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

JAMES H SALLEY, Complainant

NATIONWIDE MORTGAGE & REALTY CORP, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200502419, EEOC Case No. 26G200501520C


Following an August 30, 2006 hearing on the merits of the complainant's discrimination complaint, an administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (DWD) issued a decision on November 17, 2006, in which he concluded the complainant had established by a fair preponderance of the evidence that the respondent violated the Fair Employment Act by discriminating against him in his terms and conditions of employment and by terminating his employment because of his race. Accordingly, the ALJ ordered the respondent to, among other things, reinstate the complainant and pay him back pay, less statutory offsets. (1)

Michael Auriemma, the president of the respondent Nationwide Mortgage & Realty Corporation (Nationwide), filed a timely petition for review of the ALJ's decision. In addition to contesting several of the ALJ's findings, Auriemma asserted that Nationwide's corporate office was located at 188 Industrial Drive, STE 18, Elmhurst, Illinois 60126, that it was registered with the State of Wisconsin and DWD, and that any correspondence sent to any other address would probably not make it to a corporate officer and is not considered proper notification. Auriemma asserted that the respondent was not properly notified of the hearing and requested a new hearing date. Subsequently, the commission received affidavits from Auriemma and manager Allen Schicker asserting that they had not been notified of any hearing for the complainant by the DWD or any other state agency.

On January 12, 2007, the commission issued a decision setting aside the ALJ's November 17, 2006 decision and remanding the matter to the ALJ for a hearing and determination on the issue of whether or not the respondent had good cause for its failure to appear at the August 30, 2006 hearing. The commission's decision instructed the ALJ to re-issue his original decision if he determined that the respondent did not have good cause for its failure to appear at the August 30 hearing, and to conduct a further hearing on the complainant's complaint if he determined that the respondent had good cause for its failure to appear at the August 30 hearing.

Pursuant to the commission's remand order, the ALJ held the remand hearing on March 19, 2007. The complainant appeared in person and was represented by Attorney Jeffrey P. Sweetland of Hawks, Quindel, Ehlke & Perry, S.C. The respondent appeared by its president, Michael Auriemma.

Thereafter, in a decision issued on June 7, 2007, as a non-final decision in order to consider the amount of attorney's fees and costs to be awarded to the complainant, the ALJ concluded that the respondent did not have good cause for its failure to appear at the August 30 hearing, and re-issued his decision finding that the respondent violated the Act by discriminating against Salley in his terms and conditions of employment and by terminating his employment because of his race.

On June 27, 2007, the ALJ issued a final decision in the matter, which included an award of $7,353.96 as reasonable attorney's fees and costs to the date of the ALJ's decision.

The respondent filed a timely petition for commission review.

Based upon its review of this matter, the Labor and Industry Review Commission makes the following:

FINDINGS OF FACT

1. Michael Auriemma is the president of the respondent, Nationwide Mortgage & Realty Corporation (Nationwide). Nationwide engages in the business of marketing for mortgage loans. Nationwide has maintained an office at 220 Regency Court, Suite L101, in Brookfield, Wisconsin 53045, since 2003 or 2004. Allen Schicker is the manager of Nationwide's Brookfield, Wisconsin office. Auriemma works out of the corporate office in Illinois. The address of that Illinois office at the time relevant herein was 188 Industrial Drive, Suite 18, Elmhurst, Illinois 60126.  (2)

2. The complainant, James Salley, is a black male. Salley began employment with the respondent on May 9, 2005, and worked at the respondent's office at 220 Regency Court, Suite L101, in Brookfield, Wisconsin.

3. On June 27, 2005, Salley filed a complaint of discrimination against Nationwide with the Equal Rights Division.

4. Nationwide regularly received mail and corresponded from its office at 220 Regency Court in Brookfield. That address functioned as its business address in Wisconsin.

5. Nationwide regularly received mail at its Brookfield office in a mailbox located on another floor in the same building, or on a chair in its office. Nationwide's office was open from 1:00 p.m. to 9:00 p.m., Monday through Thursday, and 9:00 a.m. to 1:00 p.m. on Saturdays. No one at Nationwide provided the postal carrier with instructions regarding delivery of its mail, or instructed the Post Office to forward its mail to Auriemma. Schicker was the primary person involved in receiving mail, but other employees looked at and took the mail, and two employees had keys to the mailbox. Schicker threw out some mail, and made no record regarding what mail had been received.

