STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


JOHN MONCRIEF, Complainant

GARDNER BAKING COMPANY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9020321, EEOC Case No. 26G871368



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 May 7, 1992. Complainant filed a timely petition for review by the Commission and both parties submitted written arguments.

Based upon a review of the record in its entirety, and following consultation with the Administrative Law Judge, the Labor and Industry Review Commission issues the following:

FINDINGS OF FACT

1. Respondent Gardner Baking Company ("Gardner") is a commercial bakery doing business in Madison, Wisconsin.

2 . Complainant John Moncrief ("Moncrief") is a black male who was first hired by Gardner on a permanent basis on May 5, 1979.

3. During his tenure at Gardner, Moncrief worked primarily as a production helper. He also worked a short period of time in the Sanitation Department.

4. In 1984 and again in 1985 Moncrief filed charges of race discrimination against Gardner. These charges were resolved by a settlement agreement between Moncrief and Gardner which was arrived at on May 8, 1986 and executed in written form on May 22, 1986. As part of the agreement, Moncrief released Gardner from any and all claims, demands, rights, liabilities and causes of action whatsoever kind or nature, known or unknown, foreseen or unforeseen, arising, having arisen or herein after arising out of or by virtue of or in connection with Gardner prior to May 8, 1986.

5. Promotion of employes at Gardner is affected by a job posting and bidding system. In practice, positions are always awarded to the most senior bidder who wants the position.

6. Moncrief bid on two full-time receiving and warehouse supervisor positions posted on July 28, 1986 and August 6,1986. In both cases the positions were awarded to white employer who were more senior to Moncrief. The positions were awarded to those white employer solely because they had the highest seniority of the employes bidding on the positions, and not because of any intention to discriminate because of race.

7. As of July 1986 Gardner had 193 production employer with seniority dates. Of these, 17 (including Moncrief) were black. The numerical seniority ranks of those 17 were 70, 73, 93 (Moncrief's rank), 120, 122, 151, 157, 159, 162, 168, 169, 172, 174, 176, 178, 187, and 192.

8. In the period from May 8, 1986 (prior to which the earlier settlement agreement precludes any claim being made) through October 6, 1986 (when Moncrief's employment ended) there were 14 positions posted at Gardner for which the posted pay rate was higher than Moncrief's pay. This includes the two postings of July 28, 1986 and August 6, 1986 on which Moncrief bid, as well as 12 others on which he did not bid, all of which went to employer with less seniority than Moncrief.

9. For the 14 vacancies thus posted, eight of Gardner's 17 black employer bid on at least one of the vacancies, and a total of 36 bids were made by these eight black employes.

10. Blacks were awarded three of 14, or 21%, of the 14 vacancies, in excess of their representation in the production workforce, which was 17 out of 193, or 90. Whites were awarded 11 of 14, or 78%, of the 14 vacancies, less than their representation in the production workforce, which was 176 out of 193, or 91%.

11. Three of 36, or 8%, of the bids placed by black bidders were successful, as opposed to 11 of approximately 364, or 3%, of the bids placed by white bidders.

12. Three of the eight black bidders, or 37.5%, were successful in their efforts to obtain promotions. The 11 white bidders who were successful in their efforts to obtain promotions constituted less than 37.5% of the total number of white employer who placed bids on any of the 14 positions referred to above.

13. Considering only the positions Moncrief bid on, there were two black bidders (including Moncrief) and 16 white bidders for the July 18, 1986 posting, and there were two black bidders (including Moncrief) and 19 white bidders for the August 6, 1986 posting. These numbers are too small to allow any statistically significant conclusion to be drawn on the question of whether these results are different from what could be expected to arise from chance.

14. Moncrief was absent from work with notice to and permission of Gardner for a period of time during mid-September, he then had scheduled vacation time for September 20 through 26, and he was then due back at work on Saturday, September 27.

