STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
JOSEPH BROWDER, Complainant
BEST FOODS UNITED OF CPC NORTH AMERICA, Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 8300114
An Examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on November 26, 1985. Complainant timely filed a petition for review of the Examiner's decision by the Commission and both parties submitted briefs.
Based upon a review of the applicable law, records and evidence in this case, the Commission hereby
that the Examiner's decision dated November 26, 1985, in the above-entitled matter be set aside, and that the matter be remanded to the Equal Rights Division for further hearing and decision following hearing in this matter.
Dated and mailed at Madison, Wisconsin January 9, 1987
/s/ Hugh C. Henderson, Chairman
/s/ Carl W. Thompson, Commissioner
/s/ Pamela I. Anderson, Commissioner
Bruce F. Ehlke
George N. Vurdelja, Jr.
The Commission considers that it was error to grant Respondent's motion for dismissal made at the end of Complainant's case in chief. Complainant brought this action under the Fair Employment Act alleging that Respondent Best Foods United of CPC North America discharged him from a sales representative job on December 10, 1982, on account of his race. The Hearing Examiner granted Respondent's motion to dismiss the matter at the close of Complainant's presentation of evidence. Complainant petitions for review, asserting inter alia that the Examiner's decision that he was discharged solely for a nondiscriminatory reason was unsupported by the evidence.
I. Background Evidence
The testimony at the hearing consisted entirely of the Complainant's testimony together with brief testimony of a disinterested witness called by Complainant. The evidence may be summarized briefly. Complainant, a black male, was employed by Respondent as a sales representative beginning in April 1980. He worked steadily for Respondent from that time until he was suspended November 18, 1982, pending discharge on December 10, 1982.
Complainant's duties were to call on and sell products to direct accounts (grocery stores), to service all aspects from selling the products to keeping track of out-of-date products, to follow national promotions, to sell store managers on displays, to check the retail stores to make sure they were passing on allowances to customers and also that the stores were following national theme advertising and to check on damaged and out-of-date products at the wholesale and retail levels. (T. 25, 26)
There were 5 other sales representatives in Complainant's unit (T. 27), none of whom were black (T. 64). His supervisors were white. The chain of command of immediate supervisors was John Galvan, unit manager; Tom LaVacca, assistant district manager who began sometime in 1982; and Roger Smith, district manager whose office was in LaGrange, Illinois. (T. 26-28)
The geographic area covered by Complainant's unit was the upper peninsula into Michigan as the northern boundary, Lake Michigan as the eastern boundary, Beloit (and sometimes Chicago) as the southern boundary and Prairie du Chien on the west. (T. 27)
On November 17, 1982, Complainant went to a restaurant to meet with his unit manager John Galvan preparatory to making calls with Galvan. However, his district manager, Roger Smith, was in attendance with Galvan. Galvan and Smith informed Complainant that he was suspended pending further investigation for misusing coupons, and that he would be notified as to whether he would be reinstated or fired. Galvan and Smith refused to provide details. On December 10, 1982, he was informed that he was discharged because of misuse of Golden Griddle necker coupons. He asked for further explanation and was informed that a letter setting forth details would be sent. He never received such letter.
Best Foods moved to dismiss the proceedings at the close of Complainant's presentation of evidence on the ground that Complainant had presented no evidence that anyone else had been treated differently. The Examiner asked Complainant's attorney if he wanted to oppose the motion "without going into it." The attorney responded "Yes." The Examiner then ruled ". . . believing everything as far as the Complainant says, that I don't believe a prima facie case of discrimination because of race in regard to discharge has been made, so I'm going to grant the motion to dismiss."
II. Was Complainant procedurally prejudiced by the Examiner's granting of Respondent's Motion to Dismiss at the close of Complainant's case in chief?
Complainant asserts in his brief that the evidence introduced at the hearing established a prima facie case of racial discrimination and that he has been denied a fair hearing under the McDonnell Douglas Corp. v. Green, (411 U.S. 792 (1973)) standards, i.e., that the Respondent has not articulated a nondiscriminatory reason for his discharge, and that even if the Respondent has done so, Complainant has not been afforded a fair opportunity to show that the reason was pretext.
