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


GREGORY R. McGEE, Complainant

SOCIETY'S ASSETS, INC., Respondent A

WISCONSIN TELECOMMUNICATIONS RELAY SYSTEM, Respondent C

FAIR EMPLOYMENT DECISION
ERD Case No. 199802056, EEOC Case No. 26G981446


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, except that it makes the following modifications:

Wherever "WRTS" appears in the Findings of Fact and Conclusions of Law, substitute "WTRS" therefor.

DECISION

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

Dated and mailed February 13, 2001
mcgeegr.rmd:110:

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Based on a careful review of the evidentiary record, and after consideration of the written argument submitted by the parties, the commission agrees with the administrative law judge that the evidence does not establish probable cause to believe that respondents discriminated against complainant as alleged in his complaint.

It is evident, that one of the principal reasons that the complainant suspects he was treated unfairly, is that his employment was terminated before all of the training which had been contemplated for him was completed. It is understandable that this would create a perception on complainant's part that the process was unfair and suspicious. However, the commission is satisfied that the evidence explains why this occurred. Patti Kramer, who made the decision to terminate complainant, explained in her testimony that based on the feedback she received from trainers and mentors who had worked with complainant, she believed that his performance would not improve adequately even with further training. Kramer's testimony made it clear that she believed from the information provided to her, that complainant was not sufficiently responsive to feedback, that he did not properly appreciate the philosophy of respondent which was to provide verbatim transmission of messages, and that he had made remarks and used terms suggesting a condescending or negative attitude towards populations served by respondent as well as to women who were in positions of authority. Kramer was personally acquainted with the persons whose information and impressions she was thus relying on, and she had no reason to question the honesty or accuracy of their judgments as trainers and facilitators. The commission is persuaded that Kramer's testimony as to her motives and her reliance on the information provided her by others who had worked with complainant, was credible. There is simply no evidence whatsoever, that racial bias played any role in that process.

The commission has noted complainant's points about his extensive work and experience with assisting developmentally disabled persons with speech or cognitive disabilities. This work and experience is unquestionably significant, and would clearly stand complainant in good stead in certain situations, but it appears that here it may have actually contributed to the difficulties he had in complying with respondent's required approach of simply transmitting communications verbatim. The commission infers that complainant may well have had a tendency to try to provide the type of substantive assistance in communication which might in other contexts have been appropriate and even desirable - but the mission of respondent was different. It was necessary for complainant to conform himself to that mission. It is understandable that when respondent began to perceive that he was not doing so, and that he was apparently resisting doing so, that this would significantly affect respondent's assessment of whether complainant was the right person for the position he had been hired for.

Perhaps if this had been the only problem, the outcome might have been different. However, the impression arrived at independently by a number of persons involved in complainant's initial training, was that there were other problems. One problem was the matter of complainant's use of terms to refer to hearing- or speech- impaired persons which were found offensive by other persons working for the respondent. Another problem was complainant's comments which suggested that he had a sexist attitude toward the primarily female administration of respondent. (1) While complainant challenged the accuracy of the respondent's version of these events, the commission accepts and agrees with the assessment made by the administrative law judge that the evidence that complainant made these comments was credible. Finally, there was a problem reflected in the comments of a number of the trainers and mentors, with complainant's general attitude towards criticism, correction, suggestions, etc., from superiors.

Complainant appears to have believed that insistence on the part of the respondent that he do things its way, rather than his way, was a racial issue. Thus, in a rhetorical question he posed in his closing argument, complainant asked if this was one of the reasons he was terminated:

Did I not agree to the subtle self repression that some of the European Americans are cultured, conditioned to push for and expect of African Americans?

(T. 242). The commission believes that this question casts as a racial issue, something which is in fact simply an issue of workplace authority. It is employers who are cultured and conditioned to push for, and to expect, "self-repression" on the part of employees. An employer which wants a particular job done in a particular way, will indeed expect employees to "repress" any inclinations they may have to do a different thing or a different method. The fact that an employer requires Mr. McGee to submit to its authority does not ipso facto mean that the employer is asking him to submit to racist domination, simply because of the races of the people involved.

As noted above, Kramer's decision to terminate complainant was made based in significant part on her reliance on information provided by a number of mentors and trainers who had been working with complainant. Complainant raised a question about the admissibility of their written "feedback forms". However, the commission agrees with the administrative law judge's conclusion, that the feedback forms were admissible, as records of regularly conducted activity under Wis. Stat. 908.03 (6). An adequate foundation for the receipt of these documents was provided by the evidence that it was a regular business practice of respondent to have such feedback forms prepared, and they are used in the regular course of respondent's business as a training tool. In any event, the evidence as to the nature of the feedback which Kramer relied upon was important because it was evidence of what Kramer relied on in making her decision, evidence which thus bore on the question of whether Kramer was motivated by racial bias. Ultimately, the question is whether the employer was in fact actually motivated by a good-faith belief in the accuracy of those reasons, or instead by prohibited bias. See, e.g., Atkins v. Pepsi Cola Gen. Bottlers (LIRC, 12/18/96), Salinas v. Crivello Properties (LIRC, 06/05/92) The commission finds credible the assertion by Kramer that she relied in good faith on the feedback from trainers and mentors. It finds nothing in the record that suggests that any of that feedback was itself motivated by racial bias. It therefore agrees with the determination of no probable cause.

The many points raised by complainant in his extensive written argument have been considered in the course of the commission's review in this matter. The commission agrees with the responses made to those points in the respondent's brief. For this reason, the commission does not discuss them at any further length in this Memorandum Opinion.

cc: Attorney John E. Murray


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Footnotes:

(1)( Back ) Complainant speculated that that there might have been "a female bias at WTRs by chance an oversensitivity to male insensitivity that would cause projections that to see, uh, male chauvinistic actions that aren't actually there." (T. 203). The commission sees no basis in the record to suspect that this was so, but even if it was, it would not change the commission's decision. The complaint in this matter did not allege that complainant was discriminated against because he was male, and that issue was not investigated or made the subject of an initial determination; therefore, the commission can not and will not decide it. More to the point, whether there was any sort of animus against complainant because of his gender is not something which would justify a finding that there was probable cause to believe that he was discriminated against because of his race or color.


uploaded 2001/02/14