15. On September 16, 1986, Moncrief had a telephone conversation with Dan Ramsey, Gardner's Controller, in which he discussed his inability to come to work at that point because he was caring for his father, and the fact that he had vacation time scheduled for the following week (the scheduled September 20-26 vacation). Moncrief also told Ramsey that he might need an additional week to take his father to Arkansas. Moncrief did not notify Ramsey that he would not be reporting to work on Saturday, September 27 after his scheduled vacation ended. Ramsey told Moncrief that he would have to take up the matter of any additional time off with his supervisor. Subsequent to this telephone conversation and prior to Saturday, September 27, 1986, Moncrief did not discuss with his supervisor the question of whether he would be allowed any additional time off.

16. Moncrief was scheduled to report to work at 10:00 a.m. on Saturday, September 27 and at 10:00 a.m. on Sunday, September 28.

17. Production Supervisor Sam Adams was present at Gardner's plant on the morning of Saturday, September 27, 1986, from at least 5:15 a.m. until 9:00 or 9:30 a.m. Adams was not normally present at the plant during that shift, and was there that morning only to cover for another supervisor. During that time period, Adams received no telephone calls from anyone, including Moncrief. No one else at Gardner received a telephone call from Moncrief that morning.

18. As of 10:00 a.m. on September 27, 1986, the Production Supervisor on duty was Leetz, who had taken over for Adams. When Moncrief failed to appear for his scheduled shift at 10:00 a.m., Leetz so noted in writing on the attendance record, reporting Moncrief as a "no show."

19. Gardner has a work rule providing that employes who fail to call in at least two hours prior to the start of their shift to provide notice that they will not be present are subject to discipline. Gardner also has a work rule which provides that employer who are absent from their scheduled work shift and who fail to call in at all prior to the end of their work shift to provide notice of their absence will be discharged, unless it was "physically impossible" for them to do so.

20. On the morning of Monday, September 29, 1986, Dave Caucutt, Gardner's Superintendent of Operations, was reviewing production records from the weekend and noted the entries showing that Moncrief had been a no show. He immediately telephoned Moncrief at home.

21. When Caucutt spoke to Moncrief on the morning of September 29, 1986, Moncrief responded to Caucutt's inquiry about his absence by stating that he had just got back into town with his father the night before. Caucutt concluded from this that Moncrief had not appeared at work on Saturday or Sunday because he had been out of town. Moncrief also made reference to the conversation he had had earlier that month with Dan Ramsey. Moncrief did not claim to have called in on Saturday morning, and neither he nor Caucutt mentioned Sam Adams.

22. On the afternoon of Monday, September 29, Moncrief telephoned Caucutt back and at that time he told Caucutt that he had called Gardner on Saturday morning and told Sam Adams that he would not be in.

23. On October 2, 1986 a meeting was held between Moncrief, union representatives, and representatives of Gardner management. At that meeting, Moncrief reiterated his claim that he had called in on Saturday morning and told Sam Adams that he would not be in. In response, Gardner held off on the imposition of a disciplinary response pending an investigation into Moncrief's claim.

24. Another meeting was held on October 6, 1986 between Moncrief, union representatives, and representatives of Gardner management. At this meeting Moncrief was confronted with the results of Gardner's investigation, which were that neither Adams nor anyone else present at Gardner on the morning of Saturday, September 27, 1986 acknowledged having received any phone call from Moncrief. In response, Moncrief asserted that he had "evidence" that would prove he called in, but when asked he would not say what it was. He also did not answer questions about what it was that prevented him from being able to come into work on the days in question. At the time, Caucutt, who still believed based on what Moncrief told him on Monday that Moncrief had been out of town, assumed that the "evidence" Moncrief was referring to was a long-distance telephone record.

25. At the conclusion of the meeting on October 6, 1986, Moncrief was fired for violating Gardner's rule concerning failure to call in to provide notice of absence.

26. Moncrief filed a grievance under the applicable collective bargaining agreement asserting that his discharge violated that agreement. A meeting concerning that grievance was held between Moncrief, union representatives, and representatives of Gardner management, on October 15, 1986. At this time, Moncrief asserted that the evidence he had to support his claim was that his wife had witnessed him making the call and could testify to this. This disclosure angered Dan Ramsey, as he felt that Moncrief should have made the disclosure earlier in the process. Gardner was not persuaded by the presentation made in the meeting to alter its decision concerning the discharge.

