EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
210 MARTIN LUTHER KING, JR. BOULEVARD
Oscar Mayer Foods Corp.
RECOMMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER. MEMORANDUM
Case No. 20989
On July 14, 1988 Ronald Bordson filed a complaint with the Madison Equal Opportunities Commission, alleging that he had been discharged from his employment with Oscar Mayer Foods Corp. because of his arrest record in violation of the Equal Opportunities Ordinance. The complaint was investigated and an Initial Determination was made that probable cause existed to believe discrimination had occurred. Oscar Mayer waived conciliation and the case was certified to hearing.
The hearing in this matter was held before MEOC Hearing Examiner Harold Menendez on May 15 and 16, 1989. The Complainant, Ronald Bordson, appeared in person and was represented by Attorney Jacqueline Macaulay of the firm of Borns, Macaulay & Jacobson. Oscar Mayer appeared by Michael Murphy, its Personnel Director, and was represented by James Holzhauer and Michael Rosenblum of the firm of Mayer, Brown & Platt.
The hearing examiner, having considered all the evidence admitted into the hearing record and the parties' post hearing briefs, now makes the following:
RECOMMENDED FINDINGS OF FACT
RECOMMENDED CONCLUSIONS OF LAW
Ronald Bordson was discharged from his employment at Oscar Mayer Foods Corp. after missing work on Saturday and Sunday, June 25 and 26, 1988. He was unable to work either day because he was being held in the Dane County Jail, having been arrested after leaving work on June 24. Bordson claims that he was discharged because he was arrested. Oscar Mayer contends that he was discharged because he had two consecutive, unexcused absences, and it has been its practice to discharge any employee who has two such absences without regard to the reasons for the absences. Bordson argues that Oscar Mayer treated his absences as unexcused because he was in jail, and that in excusing absences for other reasons but not excusing absences due to incarceration, Oscar Mayer discriminated against him because of his arrest record.
The evidence does not support Bordson's contention. I find that Bordson's absences were unexcused not because he had been arrested but because they disrupted the employer's operations. I also conclude that the ordinance does not compel Oscar Mayer to excuse Bordson's absences because they were occasioned by his arrest and incarceration.
Bordson had volunteered to work the second shift on the "lunchables" line on Saturday, June 25 and Sunday, June 26. Having volunteered, he was obligated to work unless he made other arrangements in advance. Every foreman and supervisory employee who testified agreed that the shift foreman determines whether or not an unexpected absence will be excused and that his decision is based on the effect the absence has on operations. For example, if a substitute is available, as is likely to be the case on weekdays, and the employee contacts the foreman in time for the foreman to secure a replacement, the absence is likely to be excused. The same is true if a production line is shut down due to mechanical problems, since it would not be the absence which prevents the line from operating as usual. If, on the other hand, an absence leaves the line or a shift understaffed and no replacements are available, then the absence is almost certain to be unexcused. Weekend absences are much more likely to be unexcused because only the bare minimum of workers necessary for each shift are scheduled to work on weekends. In the case of Bordson's absences, there is undisputed testimony that the result was that the second shift was left understaffed and that the foreman, Jim Hughes, found it necessary to shut down production early in order to process rejects. Normally, a fully staffed second shift would have had someone working on the rejects, and would not have been shut down early to process or re-process rejects. Accordingly, Hughes considered Bordson's absences unexcused. This is consistent with the practice described by a number of witnesses.l Hughes' testimony that Bordson's absences disrupted operations is not directly controverted.2 Thus, the treatment of Bordson's absences as unexcused was not related to the reason for his absences, but is instead attributable to the fact that they were unanticipated and disruptive of normal operations.
It is also undisputed that Oscar Mayer's policy has been to discharge any employee who has two consecutive, unexcused absences.3 In this case when Connie Faust, the Unit Manager, learned of Bordson's unexcused weekend absences on Monday, June 27, he reported to Mike Murphy (the Personnel Manager) and recommended that Bordson's employment be terminated pursuant to Oscar Mayer's policy. Murphy concurred and Bordson was discharged.
The burden of proof in this case is with Bordson. He must prove, by a preponderance of the evidence, that he was discharged because of his arrest record. Cf., Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Cf 1089, 67 L.Ed. 2d 207 (1981). In this setting he need only prove that Oscar Mayer's explanation for his discharge is untrue to prevail. Cf., U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S. Cf. 1478, 75 L.Ed. 2d 403 (1983).4 He has not.
