Wis.LIRC ER Decision: Abaunza - March 30, 1993 - National Origin discrimination -- no discrimination in failing to take employee's national origin into account in determining who was aggressor in fight in which another person insulted employee and he responded by striking him; Disparate impact -- no 'individual disparate impact', no disparate impact proven from policy to discharge physical aggressor in fights

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

JOSE ABAUNZA, Complainant

NEENAH FOUNDRY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9000749, EEOC Case No. 26G900773

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on January 17, 1992. Complainant filed a timely petition for review by the Commission and both parties submitted written arguments to the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

The decision of the Administrative Law Judge (copy attached) is modified as follows:

1. In Finding of Fact 6, delete "fourteen" and substitute therefor "sixteen."

2. Delete Finding of Fact 8 and substitute therefor the following:

"8. Abaunza did not get along with Matt Baumann, a co-worker in the Knockout Shop. (1 ) Baumann would boss Abaunza around and criticize his work, and they argued at least once about Abaunza breaking a piece he was working on. Baumann challenged Abaunza to go outside to fight, saying "fuck it, you asshole." They told each other that they did not want to have anything to do with one another.

9. In the last month or so of his employment, from the time of his transfer to the grinder, Abaunza had no contact with Baumann.

10. There were only a few occasions on which Baumann said anything to Abaunza concerning his ancestry and national origin. These occurred when Abaunza offered Baumann a soda and Baumann said, 'I don't want anything from you, I don't want anything from a Hispanic person,' and when Baumann told Abaunza that he was not speaking well and should learn better English."

3. Delete the first sentence of Finding of Fact 9 and substitute therefor the following:

"Mr. Abaunza told Dale Allen about Baumann once saying that he did not want to have anything to do with Hispanics, but apart from this he never mentioned anything else to Mr. Allen regarding Mr. Baumann making any comment about anything that could be construed as harassment of Mr. Abaunza because of his national origin and ancestry. Abaunza did tell Allen about Baumann cursing at him, suggesting they fight, bossing him around, and that this offended him."

4. Renumber the Findings of Fact accordingly.

As modified, the decision of the Administrative Law Judge shall stand as the FINAL ORDER herein.

Dated and mailed March 30, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

This case involves the discharge of an employe of Nicaraguan national origin and ancestry, for fighting with a co-employe. The co-employe, who is Anglo, was not discharged. Complainant alleges discrimination both in the employer's alleged toleration of this co-employe's alleged national origin harassment of Complainant, and in respect to the discharge.

Harassment -- The alleged harassment was attributed to a co-worker. An employer has no legal liability for racial or similar harassment of an employe by another employe unless the employer, its supervisors or managers knew or should have known of the harassment. Crear v. LIRC, 114 Wis. 2d 537, 542, 339 N.W.2d 350 (Ct. App. 1983). Therefore the significant issue is whether the employer was ever aware of the harassment which Complainant alleges occurred and of any claim by Abaunza that the harassment related to his national origin or ancestry. The ALJ found that the Complainant, while he told his supervisor that the co-employe offended and provoked him with a number of comments not referring to ethnicity, never told his supervisor about any harassment that could be construed as having related to his national origin or ancestry (Finding of Fact #9). Complainant disputes this, pointing to certain testimony of Complainant which can be found at TR Vol. I, pp. 50-51:

"Q Did you ever complain to Mr. Allen about things that Bauman (sic) said to you? (translated)

A (inaudible)

Q Can you tell us when you complained to Mr. Allen and what you told him? (translated)

A (translated) I told him that -- about the same problem, that he wanted to go out to fight and that when I broke up he ordered me around like my boss and I told him of things that he would do to offend me. I told him, my boss, that I didn't want to lose my work.

Q What things did Bauman say to you that offended you, that you told Allen about? (translated)

A (translated) I told him everything, things like fuck it, you asshole, let's go outside and fight, I don't want to have anything to do with Hispanics.

Q Okay. And what did Mr. Allen say when you told him this? (translated)

A (translated) He told me he was just joking around just like anybody else would do. I should ignore him. And later I, Mr. Allen, will speak with him. I will help you. That I should come to him before the problems. Mr. Allen would speak with the union. I will try to resolve this by speaking with the union."