27. Moncrief subsequently applied for unemployment compensation benefits, which Gardner contested, arguing that he had been discharged for misconduct connected with his employment. In connection with Moncrief's claim for benefits, a hearing was held before an Administrative Law Judge of the DILHR Unemployment Compensation Division, at which Moncrief arid representatives of Gardner both appeared without counsel and at which Moncrief, Adams, and other witnesses testified. The Administrative Law Judge subsequently issued a decision which made findings of fact, based on a resolution of credibility issues, that Moncrief had called Gardner on the morning of September 27, 1986. Unemployment compensation benefits were therefore allowed. This decision was not appealed.

28. Moncrief's grievance concerning his discharge proceeded to arbitration. A hearing was held at which Moncrief and Gardner both appeared by counsel and at which Moncrief, Adams, and others testified. The arbitrator subsequently issued a decision in which he made findings of fact, based on resolution of credibility issues, that Moncrief had not called in to Gardner on the morning of September 27, 1986, and he therefore upheld the dismissal under the collective bargaining agreement.

29. Gardner has in practice applied the "physical impossibility" exception to its "no show/no call" rule to employes who credibly assert that they misread a schedule and failed to appear at work without notice for that reason, on the theory that it is physically impossible for an employe to appear for his or her shift if the employe is not aware that he or she is supposed to come to work.

30. Moncrief compares himself to three employes, Tenbruggencate, Christoph and Refiners, who he asserts were treated more favorably by Gardner despite having engaged in conduct similar to that which Gardner discharged him for. Their situations are not comparable to Moncrief's.

31. Tenbruggencate had a number of attendance-related offenses, mostly lates, and a number of other offenses, mostly in the nature of poor work, but one for being in possession of a marijuana pipe at work. He was not terminated for this last-mentioned matter, in part because there was some question about where the pipe came from and whether other employes were just as responsible for its presence in the plant, but mostly because Gardner was short-handed at the time and had no one to replace him. Thus, Tenbruggencate had no comparable "no notice" offenses.

32. Christoph had a number of attendance-related offenses, including some failures to call in an absence by two hours before his shift started, but only one case of a complete "no notice" violation of the "no show/no call" rule that appears comparable to Moncrief's and that occurred in 1978 and involved a claim that the schedule had been misread, thus implicating the "physical impossibility" exception which Gardner had uniformly applied. Thus, Christoph had only one comparable "no notice" offense and he credibly asserted a "misread schedule" claim.

33. Refiners had a "no call/no show" violation on September 1, 1986, shortly before Moncrief's termination, but he was not terminated because he credibly asserted and Gardner believed that he had mistakenly failed to check the schedule, in which there had been (unbeknownst to him) an unexpected shift.

34. Moncrief had an extensive history of attendance-related problems. He also never made any "misread schedule" or similar assertion with respect to his absence, but rather made an assertion that he had provided notice, which was reasonably concluded by Gardner to have been false. Gardner's willingness to credit claims of other employer that they had misread schedules or otherwise failed to appear by mistake, while not crediting Moncrief's claim that he had called in, was unrelated to Moncrief's previous discrimination charges.

35. In 1986 alone, nine other employer of Gardner besides Moncrief were fired for violation of the "no show/no call" rule. None of these employer had previously filed discrimination complaints.

36. Gardner discharged Moncrief because he failed to call in to notify Gardner of his absence on Saturday, September 27, 1986 and Sunday, September 28, 1986, in violation of the "no show/no call" rule at Gardner. Moncrief's filing of previous charges was not a factor in Gardner's decision to discharge him.

Based on the FINDINGS OF FACT made above, the Commission now makes the following:

CONCLUSIONS OF LAW

1. Gardner Baking Company is an employer within the meaning of the Wisconsin Fair Employment Act.

2. Gardner Baking Company did not discriminate against John Moncrief because of race, in violation of the Wisconsin Fair Employment Act, in regard to promotion.

