JASPER COLEMAN, Complainant
LEVY RESTAURANTS LLC, 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 evidence submitted to 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, except that it makes the following modifications:
1. In the first sentence of FINDING OF FACT #1, delete the phrase "which employs about 150 people."
2. In the first sentence of FINDING OF FACT #3, replace "May 5, 2006" with "May 25, 2006."
3. Replace FINDING OF FACT #6 with the following:
During that function, Chef Becker asked Mr. Coleman to stop working at the breakdown station and to go to another station. Mr. Coleman told Chef Becker that he had been told not to leave the breakdown station, and he refused Chef Becker's directive. Mr. Coleman and Chef Becker then had an argument regarding this disagreement.
4. Replace FINDING OF FACT #8 with the following:
Mr. Gray and Ms. Cao then talked to Mr. Tatum, and understood from him that he had talked to Mr. Coleman after Chef Becker had first instructed Mr. Coleman to move to another station, and that he had told Mr. Coleman to do what he was told by Chef Becker.
5. Replace FINDING OF FACT #9 with the following:
After talking to Mr. Tatum, Mr. Gray and Ms. Cao decided to suspend Mr. Coleman pending investigation, and Mr. Gray informed Mr. Coleman that he was being suspended pending investigation.
6. Delete FINDING OF FACT #11.
7. In FINDING OF FACT #12, replace the word "dong" with "doing" in the second line and replace the word "her" with "here" in the fourth line.
8. In FINDING OF FACT #13, replace the word "breakout" with the word "break-down" in the second line, and the word "run" with the word "man" in the third line.
9. In FINDING OF FACT #17, remove the word "the" in the third line; replace "*" with "8" in the fourth line from the end; and replace ""8.4" with "8.4.i" in the third line from the end.
10. In CONCLUSION OF LAW #2, delete the word "the" in the second line.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
March 28, 2013
colemja : 120 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
In his petition for commission review, the complainant repeatedly states that Chef Becker discriminated against him (and other workers) by calling them "niggers," and that this behavior continued after the complainant reported this conduct to supervisors, to the general manager, and to the human resources manager. The commission finds such activity by Chef Becker, if true, to be reprehensible. The complainant also reiterates his testimony at the hearing that Chef Becker said that he did not want the complainant working for the employer anymore, stopped scheduling him for work, and called him a woman (based on his long hair).
However, as noted by the ALJ, that conduct is not the subject of the complainant's complaint in this matter. The complainant alleged in his complaint that on November 9, 2007, he was accused of refusing work and swearing at Chef Becker, who is white, and was suspended without pay pending investigation. This, he alleges in his complaint, constitutes discrimination against him due to his race. Therefore, the only issue before the commission in this case is whether there is probable cause to believe that the employer's suspension of the complainant on November 9, 2007, pending investigation, violated the Wisconsin Fair Employment Act (WFEA) by discriminating against him in terms or conditions of employment because of race. In this regard, the commission notes that in his decision the ALJ also treated the post-investigation discipline, a written warning, as part of the complaint. The commission agrees that such interpretation of the complaint is appropriate.
The complainant included numerous documents with his petition, several of which were not marked as exhibits and were not received into the record at the hearing. He states, specifically, that he is resubmitting statements made by three of his witnesses who were not permitted to testify at the hearing. The commission notes, however, that review by the commission shall be based on the record of the case including the evidence previously submitted at hearing before the department. (1) Therefore, documents sent with the petition that were not also made part of the record generally are not considered by the commission.
In particular, as to the three witnesses who were not permitted to testify at the hearing and their written statements, the record indicates that the employer objected to testimony from them because the employer had not received notification from the complainant that they might be witnesses until the day before the hearing, and the employer had not had sufficient time to prepare for their testimony. The applicable administrative rule, at Wis. Admin. Code § DWD 218.17, known as the "ten day rule," requires that the parties file and serve (2) a list of names of witnesses and copies of the exhibits they intend to use at hearing by no later than the tenth day prior to the day of hearing, and the ALJ may exclude witnesses and exhibits not identified in a timely fashion.
The complainant did not comply with this rule, having mailed certain information (3) to the employer on September 9, 2010, later than the tenth day prior to the September 16th hearing. The statements at issue are: a coworker's statement that he had seen Chef Becker push a female coworker; written documentation of an interview of the complainant's union steward by an NAACP investigator in which the steward talks generally about Chef Becker's conduct and the employer's racially insensitive work environment; and a copy of a civil rights complaint filed by a coworker on September 15, 2010 against the employer in the U.S. District Court, Eastern District, Wisconsin alleging discrimination based upon race.
The primary consideration in applying the ten-day rule is to protect parties from surprise and to protect the fairness and the due process of the proceedings, Miller v. Old Dominion Freight Line, ERD Case No. CR200802203 (LIRC Jan. 27, 2011). In this case, since these witnesses were not mentioned in the complaint or in the department's initial determination, there would have been no reason for the employer to know that they might be called to testify at the hearing on behalf of the complainant; and the lack of notice prevented the employer from having adequate time to prepare for their testimony. In addition, the hearing notice sent to the complainant clearly set forth the ten-day notice requirement for names of witnesses and copies of documents to be used at the hearing. Given all of these circumstances, the commission agrees with the ALJ's decision not to allow the three witnesses to testify based upon due process and fairness considerations.
After an independent review of the record, including a review of portions of the recording of the hearing, the commission agrees with the factual findings made by the ALJ, with several modifications to more closely correspond with the record. There simply was no evidence presented that either Mr. Gray or Ms. Cao, the two managers involved in the complainant's investigatory suspension and subsequent written warning, had any bias against the complainant due to his race. In addition, the complainant's admitted conduct, refusing to comply with a reasonable directive from Chef Becker, the Executive Chef, was unjustified and the discipline imposed, a written warning, was reasonable. The complainant failed to demonstrate probable cause to believe that the respondent suspended him or gave him a written warning due to his race, in violation of the WFEA. Accordingly, the dismissal of the complaint is affirmed.
cc:
Attorney Carmen Couden
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