622.3 Respondent's burden to articulate a legitimate, non-discriminatory reason

A finding in the Complainant's favor will result when the Complainant's prima facie case of discrimination is not rebutted by the Respondent's articulation of a non-discriminatory reason. In promotion cases, a Complainant need not provide evidence that he applied to be promoted where there is evidence that the Complainant was told that he would not be promoted and denied the opportunity to apply. Alexander v. Hous. Auth. of the City of Milwaukee (LIRC 01/30/20).

Once the Respondent has articulated a legitimate, nondiscriminatory reason for its actions the question of whether the Complainant has established a prima face case becomes moot. The burden of proof then reverts to the Complainant to show that the reason articulated by the Respondent is a pretext for discrimination. Wilks v. St. Joseph’s Rehab. (LIRC, 02/28/13).

The Complainant argued that the Respondent did not provide a legitimate, non-discriminatory reason for her discharge since the Respondent’s explanation that it discharged her for stealing from the Respondent was not credible. The evidence at hearing established that the Respondent’s son saw the Complainant taking dog treats when he watched the security video at the Respondent’s place of business. The Complainant contended that she had intended to purchase the dog treats and that she had asked another employee to write up a slip so that the cost could be deducted from her paycheck. However, the Respondent had reason to believe that the Complainant was stealing from it. That belief, even if mistaken, was a legitimate, non-discriminatory reason for terminating the Complainant’s employment. Freeman v. Animal Motel (LIRC, 07/18/11).

The testimony given by a Complainant may establish the legitimate, non-discriminatory reason for the employer’s actions and, thus, rebut a prima facie case of discrimination. The testimony and evidence presented by the Complainant in this case established the Respondent’s legitimate, non- discriminatory reasons for the action it took against her. Traska v. Mid-States Express (LIRC, 01/22/09).

A Respondent’s burden to articulate a non-discriminatory explanation for a challenged adverse action cannot be satisfied by assertions of its counsel in argument. It must be made by the introduction of admissible evidence. That evidence may be met by evidence which comes into the record as part of the Complainant’s case in chief. Dieterich v. Lindengrove (LIRC, 12/29/08).

The question of whether an employer’s asserted non-discriminatory reason is objectively correct can be considered irrelevant if it appears that the employer genuinely believed it to be true. The finder 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. Deal v. D & S Mfg. (LIRC, 06/20/08).

A Complainant cannot prevail if the Respondent honestly believed in the non-discriminatory reason it offered for the employment action, even if this reason was foolish, trivial, or even baseless. Fink v. Sears Roebuck & Co. (LIRC, 03/01/07).

The question of whether an employer’s asserted non-discriminatory reason is objectively correct is irrelevant if it appears that the employer genuinely believed it to be true. The trier of fact need only determine that the employer in good faith believed in that reason and that the asserted reason for the action was not a mere pretext for discrimination. Grell v. Bachmann Constr. (LIRC, 07/15/05).

The question of whether an employer’s asserted non-discriminatory reason is objectively correct may be considered irrelevant if it appears that the employer genuinely believed the reason to be true. 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. Ford v. Lynn’s Hallmark (LIRC, 06/27/05); Stichmann v. Valley Health Care Ctr. (LIRC, 06/14/05).

“[T]he employer’s burden is satisfied if he simply ‘explains what he has done’ or ‘produc[es] evidence of legitimate non-discriminatory reasons.’” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). A requirement that the Respondent introduce evidence which would persuade the trier of fact that the employment action was lawful exceeds what can be demanded to satisfy the Respondent’s burden of production. The ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Complainant remains at all times with the Complainant. Booker v. NMT Corp. (LIRC, 08/27/04).

The Respondent’s burden of producing a legitimate, nondiscriminatory reason for its actions can be met by facts presented as part of the Complainant’s case-in-chief. Cortez v. City of Milwaukee (LIRC, 01/31/01).

The requirement that the employer articulate a non-discriminatory reason is rather minimal. The employer need not initially prove that the articulated reason was the actual reason for the discharge. Rather, the employer need only raise a genuine issue of fact as to whether it discriminated against the employee. To do this, the employer must at least “clearly set forth, through the introduction of admissible evidence, the reasons for the employee’s rejection.” Kalsto v. Village of Somerset (LIRC, 10/03/00).