3. Gardner Baking Company did not retaliate against John Moncrief for his previous filing of other charges of discrimination, in violation of the Wisconsin Fair Employment Act, when it discharged him in 1986.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the Commission makes the following:

ORDER

That the complaint in this matter is dismissed.

Dated and mailed July 1, 1992.

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

This case concerns allegations by John Moncrief, a former employe of Gardner Baking Company, that discrimination was involved in his failure to receive either of two positions at Gardner to which he sought promotion in 1986, and that his discharge by Gardner in 1986 was in retaliation for his having previously filed charges of race discrimination against Gardner. (1)

Promotion -- Moncrief's claim of race discrimination in promotion is based on a "disparate impact" theory. The "disparate impact" theory of discrimination under Title VII was set forth by the U.S. Supreme Court in Griggs v. Duke Power, 401 U.S. 424 (1971). It has been recognized as being applicable to the Wisconsin Fair Employment Act. Racine Unified School District v. LIRC, 164 Wis. 2d 567, 594-95, 476 N.W.2d 708 (1991), see also Wisconsin Telephone Company v. DILHR, 68 Wis. 2d 345, 368, 228 N.W.2d 649 (1975). Under the disparate impact theory, an employment practice which is neutral on its face can be found to be discriminatory if in practice it has an adverse impact on a protected group which is disproportionate to that group's level of involvement in the practice. As in the conventional "disparate treatment" (intentional discrimination) theory, a prima facie case method of analysis has developed. To make out a prima facie case of disparate impact, a complainant must show that an employment practice or selection device (for example, a passing score on a certain test, or a high school diploma requirement) selects employes or applicants in a pattern which is significantly different from the pattern of a particular minority in the applicant pool. See, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the complainant meets this burden, the employer may attempt to rebut the prima facie case by way of evidence that the employment practice or selection device has a manifest relationship to the employment in question. Griggs, 401 U.S. at 432. Continuing in a "shifting burdens" fashion, a complainant may still prevail even against a showing of "manifest relationship," by showing that there are alternative methods available which will meet the employer's goals but with less of an adverse impact.

The threshold question is therefore whether Moncrief made out a prima facie case. The Commission concludes that he did not.

Moncrief's disparate impact argument appears to rely on the theory that the distribution of blacks in the seniority ranking is adequate by itself to carry his burden of proof. He is incorrect, for two reasons.

First, the evidence shows no disparate impact, statistically significant or otherwise, in the ultimate outcome, i.e., promotions awarded. Proportionally more black bids and bidders were successful in receiving promotions than white bids and bidders.

An argument that a disproportionate distribution of blacks in the seniority rankings is per se a disparate impact without reference to the ultimate outcome or "bottom line," on the authority of Connecticut v. Teal, 457 U.S. 440 (1982), would not be persuasive. Connecticut v. Teal arrived at the conclusion that there was actionable discrimination where a part of a selection device disproportionately eliminated minorities from the possibility of further consideration, in the context of a test that eliminated candidates entirely if they failed. This limitation on the use of "bottom line" figures as a defense does not apply where the selection device at issue is not "pass/fail" but merely ranks candidates. Brunet v. City of Columbus, 642 F. Supp. 1214 (D.C. Ohio 1986), Progressive Officers v. Metropolitan Dade County (D.C. Fla. December 15, 1989), 54 FEP Cases 1161. Two of the most authoritative and frequently cited commentators in the area of employment law have also concluded that Connecticut v. Teal only applies to pass/fail selection devices and not to ranking processes, so that a balanced "bottom line" in a process based on ranking can be considered a good defense. B. Schlei and P. Grossman, Employment Discrimination Law (2d Ed. 1983), 1377-78; Larson and Larson, Employment Discrimination (1992), 74.42(c), Vol. III, p. 14-82. This is the case here. Those with low seniority have as much access to the entirety of the selection process as those with high seniority.

