lot of questions. Indeed, Swartling was promoted to the position of lead technician, the most skilled position for an employee in the department, because of his ability, and took on the responsibility of training others. In addition, the fact that Oliver, also a minority (Native American), received a $.70 per hour raise undercuts Booker's claim that she was treated differently with respect to her wage increase because of her race. Booker's assertion regarding the letters of recommendation provided her by Mellington and Mathison is unpersuasive. The evidence shows that these letters of recommendation were computer-generated. Mellington and Mathison testified that in response to a request by Booker for letters of recommendation, that they located a program for letters of recommendation on the internet, filled in a form asking what tasks the person performed well and about the person's strengths and that the letter of recommendation was written automatically by the computer.

Finally, while Booker has asserted that the respondent did not present Swartling and Oliver's performance reviews to substantiate its claim for their wage increases, Booker has confused the respective burdens of the parties. "[T]he employer's burden is satisfied if he simply 'explains what he has done' or 'produc[es] evidence of legitimate nondiscriminatory reasons.' " Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981), quoting Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25, n.2 (1979). A requirement that the defendant introduce evidence which, in the absence of any evidence would persuade the trier of fact that the employment action was lawful exceeds what can be demanded to satisfy the employer's burden of production. Burdine, 450 U.S. at 257. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Burdine, 450 U.S. at 253. Booker has failed to show that the difference between the wage increase that she received compared to that of Swartling and Oliver was not based upon their respective ability and that this reason was a mere pretext for race discrimination.

Booker also argued that because her raise was delayed 30 days while Swartling's was delayed only 17 days and Oliver's only 3 days, that this was evidence of discrimination. Connelly could not recall why Booker's raise was delayed 30 days but denied that there was any racially motivated or intentional reason to delay her raise. Connelly made all raises retroactive.

Booker also argued that she was discriminated against on the basis of race because her work hours were severely reduced beginning January 25, 2001, while co-workers Swartling and Oliver received considerable work hours. However, the evidence shows that Swartling and Oliver received more work hours than Booker in part because when there was no work in the scanning department they were requested by supervisors of other departments to work in their departments because they had training in the tasks of those departments. Swartling had training in the bindery and production departments. Oliver had previously worked for the respondent in the production department for three years. Swartling and Oliver were also requested for work in other departments because they made fewer mistakes. Also, the fact that Oliver was getting work hours undercuts Booker's claim that her race accounted for the reason she was not getting work hours. In addition, the evidence shows that Swartling and Oliver received more work hours than Booker in part because they came in to work and found things to keep themselves busy, performing menial tasks such as mopping the floors and emptying the trash.

The evidence thus shows that there actually was no work for Booker to do when Mellington was telling her there was no work for her because Swartling and Oliver, either due to their own initiative or their being selected by supervisors from other departments, were doing whatever work was available.

Finally, Booker claims that her employment was terminated because of her race. The evidence does not support Booker's claim. On February 14, 2001, Booker worked for eight hours on an envelope-labeling project assigned to her by Connelly the previous day. Booker was not happy with this assignment. Although Booker did not complete this project on February 14 she did not report for work on February 15. Instead, beginning on February 15 Booker tried to contact Connelly by phone on February 15 to complain about the assignment she had been given. Booker attempted to contact Connelly for a period of two weeks. Booker was unable to reach Connelly and left a phone number where he could call her back. Connelly was in and out of the office during about the next seven workdays after February 14 due to a family emergency. Booker's calls were coming in during the time Connelly was out of the office. Connelly called Booker back at the number she left on his voice mail at least twice but was unable to reach her. About a week to ten days after February 14 Booker stopped calling Connelly. Connelly testified that because he could not get a hold of Booker and she had not called him back that he gave up trying to contact Booker. During the week to ten days after February 14 Booker did not go in to work and did not call Mellington or anyone else at the company to find out whether there was work. There was work available for Booker. Connelly did not hear from Booker until March 12. On March 12 when Booker called, Connelly informed Booker that her employment had been terminated for not calling in or showing up for work for three consecutive days. Under the respondent's attendance policy unexcused absences from work for three consecutive scheduled workdays without notice to the employer is considered a voluntary resignation. Booker presented no evidence to show that she had been treated any differently than any other employee that had quit calling in or showing up for work for three consecutive days.

Booker has argued that the respondent's explanation for her termination is "seriously flawed" because she did contact the respondent "numerous times up to and including March 12." However, the evidence indicates that Booker had stopped calling in around the end of February. Connelly testified that about a week to ten days after February 14 Booker stopped calling in. Booker herself testified that she called Connelly on February 15 and "had consistently attempted to contact Mr. Connelly for a period of two weeks." Booker also finds significant that in Connelly's answer to her complaint he stated that she had failed to leave return telephone numbers. Connelly readily admitted that this statement was inaccurate, however, and there is no reason to conclude this inaccuracy was any thing other than just a mistake. Booker also argued that Connelly was able to contact Booker as the respondent kept records of a phone number(s) to be able to reach her. However, Booker had left on Connelly's voice mail a specific number for Connelly to reach her at and he attempted to reach her at that number. Based upon a human resources employee's February 16, 2001 statement on a form from Credit Bureau Data that Booker only worked a few hours a week, Booker also argued that the respondent had already decided to terminate her employment at that time. This argument fails. The evidence indicates that Connelly was attempting to return Booker's phone calls after February 16, 2001. Moreover, Connelly denied ever seeing the Credit Bureau Data form or speaking to the human resources employee about it until just before the hearing and Booker has not shown otherwise. Booker also argued that since she was consistently being told by Mellington that there was no work she correctly assumed that only Connelly would be able to assign her work. Booker then argued that Connelly's testimony that her employment was terminated because she failed to call in to work the first two weeks of March is not credible as he testified he had no records of when she actually called him. These arguments also fail. As previously noted, the evidence indicates that Booker had simply stopped calling Connelly and that she did so around the end of February. Connelly testified that about a week to ten days after February 14 Booker stopped calling in. Booker herself testified that she called Connelly on February 15 and "had consistently attempted to contact Mr. Connelly for a period of two weeks." Booker chose to quit coming in to work after February 14. She also chose to stop calling Connelly around the end of February, and neither bothered to go in to work or call anyone else when she stopped calling Connelly.

cc: Attorney Daniel E. Dunn

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