Bordson relies heavily on the fact that Hughes, Faust and Murphy all knew he was in jail when his absence on Sunday June 26 was deemed unexcused and on Monday, June 27, when the decision was made to discharge him. This by itself does not establish that Bordson was discharged because of his arrest or prove that Oscar Mayer's explanation is unworthy of credence. This is especially true in view of the virtually unchallenged testimony on how absences come to be excused or unexcused and Hughes' testimony that Bordson's absence disrupted operations.
Bordson also attempted to prove that other employees who had two consecutive, unexcused absences were not discharged. He first cites William LaFleur, who had a drinking problem, and argues he "often missed days." Complainant's Brief at 24. The only certain evidence in the record is that LaFleur missed two days of work nine months apart due to his drinking. David Hendricks is another employee whose circumstances Bordson cites to prove Oscar Mayer's explanation for his discharge is untrue. Hendricks' absences were excused because he arranged them a week or more in advance. Paul Thompson also had a drinking problem, but there is no evidence he was absent from work because of his drinking, or that he went on a "binge" when he was scheduled to work. Robert O'Neil was drunk and got arrested. He missed work, but his absence was excused. There is no evidence he had two consecutive absences or that his absence disrupted operations. Patty Amundson was another employee upon whose treatment Bordson relies to prove pretext. Again, there is no evidence that she was absent two consecutive days because of her drinking problem. Other employees who were arrested were not discharged. Robert Burma was arrested and convicted. The evidence is that Burma remained in Oscar Mayer's employ after his arrest. He took vacation for the days he was absent. He was able to work because he had Huber Law work release privileges. He was discharged only after he was sent to prison and was no longer available for work.
Bordson has apparently misapprehended the burden imposed on him in proving that Oscar Mayer's explanation for his discharge is actually a pretext for discrimination. It is not for Oscar Mayer to disprove pretext, but for Bordson to prove that the explanation offered is a pretext for discrimination. Thus the mere utterance of other employees' names without evidence that they were treated differently under circumstances similar to Bordson's, does not shift the burden of proof away from Bordson, nor does it prove that Oscar Mayer's explanation for Bordson's discharge was a pretext for discrimination. The fact that Oscar Mayer's witnesses may not have been certain as to the precise nature of each employee's absences does nothing to advance Bordson's case because there is no evidence that the individuals named were, in fact, absent on two consecutive days,5 let alone that the absences were or should have been unexcused.
Bordson also makes much of the fact that a supervisor may reverse a foreman's designation of an absence as unexcused and that this was not done. The ordinance does not, however, require that an employer excuse an absence which would otherwise be unexcused because the absence resulted from an employee's arrest. It simply prohibits an employer from treating an employee who has an arrest record less favorably than other employees because of his arrest record. It does not require accommodation of absences caused by an employee's arrest. Thus, Oscar Mayer's refusal to reclassify absences which were initially classified unexcused consistent with its non-discriminatory, albeit subjective, policy and practice does not violate the ordinance.6
Dated at Madison this 29th day of September, 1989.
EQUAL OPPORTUNITIES COMMISSION
1Jim Hughes, Connie Faust and Michael Murphy all testified that there is a practice of excusing absences which do not affect operations and not excusing those which leave a shift or a line short-staffed and disrupt operations. Their testimony in this regard is undisputed.
2Bordson's opinion as to whether his absences ought to have disrupted operations is insufficient to overcome Hughes' direct testimony, based on personal knowledge, as to the effect Bordson's absences actually had on June 25 and .June 26. Bordson's opinion was also controverted by Faust's testimony as to the effect an absence can have.
3Any two day combination of AWOL and unexcused absences is also grounds for discharge.
4When a case is fully tried and the employer has advanced a legitimate, non-discriminatory reason for its actions, we are in a position to directly decide the ultimate question of discrimination. Aikens, 460 U.S. at 715. In this setting we focus on the employer's explanation and decide whether it is a pretext for discrimination. B. Scheli and P. Grossman, Employment Discrimination Law (2d Ed. Supp. 1983-84) p. 251-52. Pretext may be proven by showing that a discriminatory reason more likely motivated the employer or that the explanation proferred by the employer is unworthy of credence. Burdine, 450 U.S. at 256.
5The only exceptions are David Hendricks, who had prior approval for his absences, and an employee by the name of Thomas. He had arranged for a substitute and also had prior approval for his absences.
6The third step grievance decision is also cited by Bordson as proof that Oscar Mayer discriminated against him because of his arrest record in refusing to excuse his absences. As noted above, the ordinance did not require that Oscar Mayer excuse Bordson's absences. Moreover, the third step grievance decision was an intermediate level decision and was superceded by the denial of the fourth step level. There is no evidence that the denial of Bordson's grievance at the fourth (and presumably final) step was influenced by an animus toward Bordson because of his arrest or by hostility toward persons with an arrest record in general.