125.5 Termination

The Complainant established a prima facie case of race discrimination at a probable cause hearing. He established that he was black/African-American, that he was discharged as soon as he reached eight points under the Respondent's attendance policy, and that a white/Caucasian employee who reached eight points was not discharged, but instead had a half point removed from her record. Garrison v. Neenah Foundry, Co. (LIRC 12/29/21).

The commission found the Complainant did not meet his burden of proof to establish that he was discharged because of his race or national origin. The commission expressed concern that, although the Complainant testified that there were a number of potential witnesses to the alleged racist remarks, none of these individuals testified on the Complainant's behalf. Robles v. Thomas Hribar Truck & Equip., Inc. (LIRC 11/30/18), rev’d (Racine Co. Cir. Ct. 06/20/19), rev’d sub nom. Robles v. Thomas Hribar Truck & Equip., Inc. and LIRC, 2020 WI App. 74, 394 Wis. 2d 761, 951 N.W.2d 853.

The Complainant alleged that she was the victim of race/color discrimination soon after her hire. However, it is unlikely that an employer (who was obviously aware of the Complainant’s race and color when she was interviewed and then hired) would suddenly decide to discriminate against her on that basis and to discharge her three months after she was hired. Knight v. Schneider Family Dentistry (LIRC, 10/29/10).

The Complainant was discharged from his position as a correctional officer during his probationary period. The Respondent contended that the Complainant experienced significant performance issues, primarily by not interacting appropriately with inmates. The Complainant attempted to establish pretext for race discrimination by showing that most of the complaints about his performance were phony. However, even if the Respondent had been mistaken in the conclusion that the Complainant’s performance was problematic enough to warrant the termination of his probation, this does not mean that the Respondent discriminated against the Complainant on the basis of race, so long as the Respondent had a good faith belief in the conclusions it reached about the Complainant’s performance. Further, there was no indication that the Respondent treated the Complainant any different from white probationary officers. Hood v. DOC (Wis. Pers. Comm’n, 02/21/03).

The Complainant was not constructively discharged because of race where the racial epithets and racially offensive remarks, combined with the Complainant’s supervisor’s efforts to dissuade him from taking a voluntary demotion, were not such that a reasonable person in this situation would have felt that he had no other alternative but to quit his employment. Rodgers v. Western Southern Life (LIRC, 10/12/89). [Ed. note: see, Rodgers v. Western Southern Life Ins., 12 F.3d 668 (7th Cir. 1993) for a different result].

The Respondent did not violate the Act by dismissing an employee after a finding of misconduct based on the observations of white co-workers involving the only black employee of a unit or by bypassing ordinary grievance channels by expediting her grievance to a top level administrative review where most matters are eventually received. Lathon v. Family Hosp. (LIRC, 05/15/84).

A black saleswoman established that her discharge was racially motivated by showing that: (1) she had been given no warnings, (2) she had received several compliments from customers, (3) her employer did not have good cause for terminating her, and (4) her employer had asked her several questions about her race during her interview for the job. Johnson v. Tel-Page Corp. (LIRC, 09/26/83).

An employee established a prima facie case of race discrimination in his discharge by showing that he was a member of a protected group, qualified for the job he was performing, met the normal requirements of his work, was discharged and that his employer requested a replacement. Bowers v. Wis. Correctional Servs. (LIRC, 09/23/83).

A prima facie case may be established where a black employee, who is fired for fighting, shows that the white participant in the fight was merely suspended. Riley v. LIRC (Gen. Elec.) (Ct. App., Dist. I, unpublished opinion, 12/28/82).

An employer’s decision to lay off five of its seven black employees, but none of the five white workers, was not race discrimination where the employer showed that the five blacks were not as well qualified based on performance, attendance and seniority. McKee v. DILHR (Wis. Pers. Comm’n, 07/24/82).

It was race discrimination to terminate a black probationary employee who was experiencing discomfort on her new job and had asked for different work, where the employer usually attempted to find lighter work for probationary employees and the employer’s determination that the employee’s work was too slow was based on a subjective evaluation influenced by race. Briggs & Stratton v. LIRC (Collins) (Milwaukee Co. Cir. Ct., 12/18/81).

Although progressive discipline was the usual practice, it was not race discrimination to treat the employee’s initial suspension and discharge, together with his reinstatement on probation, as progressive disciplinary steps leading to his discharge. Hyde v. LIRC (Rock County) (Ct. App., Dist. IV, unpublished opinion, 09/15/81).

It was race discrimination for an employer’s all white supervisory committee to suspend and then discharge a black employee for absenteeism where they were not guided by any formal guidelines or other objective criteria and where a white employee with a similar record of absenteeism was never suspended. James v. Giddings & Lewis (LIRC, 09/12/79).

Even though an inference of discrimination in the firing of a black employee could be drawn from the facts, a finding of no discrimination was supportable on the basis that he had a bad relationship with his supervisor and fellow employees, had incurred a serious physical ailment and had often been accommodated in the past, and where the employer’s work force was 10% black in a labor market of 2% black. Walker v. DILHR (Snap-on Tools) (Dane Co. Cir. Ct., 12/06/77).