Wis.LIRC ER Decision: Savage - September 20, 1989 - Retaliation - discrimination for filing complaint - inference of retaliatory intent from chronology; Procedure - remedy - burden of proof - when found that employer discriminated against employee, employer bears burden of proving employee's loss was not what would be normally expected to flow from such discrimination, and in determining such an issue, uncertainties are resolved against employer; Procedure - LIRC review - reversal of ALJ, consultation - distinction between credibility inferences from demeanor and credibility inferences from substance of testimony

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

ROBERT SAVAGE, Complainant

STROH CONTAINER, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8551119

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 November 17, 1988. Respondent filed a timely petition for review 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 (copy attached) is modified as follows:

1. Add the following as an additional sentence at the end of FINDING OF FACT paragraph 3:

"After the Equal Employment Opportunities Commission issued a 'no cause' determination on this charge in December, 1984, the Wisconsin Equal Rights Division began its investigation into the charge around the beginning of April, 1984."

2. In FINDING OF FACT paragraph 11, add to the end of the first sentence the phrase "on the plant intercom."

3. In FINDING OF FACT paragraph 16, delete "10:00 or 10:30 p.m." from the first sentence, and replace it with "8:45 p.m."

4. In FINDING OF FACT paragraph 17, delete the fourth sentence and replace it with the following:

"He also stated that Ray Smith, an independent contractor, had told him on March 10th that Wooten was 'buzzed up,' drunk, and falling asleep on his forklift on the job on the night of March 9th."

5. Delete FINDING OF FACT paragraph 24 and substitute therefor the following:

"Eckhardt met with Savage again at 11:00 a.m. on April 17, 1985. Plant Manager A1 Farrell and Assistant Production Manager Dan Ropel were also present at this meeting. They had not been present when Eckhardt originally questioned Savage about the events of March 9th; nor were they present at the interviews of the other employes involved in the events of that night. Eckhardt started the meeting by saying something to the effect that they had to drive a few more nails into the coffin. Eckhardt then told Savage that when he had spoken to Savage in March about the incident, Savage had told him that he had made a judgment call as far as Wooten's condition. Savage denied having made this statement to Eckhardt in March. Eckhardt then asked Savage about the contacts between Savage and Wooten on March 9, 1985. Savage said that Wooten had appeared very fatigued when he picked him up, that his eyes were red, that he (Savage) had asked Wooten if he was drunk but Wooten denied it, and that Savage, upon satisfying himself that Wooten was not drunk, drove into work with him. Eckhardt asked Savage if Wooten had mentioned anything about taking time off work to visit his sister in Arkansas, and Savage responded that Wooten had said that he had something to do but that he could not remember exactly what it was. Eckhardt asked Savage where Wooten had kept the beer in the car, and Savage responded that he had not seen any beer in Wooten's truck. Eckhardt asked Savage if he knew that Wooten and Keith Smith had been drinking on the job, and Savage said that he did not know that. Eckhardt said that he knew that Wooten had beer in the truck and that he was drinking. Eckhardt asked Savage whether he had been in the warehouse at 6:30 p.m. on March 9th. Savage initially responded that he had not. Eckhardt then told him that others had seen him in the warehouse, and Savage responded that this had occurred five or six weeks earlier and that he would have to think about it. He later indicated that he had been in the warehouse that night and that Wooten had appeared to be working without problems. Eckhardt commented about Savage and Wooten being good friends. Savage replied that they were not friends, but just acquaintances through work. A1 Farrell asked Savage to think about anything that might have happened on the way to work on March 9th that might have been unsafe. Savage responded that the only thing he could think of was that, on the expressway between Layton Avenue and Rawson Avenue, Wooten had taken his old truck up to a very high rate of speed and that it 'scared the pee out of' Savage."

