GRΕGΟRΥ P. WΕLLЅ, Complainant

ROADWAY EXPRESS, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development 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.

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

Dated and mailed May 13, 2002
wеllѕgr . rsd : 110 :

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

This case arises out of complaints filed by Grеgоrу Wеllѕ ("Wеllѕ") in 1997 and 1998, in which he alleged that he was harassed and discriminated against, because of his race and because of his efforts to oppose discrimination, in the course of his employment with Roadway Express ("Roadway").

After lengthy and contentious litigation, which included disputes over and motions concerning discovery, nine days of hearing on the complaints, and an appeal to and remand from the commission to have the contents of the record and the decision clarified, the Administrative Law Judge issued a decision in July, 2001, finding that the allegations of discrimination had not been sustained, and that no costs or fees would be awarded with respect to a discovery motion which had been decided in 1998. Wеllѕ filed a petition for commission review. His petition for review argues both that the commission should accept the allegations of discrimination, and that costs should be awarded to Wеllѕ in connection with the discovery dispute.

Attorneys fees in connection with Motion To Compel Discovery -

Background -- In January, 1998, Wеllѕ served Interrogatories and Document Production Requests on Roadway, which served answers. On March 9, 1998, Wеllѕ filed a Motion To Compel alleging Roadway's answers did not fully and adequately respond to the discovery request. The motion requested an Order To Compel or, alternatively, imposition of an evidentiary sanction on Roadway. The motion also requested an award of reasonable attorneys fees and costs incurred in connection with the motion. Following a hearing, the ALJ issued an "Order Motion To Compel" on June 9, 1998, which ruled on the motion.

The statutory provisions governing discovery in Chapter 804 are adopted in toto as applicable to proceedings before the ERD, by Wis. Admin. Code Ch DWD 218.14 subsection (3), which provides that "[t]he scope of discovery, the methods of discovery and the use of discovery at hearing shall be the same as set forth in ch. 804, Stats.", and subsection (4), which provides inter alia that "[t]he administrative law judge has the same authority to compel discovery, to issue protective orders and to impose sanctions as the court has under ch. 804, Stats."  Thus, the discovery motion in this case was subject to Wis. Stat. § 804.12(1)(c), which provides:

1. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

2. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

3. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

The ALJ's June 9, 1998 ruling granted the motion to some extent; the parties now disagree about whether the ruling should be characterized as having granted the motion in whole or only in part. In any event, the ruling stated, inter alia:

The Administrative Law Judge will make a ruling on the Complainant's Attorney's Motion for Costs at such time as the Complainant's Attorney forwards to the ERD a statement of the Costs that it incurred in seeking this Motion to Compel.

Notwithstanding this invitation, Wеllѕ' Attorney did not file a statement of costs incurred in connection with the motion, or otherwise follow up in any fashion on the matter, until almost a year later, on April 9, 1999, at the time he filed Wеllѕ' post-hearing Brief. At that time, he filed an "Affidavit ... And Statement Of Costs And Fees Pursuant To The Motion And Order To Compel". In June, 1999, Roadway filed a lengthy response (concurrently with its filing of its brief of the merits); Wеllѕ then filed a response to that, in August, 1999. The ALJ eventually addressed the matter of costs and attorney's fees in connection with the Motion To Compel, in his ultimate decision, issued on May 1, 2000. In that decision, he summarily denied the request for costs and fees. Following an appeal by Wеllѕ, the commission set aside the ALJ's decision and remanded it to him. (1)   The ALJ then issued a new decision on July 6, 2001, in which he inter alia reaffirmed his original decision that no attorneys fees or costs would be allowed.

Wеllѕ now argues that the ALJ erred by not granting his costs and attorneys fees in connection with the motion, which he asserts the ALJ granted in its entirety. Roadway argues that the ALJ granted the motion in part only, and thus also denied it in part, and that he appropriately exercised his discretion to decline to award any costs and fees and to instead allow both parties to bear their own costs in connection with the matter.

Discussion -- Initially, it is necessary to decide what standard of review will be used to evaluate the ALJ's decision on fees and costs in connection with the discovery dispute.

