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

RICHARD SMITH, Complainant

CONDERE CORPORATION, Respondent A

and

JOHN CLARK, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 8652495, EEOC Case No. 260871573

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 June 28, 1989. Respondent filed a timely petition for review by the Commission and both parties subsequently 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 is modified as follows:

In paragraph 4 of the ORDER, delete the sum "$3,734.00" and substitute therefor the sum "$5,989.00."

Paragraph 5 of the ORDER is deleted and the following paragraph substituted therefor:

"Respondent shall within 30 days of the expiration of time within which an appeal may be taken herein, submit a compliance report detailing the action taken to comply with the Commission's Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708."

As modified, the decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed at Madison, Wisconsin,  March 27, 1990.

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

This case concerns the failure of the employer to give full-time hours to Richard Smith on two occasions in 1986 when such hours became available. On each occasion, a white person was hired on a full-time basis while Smith, who was black, was left at the part-time level he had been hired at. Smith asserted, and the Administrative Law Judge found, that Smith was denied the full-time hours because of his race. The Commission agrees.

The employer's assertion, that Smith was not given the full-time positions because of problems with his paperwork, is not credible. This assertion rests on the testimony of John Clark to that effect, but Clark was not a credible witness. He conceded having told the employer's Employe Relations Manager, James Flynn, that Smith did not want to have full-time hours, when Clark in fact knew the opposite to be true. Clark offered no explanation for this. That Clark would practice such a deception on his superior, who had affirmatively inquired about Smith's interest in the position, not only discloses an apparent plan on Clark's part of prevent Smith from getting the position, but also provides reason to doubt Clark's credibility as a witness.

Furthermore, Clark (who was separately named as a respondent in his own right) filed an Answer to the complaint of discrimination which, although responding to and denying the allegations of the complaint in various respects, did not make any reference to claimed deficiencies in Smith's performance with respect to paperwork. Also, Clark did not dispute the testimony of Smith that Clark gave him a variety of inconsistent reasons for not putting him in the full-time position, and that poor paperwork was not one of those reasons.

The employer lays great emphasis on the statements Clark made when Smith was hired, to the effect that he intended to put him into the full-time position when Zietlow retired. The employer argues that, since Clark made these statements at that time, his subsequent decision not to put Smith into the position must have been caused by something he found out about Smith's abilities after he hired him. This argument is unconvincing, because it ignores an alternative explanation, that being that Clark was dishonest in his original indications that he planned to make Smith full-time. This explanation is consistent with Clark's undisputed subsequent dishonesty to Flynn which also related to the question of employing Smith in the full-time position.

The assertions as to deficiencies in Smith's "paperwork" were sketchy. No examples of deficient work were produced. Contrary to the argument in the employer's brief, there is no credible evidence that Clark "found it necessary to regularly direct Complainant's attention to his numerous recordkeeping mistakes" or that "despite Clark's attempts to help Complainant improve his clerical skills, the errors persisted." The only evidence which is even susceptible of such an interpretation is Clark's testimony to the effect that he tried to work with Smith to give him direction. Given its doubts as to Clark's credibility as a witness, the Commission finds this contention unconvincing. Similarly, the evidence that Smith was called in to Clark's office almost every day, and the statement by another employe that he vaguely remembered Clark discussing with him the topic of checking Smith's paperwork, are considered to be inadequate to establish that the employer had any genuine concern over Smith's "paperwork," in the face of all the other reasons in this record to doubt that assertion.

The employer argues that the Commission's decision in Miller v. School District of Manawa (ERD Case #7800608, LIRC, 1982) supports the conclusion that Smith failed to prove that he was intentionally discriminated against because of his age. The employer focuses on the discussion by the Commission in Miller of the importance of determining the intent of the employer. However, the Miller decision does not support the employer's position here. That case involved the nonrenewal of the contract of a school bus driver. The complainant in that case pointed to what she alleged was differential treatment of a male school bus driver, but in resolving the issue the Commission noted that there were different circumstances involved in the two cases and that therefore an inference of discriminatory intent on the part of the school district was not warranted. A finding of discrimination in this case is not inconsistent with Miller. This is a straightforward situation in which a prima facie case of race discrimination has been made out and in which the employer has articulated a reason for its decision which has, after having been submitted to the scrutiny of hearing, collapsed entirely. The inference of race discrimination established by the prima facie case thus being unrebutted, a finding of intentional discrimination is warranted.

NOTE: In its reply brief, Respondent Condere Corporation moved to strike Complainant's brief on the grounds that, although it was due on September 15, 1989 pursuant to the briefing schedule established by the Commission, it was not filed until September 18, 1989. This motion is denied. The lateness of the brief is considered to be insignificant. Condere Corporation has not asserted that it suffered any prejudice as a consequence of Complainant's brief. Had it sought an extension of the due date for its reply brief on account of the lateness of Complainant's brief, such an extension would have been granted. In these circumstances, striking the Complainant's brief is not warranted.

The Commission has modified the Administrative Law Judge's decision to increase the amount awarded as attorney's fees based on a supplemental petition submitted by counsel for Smith reflecting additional costs incurred in responding to the petition for Commission review, and based on the employer's stipulation to the amount of attorney's fees requested.

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