IV. DISCHARGE:

A. The Commission Established A Prima Facie Case of Discriminatory Discharge:

1. The Complainant Is A Member of a Protected Class:

85. As previously noted, Complainant Tillman, a Black male, is a member of a protected class. See Finding of Fact No. 24.

2. The Complainant Was Qualified For the Job From Which He Was Discharged:

86. Complainant Tillman performed his job as a production worker at Monfort for approximately eight months. He had previously been employed for five years in another packing facility. See Finding of Fact No. 18. The evidence in the record indicates that management at Monfort considered Tillman's work performance to be good. (Tr. at 522, 580). Clearly, Complainant Tillman was qualified for the production worker position from which he was discharged. See Finding of Fact No. 18.

3. Complainant Tillman Was Discharged From His Job As A Production Worker:

87. As previously noted, Complainant Tillman was discharged from his job as a production worker. See Finding of Fact No. 18. It should also be noted that, based on what is known of their total experience in the meat packing industry as of May 25, 1990, it appears that Complainant Tillman was equally or better qualified for the production worker job than Bret Goken, who was ultimately retained. See Findings of Fact Nos. 18, 23. Through the establishment of these three facts, the Commission has established a prima facie case of discriminatory discharge. See Findings of Fact Nos. 85-87. See Conclusions of Law Nos. 75-76.

B. Respondents Monfort Articulated, Through The Production of Evidence, a Legitimate, Non-Discriminatory Reason for Complainant Tillman's Discharge:

88. Respondents Monfort articulated a legitimate, non-discriminatory reason for Complainant Tillman's discharge. That reason is that he violated the company's policy against fighting. Specifically, Tillman was fired because he was the physical aggressor in the fight between him and Goken. (R. EX. AB; M Joint EX. # 2; CP EX. # 2; Tr. at 588-89, 648-49, 657, 670, 684, 730, 736).

C. The Commission Failed to Show That Respondent's Reason for the Discharge of Complainant Tillman Was A Pretext for Discrimination:

1. The Commission Failed to Show That The Proffered Reason For Complainant's Discharge Either Had No Basis In Fact or That It Did Not Actually Motivate The Respondent's Decision to Discharge Complainant Tillman:

89. The Commission does not even argue, on brief, that the reason given for Complainant's discharge either had no basis in fact or that it did not actually motivate Respondents Monfort's decision to discharge. (Commission's Post Hearing Brief). The overwhelming weight of the evidence shows that Complainant Tillman was discharged because he was the physical aggressor in his fight with Goken. (R. EX. M, CP EX. # 2; Tr. at 452-53, 657, 684, 730, 736). It is undisputed that the only physical aspects of this fight were Complainant Tillman grabbing Goken's head and repeatedly slamming it into a table. See Finding of Fact No. 36. There is no evidence that the employer provided inconsistent reasons for its discharge of Complainant Tillman.

90. After the fight with Goken, both Goken and Complainant Tillman were suspended pending investigation. (R. EX. M, N; Tr. at 238, 451, 784). The employer conducted a thorough investigation of the incidents leading to the fight in the cafeteria. (R. EX. M, N; Tr. at 722-23, 725-30, 737-39). After the investigation, both Goken and Tillman were discharged. (Tr. at 730, 784) (Based on grievance and personnel file documents, Tillman's and Goken's discharges were made effective the day of the fight and the beginning of the suspension, May 25, 1990.) (CP. EX 2, 8). The decision was made by personnel manager Bary Carl in consultation with plant manager Lincoln Woods and the corporate office. (Tr. at 737, 745). Both Goken and Tillman grieved their respective discharges. (CP. EX. 2, 8). Goken was reinstated at the fourth step of the grievance procedure, while Tillman was not, solely because Robert DeRaad, Monfort's corporate labor relations representative, who handled arbitrations, believed that Goken's grievance would be lost by the company if taken to arbitration. DeRaad felt the punishment did not fit the offense, as Goken had received no prior warning on harassment. (Tr. at 658, 740, 745-46). DeRaad had the authority to overrule and did overrule Bary Carl and Lincoln Woods, both of whom wanted Goken to remain discharged, during the grievance process. (Tr. at 740, 744-45). The decision to not reinstate Complainant Tillman was apparently based on the belief that Monfort would prevail in arbitration of that grievance because Tillman had violated the company policy on fighting by being the physical aggressor in the fight. (Tr. at 149, 736). Such an outcome would have been consistent with Monfort's policy and past practice. (R. EX. O, P, S, V, W, X, Y, Z, AA, AB; Joint EX # 2; Tr. at 43, 49, 58-59, 97, 107, 149, 434, 588-89, 615, 648-49, 652-53, 670, 690-91, 696-98, 748-55, 791-94). See Findings of Fact Nos. 22B, 89.