6. Per instructions from Auriemma, Schicker kept and distributed mail received at the Brookfield office, such as pay checks, and forwarded some mail to Auriemma unopened, but also threw out some mail he determined to be junk. In addition, other Nationwide employees also picked up the mail. When certified mail was sent to Nationwide, Schicker would sign for it if he was there. Other employees would also sign for certified mail. If the office was closed when the Post Office attempted to deliver certified mail, certified mail cards would be left on Nationwide's door. No one had the responsibility to pick up certified mail.

7. On June 28, 2005, the Equal Rights Division sent a copy of Salley's complaint by mail to Nationwide's Brookfield office address. The copy of the complaint sent to the Brookfield office was lost or destroyed by Schicker or his staff and was never responded to.

8. On September 7, 2005, the Division sent a letter by certified mail to Nationwide's Brookfield office, which stated that the Division had not received a response to the complaint, and granted Nationwide 30 additional days to respond to the complaint. The Post Office attempted to deliver the certified mail on September 9, 2005 and September 14, 2005, and left notices of the certified mail on those dates. The notices of the certified mail left by the Post Office were lost, destroyed or just ignored by Schicker and/or his staff.

9. On December 28, 2005, the Division sent a copy of the Initial Determination regarding Salley's discrimination complaint by mail to Nationwide at its Brookfield Office. The copy of the Initial Determination was lost or destroyed by Schicker or his staff.

10. On January 31, 2006, the Division sent a copy of a CERTIFICATION TO HEARING notice regarding Salley's case by mail to Nationwide's Brookfield office. The Certification to Hearing notice was lost or destroyed by Schicker or his staff.

11. On May 3, 2006, the Division sent a NOTICE OF HEARING ON THE MERITS Of THE COMPLAINT by mail to Nationwide's Brookfield office which stated that a hearing would be held in this matter on August 30, 2006. The copy of the Notice of Hearing was lost, destroyed or ignored by Schicker or his staff.

12. Auriemma did not receive a copy of the Notice of Hearing. No representative of Nationwide appeared at the hearing on August 30, 2006.

13. On May 16, 2005, the start of Salley's second week of work, Schicker asked him how he felt about "white supremacy". Salley inquired what that had to do with work. Schicker then showed Salley violent pornography involving white "skinheads" having sexual intercourse with black women.

14. The term "skinheads" generally refers to fierce racists, often neo-Nazi in ideology, who shave their heads. Anderson v. Griffin, 397 F.3d 515, 518 (7th Cir. 2005).

15. Evidently, the pornography was on the computer of an employee named "Joe". Schicker told Salley that Joe was the one with "white supremacy" on his computer. Joe was an assistant to Schicker and ran the Brookfield office when Schicker was not there. Despite knowledge of what was on Joe's computer, Schicker did nothing about this.

16. Apparently, when Schicker accessed the pornography on Joe's computer it caused the computer to go down. When the computer was repaired, Salley learned that what caused the computer to go down was a virus from the "porno, skinhead and white supremacy web sites."

17. Sometimes Salley felt weary as he did not always get off work by 9:00 p.m. and being the only black male, he didn't know what might happen.

18. Apparently, payday was supposed to be on Mondays at the Brookfield office. At the time relevant herein, the Brookfield office consisted of Salley, Kimberly Martin, a black female, two other workers who were white, and Joe and Schicker, who are white.

19. The first day that Salley started work was payday but the employees did not get paid until around Thursday. Everybody was in an uproar. Salley's first payday was not until his second week of work because he "had to work the first week in the hole." The second week the same thing occurred. Salley did not get his check until Thursday.

20. On Saturday, May 21, 2005, there was an angry confrontation between Schicker and Joe that resulted in Schicker calling the police. The police took Schicker to jail and gave Joe a ticket. Consequently, the Brookfield office had to shut down.

21. Employees were supposed to get paid on Monday, May 23, 2006, but there were no checks. Schicker talked to Auriemma by phone that day because everybody wanted to know if they were going to get their checks that day.

22. While Schicker was on the phone with Auriemma, Salley asked to speak to Auriemma and was given the phone. After identifying himself, Salley stated, "I have a question for you. I want to know when is payday. In the couple of weeks I worked here, I noticed that the employees were not getting paid on the designated payday. After working two weeks, I did not get paid on the Monday that was payday. It wasn't until the following Thursday that I would receive my check." Auriemma responded, "Payday can be Monday, Tuesday, Wednesday, or whenever I feel like doing the payroll."