Second, even if disproportionality in the distribution of blacks in relative seniority was legally significant, Moncrief has failed to provide any competent evidence that the distribution of blacks is different to a statistically significant degree from what might be expected to arise by chance in any distribution of 17 in a group of 193. Disproportionality of a distribution is proven in disparate impact cases "almost exclusively" by some kind of expert statistical analysis. David and Cocroft v. Milwaukee (LIRC, September 15, 1986). Moncrief has presented no such proof. He has simply argued that it is "obvious," "inevitable," and "clear" that the distribution will have a disparate impact on blacks and that any argument against this proposition is "contrary to common sense." (Complainant's Brief, pp. 27, 28, 31, 33) The Commission will not intuit what ought to be demonstrated by expert opinion.

Besides arguing that the seniority distribution somehow establishes an unlawfully discriminatory impact per se, Moncrief responds to the evidence showing relative success of blacks in obtaining promotions by arguing that only the postings on which he bid should be considered. He asserts that these were the only really "desirable" positions for employes of his rank and seniority and that they were the only "true promotions." (Complainant's Brief, p. 32) The commission rejects this argument as depending on what is in effect an "individual disparate impact" theory. In any event, however, it does not assist Moncrief, for the numbers involved when only those two postings are considered are simply too small to allow a conclusion to be drawn with any degree of confidence in its statistical significance. See Davis and Cocroft v. Milwaukee.

Moncrief's intuitive sense that blacks' distribution in the seniority system must have a negative impact on their opportunity for advancement cannot substitute for the kind of rigorous statistical analysis that is necessary. He has failed to meet the standards of proof required to establish his claim of racially disparate impact in promotion.

Discharge -- Moncrief asserts that sometime prior to September 27, 1986 he drove to Arkansas with his elderly father and a neighbor who had been helping to care for the father, in an unsuccessful effort to induce relatives there to undertake the care of his father. He asserts that they returned to Madison, arriving sometime between midnight and 4:00 a.m. on September 27. He asserts that he telephoned Gardner that morning at approximately 6:30 a.m. and told a supervisor, Sam Adams, that he would not be in. Thus, he denies that he violated the "no show/no call" rule at all. He contends that Gardner's claim that he did is a pretext for retaliating against him because of the discrimination complaints he filed in 1984 and 1985.

In some cases, the question of whether an employer's asserted nondiscriminatory reason is true can be considered irrelevant if it appears that the employer genuinely believed it to be true. See, Gentilli v. Badger Coaches (LIRC, July 12, 1990), aff'd., Gentilli v. LIRC (Dane County Circuit Court, January 15, 1991), Henry v. Andrews Roofing and Siding (LIRC, November 20, 1981), aff'd. Henry v. LIRC (Fond du Lac County Circuit Court, November 11, 1982). This is not such a case, because of the nature of the claims made. Moncrief either did or did not call and speak to Sam Adams. If he did, it would not be a plausible resolution of the matter to find that Adams somehow "forgot" and genuinely believed that Moncrief had not called, especially because Respondent and Adams have not so claimed. It is also not acceptable to resolve the case based on a theory that other representatives of Gardner management, who could have no direct personal knowledge of whether the call took place, genuinely believed Adams' denial that a call was made. Adams, as a supervisor, was an agent of Gardner, and it is fully responsible for his conduct. Thus the question which is critical here is whether Moncrief in fact called and spoke to Adams. This is a purely factual question which, because of the starkly contrasting testimony of Moncrief and Gardner's witnesses, turns on an assessment of credibility.

The Administrative Law Judge, with whom the Commission consulted concerning her impressions as to the credibility of witnesses, apparently believed Moncrief's claim that he called Gardner, but she also believed Adams' claim that he did not get a call from Moncrief. She resolved the conflict thus created by speculating that Moncrief ended up speaking with someone other than Adams. The Commission finds this resolution of the testimonial conflict unacceptable.

Moncrief was quite definite in his testimony that he spoke to Adams. He claimed that Adams identified himself to Moncrief as Sam, and that he (Moncrief) also recognized Adams' voice. The Commission also finds the ALJ's resolution of this issue unsatisfactory because it appears to have been compelled by her erroneous conclusion that Adams was not even at Gardner on the morning when Moncrief called. (2) Adams testified directly that he was there, both parties agree that he was there, and there is no evidence that he was not.