6. Delete FINDING OF FACT paragraph 215 and substitute therefor the following:

"Later in the day on April 17, 1985, Eckhardt and Farrell met with Savage again. By that time, they had decided to discharge Savage. Eckhardt began the meeting by telling Savage that, in their earlier meeting on that day, Savage had said that Wooten appeared to be drunk when Wooten picked him up on March 9, 1985. Savage denied having said this to Eckhardt in the earlier meeting that day, but Eckhardt proceeded. Eckhardt mentioned Savage's statements earlier in the day about Wooten driving his truck at 80 miles per hour down the expressway and 'scaring the pee out of' Savage, and Savage responded by saying that he had been using a figure of speech to express himself. Eckhardt then informed Savage that he would have to either resign or he would be terminated for allowing Wooten to report to work in an unsafe condition on March 9, 1985. Savage refused to resign his employment, and he was thereupon terminated. The sole reason given for his termination by the employer was the incident on March 9, 1985."

7. Add the following as an additional sentence at the end of Finding OF FACT paragraph 26:

"Oates' position had first been offered to a black employe, but he turned it down and Huber was then given the position."

8. Delete FINDING OF FACT paragraph 28 and substitute therefor the following:

"Stroh discharged Savage in retaliation for his previous opposition to allegedly discriminatory practices of Stroh and its predecessor, Schlitz. Savage's race was not a factor in Stroh's decision to discharge him."

9. Delete CONCLUSION OF LAW paragraph 2 and substitute therefor the following:

"Stroh Brewery Company discharged Robert Savage because he had opposed discriminatory practices, within the meaning of and in violation of the Wisconsin Fair Employment Act, sec. 111.322(3), Stats.

10. Add the following as CONCLUSION OF LAW paragraph 3:

"3. Stroh Brewery Company did not discriminate against Robert Savage because of his race, in violation of the Wisconsin Fair Employment Act, with respect to its decision to discharge him."

11. In paragraph 4 of the ORDER, delete the sum "$18,167.50" and substitute therefor the sum of "$22,072.50."

12. Delete paragraph 5 of the ORDER and substitute therefor the following:

Respondent shall within 30 days of the expiration of time within which an appeal may be taken herein, submit a compliance report detailing the specific 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. 0. Box 8126, Madison, Wisconsin 53708."

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

Dated and mailed September 20, 1989

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

This case arises out of the decision by the Stroh Container operation of the Stroh Brewery Company to discharge Robert Savage, a black man, from his position as a supervisor in the Oak Creek Container Plant operated by Stroh Container. Savage began working at the Oak Creek Container Plant in 1972 as a production worker, and he became a supervisor in 1981. In 1982 the plant was purchased by the Stroh Brewery Company. As of 1985, Savage was a supervisor in the Press Department, working on the 6:00 p.m. to 6:00 a.m. shift. The incident on the basis of which Stroh claims it discharged Savage occurred on the evening of March 9, 1985. On that night, Savage was given a ride to work by a forklift driver who worked at the plant, Jesse Wooten. Later that night, Wooten was discovered asleep on the job. He was subsequently fired. Approximately a month later, Savage was fired for allegedly allowing Wooten to work that night despite the fact that Wooten was drunk. Savage alleges that he was actually fired because of his race and because of his filing of previous discrimination complaints.

Because the Wisconsin Fair Employment Act does not provide a specific procedure by which a complainant must prove a claim of discrimination, Wisconsin courts have found it appropriate to consider federal court decisions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. � 2000(e) et seq., for guidance in interpreting and applying the Wisconsin Fair Employment Act. Bucyrus Erie v. ILHR Dept., 90 Wis. 2d 408, 421 n. 6, 280 N.W.2d 142 (1979), Anderson v. LIRC, 111 Wis. 2d 245, 254, 330 N.W.2d 594, 598 (1983). Under these decisions, a complainant is required to establish a prima facie case, which raises a presumption that discrimination has occurred, and if a prima facie case is made out, the respondent employer need only articulate, by way of admissible evidence, a legitimate nondiscriminatory reason for the actions taken. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089 (1981). If a legitimate nondiscriminatory reason is articulated, the complainant must, in order to prevail, show that the reason offered is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980). It is not always necessary to decide whether a complainant has made out a prima facie case. Where the employer's reason for its action has been articulated by admissible evidence during the hearing, whether the complainant made out a prima facie case is no longer relevant. In such a case the question to be decided is the ultimate question of whether the complainant proved by a preponderance of the evidence that the respondent discriminated against him or her. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478 (1983), Schenck v. Northwest Fabrics (LIRC, February 20, 1987). Therefore, the critical issue in this case is whether the Respondent's asserted reason for discharging Savage was demonstrated by Savage to have been a pretext for illegal discrimination, and whether the presence of an unlawful motivation may be inferred from the evidence.