Complainant rests his charge of discrimination on the theory that he never committed a fraud with coupons, that Smith and Galvan possessed a racial animus and discharged him because of their racial animus toward him because he is black.
The hearing file includes copies of proposed exhibits Complainant sent to Respondent and the department that Complainant contemplated offering at the hearing. One of such documents is Respondent's response, dated March 28, 1983, to an EEOC questionnaire in which Respondent states that Complainant had given the store manager at Woodman's Store in Beloit, Wisconsin, 98 Golden Griddle necker coupons as inducement to buy or build a 25 to 30 case display of syrup in violation of an instruction prohibiting using coupons as an inducement. Fraudulent use of the employer's coupons would constitute a nondiscriminatory reason for discharge sufficient to rebut Complainant's charge of discrimination.
"There is nothing to preclude the defendant's reliance on evidence appearing in the plaintiff's case to establish a nondiscriminatory reason for his action . . . (E)ven if the plaintiff has met his initial burden, a motion for dismissal may be granted at the close of plaintiff's case under Fed. R. Civ. P. 41 (b) if the defendant in turn has met its burden out of the mouth's of plaintiff's witnesses.
"Plaintiff argues that the granting of a Rule 41(b) motion under such circumstances deprives the plaintiff of his opportunity to show that the reason assigned for the action taken was pretextual." Flowers v. Crouch-Walker Corp., 14 FEP Cases 1265, 1267, 1268 (7th Cir. 1977). (1)
In Flowers the court points out that before a ruling on the motion to dismiss, so long as plaintiff is made aware of defendant's asserted justification for the discharge, plaintiff cannot complain that he has not been afforded opportunity to show that defendant's asserted reason for discharging him was pretext in his case in chief. Mitchell v. Baldridge, 37 FEP Cases 689, 690 (D.C. Cir. 1985).
Complainant testified (T. 31) that the reason given him for the discharge was the misuse of coupons in obtaining a display, i.e., that he (allegedly) had used them as an inducement to sell the display to Woodman's store in Beloit by (allegedly) giving Steffen (Woodman's store manager) coupons to turn in without the customer getting the benefit of it -- the store manager could take the coupons and redeem them and this is what induced Steffen, the store manager, to buy the display. (The store would be paid face value of the coupon, 25 cents, plus 7 cents postage and handling. For 97 coupons this would be $31.04.)
In this case, before he closed his case in chief and before the Hearing Examiner ruled on Respondent's motion to dismiss, Complainant knew Respondent's asserted justification for the discharge. He did receive due notice and a reasonable opportunity to be heard in rebuttal. Therefore, Complainant was not procedurally prejudiced by the granting of the sec. 805.17(1), Wis. Stats., motion to dismiss.
In disposing of Complainant's procedural claim, the Commission has assumed that the evidence presented established a prima facie case of discrimination. The Commission has thus anticipated the procedural question to permit an uninterrupted analysis of the evidence and to establish a framework for that analysis. Under the Commission's procedural holding, the Commission is not limited in this review to the question of whether Complainant's evidence created a prima facie case but must determine whether that evidence supported Respondent's justification.
III. Prima Facie Case
Complainant asserts that a prima facie case of racial discrimination was established. Usually in discharge cases the elements are:
(1) that he belongs to a protected class,
(2) that he was satisfactorily performing his job,
(3) that despite this performance he was terminated, and
(4) that he was replaced by a nonminority or workers with comparable work records were retained while he was terminated.
Mills v. Ford Motor Co., 41 FEP Cases 1397, 1399 (6th Cir. 1986); Lee v. Russell County Board of Supervisors, 30 EPD par. 33,022 (11th Cir. 1982). See also Flowers v. Crouch-Walker Corp., supra. There is no dispute that Complainant has proved the first and third elements -- he is black and he was discharged.