The question of the "standard of review" does not generally arise in commission review of ALJs' decisions, because the commission's "review" of decisions of ALJs is not really a "review" at all (in the sense that a circuit court reviews a LIRC decision, or an appellate court reviews a lower court, for example). It is, instead, a de novo consideration of the case, both as to questions of fact and law. The commission owes no deference to the decision of the ALJ, and thus there is no question of any "standard of review". See, Schenck v. LIRC (Rock Co. Cir. Ct., 02/09/88).

However, a discovery motion fees and costs issue involves a specific and unique situation. For one thing, the ERD's administrative rules specifically and expressly adopt the entire statutory scheme for discovery and resolution of discovery disputes, and it is precisely as part of that scheme that the "trial judge" has the significant role in determining whether and to what extent fees and costs will be awarded. Additionally, the "trial judge" will have a special competence in the matter of determining costs and fees to be assessed in connection with discovery disputes because he or she will have been directly involved with the dispute, will have heard the arguments made at the hearing(s) generated by the discovery dispute, and will for that reason be in the best position to know not only how justified the parties' positions on the discovery dispute are (which is relevant to the "substantially justified" standard), but also how much would be appropriate for any attorneys fees allowed considering the nature of the proceedings.

Citing Muenzenberger v. Monroe Dept. of Human Services (LIRC, 8/13/98), Flood v. Rock County Sheriff's Dept. (LIRC, 8/13/98), and Burgess v. Milwaukee Forge (LIRC, Feb. 13, 1995), Roadway argues that the commission has in fact applied a deferential standard to the review of ALJ's decisions on discovery sanctions, treating the decisions as resting in the discretion of the ALJ and looking to evaluate simply whether the decision was a reasonable exercise of discretion or an abuse of it. Wеllѕ, however, cites Forman v. Cardinal Stritch College (LIRC, 6/8/92) for the proposition that LIRC does not review ALJs' determinations as if it were an appellate court reviewing a discretionary determination of a lower court. He also argues that Wеtzstеon v. Sparta Area Schools (LIRC, 7/28/00) and McAdoo v. Wm. Beaudoin & Sons, Inc. (LIRC, 4/9/00) support the theory that the commission reviews ALJs' decisions on imposition of costs and fees connected with discovery disputes de novo, without any deference being given to the exercise of discretion by the ALJ.

Roadway has the stronger argument. Wеtzstеon did not involve a discovery dispute at all, but merely the commission's review of the ALJ's decision on the amount of attorneys fees and costs awarded to a successful complainant as part of their remedy after prevailing on the merits of their discrimination claim. While in McAdoo the commission was in part reviewing an ALJ's order that a party (complainant) pay attorneys fees and costs occasioned by a motion brought by respondent for sanctions against complainant for failing to appear at his own deposition, the commission's comments specifically about the matter of the costs and fees was in no way inconsistent with an approach of treating the decision as one resting in the discretion of the ALJ and reviewed by the commission as to its reasonableness:

The steps taken by the ALJ in this case were well within the authority defined by that section...McAdoo's petition for review fails to persuasively, or even credibly, establish ... "substantial justification" for his failure to appear at the first scheduled deposition. The award of the costs and fees sought by the employer in connection with that failure, which were reasonable in amount, was clearly justified. The assessment of this order against McAdoo alone was appropriate in view of the fact that his attorney appeared at the deposition...[T]he imposition of an order for payment of fees and costs incurred was authorized by the applicable discovery provisions and was reasonable.

In Forman, the point about the nature of LIRC's review was made simply in reference to the commission's review of the ALJ's findings of fact on the merits; there had been no discovery issues raised in that case, and that proposition was not advanced in reference to a decision about allowing costs and fees in connection with a discovery dispute.

By contrast, the decisions cited by Roadway do support the proposition that the commission reviews ALJs' decisions on awards of costs and attorneys fees in discovery motions by treating them as exercises of discretion subject to a test of reasonableness. In particular, this was precisely the issue in Muenzenberger. While the commission's decision touched upon the factors relevant to the decision, it left no doubt that the standard being applied was not whether the commission thought that a particular position had been substantially justified and whether attorneys fees and costs ought to have been awarded, but whether the ALJ's decision on the issue had been an abuse of discretion.