2. The Commission Failed to Show That The Reason For Complainant Tillman's Discharge Proffered by Respondent's Monfort Was Insufficient to Motivate the Discharge:

a. The Commission failed to show that the reason given by Monfort was too remote in time to justify the discharge:

91. On brief, the Commission did not argue either that the reason offered by Monfort involved an event too remote in time from the discharge to justify the action taken. (Commission's Posthearing Brief). Such a conclusion would be contrary to the evidence as Complainant Tillman was discharged soon after the investigation of the fight was completed. (Tr. at 730).

b. The Commission failed to prove that Respondent Monfort had a practice of retaining white employees it knew to have been physical aggressors in fights on company property while discharging similarly situated Black employees.

92. On brief, the Commission suggests that "white employees involved in widely-observed fights that resulted in injuries kept their employment, while he [Tillman] was discharged." (Commission's Post-Hearing Brief at 17).

93. It has already been noted that it was Respondents Monfort's policy and practice to discharge only the known physical aggressors in fights. See Finding of Fact Nos. 22B, 90. Thus, the appropriate comparison would be between the treatment by the company of white and Black employees known by Monfort to be physical aggressors in fights.

94. It has already been noted that co-workers are able to conceal fights from management when the fights occur at times and places where no supervisor is present. See Finding of Fact No. 51. Some employees, such as former steward Ron Allen, felt it was wrong for a union member to report conflicts between one union member and another employee to management. Such action, it was believed, could result in a fine by the union against the union member making the report. (Tr. at 278, 289-90, 295-97, 316-17, 680-81). Thus, co-workers may witness a fight which results in no discipline. For example, when supervisor Michael Slifer received a report of an altercation between Chris Spidell and a McDowell involving an exchange of blows, he took them to personnel. Both said nothing happened. Neither were bruised nor bloody. Three employees, who did not seem to be credible to Mr. Slifer, denied that they saw anything. Under these circumstances it would make no sense to discipline the accused employees, as they could probably successfully grieve the discipline. (Tr. at 504-06). On the other hand, the fight between Goken and Complainant Tillman was not concealed because supervisors Welton and Slifer witnessed it and broke it up. (Tr. at 144, 410, 493-96, 610-11).

95. When a disturbance is reported to management, and the personnel involved are called to Bary Carl's office, the union stewards are usually present in accordance with the bargaining agreement. If there is no evidence of physical injury, and/or if no supervisors were present during the actual fight, the union stewards, and the employees involved in the altercation, would argue, with some success, that the fight did not involve physical blows, but only pushing or shoving. This tactic, if successful, would bring the altercation within the parameters of the "horseplay" rules and out of the "fighting" rules involving a physical altercation. It is strongly implied in the testimony that this tactic would be followed even if there actually was an exchange of blows. This was done so that neither employee would be discharged for fighting. If this were a first offense for both employees, they would receive lesser discipline for horseplay. (Joint EX. 1; R. EX. BP; Tr. at 550-51, 585, 590-91, 670-72, 711, 760, 776). See Findings of Fact Nos. 22A and 22B.

96. The use of this tactic could explain some of the reports where both employees involved in fighting were returned to work. For example, Caroline Tillman saw general foreman Charlie Freese and supervisor Mike Slifer take two white males out of the men's locker room after some sort of altercation. Of course, Ms. Tillman was not in the men's locker room and could not have seen the altercation. The men were both returned to work. There is no evidence as to whether this was a purely verbal altercation, a matter of pushing or shoving (horseplay), a physical fight, or a physical fight which was reported to management as a matter of pushing and shoving. (Tr. at 423-24). Thus, this incident is not sufficient to show a difference in treatment between similarly situated Black and white employees.

