HECTOR M RODRIGUEZ, Complainant

USF LOGISTICS, 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 September 18, 2006
rodrihe . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The complainant's burden here is to prove that probable cause exists to believe that discrimination occurred as alleged.

Wisconsin courts, in the absence of the Fair Employment Act's (WFEA) establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, such as that advanced here, 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); Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003). 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).

To establish a prima facie case of a discriminatory discharge, the complainant must show that: (1) he was a member of the protected group; (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.

Even though the complainant has failed to show that he was replaced by a non-Puerto Rican individual, or that those allegedly treated more favorably than he were similarly situated, it will be assumed for purposes of analysis that the complainant succeeded in establishing a prima facie case of race/ancestry discrimination here. See, U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 31 FEP Cases 609 (1983)(the question of whether the complainant has made out a prima facie case is no longer relevant once the respondent responds to the complainant's proof by offering evidence of the reasons for the action taken); Josellis v. Pace Industries, Inc., ERD Case No. CR199900264 (LIRC Aug. 31, 2004).  The respondent has articulated a legitimate, non-discriminatory reason for its termination of the complainant, i.e., he had engaged in violations of the respondent's rules of conduct.

The burden would then shift to the complainant to demonstrate pretext.

The complainant first argues in this regard that the lack of reasonable justification for his discharge demonstrates pretext. The record, however, shows that, within a period of approximately fourteen months, the respondent had received requests from three separate customer locations that the complainant no longer be assigned to make deliveries to them due to his disruptive and unprofessional interactions with others at their sites. The record shows, through the testimony of both Doucette and Eversman, that even one such request in regard to a particular driver was very rare. In addition to these three requests, the complainant, based on yet another separate incident, had been suspended for five days for threatening a USF dispatcher (O'Neil;) and it had been discovered that the complainant had not disclosed all of his driving violations on his USF employment application as required. These circumstances certainly provided reasonable justification for the complainant's discharge.

The complainant further argues that the fact that each of these incidents resulted from a misunderstanding or a deliberate falsehood on the part of his accusers demonstrates pretext. First, such a scenario, involving as it does numerous separate and apparently independent individuals, is implausible. Moreover, the question of whether an employer's asserted nondiscriminatory reason for the subject action 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); Ford v. Lynn's Hallmark, Inc., ERD Case No. CR200301184 (LIRC June 27, 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). Here, even if those reporting the complainant's actions to the respondent were mistaken or deceitful, and the complainant, in fact, had not acted inappropriately, the respondent had no reason to doubt the legitimacy of the reports it had received from these separate and independent sources, and the record shows that the respondent, in good faith, believed them.

The complainant also contends that the fact that he was treated less favorably than Wilkens, who is not Puerto Rican and who was not discharged or even disciplined for grabbing papers out of the complainant's hands and otherwise treating him rudely on August 24, 2004, establishes pretext. However, the record does not establish that the complainant and Wilkens were similarly situated. First, the evidence does not show that Wilkens had a prior disciplinary record or a history of complaints about him from customers. In addition, the complainant admits he told Doucette on August 24 that, if Wilkens "started with me again that I would knock his fucking head off," and that he swore at Wilkens, calling him an asshole, that day; and the record shows that the complainant stated to Wilkens on August 24, "Who fucking died and made you the boss." In contrast, the record does not show that Wilkens directed profanity or threats at complainant or others on August 24, but instead that he simply grabbed papers out of the complainant's hands and told him drivers were not permitted to be in the office area.

Complainant also appears to be arguing that Eversman's failure to investigate the incident of August 24 as he had promised the complainant he would do, and Eversman's false representation that the complainant had stated during their August 26, 2004, conversation that he no longer wanted to work for the respondent, demonstrate pretext. However, the complainant admits that he stated during this conversation that, "it was over," and he "would be contacting my attorney." Given the context within which this statement was made, it was reasonable for Eversman to conclude that the complainant was indicating that his employment with the respondent, not just their conversation, "was over," and for Eversman not to pursue further investigation of the August 24 incident as a result.

Finally, the complainant takes issue with those credibility determinations made by the administrative law judge which favored the respondent. However, the commission has carefully reviewed the record in this matter and finds no persuasive reason to overturn such determinations.

cc: Attorney Michael N. Chesney

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