For these reasons, the commission will review the ALJ's decision on the issue of discovery motion attorneys fees and costs in this case using an "abuse of discretion" standard.

ALJ's decision denying fees and costs connected with the discovery motion - In his most recent decision, the ALJ explained that he concluded both that Roadway's opposition to the discovery requests in question had been "substantially justified", and that awarding costs and fees would have been unjust. With respect to the conclusion that ordering payment of costs and fees would be "unjust", the ALJ states that he took into account that there would have been a significant financial cost to Roadway in responding to the discovery requests in question to the degree of detail sought by Wеllѕ, while the financial harm for which Wеllѕ was seeking a remedy was restricted to, at most, a loss of 1 day's pay. In this regard the ALJ relied on Vincent v. Spacek, 102 Wis.2d 266, 306 N.W. 2d 85 (Ct. App. 1981), which holds that where a discovery request would impose a cost on a party significantly greater than the remedy sought by the party making the request, this can be considered to make opposition to the request substantially justified.

As discussed above, the question for the commission at this point is not whether it finds Roadway's position to have been "substantially justified", but whether it finds that the ALJ abused his discretion when he so found. Considering all of the circumstances, the commission does not believe that the ALJ's decision to deny an award of costs and fees on the motion reflected an abuse of, or an unreasonable exercise of, his discretion.

The ALJ's invitation to Wеllѕ to submit a statement of fees and costs in connection with the discovery motion suggested that, at least at that point, he was somewhat inclined to make an award in Wеllѕ' favor on that issue. However, after considering the ALJ's explanation for his eventual denial of such an award, the commission is now persuaded that even if the ALJ was at first inclined to award costs and fees at the time of the discovery dispute, his subsequent change of mind was not an arbitrary one. There was, of course, a very significant development between the time of the ALJ's ruling on the motion in June 1998, and the time of the ALJ's eventual ruling on the award of costs and fees in his May 2000 decision: the lengthy litigation of the merits of the case. The commission infers that after the ALJ had the benefit of having the entire case tried to him, his views about Roadway's position in the discovery dispute were changed. Having the entire case tried before him would have put the ALJ in a better position to understand the importance or lack of importance which the information which had been sought by Wеllѕ really had to the case, not to mention the weight and validity of Wеllѕ' case per se, something which it would not be unreasonable to weigh against the potential costs of compliance with the discovery requests made, see, Vincent v. Spacek. (2)

For the foregoing reasons, the commission concludes that the ALJ's decision to deny an award of costs and fees in connection with the discovery motion was within the scope of his discretion, and it affirms his decision in that respect.

Merits of the discrimination complaints --

As noted above, the allegations of discrimination presented in this case are that Wеllѕ was harassed and discriminated against, because of his race and because of his efforts to oppose discrimination, in the course of his employment with Roadway.

The size of the record made in the course of litigating these allegations is daunting. In addition to the approximately 2,100 pages of transcript, there are approximately 110 exhibits, which amount to many hundreds of pages. In addition, close to 400 pages of written argument (to which were attached, at various points, several hundred more pages of attachments) were submitted by counsel for both parties over the course of the case, and by virtue of requests from counsel for the commission to consider various pieces of argument which were previously submitted to the ALJ, in addition to the argument which has been expressly submitted to the commission, a significant portion of all of that argument is now placed before the commission.

Considering the size of this record, the time period involved is actually relatively limited. Wеllѕ was hired by Roadway in May, 1996. Because the last complaint in this matter was filed in April, 1998 and the Initial Determination on that complaint was issued in June, 1998, the events with which this case is concerned do not extend beyond that point. Thus, the case concerns the way Mr. Wеllѕ was treated at work during the period from March, 1996 to June, 1998.