97. Both Complainant Tillman and Tracey Harrington observed a fight which is suggested as an instance of different treatment on the basis of race by the Commission. (Commission's Posthearing Brief at 17; CP. EX. # 7; Tr. at 150-53). Two white males, Jeff Davis and Mark Mitchell, engaged in a physical fight on the picnic line. (CP. EX. # 7; Tr. at 150-51). At first, there was pushing and shoving. (CP. EX. # 7). The shorter one then hit the taller one (Davis) in the face with a bone, causing a cut. (CP. EX. # 7; Tr. at 151-52). No supervisors were present at the time of the fight, which was broken up by coworkers. Supervisor Slifer appeared approximately four minutes after the fight. (CP. EX. # 7; Tr. at 152). The two employees were taken to the cut floor office. (Tr. at 153, 266). They returned to work after being suspended for a period of time. (CP. EX. # 7; Tr. at 153). Complainant Tillman did not report what he saw of this fight to management. (Tr. at 265). There is also no evidence that Harrington reported what she saw to Monfort management. (CP. EX. 7).

98. Under this evidence, it is not known what information Respondents Monfort had with respect to this fight. It is also unknown what conclusions, if any, Monfort was able to reach with respect to which employee was an aggressor. It is also not known whether Monfort was told the facial injury resulted from an accident or pushing or shoving. This one incident is not sufficient to show race discrimination, especially in light of the discharges of other white employees for fighting. See Finding of Fact No. 102.

99. In was also averred that a white employee was retained, despite being the physical aggressor in a fight, when there was an altercation between Ron Allen and Glen Sharp. Ron Allen testified that, approximately one month before the hearing, he hit Glen Sharp in the head with a loin after Sharp called him names. Allen testified that he only received a written warning for horseplay. (Tr. at 281). Allen, however, admitted that he falsely told Monfort at the time of the incident that he had only threatened to hit Sharp. Monfort based the discipline on what Allen had told them at the time. It did not know that Allen had been an aggressor. (R. EX. A; Tr. at 304-06, 558-60). If Monfort had known this, Allen would have been discharged. (Tr. at 759-60).

100. There is one instance where a white employee was ultimately retained although Monfort management knew he was the physical aggressor in a fight. William Mettlin, Jr. physically attacked Henry Mentel on or about August 7, 1992. This attack resulted in a cut above Mentel's eye which required stitches at the hospital. (R. EX. BB; Tr. at 154, 267, 282, 318, 677, 760-61). Mettlin attacked Mentel because Mentel was having an affair with Mettlin's wife. (Tr. at 267, 319, 761). Mettlin was discharged effective August 12, 1992 because of his attack on Mentel. (R. EX. BB; Tr. at 677, 761). Mettlin's grievance was denied at the third and fourth steps. (Tr. at 677-78, 763, 797). Mr. DeRaad, however, elected to overrule Bary Carl, who wished to discharge Mettlin, once it was clear the case was proceeding to arbitration. (Tr. at 678, 764, 797). As part of the settlement of his grievance, Mettlin was required to come back to a different shift and department. (Tr. at 678, 796). This constitutes the sole instance in the record where an employee who was a physical aggressor in a fight was returned to employment.

101. This instance does not, however, establish different treatment on the basis of race in this case. First, Mettlin and Complainant Tillman are not similarly situated. Mettlin was provoked by Mentel's sexual contact with Mettlin's wife. Tillman was subjected to a purely verbal provocation. See Findings of Facts Nos. 36-38, 83, 100. See Conclusions of Law Nos. 82..