A complainant may establish that a respondent's articulated reason was pretextual either directly, by showing that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the employer's proffered explanation is unworthy of credence. That a reason is pretextual does not necessarily mean that it is false, as the facts asserted may be true but may not be the actual reason for the action taken. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168 (Ct. App. 1985). If an employer does not know of certain facts at the time it makes a decision, those facts can not be a reason for its decision, and thus the truth of those facts would not be relevant to the evaluation of whether the employer's reason is pretextual. Because of this, it is important to avoid unnecessarily concentrating on the facts as to what actually happened in an incident when trying to decide if the employer's assertion, that the incident was the reason for its action, is pretextual. What is important is to evaluate what the employer knew at the time it made its decision, and to determine, based on that, whether its assertion as to its reasons can be accepted. Therefore, what is important in this case is to determine what was known by the employer's principal decision makers at the time that they made the decision to terminate Savage.

Based on a careful review of the record, and after having considered the arguments submitted on behalf of the parties, the Commission has concluded that Savage demonstrated that the employer's asserted reason for discharging him was a pretext for an illegal retaliatory motive. The Commission is also satisfied, however, that Savage's race was not a factor in the decision.

Retaliation

According to Stroh, it discharged Savage because of what it believed occurred on March 9, 1985. As noted by Savage in his brief, a critical question that this raises is why the employer did not discharge Savage until over a month later. Stroh asserts that the delay was caused by the fact that it was not initially aware of all of the circumstances surrounding the events of March 9, which eventually led it to make the decision to terminate Savage. However, the Commission is satisfied that this explanation is pretextual.

The evidence clearly shows that, by no later than the week following March 9, 1985, the employer had learned most of the facts on the basis of which it allegedly decided to terminate Savage a month later. Thus, the employer knew at that time that Jesse Wooten had been found asleep on his forklift at approximately 8:45 p.m. on the night of March 9, 1985 (it was at this time, rather than the later time of 10:00 or 10:30 p.m., that Burnell White testified he found Wooten), it knew that Savage had driven into work with Wooten that night, and, most importantly, it knew (by way of a memorandum from supervisor Paul Sukalich) that another employe had described Wooten as having been "drunk," "buzzed up," and falling asleep on the job that night. Although the employer may not have had either a direct allegation from Wooten as to the identity of the persons who tied him into the cage of his forklift, or confessions from those persons, it certainly knew that the only other hourly workers in the plant that night were Janik, Karow, and Stryker. It also had been told, by way of Sukalich's memo, that three supervisors -- Savage, Bogenski, and Burnell White -- had "caught" Wooten and "decided to let him off the hook." However, it was not until over a month later that the employer decided to discharge Savage. The employer's witnesses testified at the hearing, over and over, that it was not until a month later that they had reason to believe or suspect that Wooten had been intoxicated. However, the Sukalich memorandum demonstrates this to be untrue.

When confronted with the unbelievability of its assertion that it did not have reason to believe that Wooten was drunk, the employer assumed a fall-back position, arguing that, in effect, it did not care that Wooten was drunk. It asserted that it had grounds to discharge Wooten based solely on his sleeping on the job, and that it was therefore unnecessary for it to pursue the question of whether he had engaged in the further wrongful conduct of being drunk on the job. The employer then asserts that it was only the filing of a discrimination complaint by Wooten that motivated it to look into these issues. However, this contention is also unconvincing. The information the employer had in hand in March 1985 certainly would have justified a suspicion that one or more of its supervisors had allowed Wooten to work while drunk. Thus, the employer had been told by Burnell White that he found Wooten asleep on the job at 8:45 p.m., yet it knew that White allowed Wooten to finish his shift. The employer also knew that Savage had driven into work with Wooten that night. Finally, and most significantly, the Sukalich memo had suggested to the employer that three of its supervisors had decided to "let Wooten off the hook" in respect to the incident. Certainly, given the degree of interest that the employer showed in April in investigating Savage's alleged misfeasance, it could have been expected to pursue these issues just as aggressively in March. However, it did not.