23. Salley responded, "That's not good enough. Let's look at the other side of the coin here. If you were working for me, wouldn't you want to get your pay or your rewards for putting in work that you done?" Salley then stated, "That's not the American way." Auriemma then told Salley that he was not a good fit for Nationwide and that he should punch out.

Based upon the above FINDINGS OF FACT, the commission makes the following:

CONCLUSIONS OF LAW

1. Nationwide Mortgage & Realty Corporation is an employer within the meaning of the Wisconsin Fair Employment Act.

2. James Salley is an individual entitled to protection under the Act against unlawful discrimination.

3. Nationwide failed to establish good cause for its failure to appear at the hearing on August 30, 2006.

4. Salley established by a preponderance of the evidence that Nationwide Mortgage & Realty Corporation violated the Act by discriminating against him in his terms and conditions of employment on the basis of race.

5. Salley failed to establish by a preponderance of the evidence that Nationwide Mortgage & Realty Corporation violated the Act by terminating his employment on the basis of race.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission therefore issues the following:

ORDER

1. That Nationwide cease and desist from discriminating against Salley in his terms and conditions of employment.

2. That Salley's complaint allegation that Nationwide violated the Fair Employment Act by terminating his employment on the basis of race is dismissed.

3. That Nationwide pay Salley's reasonable attorney's fees and costs incurred for representation in this matter. To date, the established reasonable attorney's fees and costs incurred equal seven thousand three hundred fifty-three dollars and ninety-six cents ($7,353.96). Payment shall be by check made payable jointly to James H. Salley and Attorney Jeffrey P. Sweetland of Hawks, Quindel, Ehlke & Perry, S.C., and delivered to Attorney Sweetland.

4. That within 30 days of the expiration of time within which an appeal may be taken herein, Nationwide shall submit a compliance report which provides details of the specific action it has 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. Wis. Stat. § § 111.395, 103.005(11) and (12) provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense.


Dated and mailed December 13, 2007
salleja2 . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

 
NATIONWIDE'S FAILURE TO APPEAR FOR THE AUGUST 30, 2006 HEARING

Nationwide argues that the ALJ erred in denying its request for an evidentiary hearing on the facts and law on Salley's claim of race discrimination. It argues that two witnesses for the respondent at the March 19, 2007 hearing (Auriemma and Schicker) testified that the respondent did not receive notice of the August 30, 2006 hearing. Further, referencing the department's rules regarding notice of the hearing [Wis. Admin. Code DWD 218.11(1)] (3),  Nationwide complains that the rules provide that "service on Respondent is to be had by first class mail-a process that affords no confirmation that Notice was actually served and no confirmation that Respondent received notice." Nationwide argues that "Service of process at the circuit court level is not had without personal service, yet the Equal Rights Department (sic) is merely required to serve by first class mail." Nationwide argues that Wisconsin civil procedure and the Wisconsin Supreme Court's decision in Western Pattern & Manufacturing v. American Metal Shoe, 175 Wis. 493, 185 N.W. 535 (1921), provide that corporate service is only valid when an officer, director, or managing agent are personally served. Nationwide argues that in Western Pattern the Wisconsin Supreme Court ruled that "a judgment rendered in the absence of service of process should be vacated, and further states that:

The constitution of the United States provides that property shall not be taken without due process of law, and to seize a man's property by virtue of a judgment rendered by a court which never acquired any jurisdiction of the judgment debtor, in an action of which he had no notice and was never accorded an opportunity to be heard in defense thereof, would seem to be nothing less than a taking of property without due process of law."

In addition, Nationwide states that it disagrees with the ALJ's belief that "the ERD is not the forum for contesting the rule that the Department is only required to serve notice to respondent-an address provided by the Claimant-by first class mail." Nationwide argues that "the act of entering a money Judgment and ordering the reinstatement of an employee without notice and service of process is a constitutional violation of which should be protected at every level."

