EZELAGU OBASI, Complainant
MILWAUKEE SCHOOL OF ENGINEERING, 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 the fourth paragraph of the Decision, delete the word "not".
2. In the third sentence of the fifth paragraph under the FINDINGS OF FACT, insert the words "University of Wisconsin-Milwaukee (UWM)" in place of UWM.
3. In the first sentence of the sixth paragraph under the FINDINGS OF FACT, change the word "with" to "to". In the second sentence, delete "20110" and replace it with "2010".
4. In the second sentence of the ninth paragraph under the FINDINGS OF FACT, delete the word "were".
5. In the first sentence of the twelfth paragraph under the FINDINGS OF FACT, change the word "include" to "included".
6. In the first sentence of the nineteenth paragraph under the FINDINGS OF FACT, delete the hyphen between the words "fast" and "pace".
7. In the third sentence of the twenty-third paragraph under the FINDINGS OF FACT, change the word "identify" to "identity".
8. In the twenty-fourth paragraph under the FINDINGS OF FACT, after the word "his" insert the following: "communication skills".
9. In the twenty-eighth paragraph under the FINDINGS OF FACT, the first time the word "Respondent's" appears, change it to "Complainant's". Delete the word "gender" and replace it with "color".
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
October 14, 2013
obasiez_rmd . doc : 107 : 5 745 125.5
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Motion to Compel
In review of an ALJ's rulings on procedural issues and discovery motions, the commission applies a deferential standard, in which it asks whether the ruling was a reasonable exercise of discretion or an abuse of discretion. (1) See, Silva v, City of Madison, ERD Case No. 90002000 (LIRC Nov. 12, 1993) (motion to withdraw without prejudice); Reed v. Heiser Ford, Inc., ERD Case No. 200504107 (LIRC Dec. 7, 2007) (motion for postponement of hearing); Anderson v. Columbia-St. Mary's Hospital, ERD case No. 201201503 (LIRC April 16, 2013) (motion for sanctions for failure to comply with discovery).
The commission therefore reviews the ALJ's ruling denying the complainant's motion to compel discovery according to the "abuse of discretion" standard, under which the question is whether the ALJ "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Loy v. Bunderson, 107 Wis.2d 400, 415, 320 N.W.2d 175 (1982); Paytes v. Kost, 167 Wis.2d 387, 393, 482 N.W.2d 130 (Ct. App. 1992) (cited by LIRC in Kutschenreuter and Schoenleber v. Roberts Trucking, Inc., ERD Case Nos. 200501465 & 200501422 (LIRC April 21, 2011). A conclusion that the decision-maker abused his or her discretion does not necessarily mean that he or she had some ulterior motive, engaged in arbitrary conduct or willfully disregarded the rights of a litigant; abuse of discretion exists where prejudice results from a failure to apply principles of law applicable to a situation. Endeavor-Oxford Union Free High School District v. Walters, 270 Wis. 561, 569, 72 N.W.2d 535 (1955).
The complainant made a pre-hearing discovery request to inspect all student evaluation reports for all faculty members in the respondent's department of physics and chemistry for the academic year 2010-2011. His reasoning was that because the respondent's decision to discharge him was triggered by student e-mails complaining about his performance as an instructor, the student evaluation reports about other faculty members might show disparate treatment with respect to the consequences of incurring negative comments from students. The respondent objected to the request on a number of grounds and did not produce the reports, but it did produce bar graphs representing data contained in the student evaluation reports relating to adjunct faculty members in the department. The complainant was dissatisfied with this response, and after an unsuccessful attempt to resolve his differences with the respondent, he moved to compel production of the student evaluations reports.
Although the respondent initially stated a number or reasons for objecting to the discovery request, in response to the motion to compel the respondent relied on the argument that it could not produce the documents requested because they were no longer within the respondent's possession, custody or control. (2) Respondent, through its attorney, provided the following explanation:
MSOE's academic year is divided into quarters, and at the end of each quarter, students submit evaluations of their professors. These evaluation forms consist of a set of fill-in-the-bubble, numerical responses and a blank box at the bottom of the form on which the student can hand-write additional comments. The forms are scanned into a computer that reads the evaluation forms so that they may read the hand-written student comments and modify their teaching styles as appropriate. MSOE does not make or retain copies of the original student evaluation forms.