The Commission finds particularly significant one other piece of inaccurate information the employer gave concerning what it knew about the incident in March. A critical piece of information on which the employer relied in April was its knowledge that Savage had driven into work with Wooten on the night in question. This, after all, was argued to suggest to the employer that Savage must have known something of Wooten's condition, before Wooten began work that night. In what was apparently an effort to exaggerate the differences in the state of its knowledge between March and April 1985, Eckhardt testified in a pre-hearing deposition that he became aware that Savage had driven into work with Wooten for the first time only at Wooten's unemployment compensation hearing in April 1985. However, as Eckhardt eventually conceded at the hearing, this testimony was untrue; he had been aware that Wooten and Savage drove into work together as a result of his initial interview with Savage only a week after the incident.

The Commission thus finds that the employer knew virtually everything in March that it knew in April and which led it to undertake the "second investigation" in April and to terminate Savage. Stroh's assertions as to the reasons for the delay are totally unconvincing. Another reason, however, appears in the record, and is found by the Commission to justify a conclusion that Stroh acted with a retaliatory motive.

In its reply brief to the Commission, Stroh has asserted that the pay discrimination charge filed by Savage in 1984 was "dormant" in the spring of 1985, and it has argued that there is thus no particular chronological nexus between any oppositional activity of Savage and any response by the company. However, Stroh's contention, that the charge was "dormant," is inaccurate. The charge had initially been processed by the Equal Employment Opportunity Commission when filed in 1984, and the EEOC had issued a "no cause letter" in December 1984. However, the matter was still pending as an allegation of a violation of the Wisconsin Fair Employment Act, and pursuant to its regular practices, the Wisconsin Equal Rights Division commenced an investigation. As indicated by the Initial Determination issued by the Equal Rights Division in the Wooten case, received into the record in this matter as Exhibit #42, activity had resumed in that case around the beginning of April 1985, with the employer having submitted a letter of position to the investigator in that matter on April 3, 1985. Obviously, Savage's race discrimination complaint against Stroh was anything but dormant at the beginning of April 1985. In fact, the complaint was entering into an active stage at that point after having been quiescent for a few months following the close of the EEOC investigation. It is possible that the employer was, depending on its sophistication in such matters, somewhat taken aback by this. After all, it had received a "no cause letter" from the EEOC in December 1984, and might have concluded that the matter had been laid to rest. In the beginning of April 1985, however, the employer would have learned otherwise when the Equal Rights Division began its investigation of the same charge and required the employer to devote time and resources to responding to the claim.

The significance of this is in the chronology. In mid-March 1985, when the employer learned of Wooten's drunkenness on the job after having driven into work with Savage on March 9, 1985, and of the other facts related to that incident, Savage's pay discrimination claim against Stroh could indeed have seemed "dormant" to the company. However, after the close of the "first investigation" into the Wooten incident, Savage's race discrimination complaint against the company was revived by the commencement of the Equal Rights Division investigation into it at the beginning of April 1985. This was then followed by the "second investigation" of the Wooten matter, as a result of which Savage was terminated. The nexus between oppositional activity on the part of Savage and his termination by Stroh could hardly be clearer. The intervention of the Equal Rights Division investigation offers the missing explanation for the one-month delay between the initial incident and Stroh's decision to discharge Savage.

The Commission also found that Stroh's claims concerning the conversations its representatives had with Savage on April 17, 1985, were pretextual. Stroh asserted that there were certain admissions or inconsistent statements made by Savage in his conversations with Eckhardt and others on that day, but the Commission remained unconvinced. The contentions of Stroh's witnesses, and particularly Eckhardt, were less than credible. For one thing, Eckhardt's credibility was weakened by the fact that his deposition testimony was successfully impeached. Also, Eckhardt destroyed his handwritten notes of the April 17 meetings. He did not assert that the typed copy of his notes which was submitted as an exhibit was a verbatim copy of his handwritten notes, and the Commission is not prepared to so assume. The Commission credits Savage's version of the conversations of April 17, 1985, as did the Administrative Law Judge, and it concludes that Savage made no admissions or inconsistent denials on that date which would have motivated the employer to discharge him, absent the presence of a retaliatory motive.