A finding in the Complainant’s favor will result when the prima facie case of discrimination is not rebutted by the articulation of a non-discriminatory reason. Foust v. City of Oshkosh Police Dep’t (LIRC, 04/09/98).

Where no question of fact exists as to whether a Complainant has stated a prima facie case, a Respondent’s failure to present any legitimate non-discriminatory reason for its actions warrants a decision in favor of the Complainant as a matter of law. While there are cases where it has been found that there was no unlawful discrimination without the Respondent having offered any legitimate non-discriminatory reason for its actions, these are cases in which the evidence presented by the Complainant himself placed those reasons into the record. Rutherford v. J & L Oil (LIRC, 06/06/97).

Where a Respondent’s articulated reason is disbelieved, the trier of fact should not ignore other evidence which shows that the Respondent’s real reason was, nonetheless, one that did not violate the Act. Campbell v. Barch Communications (LIRC, 01/17/97).

The Labor and Industry Review Commission rejected the Complainant's argument that once he established a prima facie case the burden of persuasion shifted to the Respondent to rebut that presumption. The word “presumption,” properly used, refers only to a device for allocating the production burden. The ultimate burden of proving discrimination remains at all times with the Complainant. Franklin v. Foxboro Co. (LIRC, 11/16/94).

The employer does not have the burden of proving or substantiating the reasons for its actions. The burden that shifts to the employer upon the establishment of a prima facie case is only that of producing evidence that its actions taken were for a legitimate, non-discriminatory reason. The employer need not persuade the court that it was actually motivated by the proffered reason. It is sufficient that the employer’s evidence raises a genuine issue of fact as to whether it discriminated against the Complainant. The ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the Complainant remains at all times with the Complainant. Nordin v. Goodwill Indus. (LIRC, 09/28/94).

In some cases, the question of whether an employer’s asserted nondiscriminatory reason is true can be considered irrelevant if it appears that the employer genuinely believed it to be true. Moncrief v. Gardner Baking (LIRC, 07/01/92).

An employer’s reason for its actions may be a good reason, a bad reason, a mistaken reason or no reason at all so long as the decision was not based on race or other unlawful discriminatory criteria. The illegality of the Respondent's actions in not putting the Complainant on its payroll, standing alone, would not be enough to establish that unlawful discrimination had occurred. Salinas v. Crivello Properties (LIRC, 06/05/92).

An employer is not required to prove that its decision was correct. The trier of fact need only determine that the employer in good faith believed the Complainant’s performance to be unsatisfactory and that the asserted reason for the action was not a mere pretext for discrimination. Salinas v. Crivello Properties (LIRC, 06/05/92).

Even where a Respondent's articulated reason is disbelieved, the trier of fact cannot ignore the fact that the evidence shows that the Respondent's real reason was nevertheless one that did not violate anti-discrimination laws. It is not true that if the articulated reason is disproved, there must be a finding of discrimination. Von Neumann v. West Bend Co. (LIRC, 03/30/92).

If a prima facie case is established, an employer must articulate a legitimate business reason for the discharge or the employee will prevail on the basis of the prima facie case. Where an employer takes the position that an employee has resigned and was not discharged, and therefore articulates no reason (even in the alternative) for a discharge, the employer runs the risk that the fact finder will decide that the employee really was discharged (or constructively discharged) and that the employee would then prevail on the basis of the prima facie case alone. Jorgenson v. Ferrellgas, Inc. (LIRC, 01/10/92).

In most cases, the question of whether the ultimate burden of proving discrimination has been carried is resolved by looking to the question of whether the articulated reason has been proven pre-textual. However, a finding in the Complainant’s favor will also be made when the prima facie case of discrimination, which raises the presumption that discrimination occurred, is not rebutted by the articulation of a non-discriminatory reason. Where the Respondent alleged that the Complainant had quit and had not been discharged, as the Complainant alleged, the Respondent failed to meet its minimal burden to articulate a non-discriminatory reason for its actions. The evidence established that the Complainant had been discharged, but the Respondent did not offer any explanation as to why it discharged her. The presumption that it did so because of the Complainant’s race, which was created by the prima facie case established by the Complainant, stood unrebutted and called for a finding of discrimination in the Complainant's favor. Ray v. Ramada Inn-Sands West (LIRC, 03/05/91).

