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

EARNEST CLARKE, Complainant

PLAST-O-CON INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199703063, EEOC Case No. 26G971763

Pursuant to Wis. Stat. § 111.39(5)(b), the commission sets aside ALJ Grandberry's March 26, 1999 decision in this case, and remands the matter to the Department of Workforce Development, Equal Rights Division for further hearing and decision on the complaint.

Dated and mailed September 28, 1999
clarkee.rpr : 101 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case arises from several verbal disputes between a black worker (Clarke) and a white worker (Nutter). Both were fired after repeated conflicts. Clarke filed a complaint under the Wisconsin Fair Employment Act, alleging discrimination in the terms or conditions of employment because of race and alleging retaliatory discharge for opposing a discriminatory practice.

According to the synopsis of Clarke's testimony (and his testimony is largely uncontradicted), he pointed out to Nutter that she was doing her job improperly. This upset Nutter and she told him to get his "black ass" away from her. He responded by calling her a "fat ass." An argument ensued which attracted the attention of a supervisor (Jeff Garcia) who told Clarke to go back to work and ignore the racial slur.

Similar incidents happened twice more. Garcia verbally reprimanded Nutter for using racial slurs and reprimanded Clarke for calling her a "fat ass." After a third dispute (and an intervening one where a temporary worker called Clarke a "black ass" and Clarke called him a "fag"), both Nutter and Clarke were discharged.

The ALJ found no discrimination, and indeed dismissed the case after Clarke rested. Clarke appeals. Two aspects of this case lead the commission to conclude a remand is necessary.

First, the ALJ found that the Clarke called Nutter a "white fat ass," though the commission could not find this testimony anywhere in the record, including Clark's pre-hearing deposition testimony. (Again, Nutter did not testify.) Clarke's attorney specifically denies that Clarke used the term "white fat ass." The commission believes that this is a relatively important point with respect to the retaliation complaint. It is one thing if an employer discharges two workers who mutually exchange racial epithets; it is another if a black worker simply responds vulgarly to repeated racial slurs, and then is discharged after the employer takes no effective action to stop the racial slurs.

Second, because the tape recorder was broken at the hearing, the complainant's testimony was neither stenographically or mechanically recorded. Thus, the synopsis prepared for the commission's review was prepared largely from the ALJ's handwritten notes. This lends some credence to the representation of Clarke's attorney that testimony is missing.

When there are specific reasons to believe the commission's review could be compromised by missing testimony, LIRC has previously remanded. Saccomandi v. E. Pocus and Co. (LIRC 09/09/93) and Krenz v. Lauer's Food Market (LIRC 9/27/90). While the commission has also gone ahead and relied on notes alone, Popp v. Rhinelander Paper Company, (LIRC, 07/28/95), that was a case where LIRC was able to compare most of the synopsis to a verbatim transcript, and found the hearing notes were so reliable they could be used to fill in a gap in cross-examination of a collateral witness.

In this case, the record contains only handwritten notes for all of the testimony of the complainant, and parts of the testimonies of other witnesses. The reliability of the notes is in question, as they indicate that Clarke used the unmodified term "fat ass" in reference to coworker Nutter, whereas the ALJ found that Clarke called Nutter a "white fat ass." Either the notes are incomplete on a material point (in which case relying on them for review is questionable) (1), or the ALJ's finding is incorrect (highlighting the importance of an accurate record for commission and eventual court review.)

cc:
S. A. Schapiro
Robert K. Bultman

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Footnotes:

(1)( Back ) The complainant's attorney also argues that the number of exhibits is greater than the number listed in the synopsis. This is probable as there seem to be two exhibit 6s, and exhibits 9 and 10 (which were not in the exhibit list, but were mentioned at the hearing) (see synopsis, page 6) were in loose pages when the file was prepared for commission review.