Furthermore, Nationwide argues that it met its burden of showing good cause for failing to attend the hearing, asserting as follows:

Five letters were sent by first-class mail without any proof of receipt; judicial notice was taken that certified mail was returned to the Department and placed in the file, as "undelivered" (Transcript, p. 44); no contradictory testimony was offered to suggest or prove that Nationwide actually did receive notice; the only thing Mr. Salley testified to was that he observed the mailman hand the mail to Al just about everyday or every other day for the 2 weeks that he worked there (Transcript, p. 96-98); testimony was given that when the mail was not delivered directly to Suite 101, the testimony regarding Nationwide's mail procedure was all over the place, the mail may be delivered directly to the Suite, left on a chair, left in the mailbox, left in the mailroom, employees may or may not go through the mail before Mr. Schiker (sic) got to it, other tenants of the building have mailboxes in the mailroom.

Nationwide argues that its actual receipt of "the November 7, 2006 Rights of Appeal letter" (4)  does not negate its insistence that it did not receive the first five letters from the department.

Nationwide's arguments fail. First of all, with respect to its argument regarding service of process and the rules of civil procedure for actions in circuit court, that is not something that applies to hearings on complaints under the Fair Employment Act. As the commission noted in Hanson v. Dept. Trans. (LIRC, 06/14/05), "the provisions of Chs. 801 to 847 of the statutes are applicable only to proceedings in circuit court. Wis. Stat. § 801.01(2). With respect to proceedings before the Equal Rights Division arising under the Fair Employment Act, the rules of the Equal Rights Division provide, at Wis. Admin. Code § DWD 218.18(1), that 'hearings shall be conducted in conformity with the act and the provisions of ch. 227, Stats.:' In Chapter 227, the legislature 'intended to provide . . . a single procedure to which the statutes relating to practice in civil actions are inapplicable Wisconsin Environmental Decade v. PSC, 79 Wis. 2d 161, 170, 255 N.W.2d 917 (1977).' "

Further, Nationwide was not denied due process because the Division mailed notice of the August 30, 2006 hearing by first-class mail to its Brookfield, Wisconsin address. The ultimate test to determine whether due process of law has been accorded a party to an administrative proceeding is the presence or absence of fair play. Bituminous Casualty Co. v. ILHR Dept., 97 Wis. 2d 730, 734, 295 N.W.2d 183 (1980), citing, State ex rel. Richey v. Neenah Police & Fire Comm'n, 48 Wis. 2d 575, 180 N.W.2d 743 (1970). The three elements of fair play in an administrative proceeding are: "(1) the right to seasonably know the charges or claims preferred; (2) the right to meet such charges or claims by competent evidence; and (3) the right to be heard by counsel upon the probative force of the evidence adduced by both sides and upon the law applicable thereto." Id., quoting Richey at 48 Wis. 2d 580. Nationwide was not denied these rights. Wis. Stat. § 111.39(4)(b) provides in part: "If the department finds probable cause to believe that any discrimination has been or is occurring...it may endeavor to eliminate the practice by conference, conciliation or persuasion. If the department does not eliminate the discrimination...the department shall issue and serve a written notice of hearing, specifying the nature of the discrimination that appears to have been committed...and requiring the person named, in this section called the 'respondent', to answer the complaint at a hearing before an examiner. The notice shall specify a time of hearing not less than 30 days after service of the complaint, and a place of hearing within either the county of the respondent's residence or the county in which the discrimination...appears to have occurred."

Furthermore, Wis. Admin. Code chapter DWD 218, which implements the provisions of the WFEA, provides in part as follows:

In any matter which has been certified to hearing following an initial determination of probable cause under s. DWD 218.07(2) or an appeal of an initial determination of no probable cause under s. DWD 218.08(3), the department shall advise the parties and their representatives and attorneys of record in writing by first-class mail, of the specific time, date and place established for the hearing.

Wis. Admin. Code § DWD 218.11(1). (Italics emphasis added.)

Also, as a contested case proceeding governed by chapter 227, the hearing was subject to Wis. Stat. § 227.44(1), which provides: "In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice. Except in the case of an emergency, reasonable notice shall consist of mailing notice to known interested parties at least 10 days prior to the hearing. (Italics emphasis added.)

The Division's May 3, 2006 notice of hearing, a copy of which is in the case file and indicates that it was sent to the parties, met all of these requirements. It fully identified the parties, including their names and addresses of record and specified the nature of the discrimination that appeared to have occurred. The notice was sent to the parties by first-class mail and it specified the time, date and place of hearing and it preceded the hearing date by nearly four months.

