GARY LEE CURRIE, Complainant
PAPER CONVERTING MACHINE CO, Respondent
An administrative law judge 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 evidence submitted to the administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:
1. In the final sentence of the second paragraph on the first page of the administrative law judge's DECISION the date "June of 2004" is deleted and the date "June of 2003" is substituted therefor.
2. The first paragraph of the administrative law judge's FINDINGS OF FACT is deleted and the following substituted therefor:
"PCMC is a manufacturing company that in 2000 operated several facilities in the Green Bay area, including one called "O&E," one on Reber Street, called "Renard," one on Ashland Avenue, and one on Glory Road."
3. In the first sentence of paragraph three of the administrative law judge's FINDINGS OF FACT the date "1988" is deleted and the date "1970" is substituted therefor.
4. In the first sentence of paragraph nine of the administrative law judge's FINDINGS OF FACT the phrase "of a person" is deleted and the phrase "for a person" is substituted therefor. In the second sentence of the same paragraph the name "the Mr. Nelson" is deleted, and the name "Mr. Nelson" is substituted therefor.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed November 3, 2006
curriga . rmd : 164 : 9
James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
This matter concerns the complainant's complaint that he was discriminated against based upon his age when the respondent failed to select him for two job openings in 2003; one as a boring bar operator, and one as a material handler. (1) A hearing was held in June 2005 before an administrative law judge from the Equal Rights Division. In April of 2006, before the administrative law judge issued his decision, a federal circuit court judge issued a summary judgment order against the complainant in an action brought under 42 U.S.C. § 1981 involving a complaint of race discrimination with regard to the respondent's decision not to hire the complainant for one of the two positions at issue here, the boring bar job, as well its decision not to transfer him to the Renard facility after it closed its O&E plant in 2001. The administrative law judge ultimately issued a decision in the Fair Employment Act proceeding finding that the complainant failed to establish he was discriminated against in the manner alleged. Although the respondent had argued that the district court's order had a preclusive effect on the complainant's fair employment claims, the administrative law judge's decision was issued without discussion of issue preclusion and was based upon the administrative law judge's own analysis of the case on the merits.
The complainant has filed a petition for review by the commission of the administrative law judge's dismissal of his complaint. Subsequent to the filing of his petition, however, the Seventh Circuit Court of Appeals issued a decision affirming the circuit court's summary judgment order. In its decision, the court of appeals concluded that the complainant failed to present sufficient evidence warranting a hearing on the question of whether he was discriminated against based upon his race with respect to the various hiring decisions at issue. With regard to the boring bar position, the court specifically stated, as follows:
"Currie [the complainant] further suggests that Paper Converting [the respondent] "lied" when it said it selected Ropson [the successful applicant] for his jig bore skills because the company's advertisement called for boring bar experience. But this just shows that Paper Converting hired a person with more skills than those sought in the advertisement--Ropson claimed in his application that he could operate both a jig bore and a boring bar. Paper Converting was permitted to hire the candidate it believed to be the most qualified from its applicant pool. There is no evidence that this was pretext unless Currie was clearly more qualified than Ropson, and Currie has not shown this to be the case."
The respondent has asked the commission to consider the court of appeals' decision, which it contends forecloses further litigation on the issue of whether the complainant was denied the boring bar position for discriminatory reasons. (2)
Issue preclusion refers to the effect of a judgment in foreclosing relitigation in a subsequent action of an issue of law or fact that has been actually litigated and decided in a prior action. See Taylor v. St. Michael Hospital (LIRC, May 31, 2001). A "fundamental fairness" standard exists when applying issue preclusion and requires consideration of the following factors: (1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment; (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 the 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; or (5) are matters of public policy and individual circumstances involved that would render the application of collateral estoppel [issue preclusion] to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action? Michelle T. v. Crozier, 173 Wis. 2d 681, 689, 495 N.W.2d 327 (1993).
The commission concludes that the Crozier standards were met here and that the doctrine of issue preclusion forecloses the complainant from relitigating his fair employment claim that the respondent failed to hire him for the boring bar position because of his age. The failure to hire issue was actually litigated, and the federal court determined that the respondent's motive for failing to hire the complainant was its belief that the individual it hired was more qualified. The issue in question is one of fact, rather than one of law, which might involve two distinct claims or intervening contextual shifts in the law. The same burden of persuasion that applied in the federal action would apply to the complainant's claim before the Equal Rights Division, and the quality and extensiveness of the federal court action was not less than what the complainant would receive at the Division. The complainant had a complete opportunity to obtain a full and fair adjudication in his federal action and to obtain review of the adverse decision. Finally, there are no matters of public policy or individual circumstances involved that would render issue preclusion to be fundamentally unfair. Therefore, the commission adopts the factual findings made by the federal court with respect to the respondent's motivation in selecting a different candidate for the position at issue.
In its response to the complainant's petition the respondent has argued that the complainant's claim is frivolous and that his pursuit of this case is "an abuse of the system." (Respondent's June 23, 2006, brief at 15, 24 and 30.) The commission emphatically disagrees. The facts of this case are troubling, and the commission can appreciate why the complainant had concerns as to why the respondent made the hiring decision it did. The complainant applied for a job as a boring bar operator, a position for which he was well qualified, but was not considered for the job because he did not tell the respondent he was experienced in the operation of a jig bore, a different machine which was not mentioned in the advertisement or posting. The complainant was in his late fifties at the time of the hiring decision, a piece of information which would have been available to the decision-makers had they looked closely at his application or requested his employee profile. If this case had been before the commission on probable cause, rather than on the merits, and had there been no federal court decisions in this matter, these factors would have warranted a decision in the complainant's favor.
That said, the commission is compelled to affirm the finding of no discrimination. The administrative law judge found credible the respondent's testimony that it considered the machine in question to be a jig bore, rather than a boring bar, and that it selected the individual it believed to be most qualified. The administrative law judge also found credible the respondent's assertions that it made its decision without reference to or knowledge of the complainant's age. The court of appeals also was not troubled by the fact that the position advertised was for a boring bar operator, and concluded that the hiring decision was based upon an assessment that the candidate selected was better qualified, being able to operate both a boring bar and a jig bore. The commission is constrained to defer to the court's factual findings in that regard. Under all the facts and circumstances, the commission concludes that the complainant has not sustained his overall burden of establishing that he was denied the job in question because of his age. The dismissal of the complaint is, accordingly, affirmed.
cc: Attorney Mark A. Johnson
Appealed to Circuit Court. Affirmed August 13, 2007. Appealed to the Court of Appeals. Affirmed in unpublished summary disposition, August 5, 2008.
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