LARRY J. COLE, Complainant

GREYHOUND BUS LINES, 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. Respondent Greyhound Bus Lines (Greyhound) is a business that provides bus transportation services to the public. Greyhound operates a bus terminal in Milwaukee, Wisconsin.

2. Complainant Larry Cole began working for Greyhound as a baggage agent at the Milwaukee terminal in early 2001. Cole was hired by Maxcine Malone, who was the terminal manager for the Milwaukee terminal at that time.

3. Cole's date of birth is March 22, 1950.

4. By early 2002, Cole had become a GPX (Greyhound Package Express) agent for Greyhound. The GPX manager, who was Cole's immediate supervisor, was Dennis Blanks.

5. By some time in early 2003, Blanks had been terminated by Greyhound. Some time after this, Cole was made a GPX team leader. As a GPX lead person, Cole was responsible for loading and unloading packages, shipping packages by Greyhound and UPS, calculating shipping costs, providing price information to customers, handling customer pick-ups, completing inventory forms and completing daily reports.

6. In addition to serving as a GPX lead person, Cole was also made interim GPX manager pending hiring of a replacement for Blanks.

7. In March, 2003, Cole was given an annual performance evaluation, signed by Malone, in which he was given an overall rating of 3.71 on a 1-5 scale in which 1 meant "Does Not Meet Expectations"; 2 meant "Needs Improvement"; 3 meant "Meets Expectations"; 4 meant "Exceeds Expectations"; and 5 meant "Clearly Exceptional. Under the category of "Attendance", the performance evaluation stated, "Employee reports to work when scheduled and on time. Larry usually reports early to set things in motion".

8. Greyhound's GPX regional manager, Bert Desha, eventually offered Cole the position of GPX manager which had been vacated by Blanks' termination. Cole declined the position because he did not want it. At this time, Cole made a recommendation to Malone that he thought Anthony Charneski would be a good candidate for the GPX manager position. Charneski was subsequently offered the position and accepted it. Charneski was 26 years old.

9. After Charneski's hire as GPX manager, Cole continued to work as a GPX team leader. There was one other GPX team leader, Ramon Weatherall, who was in his twenties. Charneski was their immediate supervisor.

10. As a GPX lead person, Cole had worked 40 hours a week in a conventional eight hours a day, five days a week schedule. Shortly after Charneski became the GPX manager, he changed the work schedule for the GPX lead persons at the Milwaukee terminal to one in which they worked the same number of hours but did so on a schedule of 3 days on, 4 days off, 4 days on, 3 days off. This meant that the work days were significantly longer.

11. Cole was very unhappy about the new work schedule implemented by Charneski. He found the new schedule frustrating and difficult to work because it was causing him to lose sleep. Cole complained directly to Malone about the schedule change, and he asked to be transferred to any other department.

12. Charneski was very upset by the fact that Cole complained about the schedule change.

13. On both July 20 and 21, 2003, Cole called the Greyhound terminal before his shift began to say that he could not work because he was sick. On July 22, 2003, Cole's brother called the Greyhound terminal before Cole's shift and said that Cole could not be at work because Cole was incarcerated.

14. Cole returned to work on July 23, 2003. Charneski told Cole to clear out his belongings because he had abandoned his job and his employment with Greyhound was being terminated. Cole asked for a personnel action form, and Charneski gave him one on which he had made a checkmark by the "Job Abandonment" reason for termination. Cole left without saying anything more.

15. Cole subsequently received a copy of a letter from a representative for Greyhound to the Wisconsin DWD Unemployment Insurance Division, asserting that Cole had been considered to have voluntarily quit after failing to call or report for three consecutive days.

16. Under respondent's Guidelines of Discipline, an employee who was absent 3 consecutive scheduled days without notice would be treated as having quit.

17. Cole was not absent 3 consecutive scheduled days without notice.

18. Under respondent's Guidelines of Discipline, there was no specific infraction category for excessive absenteeism or poor attendance. Under those guidelines, "Tardiness" was punishable by a reprimand for the first and second occurrences, then a 2-day layoff, then a 5-day layoff, and then termination. Failure to report an absence was punishable by a 3-day layoff for the first occurrence, then termination. "Substandard quantity/quality of work" was punishable by reprimand for the first occurrences, then a 2-day layoff, then a 5-day layoff, and then termination. There is no competent evidence in the record that Cole had been reprimanded or otherwise disciplined for his attendance prior to his termination.

1. There is probable cause to believe that the respondent discriminated against the complainant because of age, in violation of the Wisconsin Fair Employment Act.

The decision of the administrative law judge is reversed. This matter is remanded to the Equal Rights Division for further proceedings.