In short, there is no way to resolve the conflict in testimony in this matter short of finding some of it to be untrue. Based on a careful review of all of the evidence, (3) the Commission concludes that Moncrief's version of the facts is not credible.

The Commission rejects Moncrief's testimony first because it is implausible in many respects. Not the least of these is the question of why, if Moncrief decided not to go into work at 4:30 or 5:00 a.m. (as he testified) , he then waited until 6:30 a.m. to call in. Gardner operates 24 hours a day, so someone could have taken his call earlier. Why would Moncrief, who had supposedly been up driving most of the night and would obviously have been at risk of falling asleep, fail to call in when he decided not to go in, and instead get into bed? It is particularly inexplicable since

Moncrief admitted that he did not know what time he was scheduled to start that morning, and he also knew of the rule requiring a call-in two hours before the start of a shift.

The Commission also rejects Moncrief's testimony because it was in many material respects inconsistent with testimony he gave earlier.

One example of this is his testimony at the U.C. hearing that he did not give Adams a reason for his absence when he called him, as opposed to his testimony at the Equal Rights hearing that he did give him a reason (caring for his father) when he called him. Another example of this is his testimony at the Equal Rights hearing that when he talked to Dave Caucutt on Monday morning he told him that he "just got back in town with his father," as opposed to his testimony at the U.C. hearing, which was initially that he did not remember what he had told Caucutt, and was then that he told Caucutt that he had gotten back into town with his father late Saturday night, but that this had been a "slip of the tongue."

Moncrief relies heavily on the theory that his knowledge that Adams was the supervisor on duty on Saturday morning is proof that he actually called, since Adams was not normally scheduled for that time and thus if Moncrief was making the story up he would probably identify the regular supervisor, and not Adams, as the one he spoke to. The question is, however, when did Moncrief first demonstrate knowledge that Adams had been the supervisor on duty? Moncrief claims that in his conversation with Caucutt on Monday morning, he told Caucutt of having called in and spoken to Adams. Caucutt, however, denies that Moncrief said anything about Adams (or about having called in at all) when they spoke on Monday morning, and that Moncrief only advanced the claim of having called in to Adams when he spoke to Caucutt on the phone later, on Monday afternoon. If true, this is significant for two reasons: first, Moncrief's failure to advance any claim of having called in when first confronted by Caucutt in the Monday morning call would suggest that he had no such excuse to tender, and second, his making of the assertion about calling Adams only on Monday afternoon would be consistent with Moncrief having been able to find out about Adams' presence on Saturday morning by making a few calls on Monday after the telephone call from Caucutt made him aware that he was in trouble.

The Commission has concluded that Moncrief's claim, that he told Caucutt of the supposed call to Adams when he spoke to Caucutt on Monday morning, is not credible. The explanation Moncrief offers for the afternoon telephone call between them is simply not plausible. In this respect, the Commission finds significant the fact that (as disclosed by the arbitration award) Moncrief testified in the arbitration hearing that he called Caucutt on Monday afternoon, whereas he testified in the Equal Rights hearing that Caucutt called him. The Commission also finds significant the particularly telling slip by Moncrief in his testimony at the Equal Rights hearing in which he makes a reference suggesting that Sam Adams was the subject of the Monday afternoon telephone call, correcting himself (to refer to Sam Anderson, a union representative) only when prompted by counsel. (TR 200)

Moncrief's reluctance to advance an explanation for his failure to be at work in his initial meetings with Gardner management, and his assertion that he had unidentified "evidence" in his favor which then turned out to be completely unconvincing claims from his wife (who actually had no personal knowledge of whether Moncrief called), also contribute to the sense that Moncrief was furiously "backing and filling" to create an explanation that did not exist.

The Commission could speculate that, whatever the reason for Moncrief's failure to appear at work over the weekend of September 27--28 (i.e., whether he had arrived back in town but needed to care for his father, or whether he had not in fact even arrived back in town), he had failed to contact the employer in ill-advised reliance on his conversation with Dan Ramsey earlier in the month, and that he invented the story about his contact with Adams after his Monday morning phone call with Caucutt made him realize that the earlier conversation with Ramsey was not adequate. However that may be, the Commission's ultimate conclusion is that (whatever his motives) Moncrief did not in fact call in.