The nature and substance of Wеllѕ' complaint(s) is summarized in his April, 1999 post-hearing Brief to the ALJ (which he has incorporated by reference in his brief to the commission), in which Wеllѕ describes a series of events which he asserts were discriminatory. These include an incident in which Tom Palmer spit at, or in the direction of, Wеllѕ; Palmer's comment that another supervisor should "ride [Wеllѕ] like a cheap whore"; and an interchange between Palmer and Wеllѕ about which bathroom Wеllѕ was using. They also include allegations that Palmer forced Wеllѕ to work unwanted overtime; that another supervisor wrongly accused Wеllѕ of stealing cookies; that Wеllѕ was denied warm-up breaks; that Palmer physically attempted to provoke Wеllѕ by blocking him when he attempted to enter a room; that some employees were treated in "rude, demanding, belittling or condescending manners"; that Wеllѕ was subjected to selective monitoring concerning break time; and that Wеllѕ was assigned the physically most laborious jobs. In addition to the matters discussed specifically above, there were a number of other incidents.

In all of these there are, to varying degrees, some outright disputes about the major facts, some disputes about minor facts which are seen by one party or the other as relevant while to the other party they are insignificant, and some disagreements about how common or uncommon such things were in general. The commission is satisfied that the ALJ has correctly resolved these disputes in the extensive and detailed findings of fact he made in his decision. Clearly, the findings made by the ALJ on many of these disputed issues of fact reflect his assessment of the relative credibility of witnesses offering competing testimony. The commission finds no reason in the record to doubt the validity of the ALJ's credibility assessments, and it agrees with them, as it does with his ultimate findings of fact.

Having found itself in agreement with the findings of fact made by the ALJ as to what happened, the commission turns to the important question of why those things happened.

Was race a factor in the treatment complained of? - Much of the conduct complained of by Wеllѕ is, at least according to the arguments and evidence advanced by Roadway and accepted by the ALJ, not any sort of mistreatment at all, but merely the imposition of rules, standards, authority and discipline which is within an employer's prerogative.

Some of the conduct, it must be acknowledged, may have been somewhat harsh, coarse, and hostile. However, as much as it is to be deplored, it is a fact that employers and their supervisors and managers sometimes act in disrespectful, insulting, hostile, or abusive ways towards employees in the workplace. With the exception of conduct which falls within the definition of sexual harassment, an exception which is not applicable here, such conduct does not constitute a violation of the WFEA unless it is established that it occurred because of the protected status of the person who is being harassed. See, e.g., Hitchcock v. Injection Technologies, Inc. (LIRC, June 15, 2000) (harassment not related to the complainant's age, race, creed, color, disability, or other protected status, is not prohibited by the WFEA); Schnitzler v. Land 'O Lakes Cheese Division (LIRC, December 15, 2000) (harassment was because of personal conflict, not gender); Alexander v. Mandel Co. (LIRC, December 18, 1997) (harassment of an employee in retaliation for his filing union grievance not prohibited conduct under the WFEA); see also, Kannenberg v. LIRC Walker Stainless Equipment Company, 213 Wis. 2d 373, 392, 394, 571 N.W.2d 165 (Ct. App. 1997) (hostility expressed in non-sexual terms had origins in personality clash rather than victim's gender).

The important question with regard to all of the incidents pointed to by Wеllѕ, is whether they were actually motivated by racial bias or animosity.

As Wеllѕ implicitly acknowledges, however, there was no overtly racial element to many of the things he has pointed to as harassment. Therefore, any conclusion that they were the result of racial animus must necessarily rest on an inference about the motives of the persons involved.

To some extent, Wеllѕ attempts to make that case by arguing that there was disparate treatment of African-American and white employees. However, it is implicit if not explicit in the findings made by the ALJ, that African-American employees were not, in fact, being treated differently than white employees, and that where Wеllѕ has been able to point to things that he experienced or ways that he was treated that differ from the experiences and treatment of particular white employees, the difference arose because they were not similarly situated with respect to other, non-protected characteristics.

However, Wеllѕ also tries to make a case that there were some things that occurred that involved what is sometimes called "direct" evidence that race was a motivating factor. These are discussed briefly below.

