The opinion
George K. Cracraft, Judge, dissenting. While I fully agree that the majority opinion correctly states the law on this subject, I cannot agree with the application they have made of it to the facts here present. The appellant does not contend that he was not guilty of misconduct or that the company rules would not ordinarily absolve the person he assaulted. He argues instead that he was not discharged because of that misconduct but because of his race, and that the employer’s articulated reason for his discharge was a mere pretext for discrimination. The burden was upon him to prove this by competent evidence relevant to the issue as tending to make that proposition either more or less probable.
Evidence of past comparable incidents is certainly competent to prove pretext for discrimination. However, I agree with the referee and the Board of Review that a single, isolated incident which occurred three years prior to appellant’s discharge with no connecting evidence of managerial conduct in the interim was too remote to be relevant to the issue then before them for determination. This was the ruling the referee made at the time the evidence was offered and I would hold that it was a correct and proper one. The majority remands the matter for the Board of Review to consider that testimony in making a new determination. I respectfully dissent.
I am authorized to state that Corbin, J., joins in this dissent.