The complainant argued that the respondent's claim to no longer be in possession of the documents was unbelievable on its face. He also argued that because the respondent gathered the reports after the complainant had filed his complaint of discrimination, the respondent knew, before allegedly releasing the documents to the faculty, that it was important to the litigation to maintain copies of the documents.
The ALJ issued a written ruling on the complainant's motion on June 12, 2012. After reciting the arguments of the parties, the ALJ denied the motion, stating that because the complainant "has not produced evidence (beyond speculation) to show that Respondent has possession of the disputed evaluation forms...his motion to compel these documents is DENIED." The ALJ also ruled that the bar graphs produced by the respondent were properly limited to adjunct faculty only. (3) Finally, the ALJ noted that while there may be some merit to the complainant's argument that the respondent should have been retaining the reports because it received them after it had become aware of the complainant's complaint, that question was not a matter subject to a motion to compel. (4)
In discovery, the burden is on the party objecting to a production request to show that it cannot produce the items requested. Midwest Developers v. Goma Corp., 121 Wis.2d 632, 647-48, 360 N.W.2d 554 (Ct. App. 1984); Vincent & Vincent, Inc. v. Spacek, 102 Wis. 2d 266, 272, 306 N.W.2d 85 (Ct. App. 1981) (the party seeking protection from discovery has the burden to show entitlement to that protection). When an objection to discovery depends on a disputed assertion of fact, it may be necessary for the objecting party to present some evidence in support of its objection, with allowance given to the moving party to counter it. That does not appear to have happened in this case. The assertion that the respondent lacked possession, custody or control of the student evaluation reports was made by the respondent's attorney without a supporting affidavit or other evidence. Instead of requiring a showing by the respondent, the ALJ misallocated the burden of proof by requiring the complainant to produce evidence that the respondent had possession of the evaluation reports.
The question for the commission, however, is whether a mistaken procedural ruling has prejudiced the party against whom the ruling was made. Endeavor-Oxford Union Free High School District v. Walters, 270 Wis. 561, 569, 72 N.W.2d 535 (1955). If an error by the trial forum was harmless, in that it did not affect substantial rights of a party, it is not grounds for reversal. Martindale v. Ripp, 2001 WI 113, ¶ 30, 246 Wis.2d 67, 629 N.W.2d 698. For an error to affect the substantial rights of a party, there must be "a reasonable probability that the error contributed to the outcome of the action or proceeding." Id., ¶ 32. The commission does not find that to be the case here. The event triggering the respondent's decision to terminate the complainant's employment was the respondent's receipt of unsolicited complaints from students in the complainant's lab class within three weeks of the beginning of the course. The unsolicited nature of the complaints was a feature that distinguished the complainant's situation from that of the faculty members who were the subjects of solicited evaluations. Also, significant to the respondent's termination decision in this case was the fact that the student complaints were made shortly after the beginning of the course, and the respondent's decision-maker was under pressure to make a decision about whether to continue an ongoing class with the complainant as the instructor in spite of the complaints, a pressure that would not have been present when he reviewed reports about faculty that were received after the conclusion of a course.
These distinctions, the unsolicited nature of the students' negative comments about the complainant and their timing, prevented the complainant's situation from being similarly situated to that of faculty members who were the subjects of solicited evaluation reports at the conclusion of a course. No matter what the content of the evaluation reports, the respondent would have had the ability to address concerns in the interim between courses, without the pressure of having students asking the respondent to take some action regarding an instructor in the middle of a course. Any argument the complainant might have made based on the content of student evaluation reports of other faculty members would have been weakened by these distinguishing factors. In addition, in weighing the prejudicial effect of a mistaken procedural ruling, the error must be placed in the context of the evidence actually presented in the case. As discussed below, the evidence that the complainant presented at hearing failed to indicate a discriminatory motive for the termination. Considering both the lack of other evidence of discrimination and the limitations inherent in comparing possible negative comments on post-course student evaluation reports to negative comments in unsolicited student e-mails in mid-course, the commission concludes that the ALJ's misallocation of the burden of proof in the motion to compel was harmless error, not grounds for reversal.