102. Second, in making a determination as to whether different treatment is based on race, attention must be paid to Monfort's application of its policy in all instances of known physical aggression by an employee. An isolated instance, such as the Mettlin situation, where a company's policy is not applied due to extraordinary circumstances, does not constitute race discrimination when the policy is otherwise applied equally to all other employees, regardless of their race. See Conclusion of Law No. 83. The record in this case reflects that, in all other instances, physical aggressors in fights were discharged regardless of their race. Thus, Rod Dobbs, a white employee, was discharged because he struck Robert Gray, a Black employee, on November 28, 1990. This blow caused a cut over Gray's left eye which required three stitches to close. Gray was not fired. (R. EX. V; Tr. at 750-51). Neal Griggs, a white employee, was discharged for fighting with Dolphus Coleman, a Black employee. (R. EX. W; Tr. at 751, 791-92). Dennis McDowell, a Black employee, was discharged for striking a security guard when the guard denied McDowell admittance at the front gate after McDowell refused to sign in or show his identification. (R. EX. X; Tr. at 752). Jim Martin, a Black employee, was discharged for striking Lynette McIntosh, a Black employee. (R. EX. Y; Tr. at 752-53, 792). Reginald Howze, a Black employee, was discharged for slamming the head of Allen Purvis, a white employee, into a table at the cafeteria several times. (R. EX. Z; Tr. at 753-54, 792). Duane Tate, a Black employee, was discharged for cutting the arm of Leal Bogges, a white employee. (R. EX. AA; Tr. at 754-55). Two white employees, Jerry L. Dixon and Brian Jamieson, were both discharged for fighting with each other. (R. EX. P, S; Tr. at 749-50, 791). (This would be consistent with Respondent's policy allowing both participants in a fight to be discharged when both are equally guilty of physical aggression. See Finding of Fact No. 22B.). The record as a whole does not show a practice of race discrimination by Respondents Monfort in the discipline of employees who are physical aggressors in fighting.

3. The Commission Failed to Show That Complainant Tillman's Attack on Goken Was Justified As a Reasonable Response to Verbal Racial Harassment:

103. As previously noted, Complainant Tillman responded to racial epithets uttered by Goken by "'slamming his head across the table' while telling him, 'I'm going to take that nigger word out of your vocabulary.'" See Finding of Fact No. 36. As Tillman testified, " I grabbed him by a handful of his hair and the first table I seen I immediately started slamming his head off." (Tr. at 245). Tillman "spiked his head off the table six or seven times" before supervisors Slifer and Welton, and his sister, Caroline Tillman, were able to get him to stop. (Tr. at 245-46). The last two slams occurred while the two supervisors were on his back. (Tr. at 245). At his deposition, Complainant Tillman admitted that Goken never threw a punch because "he was too busy kissing the table." (Tr. at 246). Tillman admitted at hearing that he had made good on his promise to slam Goken's head into the table if Goken ever used racial epithets toward him again. (Tr. at 382). See Finding of Fact No. 34.

104. During the processing of his grievance, Tillman admitted to Mr. DeRaad that, if he were faced with the same provocation in the future, he would respond with the same action. (Tr. at 345-46, 741). When DeRaad asked what would have happened if the supervisors had not broken up the altercation, Complainant Tillman replied that "I'd have finished him off" or words to that effect. (Tr. at 662-63).

105. Complainant Tillman's violent physical response to the purely verbal provocation by Mr. Goken was not a reasonable response. Tillman was aware of the option of going to one of the supervisors or stewards to complain about Goken's harassment. (In this regard, it should be noted that there were other stewards and union officials to complain to other than Henry Mentel). See Findings of Fact Nos. 22, 66. This was not a situation where complaints of racial harassment were ignored. If Tillman had made such a complaint, and Monfort's investigation had found his complaint to be accurate, Goken would have received at least a verbal warning. Further harassment by Goken, if reported and verified, would have resulted in Goken's discharge. (Tr. at 799-800). An initial verbal warning informing harassing employees that they will be discharged or suspended if the harassment continues is precisely what Tillman recommended and what he did when he subsequently became a supervisor at an IBP plant. (Tr. at 158, 176-78, 391). Under these circumstances, Tillman's response to a verbal provocation was too extreme. This case, therefore, does not fall within that category of cases where misconduct or poor job performance is excused, and does not constitute a legitimate reason for discipline, because such misconduct or poor job performance is the result of or a response to racial or other prohibited discrimination. See Conclusions of Law Nos. 84-86. The Commission, therefore, has not proven that racial discrimination played a role in Respondents Monfort's decision to discharge Complainant Tillman.

Findings of fact continued