Evidence that the "harassment" which was not overtly racist in content, was motivated by racial bias -- To support drawing an inference that the incidents of "harassment" that had no overt racial component were in fact motivated by racial bias, Wеllѕ has pointed to some other acts that he asserts did in fact have an overt racial component. In arguing this point, Wеllѕ relies on testimony from one witness about having heard supervisors and managers make remarks and jokes with "racial overtones", and on the fact that for a time a full-sized noose was kept in the Terminal Operations Managers' office. He also mentions evidence about a joke told by a manager, who said (allegedly in reference to the supposedly disproportionate assignment of heavy work to African-American employees), "They wouldn't be happy if we hung them with a new rope". In addition, Wеllѕ relies on statistical evidence which he asserts shows that racial bias must have played a part in hiring decisions at Roadway; this, he argues, supports a finding that the incidents he complains of in which he was treated in a disrespectful or unfair way were actually motivated by racial bias.

The commission finds the evidence relied on by Wеllѕ to supply the racial element of this case, to be relatively unpersuasive.

Turning to the page in the transcript (T. IV:126) cited by Wеllѕ as evidence about the remarks and jokes with "racial overtones" supposedly told by supervisors and managers, discloses that there is actually no specific testimony about any such jokes, making it impossible to evaluate the accuracy of the assessment of that witness that there were racial "overtones" to what he heard. In addition, the commission is inclined to discount the testimony of that witness (Daniel Paschall), because he acknowledged that while he had signed an affidavit describing certain allegedly racist treatment he had suffered at the hands of Palmer - including telling jokes with "racial connotations" - this had not in fact been true, as Palmer had in fact left Roadway before Paschall was hired there. (T. IV: 132-134).

The matter of the noose is also not as clear-cut as Wеllѕ would have it seem. It is sometimes the case, that the display of a noose is intended as -- and is (accurately) perceived as -- a racially offensive provocation. This understanding of the object's "message" grows directly out of its connection to this country's long and horrendous history of racially-motivated lynching. However, when a noose is found to represent a racist intention, it is usually the case that it has been used in direct association with some other powerful and more directly racist symbol, such as the initials "KKK" or a KKK costume or something of that nature. See, e.g., Allen v. Mich. Dept. of Corrections, 165 F.3d 405 (6th Cir. 1999); U.S. v. Hayward, 6 F.3d 1241 (7th Cir., 1993). In some cases, the meaning of a noose is by no means as clear cut and does not necessarily suffice to establish or even evidence racial animus. See, e.g., Cooper v. Southern Co. (00-CV-2231-ODE, USDC ND GA), 2001 U.S. Dist. LEXIS 16809 (October 11, 2001). For a number of reasons, people sometimes make and display nooses in workplaces. Their motivations and intentions in such cases are generally crude, threatening, aggressive, juvenile, or some combination of these, in most such cases, but they do not necessarily arise out of racial animus.

In this case, even considering the evidence about the "noose" and the "new rope" joke as it is represented by Wеllѕ, the commission is not persuaded that it was intended by the people who were involved (i.e., the people, whoever they were, that made the noose and left it lying about, or the person who told the joke) to have any particular racial connotation. The commission is also not persuaded by the vague testimony of the unreliable Paschall, that there was any significant problem of racial joking or insults at Roadway.

Statistical evidence of hiring discrimination -- As far as the statistical evidence goes, it does seem to indicate a low probability that the low number of minorities in the hires made by Roadway could have been a result of mere chance. However, this is not a hiring discrimination case. Even if Roadway did engage in discriminatory hiring practices, this in itself would not necessarily justify finding it liable for a violation of the FEA on the theory that it discriminated against Grеgоrу Wеllѕ in conditions of employment. The question must be, whether the evidence of racial bias in hiring decisions is probative about the nature of the decisions made by Roadway and its agents in connection with their day-to-day treatment of employees after they were hired.