Moncrief argues that the Unemployment Compensation Appeal Tribunal ruling in his case should be treated as preclusive on the question of whether he called in on Saturday morning. The Commission disagrees. It has been recognized that where the allocations of burdens of proof differ, it is not appropriate to give collateral estoppel effect in an Equal Rights proceeding to an Unemployment Compensation determination. Christianson v. LIRC and City of Eau Claire (Eau Claire County Circuit Court, March 2, 1983). The burden of proof in the U.C. proceeding was on the employer, but the burden of proof in this proceeding is on Moncrief. The fact that the employer did not meet its burden of proving by a preponderance of the evidence in the U.C. proceeding that Moncrief did not call in, does not ipso facto mean that Moncrief must be considered to have met his burden of proving by a preponderance of the evidence in this proceeding, that he did call in.

The parties disagreed over whether the arbitration award rendered on Moncrief's grievance is entitled to any weight. The Commission believes that it is. In Krueger v. Wisconsin Dept. of Transportation and State Patrol (LIRC, October 4, 1982), the Commission held that an arbitration decision may be admitted in an Equal Rights hearing and given such weight as is appropriate under all the facts and circumstances of the case. There are a number of factors here that warrant giving the arbitration award at least some weight. The parties appeared at the arbitration hearing with counsel. The hearing focused very specifically on the factual issue of whether Moncrief called in. Moncrief, Adams, and others testified. Transcription of the hearing and briefing presumably allowed arguments to be submitted to the arbitrator in detail. The arbitrator's lengthy and reasoned decision reflects careful consideration of all of the evidence. In these circumstances the commission considers it appropriate to give weight to the arbitrator's conclusion. The Commission does not give it dispositive weight, but views it as a factor supporting its own similar conclusion on the credibility and factual issues presented by the case. The conclusion of the Unemployment Compensation Appeal Tribunal could be argued to also be entitled to some weight as a previous adjudication of this issue, even if it is not considered preclusive. However, it is not considered by the Commission to be entitled to as much weight, because of the fact that the parties were unrepresented, the ALJ's consideration of the evidence appears not to have been as thorough as that of the arbitrator, and the difference in burdens relieved the U.C. ALJ from the obligation of deciding whether Moncrief's evidence for his version of the facts was sufficiently persuasive to meet a burden of proof such as is imposed on him here.

Moncrief, claiming to anticipate an argument that the employer's belief that he had not called in was genuine albeit mistaken, argues responsively in his brief that this does not preclude a finding of discrimination, because Gardner treated him more harshly than comparably situated employes who had not filed discrimination charges. As has been noted above, an argument such as Moncrief anticipates (mistaken but good faith belief that he did not call in) is not in fact possible in this case. Moncrief's response to that argument is still potentially relevant, however, to the situation which the Commission has concluded did exist: that the belief that Moncrief did not call in was not merely held by Gardner in good faith but was also accurate. It is still the case that if Gardner disciplined Moncrief more harshly for his violation than it did similarly-situated employes, discrimination could be found. For the reasons described in the Findings of Fact, the Commission did not agree that the employes to whom Moncrief compared himself were so comparably situated to him that any persuasive inference of disparate treatment could be drawn from a comparison of how their cases were handled compared to his.

The parties disagree over the significance, if any, to be given a decision of an Equal Rights ALJ in a complaint of race discrimination filed by Bruce McDonald, a black person fired by Gardner for a "no show/no call" rule violation on October 20, 1986. Complainant, who argues that he was treated differently than an allegedly similarly-situated employe, Refiners, points to the finding of the ALJ in McDonald's case that race was involved in the different treatment of McDonald and Refiners.

The Commission declines to give any consideration to the McDonald decision because it is not a final and appealable one. It was a non-final decision issued by an Administrative Law Judge pending a determination of attorney's fees. The complaint in McDonald was subsequently dismissed on the basis of a private settlement before the ALJ ever issued the decision in final appealable form with attorney's fees. In these circumstances it is not appropriate to consider the document as a final decision might be considered.