For these reasons, the Commission concluded that Stroh's asserted reason for discharging Savage was unworthy of credence, both independently, and because the essential facts on the basis of which the decision was allegedly made were known to Stroh in March yet not acted on until April, after the intervention of an Equal Rights Division investigation of Savage's pay discrimination complaint. The pretextuality of Stroh's assertion, and the sequence of events, suggest that a retaliatory motive more likely motivated Stroh in its decision to discharge Savage.

Race

The Commission has reversed the Administrative Law Judge's finding that race was a factor in the employer's decision to terminate Savage, because it does not believe that the evidence in the record and the facts found by the Administrative Law Judge will support such an inference. Despite the fact that representatives of the employer may have used racial slurs, and may have been inadequately aggressive in addressing the problem of racial graffiti in the bathrooms, thus suggesting the presence of some racial bias, it is notable that Burnell White, who was black, was not disciplined by the employer for his role in the events of March 9, 1985. The employer must have known (based on information it obtained from White and others) that White discovered Wooten asleep on his forklift, that this discovery occurred not long after Wooten had fallen asleep under the influence of alcohol and that Wooten thus presumably was still somewhat affected by the alcohol, and that White nevertheless allowed Wooten to finish his shift. The employer could have used the pretext of concern over a supervisor's allowing Wooten to work while intoxicated, to justify disciplining White just as easily as it did in the case of Savage. That it did not do so, however, suggests that it was not race that was motivating it. Savage, of course, had pursued a number of anti-discrimination complaints against the employer and its predecessor, while there is no evidence that White ever had done so. The dissimilarity in treatment of these similarly situated employes suggests that it was the characteristic according to which they differed (previous opposition to discriminatory practices), rather than the characteristic they shared in common (race), that accounted for the different treatment they were subjected to.

Remedy

The employer argues that Savage's back pay should be cut off as of the point at which Stroh sold its facility to the National Can Company since (it alleges) it would have given Savage a rating of "3" on his evaluation, and National Can would not have hired him with such a rating. The Commission disagrees. Where a finding has been made that an employer discriminated against an employe, the employer bears the burden of proving that the employe's loss was not that which would have been normally expected to flow from such discrimination. See, e.g., American Motors Corp. v. LIRC (Dane County Circuit Court, 9/24/86), Silvers v. Metropolitan School District, (LIRC, 7/25/86), Williams v. County of Milwaukee (LIRC, 4/15/81). In determining such an issue, uncertainties are to be resolved against the employer. Finding as it has that the employer bore a discriminatory animus against Savage because of his prior opposition to allegedly discriminatory practices, the Commission cannot conclude that an evaluation of Savage would have been carried out without infection by this discriminatory animus. Stroh bore the burden of proving that it would have evaluated Savage in a nondiscriminatory manner and that, on the basis of that evaluation, National Can would not have hired him. This it failed to do.

Attorney's Fees

With his brief in opposition to the petition for review, counsel for Savage has requested that an additional award of $3,905 be made for attorney's fees in connection with responding to the petition for review. In its reply brief, the employer has not stated any objection to either the number of hours (35.5) or the hourly rate ($110 per hour) relied upon in the request.

The employer filed a brief of over 40 pages in support of its petition for Commission review. The brief contained numerous citations to the hearing transcript and other evidence, and to decisions of courts, all of which would have required checking to confirm the accuracy of the citation followed up by efforts to develop an appropriate response. The factual record in this case was extensive and the factual issues, both as to evidence in direct conflict and the matters of what inferences could or should be drawn, were numerous and complex. Counsel for Savage submitted a 30 page brief in opposition to the petition for review, which analyzed factual issues at length and in depth and which responded to the legal issues argued in the employer's brief. The Commission considers that the claim for 35.5 hours in connection with responding to the petition for Commission review, was reasonable, as was the hourly rate.

The Commission's reversal of the Administrative Law Judge on the issue of race discrimination does not warrant any reduction in attorney's fees. The issues of race and retaliation as motives for the discharge were closely related, and Savage won complete relief on his claim of discriminatory discharge. No greater relief would be available even if race had also been found a factor. Under these circumstances, he is entitled to recover full attorney's fees. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), Schwantes v. Orbit Resort (LIRC, 5/22/86).