Complainant argues that the inaudible answer to the first question must have been "yes." Even if it was, this does not resolve the matter, since Complainant had indicated that Baumann had said things to him that he did not like but that had no overt or even implicit connection to national origin or ancestry. Complainant's testimony suggests that it was these essentially neutral matters that he was telling Allen about. He admitted that he did not tell Allen specifically about Baumann telling him that he was not speaking very well and should learn better English (TR Vol. I, p. 51). The only reference to anything even approaching national origin harassment is Complainant's claim that he told Allen about Baumann saying "I don't want to have anything to do with Hispanics." The Commission has modified the ALJ's findings to reflect this.

Whatever Baumann's motivation was in his alleged harassment of Complainant, is irrelevant. The violation, if there was one, would be in the employer's failure to act to curb something it was made aware of and which it could recognize as national origin harassment. Crear, supra. All Complainant has alleged, however, is that once he told his supervisor of one occasion on which a coworker told him that he did not want to have anything to do with Hispanics. A single instance of a statement of this type would not rise to the level of harassment. See, Rodgers v. Western Southern Life Insurance Co. (LIRC, October 12, 1989). A finding of liability on the part of an employer could not be premised on its supposed failure to take adequate action in response to once being told of one such statement.

Discharge -- As a general matter, in the case of an employe discharged for violation of an employer's work rule against fighting, the employe may make out a prima facie case of discrimination by showing that he was fired while the other participant in the fight, a person of a different race, was merely suspended. Brown v. A. J. Gerrard Mfg. Co., 643 F.2d 273, 276, 25 FEP 1089 (5th Cir. 1981). The employer may meet that prima facie case, however, by articulating, as a nondiscriminatory explanation, a belief that the discharged employe was the aggressor and was disciplined more severely for that reason. Johnson v. Bendix Corp, 31 FEP 158 (W.D. Mo. 1983) . In such a case, the employe must prove that this explanation is a pretext for discrimination, but "plaintiff cannot prove pretext merely by disputing the objective correctness of the defendant's decision . . . [citations omitted] nor can he do so by challenging the factual underpinnings of defendant's reason for discharging him [citation omitted]. Even if [plaintiff] were able to demonstrate that the [employer] mistakenly believed he was the aggressor . . . these facts would not tend to show that race was a motivating factor in [the employe's] discharge." Morgan v. Massachusetts General Hospital, 712 F. Supp. 242, 53 FEP 1647 (D. Mass. 1989), aff'd. in material part, 901 F.2d 186, 53 FEP 1780 (1st Cir. 1990).

Analytically, this case is similar to Johnson v. Bendix Corp., cited above, in that the Complainant has proven a prima facie case of disparate treatment based on national origin by showing that he was fired while the Caucasian involved in the fight (Baumann) was not, and Respondent has articulated as a nondiscriminatory reason for its different treatment of the men the explanation that it believed Complainant was the clear physical aggressor. The question is thus whether Complainant showed that this explanation is merely a pretext for discrimination.

Complainant in fact cannot and does not dispute that he was the physical aggressor, i.e., that he initiated the physical violence in the disagreement between the two men. He also does not attempt to argue that Respondent has not in fact uniformly distinguished between clear physical aggressors and others engaged in fights. Complainant's argument (which he conceded was "novel" in his brief to the ALJ) starts with the assertion that the phrase uttered by Baumann ("chinga tu madre") was such a grave insult to a Latin American man that a physical response was virtually inevitable. From the viewpoint of his culture, Complainant asserts, Baumann was the "clear aggressor." Complainant thus argues that his national origin was a factor in his violent response to a verbal insult. Effectively acknowledging that this violent response to a verbal insult was the reason for Respondent's decision to discharge him, Complainant argues that Respondent should have taken his national origin into account when deciding how severely to discipline him for responding violently to the phrase "chinga tu madre," and should have disciplined him less severely because in his culture, Complainant was not the aggressor. In other words, it is Complainant's theory that Respondent discriminated on the basis of national origin by not considering Complainant's national origin when it decided to discharge him.

The arguments made by Complainant in his briefs in fact rest on stereotyping Hispanic males. (2 ) He places great reliance on the testimony of his expert witness, Professor William Velez, an assistant professor-of sociology at U.W. Milwaukee, who lent an academic imprimatur to this stereotyping. (3 )

The Commission is unwilling to join Complainant in this kind of stereotyping. More important, however, Complainant's argument is simply untenable as a matter of law. Complainant's concession that Respondent did not take his national origin and his ancestry into consideration in connection with the decision to discharge him, (4 ) conclusively defeats his claim of intentional discrimination. The conspicuous absence in Complainant's briefs of any legal authority for his counter-intuitive argument, that it is discriminatory not to discriminate, is testimony to the incorrectness of that argument.