A. Satisfactory Performance
Only the Complainant's performance concerning the coupons is at issue in this case. Respondent contended that Complainant was not discharged based on past performance and made a standing objection to introduction of any kind of evidence concerning the employe's work record prior to the suspension and discharge on the ground such evidence was not relevant (T. 39, 48, 62, but cf. T. 121-123).
Best Foods' claim is that Browder abetted a fraud to induce Steffen (the Woodman's store manager), to buy the cases of Golden Griddle pancake syrup and display them in the manner presented by Browder. This requires evidence that a reasonable person would believe that Browder (1) intentionally (or recklessly) (2) abetted an attempted fraud. Did Browder make a deal with Steffen to provide Steffen with necker (2) coupons for the purpose of redeeming the coupons for cash without making the coupons available to store customers?
Steffen (Woodman's store manager) testified (T. 7, 9) that in August or fall of 1982, Browder came into the store and presented "the deal" to him. During the discussion Browder told Steffen that coupons would be furnished with the display (T. 12), but there was no discussion between them that the coupons would be left for the purpose of persuading Steffen to purchase the syrup (T. 12). At that time Steffen would order the syrup from Roundy's through Woodman's warehouse. Roundy's was offering the stores a $2 discount per case if the reduction was passed on to the consumer and if the syrup was purchased by the store for a display (T. 12, 13). The necker coupons would further reduce the price for the consumer. (T. 13) There was no discussion between Complainant and Steffen to the effect that the coupons were being offered to the store for the personal use of the store or its employes (T. 13, 32), nor did Complainant suggest sending in the coupons in a bundle for redemption (T. 18). One of the reasons Steffen agreed to take the display was Browder's statement that there would be sufficient neckers to cover all the bottles in the display (T. 19, 78). Steffen agreed to buy a certain number of cases of the syrup and display it. (T. 7)
Employes of Woodman's store actually built the display (T. 7, 9, 19). The bottom layer(s) of the display consisted of unopened cases of the syrup. The cases were stacked. The top layers remained in cases, but the fronts of these cases were cut open and the inserts removed for visibility of the bottles and ease of removal of the bottles by consumers. (T. 10)
Browder received some of the necker coupons for the syrup from the Chicago office and some from John Galvan, his unit manager. (T. 37) Browder was instructed to use the coupons for the product on the shelf and in the displays in order to increase sales. (T. 37)
Browder returned to Woodman's a couple days after the display was built. (T. 7, 9) Both Steffen and Browder testified that Browder placed necker coupons on all the bottles that were visible (T. 7, 9) in the display and also all those on the shelf (T. 11, 12, 33, 76). Browder testified he counted out coupons for the bottles still in unopened cases and gave the coupons to a Woodman's employe to give to Steffen when Steffen returned from lunch (T. 33), so that when store personnel opened the cases, the personnel could also necker these bottles (T. 33). He left no more coupons than there were bottles in closed cases. (T. 33, 78) Thereafter Steffen noticed that the coupons for those bottles were in the bottom tray of the display or trays of the cut cases. (T. 9, 10) He did not count those coupons and had no idea of how many Browder left (T. 11, 20).
Sometime after customers had purchased all the syrup in the display, Roger Smith and John Galvan appeared at Woodman's store and notified Steffen that "whole bundles" of coupons had been sent in for redemption by Woodman's and such coupons had the appearance (stiff, fresh and unwrinkled) of not having been first redeemed by customers. (T. 13) Galvan and Smith produced a bundle of coupons held together by a rubber band. Steffen testified that Galvan and Smith told him that the clearing house had notified Galvan and Smith that the coupons had been sent in in a bundle held together by a rubber band. (T. 18, 20) Steffen was asked if the coupons had been offered as an extra inducement. (T. 15) He informed Galvan and Smith that they had not. (T. 15) Steffen informed Galvan and Smith he had purchased the display, had his employes build it, and that Browder had come to the store, neckered the bottles and left coupons for the inaccessible bottles. (T. 16) Subsequently Steffen and his supervisor investigated with their employes, but none admitted sending in the coupons (T. 15, 16, 17). Woodman's was never paid for the coupons. (T. 20)
Certainly there is nothing in this record to even remotely establish that Browder fraudulently misused coupons or that any coupons were fraudulently misused. Steffen's testimony as to what he was told by Galvan and Smith is hearsay. In addition there is nothing in the record to establish that Woodman's or anyone else, including Complainant Browder, sent in Golden Griddle coupons for redemption or that such coupons were sent in for redemption without passing through a customer's hands. Therefore, on this record Complainant's job performance was satisfactory.