Dated and mailed September 16, 2005
colelar . rrr : 110 :

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

As of March 2003, Larry Cole, who was then 53 years old, was clearly considered by Greyhound to be satisfactorily performing his job. Cole, who had previously received an "Excellence In Action" Certificate of Recognition from Greyhound, and who had in the previous 2 years been given performance evaluations rating him at or above "Meets Expectations" in all categories, had just been given another good performance evaluation, this one rating him at 3.71 on a scale on which 3 meant "Meets Expectations" and 4 meant "Exceeds Expectations." He had recently been given the responsibility of acting as interim GPX manager, and had been offered a permanent promotion to that position. However, just a few months later, he was fired by a new supervisor, a man half his age. The other employee in Cole's classification (GPX lead worker), who was also half Cole's age, was not terminated. These facts suffice to establish a prima facie case of age discrimination, and to cast onto respondent the burden of articulating a non-discriminatory reason for the decision to discharge Cole.

The commission has found probable cause to believe that the respondent discriminated against Cole on the basis of his age, because respondent has failed to articulate a believable explanation for the challenged decision. The record shows that it in fact initially advanced a plainly false reason for the challenged decision, something which in itself tends to suggest that an improper motive lay behind that decision.

The decision to discharge Cole was made by his supervisor, Charneski. The uncontradicted testimony of Cole is that Charneski told him that he was being discharged because he had "abandoned his job." Indeed, Charneski noted this same justification on the Personnel Action Form he prepared to memorialize Cole's discharge. Furthermore, a representative for the respondent subsequently asserted to another division of the department that Cole had been considered to have voluntarily quit after failing to call or report for three consecutive days. This representative, who was evidently not herself involved in the discharge decision, must have obtained her information about the reason for the discharge from someone who was involved in that decision, and it is reasonable to infer that she obtained that information from Charneski, the man who made the decision and recorded it on a Personnel Action Form. Thus it is clear that at and after the time of the challenged decision, the respondent was asserting that the decision to discharge Cole was made because he had been absent for three consecutive days without notice, an "automatic quit" under respondents "Guidelines of Discipline."

The problem, of course, is that the record makes it clear that Cole did give notice of his three days of absence, in advance, on each day. Indeed, this was noted right on the face of the Personnel Action Form, even as it also noted "Job Abandonment" as the reason for the termination. The respondent's witness at the hearing, Maxcine Malone, had to acknowledge that she would not consider Cole to have engaged in "job abandonment" since he did in fact provide notice for each day of absence.

The person who might have been able to provide an explanation for why Cole was discharged for "job abandonment" when he did not in fact abandon his job, was of course Charneski, the person who had made the decision. However, the respondent did not present him as a witness. The commission notes, that prior to the hearing the respondent had formally notified the ERD and Cole that its witnesses would include Charneski, who was still employed by Greyhound. The respondent's notice indicated that, while Charneski was working out of state, he was available by telephone. There is no indication in the file, that any objection was raised either by Cole or by the ERD to the possibility of Charneski giving evidence by telephone. However, for reasons which are unexplained, the respondent then did not call Charneski. In the proper circumstances, the failure of a party to present a material witness or evidence within their control permits an inference against such party. See, Connor v. Heckel's (LIRC, Sept. 27, 1999), citing, Carr v. Amusement, Inc., 47 Wis. 2d 368, 375, 177 N.W.2d 388 (1970). In the circumstances here, the commission infers that the respondent chose not to present the testimony of Charneski because it would have tended to show that the "job abandonment" reason he gave for deciding to discharge Cole was not accurate.

The commission has repeatedly recognized that the demonstrated falsity of an employer's asserted reason for an employment action may, in itself, be viewed as some evidence that an improper motivation was behind the decision. See, e.g., Mateski v. Nuto Farm Supply (LIRC, Feb. 15, 2005) (trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose); Kurtzweil v. GPI Corp. (LIRC, Aug. 27, 2004) (factfinder's disbelief of defendants reasons, particularly if accompanied by suspicion of mendacity, may show intentional discrimination). In this case, where the complainant has made out a prima facie case and the respondent has without explanation failed to provide evidence within its control from the person who made the challenged decision, the demonstrated falsity of reason originally given by that person for discharging the complainant tips the balance in favor of a finding of probable cause.

NOTE: The commission has reversed the decision of the ALJ because of a different view as to the believability of the reasons offered by the decisionmaker, Charneski, for the discharge of the complainant. Since Charneski did not testify at the hearing, these different views were not the result of any differing assessment of credibility arising from demeanor impressions. Therefore, the commission has not consulted with the ALJ concerning such demeanor impressions.

Cole offered evidence at hearing about other, younger, employees who had poor attendance records but who were not discharged. The administrative law judge evidently concluded that this evidence was not probative of discrimination because the employees were not supervised by Charneski. The commission recognizes the validity of this point, but still believes that this evidence may have some relevance to the issues presented here, particularly to the extent to which the treatment of these other employees may reflect general Greyhound policies that Charneski would have been aware of and expected to follow. Thus, it would not necessarily be inappropriate for the evidence, if presented at the hearing on the merits, to be considered. The commission's failure to make any findings on the issue of alleged disparate treatment of these other employees is simply a reflection of the fact that it concluded that probable cause was appropriately found based on the matters addressed in the findings made.

cc:
Sherri Pittmann, Representative for Respondent
Fritz J. Aldrine II, Attorney for Respondent

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

uploaded 2005/09/20