Contrary to Nationwide's apparent assertion that the ERD has the authority to rule on the constitutionality of the requirement that notice of hearing shall be mailed to the parties, an administrative agency is not empowered to pass on the statutory provisions that it administers. Rathbun v. City of Madison (LIRC, 12/19/96), citing, McManus v. Revenue Dept., 155 Wis. 2d 450, 454 (Ct. App. 1990).

Nationwide, however, has argued that it did not receive the Division's May 3, 2006, notice which scheduled a hearing for August 30, 2006 on Salley's claim of race discrimination. It is well established, however, that the mailing of a letter creates a rebuttable presumption that the letter was delivered and received, which shifts to the challenging party the burden of presenting credible evidence on non-receipt. State ex rel. Flores v. State, 183 Wis. 2d 587, 612-613, 516 N.W.2d 362 (1994). If receipt of the mailing is denied, the presumption is spent and a question of fact is raised, and the issue is then one of credibility for the factfinder. Id. at 613.

Nationwide has asserted that when it opened its business in Wisconsin its corporate office in Illinois was registered with the State of Wisconsin and the Department of Workforce Development as the respondent's mailing address. However, Nationwide failed to present any evidence to establish this assertion. Moreover, as noted by the complainant in his written arguments to the ALJ, not even the rules of civil procedure applicable in state courts require that notice to or process on a corporation be served only at its headquarters and only on its president or chief executive officer. Specifically, Wis. Stat. § 801.11(5)(a) permits service of process on a corporation by leaving the summons and complaint "in the office of such...managing agent with the person who is apparently in charge of the office." A "managing agent" includes "a person possessing and exercising the right of general control, authority, judgment, and discretion over the business or affairs of the corporation, either on an overall basis or part basis, i.e., everywhere or in a particular branch or district." Richards v. First Union, 2006 WI 55 at 33 (quoting, Carroll v. Wisconsin Power & Light Co. 273 Wis. 490, 494, 79 N.W.2d 1 (1956)(emphasis added). Even if the Division had been required to send notices to an office overseen by a "managing agent" (a requirement nowhere in the applicable statutes and rules), Schicker certainly was that. He was in charge of all of Nationwide's operations at the Brookfield office, and he reported directly to company president, Auriemma, who held him accountable for that office's performance.

The ALJ did not find the respondent's denial of receipt of the Division's May 3, 2006 notice of hearing credible.

The case file indicates that the ERD sent the following to Nationwide at its Brookfield, Wisconsin office address: (1) A letter dated June 28, 2005, with Salley's complaint enclosed, which requested the respondent to provide a written response to the complaint; (2) a letter dated September 7, 2005, stating that a written response to Salley's complaint had not been received and that if one was not received within 20 days a determination would be made that the respondent agrees with the complaint; (3) on December 28, 2005, a copy of the Initial Determination; (4) a letter dated January 31, 2006, notifying it that the case was certified to a hearing; (5) a notice of hearing on the merits of the complaint dated May 3, 2006; and (6) on November 17, 2006, a copy of the ALJ's decision on Salley's complaint.

Except for the September 7 correspondence, which was sent by certified mail, all of the other correspondence was sent by regular mail. None of the correspondence sent to Nationwide by regular mail was returned to the ERD. The Post Office returned the certified mail to the ERD, indicating that attempts were made to deliver it but that it was unclaimed.

Auriemma testified that Schicker takes any mail that comes to the Brookfield office, which was maybe once or twice a year, and forwards it to him. Auriemma testified that when mail comes into the Brookfield office Schicker lets him know and that the first piece of correspondence that the respondent received from the ERD was the ALJ's decision. Schicker testified that he never received the five pieces of correspondence that Auriemma stated he did not receive. Schicker testified that anything that ever came from the Department of Workforce Development, he sent to Auriemma.

However, earlier during the hearing when asked by the ALJ whether he had received mail from the ERD during the time period of June 28, 2005, September 7, 2005, December 28, 2005, around New Years and May 3, 2006, Schicker testified that he either didn't know, couldn't recall or did not remember. Also, with respect to mail that comes to the Brookfield office, while Schicker testified that "If it's anything related to the company, I'll UPS it to Mike or mail it to him", Schicker also testified that: he "doesn't personally keep track of the mail"; that with respect to mail delivered to the Brookfield office, sometimes the letter carrier will "just lay it on a desk", "put it in the mail box" and "sometimes they'll just put it on a chair...", that "nosy people in the office look through and take the mail" and that he couldn't say if they had taken any important letters, that a couple of people had keys with access to the mailbox, that when mail is too bulky the mailman brings it down and puts it on a chair right by the door, that he never told the mailman to make sure he's the only one that gets all the mail, that he never told any of his employees that he is the only one that signs for mail and that notice of certified mail that comes is "sometimes stuck on the office door outside in hallway."