B. Replacement by Others or Comparative Evidence
Respondent argues that Browder never produced evidence of similarly situated whites who were retained and, therefore, failed to prove a crucial element of a prima facie case. Specifically Respondent argues that Complainant failed to introduce any evidence that white sales representatives failed to necker inaccessible products and were not discharged. Respondent cites Coates v. Johnson & Johnson, 756 F.2d 524, 37 FEP Cases 467 (7th Cir. 1985), for the proposition that absence of such comparative evidence is fatal to a plaintiff's claim.
Respondent's argument fails for several reasons. First, Coates v. Johnson & Johnson is a combined individual and class action charging racial discrimination in the pattern and practice of discharges. In Coates plaintiffs were required to establish a pattern of discriminatory decisionmaking, which is usually shown by statistical evidence demonstrating substantial disparities in the application of employment actions as to minorities and the unprotected group, buttressed by evidence of general policies or specific instances of discrimination. Id. at 472. In Coates the class claim failed. Therefore the individual claim of Coates was not entitled to the burden-shifting presumption of Teamsters (International Brotherhood of Teamsters v. United States, 431 U.S. 324, 14 FEP Cases 1514 (1977)). Id. at 473.
Browder's claim is an individual claim, not a class action. He makes no claim of a pattern and practice of discrimination as to a class, a claim requiring comparative evidence. His claim is that he was not discharged for fraud as Respondent contended and, therefore, as Respondent's reason for discharge is pretextual, he was discharged because of his race. As stated in Coates v. Johnson & Johnson, pp. 471, 472:
"Under this McDonnell Douglas-Burdine framework, the plaintiff is required to establish a prima facie case by producing facts that 'eliminate the most common nondiscriminatory reasons' for the defendant's alleged action . . . . The facts the plaintiff must show to be entitled to the inference of discrimination will vary according to the types of employment practice involved. (citing McDonnell Douglas and Burdine (3) )."
Second, Coates was caught sleeping on the job and selling drugs on company property. He also was "the only employee at defendant's diaper plant who within three days committed two serious violations of company rules, was reinstated once and the following day was again suspended pending termination . . . . Sleeping on the job as Coates was found in this case, when it is not a pretext for race discrimination, is a legitimate ground for discharging an employe . . ." Because Coates failed to show that whites were not discharged for committing similar actions (actions which would also have been legitimate grounds for discharge), he failed to establish pretext. By losing in the class action he had failed to win the presumption of discrimination. He was discharged for a legitimate reason and failed to show others were not discharged for the legitimate reason for which he was discharged.
The Coates case bears no similarity to Browder's case. There is no evidence that Browder misused coupons for a fraudulent purpose. He was not caught as Coates was. Therefore he was not required to show that whites who were caught were not discharged. If the Commission were to apply the prima facie test to this case in the manner suggested by Respondent, Browder would be faced with an insurmountable burden. The basis for Browder's complaint of discrimination was the discharge for a nonlegitimate reason. He claims that he did not induce Steffen, the Woodman's store manager, to commit fraud and that he was discharged only because he is black. If he must prove that other similarly situated sales representatives did commit a fraud with coupons and were not discharged, he is faced with the task of proving that Respondent did not uniformly adhere to its policy of dismissing sales representatives who committed fraud. That is not the appropriate inquiry here. He is not arguing that Respondent did not dismiss other sales representatives who committed fraud with coupons; he is arguing that he never committed the fraud in the first place and that Smith and Galvan possessed a discriminatory motive when discharging him. Contrary to Respondent's position, "McDonnell Douglas does not require that the identical prima facie analysis be used in every discriminatory discharge case . . . All the plaintiff must establish at the prima facie stage is that his discharge raised an inference of discrimination. Burdine, 450 U.S. at 253." Mills v. Ford Motor Co., 41 FEP Cases 1397, 1399-1400 (6th Cir. 1986).