Although it appears to have been only coincidental, Complainant's argument does bear some resemblance to another legal theory that does have recognized validity. There are circumstances in which an employer can be found to have violated anti-discrimination laws by failing to consider the different effects of a general standard on members of different groups. Where an employer's use of a nondiscriminatory, neutral factor has a statistically significant disparate impact on members of a protected group, it is the law that-the employer may not ignore that problem. The employer must prove a business necessity for its practice. See, Racine Unified School District v. LIRC, 164 Wis. 2d 567, 594-96, 476 N.W.2d 707 (Ct. App. 1991).

The Respondent's policy of discharging the physical aggressor in a fight is indisputably a facially neutral one. It does not take into account the national origin or race (or any other characteristic) of the participants; indeed, that is precisely what Complainant objects to about Respondent's policy. This is what makes it completely unavailing to Complainant under a disparate treatment theory. A claim that there is discrimination in the employer's use of a nondiscriminatory factor because use of such a factor has a negative effect on Complainant can proceed only under the disparate impact theory. A complainant cannot prove disparate impact by anecdotal evidence (i.e., his own case) or by supposition based on expert testimony about the behavioral characteristics of members of a certain group. Disparate impact must be proved by statistical evidence, significant (in the statistical sense) to the confidence level required by law, comparing the effect of an employer's selection device or standard on employes in the different groups being compared. See, Racine Unified School District, 164 Wis. 2d at 594-96. The Commission will not intuit what ought to be demonstrated by expert opinion on statistical significance. Moncrief v. Gardner Baking Co. (LIRC, July 1, 1992.)

Complainant has of course come nowhere even close to proving any of the elements of a disparate impact case. Essentially, he made out an "individual disparate impact case:" the use of this neutral factor had a disparate impact on Complainant, allegedly because of his national origin. However, there is no such thing as an "individual disparate impact case."

Complainant's arguments to the Commission, which he counts as being more than 17 in number (Brief, p. 7), in fact recapitulate a much smaller number of arguments. Complainant should not assume, because the Commission (or the ALJ) did not "dance to each and every tune [he] played," see State v. Waste Management of Wisconsin. Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978), that his arguments were ignored or not understood. The Commission has considered his material arguments -- that he did complain expressly of national origin/ancestry harassment, that he did not know of and did not have a reasonable opportunity to know of the fighting policy, that the actual facts concerning the fight were other than as believed by the Respondent or found by the ALJ, that he was grievously provoked, and that his national origin and ancestry caused his behavior and so should have been considered -- but it disagrees with them for reasons reflected above.

110

Appealed to Circuit Court. Affirmed October 27, 1993.

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Footnotes:

(1)( Back ) This name is shown in the transcript as "Bauman." However, based on the spelling of "Baumann" found in a document prepared at the time of these events by Plant Superintendent Harvey (Comp. Ex. 1), it appears that the transcript is in error on this spelling.

(2)( Back ) According to Complainant, Complainant's national origin "was the basis on which he acted," "was the cause of his behavior," and was "an obvious and central factor in the whole affair" (Brief, p. 7); "he could no more disregard and act outside his cultural history than he could tell Respondent's president how to run a foundry. It simply wasn't possible for him to ignore his past, his heritage, or his roots . . ." (Brief, p. 7). Complainant speaks of "the ethnic imperative of behavior" and he suggests that Complainant's "behavior was characteristically Hispanic" (Brief, pp. 15, 16, Reply Brief, p. 4). Complainant asserts that his conduct in attacking Bauman was "a reflexive response to 26 years of acculturation, a reflex no more possible to ignore than the reflexive withdrawal of a finger from a flame" (Brief, p. 17).

(3)( Back ) Velez opined, for example, that "to a reasonable degree of probability within [his] field of expertise," in Hispanic culture a person who offends the mother of another is "clearly . . . the initial aggressor," that if there is not a retraction "it's a clear act of provocation which has to be met with force," and that a punch in the mouth would be "an accepted response in a Hispanic culture," "more of a self-defense nature" (TR II, 70-72).

(4)( Back ) ". . . Respondent ignored [Complainant's] background as irrelevant in its decision to fire Abaunza" (Brief, p. 15); "the ethnic/ancestral component of the equation is simply ignored . . . [Complainant] has . . . been treated as if he is not Hispanic" (Brief, p. 16).