NOTE: Despite the fact that it has reversed the Administrative Law Judge's finding that Savage's race was a factor in the employer's decision to discharge him, the Commission has not consulted with the Administrative Law Judge. The Commission considers that the requirement of consultation is not present in this case.

The Wisconsin Supreme Court has held that there is a constitutional right to the benefit of demeanor evidence which is lost if an administrative agency decides a controversy without the benefit of participation of the hearing officer who heard such testimony, and credibility of a witness is a substantial element in the case. Falke v. Industrial Commission, 17 Wis. 2d 289 (1961). In Braun v. Industrial Commission, 36 Wis. 2d 48 (1967), the court noted that the record should affirmatively show that the Commission had the benefit of the examiner's personal impression of the material witnesses in situations where an examiner hears conflicting testimony and makes findings based upon the credibility of witnesses, and the Commission thereafter reverses its examiner and makes contrary findings. This somewhat limited applicability of the consultation requirement is a reflection of its purpose. As the court noted in Braun, where witnesses have directly contradicted each other, the impression the fact-finder has of their demeanor is likely to be the decisive factor in determining who was telling the truth. Braun v. Industrial Commission, 36 Wis. 2d at 57. The consultation requirement does not come into play where the Commission's disagreement with the administrative law judge does not involve a question of credibility. Briggs and Stratton Corp. v. ILHR Dept., 43 Wis. 2d 398, 410 (1968). Inferring a motive for a discharge alleged to have been based on race can be a matter of determining the proper conclusions and inferences to be drawn from the facts, and consultation is not required in such a case. Walker v. DILHR (Dane County Circuit Court, December 6, 1977).

Not every question of fact implicates questions of credibility. While genuine credibility questions are presented when, for example, one person testifies that a party said a particular thing and that party testifies that he never said such a thing, many questions of fact concern the proper conclusions and inferences to be drawn from other facts. In the former case, the trier of fact must make a determination as to which witness was more credible, and the observations made by the trier of fact as to the demeanor of the witnesses while testifying may be important. In the latter case, however, issues of witness demeanor are irrelevant, since the issue is not the underlying facts but the inferences to be drawn from them. Inferences about the credibility of testimony, drawn from the manner in which it is presented, have been referred to as "testimonial inferences," while inferences drawn from the evidence itself rather than from the manner in which it is given, are sometimes referred to as "derivative inferences." Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074 (9th Cir. 1977).

The Commission considers that the finding of the Administrative Law Judge, that race was a factor in the employer's decision to discharge Savage, was a derivative inference drawn from other facts found by the Administrative Law Judge. Such other facts presumably included her findings that Savage was subjected to racial epithets by representatives of the employer; those findings, by way of contrast, were clearly based at least in part on testimonial inferences. The Commission has not reversed the underlying findings of the Administrative Law Judge in this respect. It agrees with her conclusion, for example, that such racial epithets were used. However, it does not infer from this evidence, as the Administrative Law Judge apparently did, the conclusion that bias on the part of these representatives of the employer was a causal factor in the decision to discharge. Racist attitudes must actually have some causal connection with an employment decision before liability can be found. As noted above in the Memorandum Opinion, the Commission inferred, particularly from the evidence relating to Burnell White, that bias against Savage because of his race, whether it existed or not, was not a reason for his discharge. Since it has simply arrived at a different derivative inference on this ultimate question, the Commission has not consulted with the Administrative Law Judge concerning her observations as to the demeanor of witnesses.

The Commission's modification of some of the Administrative Law Judge's Findings of Fact was undertaken principally for purposes of improving the clarity and completeness of the findings and to correct apparent errors by the Administrative Law Judge, including her attribution of certain statements to particular meetings on April 17, 1985. These modifications are unrelated to the Commission's conclusion that race was not a factor in the decision to discharge. The Commission considered that the actual sequence in which the statements were made in the meetings on April 17, 1985 provides added support to the Administrative Law Judge's conclusion that the reasons asserted by the employer for the discharge of Savage were pretextual. Its decision to reverse on the issue of race was predicated, as noted in the Memorandum Opinion, on its different conclusions as to what inferences are permissible given the underlying facts.

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