Wis.LIRC ER Decision: Novick - February 26, 1997 - Race discrimination, hire; Preclusion by NLRB proceedings; Weight of evidence, circumstantial evidence

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JASON NOVICK, Complainant

ABQC CORPORATION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199350400, EEOC Case No. 26G930752

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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:

Paragraph 2 of the ORDER is deleted and the following paragraph is substituted therefor:

"The Respondent shall pay the reasonable attorney's fees and costs incurred by the complainant in pursuing this matter. As of the date of this order, the amount of these fees and costs are as follows: $27,051 for attorney's fees and $2,063.17 for costs, for a total of $29,114.17."

Paragraph 3 of the ORDER is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, ABQC Corporation shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin."

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed: February 26, 1997
novicja.rmd : 110 :

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

This case arises out of an allegation by Jason Novick that Keith Stanosz and Sheryl Valente, of ABQC Corporation, discriminated against him because of his race when they decided in September, 1992 that they would not hire him. The ALJ found that both Stanosz' and Valente's decisions were based on a belief that Novick was likely to become a union supporter. (1 ) She also found that Stanosz' and Valente's beliefs that Novick was likely to become a union supporter, were in turn based in part on Novick's race. Nevertheless, she found that "the determining factor" in Stanosz' and Valente's beliefs that Novick was likely to become a union supporter was Novick's association with known union supporters, and that Stanosz and Valente would have decided not to hire Novick even if it had not been for their consideration of his race. She therefore provided only a cease-and-desist order and attorney's fees as a remedy, relying on Jayne A. Hoell v. LIRC and Narada Productions, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct.App.1994).

Neither party has challenged the Administrative Law Judge's decision insofar as it holds that a remedy of attorney's fees and a cease-and-desist order is appropriate given a finding that race was a factor but not a determining factor in the challenged hiring decisions. Instead, ABQC's appeal of the Administrative Law Judge's decision is based entirely on the argument that she erred in making that finding; that is, that she erred in finding that race played any part in Stanosz' and Valente's decisions at all. Thus, the principal questions which are presented by this case are questions of fact. (2 )

Both parties have also made legal arguments about the preclusive effect, if any, which should be given to a number of determinations reached in other tribunals. Specifically, these are decisions by a National Labor Relations Board Administrative Law Judge, the National Labor Relations Board itself (reviewing the ALJ's decision), the United States Court of Appeals for the Seventh Circuit (reviewing the NLRB's decisions), and most recently a United States Magistrate (addressing a Motion to Dismiss a Title VII claim brought by another African-American employee of ABQC). The commission will address these arguments first.

Preclusion -- ABQC argues that the NLRB Administrative Law Judge, the NLRB, and the 7th Circuit Court of Appeals actually found that race was not a factor in the anti-union campaign ABQC engaged in from early 1991 into 1992. ABQC also argues that the decision by a federal Magistrate on a Title VII claim brought by another ABQC employe established, that those other decisionmakers so found. According to ABQC, the "law of the case" doctrine therefore precludes Novick from arguing, and the commission from finding, that race was a factor in its anti-union campaign generally, or in its anti-union-motivated decision not to hire Novick.

For his part, Novick argues that the NLRB Administrative Law Judge made (and the NLRB and the 7th Circuit upheld) specific factual findings that race was a factor in ABQC's challenged course of conduct. He argues that ABQC has erred in invoking the doctrine of "law of the case", and that under the doctrine of collateral estoppel, it is ABQC which is precluded by the NLRB Administrative Law Judge's decision (and the NLRB and 7th Circuit decisions affirming it) from arguing that race was not a factor in, or considered in, ABQC's anti-union campaign. Novick argues further that the Magistrate's decision should not be considered because (unlike the NLRB Administrative Law Judge's decision) it was not made part of the record; that it was not a "decision" but merely a recommendation which was (because of a settlement) never actually adopted by the District Court; and finally that the Magistrate's recommendation in any event went against ABQC's position, by holding that the NLRB-related documents had neither res judicata nor collateral estoppel effect against a claim of race discrimination.

Thus, both parties argue that the NLRB Administrative Law Judge made a finding in their favor on the question of whether race was a factor in the actions by ABQC which were litigated in those proceedings. The commission concludes that both parties are wrong. Their arguments ignore the significant difference between finding that race was or was not a factor in a decision, and not finding that race was a factor in a decision. The former represents an affirmative finding of fact concerning a person's intent; the latter is simply the absence of a finding of fact.

ABQC's briefs fail to contain a single citation to specific language in any NLRB or federal court decision that it can reasonably assert constitutes an affirmative finding that race was not a factor in the challenged actions addressed in those proceedings. The closest it can come, is to invoke the statement by Magistrate Gorence, that "the issue of race discrimination was not involved in the NLRB proceedings and, therefore, was not litigated in those proceedings". It then presents arguments which proceed as if the Magistrate had said that "the issue of race discrimination was not involved in ABQC's decisions", but clearly, that is not what she said, and it is not what she meant. There is simply nothing here on which ABQC can construct a colorable argument for preclusion in its favor, whether on the basis of "law of the case" (3 ) or any other doctrine.