The ALJ determined that the mail that the ERD sent to the respondent on January 28, 2005, September 7, 2005, December 28, 2005, January 31, 2006 and May 3, 2006 was all received by the respondent at its Regency Court address and was lost or destroyed by Schicker or his staff. The ALJ addressed the question of the credibility of the respondent's witnesses in his Memorandum Opinion attached to his decision. The ALJ stated:

The testimony presented by Nationwide regarding what happened to mail addressed to and delivered to the Brookfield address was contradictory and unconvincing. Mr. Auriemma testified that he told Mr. Schicker to forward everything to him, and that he received mail forwarded to him only two to three times a year...contrary to Mr. Auriemma's testimony regarding the infrequency of mail, testimony of witnesses that worked at the Brookfield address indicated that mail was regularly received and Mr. Schicker stated that "if it's just junk mail, I just throw it out." (Transcript page 58) Moreover, if the receipt of mail was something that happened only two or three times a year, Mr. Schicker could be expected to remember when he received mail and when he did not. His response that: "I don't keep track of that" (Transcript page 55) is not consistent with Nationwide's claim that he carefully forwarded mail on the rare occasions he received it. The record establishes that all mail received by the Brookfield office was not...forwarded to Mr. Auriemma, and that the amount of mail diverted could have been significant.

In addition to the contradictory and unconvincing nature of the testimony regarding the mail received at the Brookfield address, the testimony and demeanor of Mr. Auriemma and Mr. Schicker raised issues regarding their credibility. Mr. Auriemma repeatedly made factual assertions without taking reasonable care to insure the accuracy of his statements, such as his claim that Nationwide's corporate office was registered with the Wisconsin Department of Workforce Development when it was not. Mr. Schicker['s] testimony and demeanor indicated that he was sloppy, did not have a good memory and could not be counted on to provide objective and accurate testimony.

Their claim, given the content and demeanor of their testimony, that somehow it was the United States Postal Service's or the Division's fault that they did not receive four different communications sent by first class mail and one sent by certified mail, but somehow promptly received the Decision when it was mailed to the same address, must be found to fail....

The commission finds no basis for questioning the ALJ's assessment of the credibility and demeanor of the witnesses on the issue of whether or not the respondent had good cause for its failure to appear at the August 30, 2006 hearing. 
 

MERITS OF SALLEY'S RACE DISCRIMINATION CLAIMS

TERMS AND CONDITIONS OF EMPLOYMENT

The ALJ included as reason for finding that Nationwide discriminated against Salley in his terms and conditions of employment that payday was on Mondays but Nationwide consistently paid Salley later than his European-American co-workers because of his race. The evidence does not support this finding. Testimony by Salley himself indicated that the respondent was not paying any of its employees on payday Mondays. Salley began employment on Monday, May 9, 2005, and last worked on Monday, May 23, 2005, a period of two weeks and one day. Salley gave the following testimony: "The first week that I worked there, they didn't get their checks until like Thursday or something, everybody. Everybody was in an uproar." (Emphasis added.) "The second week the same thing. I was supposed to get paid that week and I didn't get my check until Thursday. It was my first week to get paid because I had to work the first week in the hole." "I'm trying to show the pattern of the way the guy was paying his employees. (Emphasis added.) Referencing what occurred on his last day of work, the Monday after Saturday, May 21, Salley testified, "we were supposed to get paid Monday when I came back but there were no checks." (Emphasis added.) Later, again testifying about what occurred after Saturday, May 21, Salley testified, "I came to work that following Monday which was pay day. Al, who was the supervisor, was talking to the owner, whose name is Mike, because everybody wanted to know if they were going to get their checks today." (Emphasis added.)

While the evidence does not support the ALJ's finding that Salley was paid later than his white co-workers, the evidence does support the ALJ's determination that Nationwide discriminated against Salley in his terms and conditions of employment. Maintaining web sites on a company computer of "skinheads" having violent sex with black women and "white supremacy" created an intimidating, racially hostile work environment. Schicker, the manager of the Brookfield office knew about this material on the company's computer, and, obviously did not delete this material or discourage the viewing of such web sites. In fact, Schicker asked Salley how he felt about "white supremacy" and showed him violent pornography involving "skinheads" having sexual intercourse with black women. Salley, who responded to Schicker's inquiry, asked what "white supremacy" had to with work, testified that because he did not always get done with work by 9:00 p.m. he did not know what might happen.

