PASTORI BALELE, Complainant
PDQ FOOD STORES INC., Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the record which was before the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed June 18, 2015
pastoba_rrr : 110 : 119.2
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Procedural history -- On December 7, 2012, complainant Pastori Balele filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging that respondent PDQ Food Stores had discriminated against him because of age, sex, and race and in retaliation for opposing discrimination, in regard to transfer, hours, working conditions, discipline and discharge. On December 10, 2012, the EEOC issued a Dismissal and Notice of Rights, stating it was unable to conclude there had been a violation of the statutes and advising Balele that he could commence a lawsuit against PDQ based on his charge.
On February 20, 2013, Balele commenced an action against PDQ in Dane County Circuit Court, relying on the same allegations of age, sex and race discrimination and retaliation as had been raised in his complaint to the EEOC. In March 2013 the action was removed to federal court on PDQ's motion. After extensive written discovery, PDQ moved for summary judgment. On February 25, 2014, Judge Barbara Crabb granted PDQ's motion for summary judgment, finding no evidence of age, sex, or race discrimination or retaliation for opposing discrimination. Balele filed an appeal of Judge Crabb's decision to the 7th Circuit Court of Appeals, but that appeal was returned to Balele, unfiled, because Balele had failed to comply with the requirements of a standing order which had been issued by the 7th Circuit some years before limiting Balele's rights to file papers with courts in that circuit. Balele filed a petition for mandamus with the U.S. Supreme Court, but it was denied.
In May 2014, the Wisconsin Equal Rights Division ("ERD") wrote Balele asking whether he wanted it to investigate the allegations of the complaint he had originally filed with the EEOC. Balele said he did. Eventually,(1) on December 22, 2014, an ERD Equal Rights Officer issued a "Notice Of Dismissal - Administrative" which ordered that Balele's complaint be dismissed for the reason that "[t]he allegations in the complaint have been previously dismissed by a federal court." (2)
Balele filed an appeal of this "Notice Of Dismissal - Administrative," and the matter was assigned to an ALJ for review. On February 23, 2015, the ALJ assigned to the matter issued a "Decision On Appeal Of Preliminary Determination Dismissing Complaint" (3) This decision stated that it affirmed the dismissal of the case. Balele filed a petition for commission review of the ALJ's decision.
Application of Issue Preclusion -- This case involves circumstances similar to those in Banty v. Dings Co. Magnetic Group, ERD Case Nos. CR200803382, CR200903205 (LIRC, 07/31/12). Those circumstances were, that a federal district court had adjudicated a set of allegations of discrimination by way of a ruling granting summary judgment to the respondent, and the complainant then sought to have those same allegations adjudicated by the Equal Rights Division. The question presented in Banty, was whether this was barred by issue preclusion. The same question is presented here, and the commission is persuaded that the answer is also the same.
As noted by the ALJ in this case, the first step in the analysis of whether issue preclusion should be applied is to determine whether the issues or facts as to which it is asserted issue preclusion should apply, were actually litigated and determined in the prior proceeding by a valid judgment in a previous action and whether the determination was essential to the judgment.
The first step in the analysis clearly supports application of issue preclusion. The allegations of discrimination which Balele seeks to have adjudicated by the ERD, and as to which it is asserted that issue preclusion should be applied, had all been specifically made in the court complaint which was before the federal court. The evidence regarding those allegations was put before the court in the form of an extensive record submitted in connection with the motion for summary judgment. Judge Crabb granted that summary judgment to the respondent, resolving the factual and legal issues presented by the complainant's complaint; the resolution of those issues by way of summary judgment satisfies the requirement that the issues be "actually litigated," see, Aldrich v. LIRC, 2012 WI 53, 99-100, 341 Wis. 2d 36, 814 N.W.2d 433 (2012). It is also clear that the issues in question were determined and that the determination was essential to the judgment. Summarizing her lengthy and detailed ruling, Judge Crabb stated:
Plaintiff has produced no evidence to show that he was discriminated against because of his age, his sex or his race. He has not shown that defendant had a discriminatory animus against black male older workers in general or against him in particular. The number of second, third and fourth chances plaintiff was given suggests that the contrary was true: defendant wanted to keep plaintiff as an employee. This does not seem surprising. After all, he was tardy only once in eight years, he was willing to transfer to other stores when asked, he cared about workplace conditions and he seems to have been popular with defendant's customers. At some point, however, defendant lost its tolerance for plaintiff's many mistakes and decided it could not keep him as an employee. As unfortunate as it was for plaintiff, he has not shown the denial of his request for a transfer or his discharge to be discriminatory.
