STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
KELVIN P WEATHERSPOON, Complainant
BASTRUP ROOFING & SUPPLY, Respondent
PUBLIC ACCOMMODATION DECISION
ERD Case No. 9453534
1. In paragraph 3 of the FINDINGS OF FACT, the first sentence is deleted and the following sentences are substituted therefor:
"Some time in 1993 the church began experiencing water leakage into the men’s and women’s restrooms from the roof. Prior to this, some of the church Brothers had gone up on the roof to put some sealer on the roof and to patch it up. In early 1994, the church decided that it was necessary to seek professional help to repair the roof. Pastor Weatherspoon requested bids from three contractors for roofing work on the church."
2. Paragraph 4 of the FINDINGS OF FACT is deleted and the following paragraph is substituted therefor:
"This estimate was received on or about March 23, 1994. The estimate listed a cost of $1,693 for a rubber roof with a 10 year guarantee. The church did not immediately act on the estimates obtained. The delay stemmed in part due to the church’s difficulty in scheduling a business meeting. During the winter of 1993-1994 a segment of gutter was left lying on the church’s roof, apparently the result of vandalism at the church.
3. In paragraph 6 of the FINDINGS OF FACT, the second sentence is deleted and the following sentences are substituted therefor:
According to Pastor Weatherspoon, Bastrup stated that the reason for this was "because we were burned by another black church on 6th and Memorial." Bastrup denies having made this statement. Bastrup asserts that Pastor Weatherspoon objected to payment of the full amount at which point he offered to allow the church to pay half of the amount with a postdated check, and then as an act of salesmanship, mentioned other jobs that he had done, including a church at 6th and Memorial. Bastrup denies having brought up the church at 6th and Memorial in any other context. Bastrup asserts that the reason he requested this pay arrangement was to make sure that he got paid; that it looked like a bad situation. Bastrup asserted that he viewed the condition of the church’s roof as dilapidated and appearing to have been let go for quite some time without having any decent work done to it, and that the gutter he saw lying on the roof caused him to worry that some other contractor may have started work that did not get finished because of a problem regarding payment between the church and the contractor. Bastrup testified that he had tens of thousands of dollars in work that he had performed and not been able to collect. Bastrup testified that he did not discuss his reasoning for the method of payment with Pastor Weatherspoon because he did not want to go into the reasoning with him.
The above modifications have been made to make the findings more accurately reflect the testimony, and to present a fuller account of the testimony.
DECISION
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed February 12, 1996
weathke.rmd : 125 :
9
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ David B. Falstad, Commissioner
MEMORANDUM OPINION
As support for reversal of the ALJ’s decision, the complainant argues on appeal that his credibility is without dispute in this matter. He argues that he volunteers his time to assist his congregation in taking care of the church, that he has dealt with contractors for church work several times in the past and never filed a discrimination claim, and that it is inconceivable that he would reject a bid on roof repairs for $1,684 and instead hire a roofer for $4,940, an excess of $3,200 in additional costs, without a serious concern about Bastrup’s discriminatory practices. Further, the complainant asserts that Bastrup has asserted that he is lying and that this is completely unfounded and unsupported by any evidence in the record, as absolutely no explanation is provided as to a motive for Pastor Weatherspoon to single out Lance Bastrup for a fictitious claim of discrimination while having to pay almost $5,000 to another roofing company owned by a Caucasian. With respect to the critical issue of credibility, however, the commission consulted with the ALJ on this issue, and it was the ALJ’s impression that both Pastor Weatherspoon and Lance Bastrup were credible witnesses. The record does not lend reason to believe that one witness is more credible than the other either. Clearly both witnesses’ account of their August 24, 1994 discussion cannot be accurate. Pastor Weatherspoon does bear the burden of proving unlawful discrimination by a preponderance of the evidence, however. Outside of the disputed account of what transpired during the August 24 discussion there is little to lead the commission to believe that the discrimination alleged occurred. Under the circumstances presented, the commission cannot find that unlawful discrimination has occurred.