Thirdly, Respondent's argument that Browder was required to prove that white sales representatives failed to necker inaccessible products and were not discharged fails for the additional reason that Respondent claims it discharged Browder not for a failure to necker inaccessible products, but for fraudulent misuse of coupons.
C. Other Evidence of Discrimination
1. Racial remarks: Browder's supervisors addressed Complainant as "boy" and referred to him as "boy." (T. 69, 70)
Respondent's Exh. 7 is a display poster designed by Browder. The design is black footprints leading to two different products for a theme of "Follow the Leader's." In May 1982, Roger Smith asked Browder , "Did you use your black feet to make the prints on the poster?" (T. 66, 68, 69).
Approximately February 1982, during a conversation with John Galvan, Galvan suggested Complainant should go have some Jack Daniels and watermelon. (T. 66, 69)
Approximately September 18, 1982, at a sales meeting in Chicago, Smith called the only male black sales representative from the Chicago area "Josephine" and rubbed his head while making the reference. When Browder demurred to the remark, Smith called Browder "Josephine" also. (T. 65, 66, 68, 69)
Browder testified that racial remarks were commonplace. (T. 64, 66, 69, 83)
Browder has a black male friend who owns a restaurant in Reedsburg. The friend's wife was waiting table when Galvan and Browder stopped there. Galvan said to the woman, "What is a black person doing up here?" Browder considered the remark to be in bad taste. (T. 67)
On October 15, 1982, Browder's attorney wrote a letter of protest. (Comp. Exh. 8) Browder was suspended November 18, 1982, pending discharge.
2. Monetary awards: Complainant's attorney contends that Complainant established that he received lower cash awards than white coworkers for similar display ideas. Comp. Exhs. 2 and 4 are announcements that Browder won $35 for display ideas on November 21, 1980, and June 10, 1982. Comp. Exh. 3 shows he won second place on March 10, 1981. Page 2 of Comp. Exh. 2 is an announcement of a $275 cash award to a white sales representative. Browder testified (T. 45) that other sales people in his unit put out more effort than the $275 winner; and (T. 86) that some of the sales representatives who built better displays than the $275 winner were white. All sales representatives in Browder's unit, other than Browder, were white. His testimony establishes only that he received a lower cash award than a white person, but that he and others also expended effort. The evidence does not establish that he was discriminatorily treated re monetary awards.
3. General atmosphere of racial discrimination: Complainant's attorney argues that the supervisors who made the racial slurs were the same supervisors who also made discriminatory awards in the promotional contests, thus creating a general atmosphere of racial discrimination. The problem with this argument is that the second premise (discriminatory awards) was not established. However, even without the second premise, the racial slurs may be sufficient to establish the general atmosphere of racial discrimination.
D. Prima Facie Case Established.
As there is no evidence of fraud in this record, an inference that some factor other than fraud was involved in the decision to discharge Complainant arises, and, because of the testimony of racial slurs, an inference that racial discrimination was a factor also arises. Therefore Complainant met his initial burden of establishing a prima facie case of racial discrimination.
IV. Respondent's reason for the discharge.
Complainant met his initial burden of establishing a prima facie case of racial discrimination and the burden of proceeding then shifts to Respondent to establish a nondiscriminatory reason for the discharge. As stated above, Respondent claims it discharged Browder for fraud or aiding and abetting a fraud. Before closing his case in chief, Complainant knew Respondent's reason.
The Examiner found that Complainant was terminated for misuse of coupons, i.e., fraudulent use of coupons.