Probable Cause
The complainant stated his belief that the individual who informed him that his employment was terminated, Professor Matey Kaltchev, did not have a discriminatory animus against him; instead, he asserted that Kaltchev was carrying out the discriminatory motivations of his bosses, including the president of the school, Frederick Berry. The complainant provided no evidence to support this theory. Kaltchev testified that the termination decision was his own, and it was approved by Berry as a matter of routine, because as chair of the department Kaltchev normally had the hiring and firing authority over adjunct faculty within the department.
Although the complainant has not accused Kaltchev of discriminatory animus, the commission has reviewed the evidentiary record to determine whether there was probable cause to believe that the complainant's race, color or national origin was a factor in Kaltchev's decision to discharge the complainant. At the outset, the commission notes that the complainant's race, color and national origin (to the extent it was revealed by the complainant's accent) were all known to Kaltchev and did not prevent him from offering the position to the complainant only about one month before discharging him. A willingness to hire the complainant knowing his membership in protected categories suggests that his membership in those categories was not the motive for his discharge shortly after his hiring. See, Rudd v. Watson Pharmaceuticals, ERD Case No. CR200702388 (LIRC May 27, 2010), citing Rand v. CF Industries, Inc., 42 F.3d 1139 (7th Cir. 1994).
It is true, however, that Kaltchev had some concerns about the complainant's ability to satisfactorily perform his job because of his accent, and that his decision to terminate the complainant's employment was based at least in part on student complaints that they did not understand him because of his accent. (5) The commission recognizes that one's accent can effectively signify his or her national origin, and therefore evidence of an adverse employment decision based on accent can be discrimination on the basis of national origin. (6) It is also true, however, that an ability to communicate effectively can be a legitimate qualification for performance of a particular job, and that an employer who makes a hiring or firing decision based on an honest assessment of such a job qualification is not illegally discriminating. Balancing these two factors, federal case law has come to the following conclusion:
An adverse employment decision may be predicated upon an individual's accent when-but only when-it interferes materially with job performance. There is nothing improper about an employer making an honest assessment of the oral communication skills of a candidate for a job when such skills are reasonably related to job performance.
Fragante v. City and County of Honolulu, 888 F.2d 591, 596-97 (9th Cir. 1989), cert. denied, 494 U.S. 1081, 110 S.Ct. 1811, 108 L.Ed.2d 942 (1990); see also, Hassan v. Auburn University, 833 F. Supp. 866 (M.D. Ala. 1993); EEOC v. Orkin Exterminating Co., (D. Md., 1999); In re Rodriguez, 487 F.3d 1001 (6th Cir. 2007). (7) The commission interprets the protection against discrimination on the basis of national origin in the Wisconsin Fair Employment Act similarly to allow an employer to make a decision based on an individual's foreign accent, but only to the extent that the accent interferes materially with the ability to perform job duties, and when effective oral communication in English is a job requirement.
The complainant did not dispute that the respondent reasonably required faculty members to effectively communicate with their students, and that the students' e-mails, on their face, expressed concerns about the complainant's ability to effectively communicate. The complainant argued, however, that the e-mails were not believable, because they had a similar style and were written within a short period of time. The complainant suspected that they were orchestrated, and did not reflect the true opinions of the students. The commission finds no support in the evidence for this suspicion. The students' motivations for the e-mails were not explained by testimonial or other evidence, and the e-mails themselves are not so similar as to create the impression that they were coordinated. Furthermore, there was no evidence that the decision-maker, Kaltchev, did not perceive the students' e-mails to be genuine.
The complainant failed to point to any other adjunct faculty member who was in a similar position to him by having been the subject of unsolicited complaints within the first three weeks of teaching a course. The respondent's witness testified to having no knowledge of any adjunct faculty member who had been the subject of similar complaints. The complainant, then, had no comparators not in his protected classes who received more favorable treatment than he did.
The complainant was unable to show probable cause to believe that the respondent's explanation for terminating his employment, namely, its conclusion that he was not effectively communicating with his students, realized early enough in the quarter to keep the class going with a different instructor, was a pretext for discrimination. The commission therefore affirms the decision of the ALJ, with the modifications noted above.
cc:
Attorney Steven Nigh
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