When the Respondent’s decision to eliminate a position because of a decline in the amount of work was arrived at in good faith, the decision is not discriminatory even if the decision seems erroneous when viewed in hindsight. Gentilli v. Badger Coaches (LIRC, 07/12/90), aff’d sub nom. Gentilli v. LIRC, Dane Co. Cir., Ct. 01/15/91.

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 reason for the action taken. Under U.S. Postal Serv. Bd. of Governors v. Aikens, the factual inquiry becomes whether the Respondent’s action was discriminatory under the law. Gentilli v. Badger Coaches (LIRC, 07/12/90), aff’d sub nom. Gentilli v. LIRC, Dane Co. Cir. Ct., 01/15/91.

A decision in the Complainant’s favor need not be made where the Respondent presents no evidence at hearing. A Respondent is not obliged to prove that it did not discriminate; a Complainant bears the burden of proving that discrimination did occur. Duarte-Vestar v. Goodwill Indus. (LIRC, 11/09/90).

The examiner erred in dismissing at the close of the Complainant’s case his claim that he was discriminated against because of his race when the employer discharged him, supposedly for abetting a fraud in connection with his employment. The evidence offered at the hearing did not establish the Respondent's nondiscriminatory reason. The matter was remanded for further proceedings, to allow the Respondent to present its case in chief. Browder v. Best Food (LIRC, 01/09/87).

The employer must rebut the inference with a “clear and reasonably specific” explanation. Smith v. Bruckner Excavating Co. (LIRC, 06/29/84), aff’d sub nom. Bruckner Excavating Co. v. LIRC (Milwaukee Co. Cir. Ct., 09/20/85).

An employer met its burden without introducing any witnesses of its own, where an applicant’s own testimony on cross examination revealed her lack of experience in the position applied for. Evidence that an employer had marked an application with a “B” does not show that its stated reason for failing to hire a black applicant was a pretext for discrimination. Ewing v. James River-Dixie Northern (LIRC, 10/19/84).

Though a Respondent’s reason may seem poor or erroneous to an outsider, the only relevant question is whether it is a pretext for discrimination. Henry v. Andrews Roofing & Siding (LIRC, 11/20/81), aff'd sub nom. Henry v. LIRC (Fond du Lac Co. Cir. Ct., 11/11/82).

An employer’s non-discriminatory reasons for its actions may be presented through the testimony of the Complainant’s own witnesses. Davis v. Jos. Schlitz Brewing (LIRC, 09/14/82).

The employer’s burden is to produce evidence that the employee was rejected, or someone else preferred, for a non-discriminatory reason. The employer need not prove that it was actually motivated by the preferred reasons. Bolden v. Wis. Tel. (LIRC, 08/04/81).

While it was credible that the selecting official could no longer remember the basis of his selection decision, such explanation does not meet the employer’s burden to articulate a legitimate nondiscriminatory reason for its actions. Anderson v. UW-Whitewater (LIRC, 12/03/80), aff’d sub nom. UW-Whitewater v. LIRC (Dane Co. Cir. Ct., 07/03/81).

Once a Complainant established a prima facie case, the employer’s burden is to show a legitimate, nondiscriminatory reason for an applicant’s rejection, not to prove that the individuals who were hired in place of the applicant were clearly more qualified. Zimmerman v. Milwaukee County Civil Serv. Comm’n (LIRC, 04/12/79).

Subjectivity in the employer’s decision making process is not, by itself, evidence of discrimination. Subjective reasons may be adequate to rebut a prima facie case where they are not discriminatory in application or pre-textual. Waukesha Pub. Sch. v. LIRC (Coulson) (Dane Co. Cir. Ct., 07/06/78).

Once a prima facie case is established, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the rejection. This burden may be met even where the reason articulated is based on a mistaken, but honestly held belief. Herslof Optical v. DILHR (Leonard) (Dane Co. Cir. Ct., 03/28/78).

Where the employee showed that he was handicapped and was discharged, and his employer did not prove another reason for the discharge, it can be assumed that the employee was discharged because of his handicap. Buyatt v. C.W. Transp. (LIRC, 07/25/77).

After an employee makes an initial showing of discrimination, the test under the McDonnell-Douglas analysis is whether the employer can articulate a “legitimate, nondiscriminatory reason” for its actions, not a “rational and neutral business justification.” Mt. Sinai Med. Ctr. v. DILHR (Preddy) (Dane Co. Cir. Ct., 06/17/77).