In Finding of Fact 5, the Examiner found that Complainant was discharged for "misuse of coupons." He does not state what the "misuse" is, but in Finding of Fact 6, he states a memo was issued by Respondent warning that dismissal would result for using "live neckers" fraudulently. The inference is that "misuse" means fraudulent use of coupons.
In Findings of Fact 7 and 8, the Examiner found that Complainant contacted Steffen, Woodman's store manager, to set up a display, and that Complainant was to necker the display items.
In Finding of Fact 9, the Examiner found that "Respondent received a bundle of coupons from Woodman's that had not been redeemed by customers." Such finding is not established in this record. There is only Steffen's testimony that Galvan and Smith claimed to Steffen that the clearing house notified Galvan and Smith that coupons were received in a bundle by the clearing house. (T. 18) This is double hearsay. A finding of fact cannot be made on this double hearsay.
In Finding of Fact 10 the Examiner found that Complainant left a bundle of coupons at Woodman's and that this bundle had been sent in by Woodman's to Respondent. There is absolutely nothing in the record upon which to base the underlined portion of this finding.
In Finding of Fact 10 the Examiner found that Respondent investigated and believed Complainant left the coupons with Woodman's in violation of using coupons to solicit displays. First, there was no testimony by Respondent's agents Galvan and Smith. There simply is no testimony or evidence whatsoever as to what they or anyone else at Respondent's believed. Secondly, there is nothing whatsoever in the Examiner's findings upon which to draw the inference that Complainant left coupons at Woodman's in violation of using coupons to solicit displays. In other words, the Examiner found that Complainant used the coupons fraudulently. Certainly Browder was required to offer the coupons (for the use of customers) as an inducement to Steffen to set up the display. And most certainly he was required to provide coupons for the syrup. He did that. He admits it. But most assuredly his offer to provide coupons for customers and his leaving the coupons were nothing upon which a finding of fraud could be made without more. Moreover, the Examiner made no finding concerning Complainant's intent. In order to find fraud, there must be a finding that the Complainant intended to defraud.
In this case, no conclusion can be made based either on the Examiner's findings of fact or upon the present record that Complainant used coupons fraudulently.
V. Complainant's rebuttal.
"When defendant moves to dismiss a Title VII claim at the close of plaintiff's presentation, however, the requirements for a prima facie case are significant. If those requirements have not been met, the defendant need not present a case; the suit can (and should) be terminated at that point. If, however, a prima facie case has been established, the trial ordinarily will proceed to the defendant's presentation. When a plaintiff who has carried the threshold burden rests, dismissal of the claim is proper only if a nondiscriminatory reason for defendant's actions emerged during plaintiff's case, plaintiff had a full and fair opportunity to rebut defendant's explanation and plaintiff failed to do so persuasively." Mitchell v. Baldridge, 37 FEP Cases 689, 691 (D.C. Cir. 1985). Skillern v. Bolger, 33 FEP Cases 1484 (7th Cir. 1984), cert. denied, 35 FFP Cases 1608 (1984).
As a nondiscriminatory reason for Respondent's actions merged during Complainant's case, the issue here is whether Complainant persuasively rebutted Respondent's reason.
A. No evidence of fraud. Respondent's reason for the discharge is fraud or attempting to induce a fraud. Ccxnplainant testified concerning his actions, i.e., he was supposed to sell Steffen on the display idea and to offer necker coupons. Both he and Steffen testified Browder did not suggest or offer coupons to be used for any purpose other than for customers' use. Steffen's employes built the display. Browder returned to the store and neckered the accessible bottles and handed to a Woodman's employe sufficient coupons for bottles in unopened cases stocked in the display under the opened cases. Steffen testified that after the Golden Griddle syrup was sold and the display was gone Galvan and Smith appeared at the store and informed him that Golden Griddle coupons that appeared not to have passed through the hands of customers had been sent to a clearing house for redemption. (T. 13, 14, 17, 18) Steffen's testimony is hearsay. Steffen testified (T. 15) that he told Galvan and Smith that Browder had not offered the coupons as an extra inducement. Galvan and Smith were aware therefore that Woodman's claimed Browder had done nothing dishonest with them concerning coupons. Complainant and Steffen testified (T. 13, 18, 32, 33, 37, 38) that there was never any discussion between them or suggestion made that coupons would be given Steffen or Woodman's or any Woodman's employes for personal use. There is absolutely nothing in this record to establish fraud on the part of Complainant or indeed a fraud of any kind by anyone. Certainly there is nothing in the record to establish that unused coupons were sent in; that Woodman's sent unused coupons in, that Complainant had anything to do with sending in unused coupons; that coupons Complainant provided Woodman's were used fraudulently, etc., etc.