Wеllѕ argues that "[w]hen an employer's hiring process is so clearly discriminatory as this, other aspects of the employer's practices are likely to be discriminatory as well", and that "Roadway's glaring refusal to hire African-American applicants is highly probative of an anti-African-American attitude that may be reasonably inferred to have infected its dealings with the African-Americans it did hire".  Entirely apart from the hyperbole here, these arguments are unpersuasive because they are a mere ipse dixit. One must ask, what reason is there to think that, if there was bias on the part of the persons who made hiring decisions, there was similar bias on the part of the front-line supervisors whose actions Well's complaints are focussed on? One such reason might be, that the same persons were involved in hiring decisions and in the determination of day-to-day supervision. However, Wеllѕ has not pointed to any evidence that this was the case. In the absence of such evidence, or any particular evidence somehow connecting Roadway's hiring practices and its supervision practices, the inference Wеllѕ asks for is not particularly compelling.

Wеllѕ also argues that the data on the retention of African-American employees as compared to white employees shows a distinct difference, which is probative of different treatment being given to African-American as compared to white employees. This argument rests on an inference that shorter average tenure in a position reflects harsher treatment or disparate rates of disciplinary termination. Here, though, the problem is that Wеllѕ' data about retention was not accompanied by the kind of statistical analysis that the data about hiring was. Wеllѕ produced expert statistical analysis indicating that the probability that the disparity in hiring data arose by chance was very small. However, he did not offer the same kind of analysis with respect to the data on retention. Instead, he simply offered the raw data (average tenure for whites 590 days, average for African- Americans 375 days), and made the assertion that this shows that "Roadway acted much more vigorously to remove African-American employees from its workforce than it acted to remove whites".

Of course, the data does not necessarily show that, as Wеllѕ himself acknowledged in a footnote in his Brief. Wеllѕ noted there that a possible alternative explanation for the data is that African-American employees were either terminated for legitimate reasons or voluntarily quit (or some combination of both) at a higher rate than whites. However, he then argues that Roadway has not shown any reason to believe that this alternative explanation might be true. The commission is not persuaded that this is the correct approach. On this particular point, more should be asked of the party who is advancing the proposition that the data is significant, before the burden is put on the other party to rebut it. As noted, Wеllѕ has not pointed to any analysis of the statistical significance of the retention data. In addition, because that data includes voluntary quits (which are decisions made by the employees) as well as discharges (which are decisions made by the employer), there is good reason to be hesitant about making inferences as to what the single combined retention figure shows about the employer's side of the matter.

For the foregoing reasons, the commission does not find persuasive the arguments Wеllѕ has raised to justify an inference that the motive behind the treatment he complains of was racial.

Retaliation -- The allegation that Wеllѕ was discriminated against in retaliation for his having expressed opposition to alleged race discrimination, appears to have been added largely as an afterthought, and the arguments that have been advanced concerning this allegation seem similarly tacked-on.

The principal retaliation claim concerns two warning letters that were issued to Wеllѕ subsequent to his filing of his first complaint in this matter. See, Complainant's Brief In Support Of Appeal From Decision Of Administrative Law Judge, p.12; Complainant's Reply To Roadway's Brief In Opposition To His Appeal From The Decision Of The ERD Administrative Law Judge, p.24. What Wеllѕ complains about here, in addition to the validity per se of the warnings, is the fact that they were issued to him by Cedric Black, Roadway's only African-American supervisor. Wеllѕ alleges that Roadway acted inconsistently with its regular practices when it had the warnings issued to Wеllѕ 4 days after the events they concerned, by Black, who had not been involved in the incidents the warnings arose out of or in the decision to issue the warnings. Wеllѕ' theory is that there was an intentional decision to wait until Black was available so that he could issue the warnings.

Even assuming everything Wеllѕ is alleging about this is true, this does not seem to the commission to have been a matter of retaliation as much as a matter of trying to make it difficult for Wеllѕ to argue that the discipline was race discrimination by having the discipline be issued by an African-American supervisor. The adverse action here is the issuance of the warnings, not the decision on what supervisor will sign or issue them. The question is thus whether the decision to issue the warnings was motivated by resentment about Wеllѕ having filed his (first) discrimination complaint.