The complainant has cited Bastrup's letters submitted to the division, in which he comments that the "race card" was being played and complains about various matters, and argues that this correspondence demonstrates Bastrup's contempt for anti-discrimination laws and the process of these laws, as well as his lack of credibility. The commission is not persuaded that this is so since it could just as easily reflect the degree of Bastrup’s certainty that there was no merit to the complaint of discrimination.
Further, the complainant calls Bastrup's testimony that he did not know that the congregation was black unbelievable. The complainant notes that Bastrup has insisted that he has given at least 4 to 6 estimates on Pastor Weatherspoon's church while Weatherspoon was involved with the church. The complainant argues that it is incredible that Bastrup visited the church, located in a predominantly Hispanic and black neighborhood, on 4 to 6 occasions and never met anyone from the church or saw anyone coming or going from the church. This argument by the complainant is grounded in nothing more than speculation, however.
Other arguments that the complainant makes in an effort to place Bastrup's credibility in question, are also unconvincing. For instance, attempting to show inconsistency in Bastrup's testimony, the complainant maintains that Bastrup had first testified that he had never charged any customer the entire amount up front on a repair job since 1977, and then Bastrup later recanted this testimony and said it had happened a couple of times over the years. Actually, what Bastrup had said at first was that since January 1993 he could not recall requiring payment before work was begun. Then, later when asked if Pastor Weatherspoon had paid in full upon set up if this would have been the first time he had ever required anyone to pay all the money up front, Bastrup testified that it had happened a couple of times over the years. An examination of the actual testimony given by Bastrup shows no inconsistency.
Also, the complainant asserts that Bastrup's denial of having told Pastor Weatherspoon to pay up front "because we were burned by another black church on 6th and Memorial" is incredible because there is nothing in the record to suggest that Pastor Weatherspoon could have acquired this information from anyone other than Lance Bastrup. But this argument only "begs the question." Bastrup still denies having made the comment, and there is absolutely nothing in the record to show that Bastrup had not been paid for work at a church on 6th and Memorial.
The complainant also attempts to show inconsistent testimony by Bastrup regarding discussion about the use of a postdated check to pay for the work. While the evidence regarding this is somewhat confusing, the commission is not persuaded that Bastrup's testimony on this matter weakens his credibility. Except for the curious denial of having discussed a postdated check in an interrogatory response, Bastrup has always admitted that there was discussion about using a postdated check. He admitted to requiring a postdated check when first responding to the complaint, and he again admitted to this requirement when he testified at the hearing.
The complainant also argues that Bastrup's assertion that the reason for requiring up front payment was the "condition of the church" is a mere pretext for discrimination as it is unworthy of credence. Specifically, the complainant appears to argue that while Bastrup maintains payment was required up front because the gutters were not attached, it is uncontroverted that Pastor Weatherspoon had agreed they would be re-attached before work on the roof began. However, the fact that Pastor Weatherspoon agreed to have the gutter re-attached does not address Bastrup's asserted concerns about why it was not attached in the first place.
With respect to the "condition of the church," the complainant then goes on to argue that Gregg Petersen's testimony (the owner of Carlson Racine Roofing) about the condition of the church contradicts Bastrup's testimony, and that the ALJ erred in refusing to admit photographs of the church to demonstrate its good condition because he believed they were not self-authenticating. (The complainant notes that according to s.909.015(1), Stats., evidence may be authenticated by testimony of a witness with knowledge that a matter is what it is claimed to be.) The underlying difficulty with these arguments, however, is that Bastrup's testimony was not that he required payment up front because of the condition of the church, but because of his perception of the roof and the fact that the gutter was lying on the roof. Petersen agreed that the condition of the roof was not in good shape. The photographs of the church that the complainant sought to enter into evidence do not present a view of the roof.
The commission concludes that the complainant has simply failed to establish by a preponderance of the evidence that Bastrup discriminated against him on account of his race and the race of the members of his church when negotiating the terms and conditions for performing work for the church.
cc: PATRICIA J. MEUNIER
DAVID E. CELEBRE
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