B. Respondent's argument. Respondent contends that Browder knew he should not leave coupons unless he neckered them. On this record a failure to necker coupons does not suggest fraud. Fraud was the alleged reason for the discharge, not a failure to necker coupons. Respondent further argues that as Galvan and Smith hired Browder, they would not thereafter make racial slurs. Too often such premise is not followed by the conclusion Respondent reaches.
C. Persuasive rebuttal. Complainant's proof of pretext alone is sufficient for denial of the motion to dismiss. However, he has added to this the direct evidence of the racial slurs. Certainly, he rebutted persuasively.
VI. Was Complainant denied due process because of the Examiner's delay in issuing the written decision?
Hearing was held August 13, 1984. On that day, at the close of Complainant's case in chief, the Examiner orally granted Respondent's motion to dismiss. It was not until November 26, 1985, that the Examiner issued his decision. In his first brief, Complainant's attorney argued that the delay deprived Complainant of due process. The argument was not renewed in the reply brief. The court in Garner v. LIRC, Milwaukee County Circuit Court, Case No. 545-683, January 8, 1982, responded to this argument as follows:
"However, the Supreme Court of the State of Wisconsin has repeatedly held that due process was not denied because of delay in the rendering of decisions. In Chicago & N.W. R.R. v. Labor & Ind. Rev. Comm., (4) at p. 480, the court held:
The Fair Employment Act contains no mandatory time limits within which hearings must be scheduled or decisions must be filed. Absent a mandatory requirement, administrative delay in issuing a decision is not reversible error. Neu's Supply Line v. Dept. of Revenue, 52 Wis. 2d 386, 395, 190 N.W. 2d 213, (1971)."
Delay in issuance of the decision was not a denial of due process.
VII. Was the motion to dismiss improvidently granted and should the case be remanded for a full hearing?
The evidence does not establish that Complainant was discharged for fraud. He rebutted Respondent's ostensibly legitimate nondiscriminatory justification for the discharge. The Examiner based his dismissal of complainant's discrimination charges on his erroneous determination that Complainant had not presented a prima facie case. In his decision the Examiner incorrectly found that Complainant was discharged for fraudulently misusing coupons.
In urging dismissal of Browder's claims on the sec. 805.17, Wis. Stats., motion, Respondent erroneously argued that it was Complainant's burden to establish comparative evidence. As stated above, such evidence was not required in this case. Under sec. 805.17, Wis. Stats., when making a motion to dismiss at the close of plaintiff's evidence, a defendant does not waive its right to offer evidence in the event the motion is not granted.
Because Complainant did establish a prima facie case of discrimination, and because Respondent did not waive its right to present further evidence, the decision of the Hearing Examiner dismissing Complainant's complaint is set aside and the matter is remanded for further proceedings consistent with this opinion.
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(1)( Back ) A F.R. 41(b) motion is a motion made by defendant at close of plaintiff's evidence. The motion is made on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court then determines the facts and grants or denies the motion. If the motion is denied, trial continues. Section 805.17(1), Wis. Stats., is modelled after F.R. 41(b). Therefore, federal cases interpreting and applying F.R. 41 (b) are applicable.
(2)( Back ) "Necker" coupons -- See Resp. Exh. 1. Coupons printed on bullet shaped heavy paper having a round hole near the rounded top for hanging over the neck of a bottle.
(3)( Back ) Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981 ).
(4)( Back ) 91 Wis. 2d 462 (Ct. App. 1979).