The second step in the analysis of whether issue preclusion should be applied is to determine whether applying issue preclusion comports with principles of "fundamental fairness."
As the commission noted in Banty, supra:
Courts have generally looked to these five factors to decide whether the "fundamental fairness" test is met:
(1) Could the party against whom preclusion is sought have obtained review of the judgment as a matter of law;
(2) Is the question one of law that involves two distinct claims or intervening contextual shifts in the law;
(3) Do significant differences in the quality or extensiveness of proceedings between two courts warrant relitigation of the issue;
(4) Have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; and
(5) Are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?
Aldrich [v. LIRC, 2012 WI 53, 110, 341 Wis. 2d 36, 814 N.W.2d 433 (2012)]. No single factor is dispositive, and the final decision must rest on a "sense of justice and equity." The five factors are not exhaustive or exclusive. The weight given to each factor is discretionary. 2012 WI 53, 111-112.
The second step in the analysis also clearly leads to the conclusion that issue preclusion should be applied:
Balele could have obtained review of the judgment by the 7th Circuit Court of Appeals if he had complied with the conditions imposed by that court's standing order that he pay certain costs which had been imposed on him in other matters and filed the required affidavit certifying that the matters he sought to raise in any proposed filing were not frivolous and had not been raised by him in prior suits.
The questions presented involved exactly the same claims and the same issues of law.
There were no significant differences in the quality or extensiveness of the proceedings between the federal district court and the ERD; the fact that the proceedings in the former involved a motion for summary judgment is not relevant, see, Aldrich, supra, 2012 WI 53, 99-100.
The burdens of persuasion were the same in both contexts.
For the foregoing reasons, the commission agrees with the ALJ's decision that the application of issue preclusion in this case is consistent with fundamental fairness.
Besides arguing that the principle of issue preclusion was applied incorrectly, Balele has argued that the ALJ misstated the facts, that the federal court lacked jurisdiction over his complaint and that its decision should therefore be disregarded, and that the Equal Rights Officer of the ERD who dismissed his complaint should have recused herself because she was biased.
The arguments made by Balele in support of his petition for review have been carefully considered. However, the commission is unconvinced by those arguments. The commission is instead in agreement with the arguments made in the respondent's
Brief In Opposition To Complainant's Petition for Review. In addition to relying on the reasons set out in this Memorandum Opinion, the commission adopts the respondent's arguments as part of its rationale in this matter.
cc:
Attorney Thomas R. Crone
Appealed to Circuit Court. Affirmed November 12, 2015.
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(1)( Back ) After the May 2014 indication by the ERD that it proposed to investigate Balele's complaint, that did not in fact happen for some time, due to reasons which are not directly relevant to the issues now presented by this case. See, e.g., Balele v. PDQ Food Stores Inc., ERD Case No. CR201203887 (LIRC, July 3, 2014).
(2)( Back ) From the heading of this document and its use of the quoted phrase, it is clear that this "Notice of Dismissal" was an exercise of the ERD's authority under Wis. Admin. Code § 218.06, which provides in relevant part:
DWD 218.06 Investigations.
. . .
(3) Dismissal of complaint prior to completion of investigation.
(a) The department may dismiss a complaint prior to completion of an investigation under the following circumstances:
. . .
3. The allegations in the complaint have been previously dismissed by the department or by a state or federal court.
(3)( Back ) Under the rules of the ERD, "Preliminary Determinations" and decisions on appeal of them are issued pursuant to subsections (2) and (3) of Wis. Admin. Code § DWD 218.05, which provides for preliminary review of complaints to determine whether they are covered by the law and are timely. Notwithstanding the ALJ's reference to "Preliminary Determinations" in the caption of his order, it is clear that this case involves a "Dismissal of [a] complaint prior to completion of investigation" under Wis. Admin. Code § DWD 218.06.
uploaded 2015/07/22