TERMINATION OF EMPLOYMENT

Salley's claim that his employment was terminated because of his race is that Joe had verbally and physically assaulted Schicker but was not terminated while his (Salley's) employment was terminated for nothing more than asking when is pay day. In his closing argument, referring to the confrontation Joe had with Schicker, Salley asserted, "If I was to get up out of my seat, cuss my supervisor out, grab a waste basket, throw it at him, call him out (sic) his name, disrespect him and ask him to bring his butt outside because I'm going to kick his butt, I would be terminated." Referring to Schicker, Salley asserted, "If I was to pull up on the computer all this garbage, porno, skinhead, racial type of stuff, and cause a [computer] virus, I think I would have been terminated."

Salley's claim suffers from a number of shortcomings. First of all, there was no evidence that Auriemma, who terminated the employment of Salley, knew about the incident between Joe and Schicker, or about the racial pornography on the computer or that this had caused a computer virus. And if Salley's claim is that Schicker himself should have terminated Joe's employment because of his behavior, there was no evidence that Schicker had the authority to do so. The evidence showed that Joe's status with the company was not that of a regular employee but that of an assistant to Schicker and that he ran the office when Schicker was not there. In addition, while testimony that Auriemma had made racially charged comments might have provided some evidence that Auriemma's decision to discharge Salley was racially motivated, there was no evidence that Auriemma had ever made any comments of a racial nature.

ATTORNEY'S FEES

The ALJ determined that reasonable attorney's fees and costs in this matter were $7,353.96 ($6,750.00 as fees and $603.96 as costs) based on Salley having prevailed on all matters relating to the March 19, 2007 hearing on whether or not Nationwide had good cause for its failure to appear at the August 30, 2006 hearing. The fee petition submitted by counsel had requested fees of $7,000.00 ($250 per hour times 28 hours), plus costs of $1,465.96 for a total of $8,465.96. Nationwide objected to the fee request as "not reasonable", specifically objecting to the expenditure of 2.5 hours of counsel's time and $862.50 for costs. Nationwide asserted it "believes that if any attorney's fees are awarded in this case, that the Department substantially limit Mr. Sweetland's fees to a fraction of what is asked for in his application." The ALJ concluded that counsel's hourly rate of $250 was reasonable given his experience and skill in employment law, (5) but reduced the fee request by $250.00 for one hour of work involving federal case law research because he did not see it as helpful in this case and reduced by "$862.00", a Westlaw research fee charge as unreasonable in this case.

The commission finds that $7,353.96 is a reasonable award for attorney's fees and costs for legal representation in this matter.

NOTE: To the extent the findings and conclusions of law made by the commission with respect to the merits of the complainant's complaint differ from those of the administrative law judge, they are not based on witness credibility. The commission's findings accept the complainant's testimony as credible. The commission's conclusion of law regarding the complainant's termination of employment was made as a matter of law.

cc: Attorney Jeffrey P. Sweetland



Appealed to Circuit Court.

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Footnotes:

(1)( Back ) An Initial Determination finding no probable cause to believe the respondent had violated the Act by discharging or otherwise discriminating against the complainant because he opposed a discriminatory practice under the Act became final earlier because the complainant did not file an appeal from that determination.

(2)( Back ) Auriemma's Illinois office address is now 55 West 22nd Street, Suite 320, Lombard, Illinois 60148.

(3)( Back ) This provision provides, in part: "DWD 218.11 Notice of hearing. (1) CONTENT. In any matter which has been certified to hearing following an initial determination of probable cause under s. DWD 218.07(2) or an appeal of an initial determination of no probable cause under s. DWD 218.08(3), the department shall advise the parties and their representatives and attorneys of record in writing by first-class mail, of the specific time, date and place established for the hearing."

(4)( Back ) Apparently, the respondent is referring to the ALJ's November 17, 2006 decision and the Notice of Appeal Rights page that was attached to the decision.

(5)( Back ) Supporting affidavits regarding counsel's skill and experience were submitted by counsel and by other attorneys on his behalf.

 


uploaded 2008/01/02