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

VAL E WALLACE, Complainant

CERTIFYING SERVICE EXPRESS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200203258, EEOC Case No. 26GA201870

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.

DECISION

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

Dated and mailed March 10, 2006
wallava . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


Wisconsin courts, in the absence of the Wisconsin Fair Employment Act's (WFEA's) establishment of a specific procedure by which a complainant must prove a claim of employment discrimination, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc., v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985). As stated by the court in Puetz:

McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).

Id. at 172.

To establish a prima facie case of a discriminatory discharge, the complainant must show that: (1) he was a member of a protected group because of his race; (2) he was discharged; (3) he was qualified for the job, and (4) either he was replaced by someone not within the protected class or others not in the protected class were treated more favorably. Puetz, 126 Wis. 2d at 173 (internal citations omitted).

Here, the complainant established a prima facie case by proving that he is white and he was discharged while an allegedly similarly situated black person was retained.

The respondent explained that the complainant was discharged because, on June 4, 2002, he purposely stopped working significantly in advance of the end of his shift. This explanation is legitimate and non-discriminatory on its face.

The complainant first argues that pretext is demonstrated by the respondent's failure to address this alleged deficiency through its progressive discipline policy, i.e., that this alleged deficiency was not sufficiently serious to merit his immediate discharge. However, given the respondent's heightened focus at the time on production goals (Finding of Fact 12), and its use of overtime hours in an attempt to meet those goals, the fact that an employee purposely ceased production thirty minutes before it was appropriate to do so could reasonably support a decision to forego progressive discipline and effect a discharge.

The complainant next argues that pretext is demonstrated by the respondent's failure to prove that he actually stopped work early on June 4, 2002.

The complainant is correct in asserting that the evidence of record does not show that he actually stopped work early on June 4, 2002. (See Finding of Fact 8). However, the ALJ credited the testimony of Duane Osland to the effect that, based on reports he had received from Eric Pallesen, John Holstlaw, and Ronnell Payne, he reasonably believed that the complainant had purposely stopped work early on June 4. The commission has carefully reviewed the evidence of record and, in the absence of competent evidence that Osland, for example, had not received these reports or had reason to doubt their authenticity or veracity, discovered no persuasive reason to overturn the ALJ's determination in this regard.

In some cases, such as that here, the question of whether an employer's asserted nondiscriminatory reason is objectively correct can be considered irrelevant if it appears that the employer genuinely believed it to be true. See, Moncrief v. Gardner Baking, ERD Case No. 9020321 (LIRC July 1, 1992); Turner v. Manifold Services, Inc., ERD Case No. 200000679 (LIRC Jan. 31, 2002); Kleinsteiber v. Eaton Corp., ERD Case No. CR200103841 (LIRC March 15, 2004); Grell v. Bachmann Construction Co., Inc., ERD Case No. CR200202309 (LIRC July 15, 2005). The trier of fact need only determine that the employer in good faith believed in those reasons and that the asserted reasons for the action were not a mere pretext for discrimination. See, Atkins v. Pepsi-Cola General Bottlers, ERD Case No. 199550094 (LIRC Dec. 18, 1996); Stichmann v. Valley Health Care Center, ERD Case No. 200104418 (LIRC June 14, 2005); Ford v. Lynn's Hallmark, Inc., ERD Case No. CR200301184 (LIRC June 27, 2005).

Finally, the complainant argues that the fact that his black partner Payne was not discharged for failing to meet the production quota on June 4, 2002, demonstrates pretext. However, the record supports a finding that the complainant was not discharged for failing to meet the production quota but instead, as Osland believed, because he had purposely stopped work early on June 4.

The complainant has failed to establish that the reason offered by the respondent for his discharge was a pretext for race discrimination, and has failed, as a result, to sustain his burden to prove that he was discriminated against based on his race when he was discharged by the respondent.

cc: Attorney John M. Wood


Appealed to Circuit Court.

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