Novick's argument that the NLRB Administrative Law Judge made specific factual findings that race was a factor in ABQC's decisions, also merits rejection. The parts of the NLRB Administrative Law Judge's decision on which Novick's argument depends are not direct findings of fact to that effect; rather, they are observations about how things "appeared", or about things which that Administrative Law Judge thought were "indicated" by the evidence. (4 ) Even the Equal Rights Division Administrative Law Judge recognized that the NLRB Administrative Law Judge did not deal directly with the question of race as a motivating factor, but at best "implied" certain things.

The commission therefore concludes that at no level in the processing of the NLRB complaint was there ever an affirmative finding of fact that race was a factor, or was not a factor, in the challenged decisions. Rather, there was no finding of fact one way or the other on that question. The most which would be appropriate in a situation such as this, would be to apply collateral estoppel to prevent ABQC from disputing express findings of the NLRB Administrative Law Judge on factual issues that were litigated before him. On both counts -- i.e., because the issue was not litigated, and because there were no express findings on that issue -- that does not include the question of whether race was a factor in ABQC's decisions.

For these reasons, the commission does not agree with, and does not adopt, that part of the ERD Administrative Law Judge's rationale which considered and gave weight to what she characterized as "implications" of the NLRB Administrative Law Judge's decision. The doctrine of collateral estoppel does not extend to "implications", be they strong or otherwise. In arriving at its decision, the commission has not given weight to what might be considered implied in the NLRB Administrative Law Judge's decision. Instead, it has considered only the evidence of record in the proceedings before the Equal Rights Division.

Whether race was a factor in the challenged decisions -- In his Brief, Novick argues that he established a prima facie case of discrimination, an argument which ABQC disputes in its Reply Brief. It is not necessary to resolve this issue, because ABQC's asserted non-discriminatory reasons for refusing to hire Novick were articulated during the hearing and the case was fully tried. See, e.g., Kurtz v. School Dist. of St. Croix Falls (LIRC, 06/10/93); Duarte-Vestar v. Goodwill Industries (LIRC, 11/09/90); Mouncil v. Pepsi Cola (LIRC, 02/16/89); Schenck v. Northwest Fabrics (LIRC, 02/20/87). The issue is simply whether Novick demonstrated by a preponderance of the evidence that his race was a factor in the challenged decisions.

In arguing for a finding that race was a factor in the challenged decision, Novick also relies in part on authority that where a finder of fact decides that a proffered explanation for different treatment of persons of different races is not true, the trier of fact may reasonably draw the inference that a racial motive actually lay behind the challenged decision. See, e.g., Sinai v. New England Telephone and Telegraph Co., 3 F.3d 471, 475 (1st Cir. 1993). However, such an inference is permissive, not mandatory. It is for the trier of fact to weigh it in conjunction with all of the other factors present. In this case, there is an important factor not present in many cases: it is clear that there was hidden, unlawful reason for the challenged action that was not a matter of racial bias (i.e., anti-union animus). Therefore, the force of the inference described above is not as great: there is no compelling need to resort to the hypothesis that race was a factor in the decision, when it has been established that the determining factor in the decision was anti- union animus. It is of course still possible that race was considered to some degree, but the pretextuality of the reasons originally offered by the employer no longer tends to suggest race as a reason, because that pretextuality is explained by the employer's desire to hide its anti-union motivation. The decision must ultimately rest on the fact-finder's view of the credibility of the witnesses and the weight of the evidence.

Based on its review of the record, the commission agrees with the findings of the Administrative Law Judge that Stanosz and Valente made their decisions not to hire Novick "based on [their] belief that if Novick were hired . . . he would be likely to become a union supporter", that the "determining factor" in both Stanosz' and Valente's beliefs that Novick would be likely to become a union supporter was Novick's association with known union supporters, and that the same decision would have been arrived at even if it had not been for the consideration of Novick's race which the Administrative Law Judge found to have occurred. In addition to the fact that the evidence in the record amply supports these findings, the commission notes that none of them are seriously challenged by either party.

The narrow question which remains is whether race was (1) something which was considered by Stanosz and Valente in their decisionmaking processes, but which did not actually affect their decisions; or (2) something which was not considered at all in Stanosz' and Valente's decisionmaking processes.

In deciding this issue, the commission has borne in mind the distinction between a little evidence that race was a factor, and evidence that race was a little factor. What is necessary here is the latter. As noted above, the outcome of the Administrative Law Judge's decision derives from the holding of Jayne A. Hoell v. LIRC and Narada Productions, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct.App.1994) to the effect that if a challenged employment decision is made in part because of an impermissible factor and in part because of other motivating factors, and the decision would have been made in the absence of the impermissible motivating factor, the employe should be awarded only a cease and desist order and attorney's fees. What is contemplated by this rule is cases in which the trier of fact is persuaded, to the degree implied by the "preponderance of the evidence" standard, that a discriminatory motive was actually considered in the challenged decisionmaking process, even though the same decision would have been made even if it had not been. The commission has also borne in mind, however, that the question as to which it must find a preponderance of the evidence is simply whether race was considered at all in the course of the decisionmaking process engaged in by Stanosz and Valente relative to Novick's application for employment.