The ALJ found that the discipline was justified because Wеllѕ had been observed leaving Roadway's premises after the time of his lunch break. He also found that Black was asked to issue the warnings because of a Roadway policy under which supervisors issued warnings for infractions that occurred in their area even if the supervisor was not the one who had witnessed the incident. He also found that on another occasion Black had similarly issued a warning to a white employee for an incident in Black's area which he had not witnessed or been involved in.

A review of the evidence cited by Wеllѕ to support his argument that Roadway acted inconsistently with its regular practices when it had Black issue Wеllѕ a warning for conduct he had not been involved in, leaves the commission unpersuaded. That evidence consists primarily of testimony of two supervisors that such a thing had not occurred in their cases; that in no way establishes that this was a matter of Roadway policy. The other evidence cited by Wеllѕ, Black's testimony, actually establishes that in his case there were a number of occasions on which he was asked to issue warnings to employees under his supervision, including white employees, for things that he had not witnessed or been involved in.

Apart from the matter of these warnings, the retaliation claim seems to be just a general assertion that everything adverse that happened to Wеllѕ after the time he filed his first complaint was motivated in part by resentment over that filing. There is no overt, direct evidence of this, and any inference that might be drawn to this effect from the sequence of the events is undercut by the evidence that the adverse actions taken against Wеllѕ were justified.

Wеllѕ has complained about the extent to which the ALJ has, in his decision, adopted arguments made by the employer. The commission does not find the ALJ's approach to have been inappropriate. An ALJ may well carry out a careful and thoughtful review of all of the evidence, find himself more persuaded by one side's case than the other's, and decide that the description of the facts and appropriate inferences which that side had urged was a substantially accurate one. In such a case, adopting findings and conclusions urged in that party's brief would be a reasonable approach. It is common in federal civil rights litigation for courts to call for the parties to submit proposed findings of fact and to then simply adopt the entire set of proposed findings submitted by the party whose case the court has found most persuasive. See, e.g., Collins v. Milwaukee Housing Assistance Corporation, 927 F. Supp. 1152 (E.D. Wis. 1996). It is not argued in such cases that this evidences a lack of critical thinking on the part of the court. No such argument is warranted here either.

Considering the evidence, one could see how there could be reason for suspicion here that there were some racist attitudes in some of the actors involved in this case. However, the commission's inquiry must be more precise than that. More than a suspicion, more even than a reasonable suspicion, is required to satisfy the burden of proving by a preponderance of the evidence that an employer's actions towards an employee were motivated by racial bias. Based on its review, the commission concludes that this was not established here. For this reason, and because it agrees with his findings and conclusions, the commission has affirmed the decision of the ALJ.

cc: 
Atty. Arthur Heitzer
Atty. Thomas P. Krukowski

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(1)( Back ) One reason for the commission's action was that the ALJ had failed to adequately mark documents in the file or memorialize on the record his rulings with respect to exhibits, such that the contents of the documentary record could not be determined with any certainty. Another reason for the commission's action was the lack of any indication as to whether a separate hearing had been held on the question of whether costs and fees would be awarded in connection with the discovery dispute, and the absence of any articulated reason for the ALJ's ruling on the discovery motion costs issue. In its remand, the commission directed the ALJ to address these points.

(2)( Back ) Wis. Stat. 804.12(1)(c) contemplates that a separate hearing will be held on the issue of whether fees and costs should be awarded in connection with the discovery motion. However, the ALJ did not hold such a separate hearing here. He explained in his decision that he considered that Wеllѕ had waived the right to such a separate hearing by his long delay in submitting a statement of fees and costs sought. The commission agrees. Not only was there a delay of almost a year before the statement of fees and costs sought was submitted, but Wеllѕ' counsel also did not make any request for a hearing even when he filed his Affidavit And Statement Of Costs And Fees on April 9, 1999, and he also did not make any request for a hearing when he filed his Brief In Support Of Award Of Attorney's Fees on August 27, 1999. Indeed, he closed that Brief with the statement, "[t]he issues having been fully briefed, no further hearing should be required". For these reasons, the commission sees no problem with the fact that the ALJ did not conduct a separate hearing on the question of whether fees and costs would be awarded in connection with the discovery motion. 

uploaded 2002/05/16