Based on its review of the evidence with these standards in mind, the commission has decided that the weight of the evidence here warrants a finding that, when they were engaged in the process of deciding whether or not to hire Novick, Stanosz and Valente took consideration of the fact that he is African- American (as part of their assessment of whether he was likely to become a union supporter). The Administrative Law Judge quite evidently decided that their denials of this were not credible, and in view of the evidence as to racial employment patterns at ABQC -- and giving due regard to the ability of the Administrative Law Judge to observe the demeanor of Stanosz' and Valente as they testified -- the commission agrees.

While it is true that much of the evidence relied on to support the finding that race was a factor in the challenged decisions was circumstantial, this is unremarkable in a discrimination case. Circumstantial evidence is often stronger and more satisfactory than direct evidence, Ball v. State, 57 Wis. 2d 653, 666, 205 N.W.2d 353 (1973), State v. Johnson, 11 Wis. 2d 130, 134, 135 104 N.W.2d 379 (1960). Even the high "beyond a reasonable doubt" standard may be attained on the basis of circumstantial evidence, State v. Johnson, 11 Wis. 2d at 136, and therefore such evidence can certainly satisfy a "preponderance of the evidence" standard. The commission believes that it has been satisfied here. For these reasons, the decision of the Administrative Law Judge is affirmed.

NOTE: ABQC did not challenge the amount of the attorneys' fee award made by the Administrative Law Judge. In addition, in its Reply Brief to the commission, ABQC did not challenge the appropriateness of the additional $4,095 in attorney's fees and $51.17 in costs requested by Novick's attorneys for work connected with the petition for review in this matter. In view of this, and considering these amounts to be reasonable under all of the circumstances, the commission has affirmed the original fee order and added the additional amounts requested to that order.

PAMELA I. ANDERSON, CHAIRMAN (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe Novick was qualified for the positions that he interviewed for but I believe he was not hired because he knew Thompson and Hicks who were union supporters who worked for the employer.

The complainant made much of the fact that between April 18, 1991 when an employe delegation demanded union recognition and when Steven Younkers was hired on November 23, 1992, the employer hired 23 employes, none of whom were African-American. I would have been able to believe this argument if there had been anything in the record to show how many qualified African- Americans applied during that period of time. All the record shows is that Stanosz and Valente did interview some African- Americans during that time but nothing shows how many applied or if they were qualified. The employer's work force was close to 50% African-American at the time the union organizing began so there should not be a perception that race had played a role in hiring in the past.

Both sides stipulated that Melissa Flores who was hired September 30, 1992 is a Puerto Rican whose physical characteristics are similar to those of an African-American. The employer perceived that Flores was an African-American at the time it hired her. The employer also offered Anthony Keyes, an African-American, employment in 1992. Keyes did not accept employment at that time because he went to college, but was later hired with a seniority date of 1992 because he had worked for the employer as a temporary employe that summer. The employer offered a permanent job to Derek Thicklen, an African-American, who accepted the job but was injured outside of work before he could start. The employer offered Steven Younkers, an African-American, employment on November 23, 1992. All of these African-Americans were offered work prior to the complaint being filed in this case.

On this record, I believe that the complainant was not hired because the employer had anti-union animus and I do not find that his race was a factor in the refusal to hire him. Therefore, I would reverse and find no discrimination.

Pamela I. Anderson, Chairman

cc:
Peter Guyon Earle, Attorney for Complainant
Alan M. Levy, Attorney for Respondent

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Footnotes:

(1)( Back ) As the ALJ noted, this kind of motivation in an employment decision, while it may violate other laws, does not violate the Wisconsin Fair Employment Act.

(2)( Back ) The general rule is that the subjective intent of an individual, where it is dispositive of the action, is an ultimate question of fact to be determined by the trier of fact. Gauger v. Hardtke, 167 Wis. 2d 504, 516-17, 482 N.W.2d 84 (1992).

(3)( Back ) In Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989), the Wisconsin Supreme Court described the doctrine of "law of the case" as a "longstanding rule", that "a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal." The doctrine is clearly of no applicability here. For one thing, the doctrine concerns itself only with legal issues; it has nothing to do with preclusion on factual issues. For another thing, it concerns itself only with the effect of legal rulings in a particular case. The federal decisions which ABQC relies on arose in cases that were completely separate from this one, and the proceeding before the commission now is not here on remand from (or subsequent appeal after remand from) those cases.

(4)( Back ) "I find that the circumstances surrounding the objections indicate a high probability that both the naming of ineligible employes to the Excelsior list and the precipitous hiring of several employes thought likely to be against the Union (other testimony indicated a supposition that the Hispanic employees were less likely to favor the Union in this company setting) had the effect of interfering with the fairness of the election." Complainant's Ex. 16, p. 23 of the NLRB Administrative Law Judge's Decision. "[ABQC's] inconsistent recall procedures . . . appeared to often disregard experience and otherwise often appeared to omit Blacks who were Union sympathizers . . ." Complainant's Ex. 16, p. 14 of the NLRB Administrative Law Judge's Decision.