Moncrief asserts that in the negotiations which preceded the settlement agreement which resolved his earlier discrimination complaints, Gardner offered him $8, 000 to give up his employment at Gardner. He argues that this shows a desire on the part of Gardner to be rid of him as an employe, which supports his claim that he was unlawfully retaliated against when he was discharged. Gardner argues that this evidence should not be considered because of the confidentiality provision in the settlement agreement, because it is contrary to the accepted rule against admissibility of settlement offers, and that it is in any event not probative because there has been no showing that the persons who made the discharge decision had any connection with the complaint settlement negotiations, which were being carried on by corporate counsel.

The Commission tends to agree with Moncrief that Gardner waived any right to rely on the confidentiality provision in the settlement agreement by itself disclosing the settlement agreement in the course of the investigation, and that the evidentiary rule concerning non-admissibility of settlement offers is not applicable here given the purpose for which Moncrief offers the evidence. The Respondent's argument about the probative value of the alleged offer is somewhat more persuasive. Most persuasive, however, is Respondent's argument that consideration of this evidence would have a chilling effect on the settlement of disputes under the Wisconsin Fair Employment Act, a process that should be encouraged. The Commission's views on this point have already led to the enunciation of a rule which governs this situation and disposes of the argument. Largely because of a desire to avoid creating a situation in which fear of its effect in future litigation discourages settlement, the Commission has held that where allegations of discriminatory conduct (or related factual allegations supportive of discrimination claims) are effectively resolved and foreclosed by a settlement agreement, those allegations will not thereafter be considered if offered as evidence in a later proceeding between the parties on a subsequent claim of discrimination. McKiernan v. Madison Metro Bus Company (LIRC, February 12, 1987), Helton v. Wesbar Corp. (LIRC, March 19, 1992). In this case, it is not the confidentiality provision of the settlement agreement that precludes introduction of the allegation of the buy-out offer as much as it is the substance of the settlement agreement itself. According to Moncrief, the offer was made in the course of the negotiations leading up to the settlement, and it was thus made before May 8, 1986 when the settlement was agreed upon. Also according to Moncrief, the offer of the buy-out was motivated by a desire to be rid of Moncrief because he had brought discrimination charges against Gardner. (This, presumably, is the very reason Moncrief believes the allegation is relevant to his retaliation claim.) But under the operative terms of the settlement agreement, Gardner is absolutely released from any and all claims, demands, causes of action, etc., arising out of conduct by Gardner prior to May 8, 1986. In short, the settlement agreement prevents Moncrief from making a claim that at any point prior to May 8, 1986 Gardner did something to him because of unlawful retaliatory motive. Because the settlement agreement prevents him from making that claim, the Commission will not hear him make that claim as a factual allegation in support of some other matter. McKiernan, Helton.

NOTE: The Commission has not relied to any extent on any kind of "official notice" as to what kinds of records are or are not available from the local telephone company. The question of whether the ALJ may have done so therefore does not need to be addressed.

110


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Footnotes:

(1)( Back ) Moncrief argued in the proceedings below that the issue of race discrimination was also presented by his discharge, but the Administrative Law Judge expressly rejected this argument based on her conclusion that that issue was neither raised by the complaint nor identified in the Notice of Hearing. in his petition for review and briefs to the Commission, Moncrief has not cited this ruling as error or argued it further, and the Commission thus traits it as having, been abandoned.

(2)( Back ) In consultation with the Commission, the ALJ stated that she recalled that Adams testified that he was not there that day, and that in his testimony Moncrief was not able to tell her the name of the person he talked to. In fact, as the transcript shows, Adams testified that he was there, and Moncrief testified that he talked to "Sam."

(3)( Back ) In its review, the Commission has considered the transcript of the hearing before the U.C. Appeal Tribunal. That transcript was offered as an exhibit by Complainant with no reservations as to limitation of purpose, and it :gas initially received without any such reservation after Respondent offered no objection. After it was received as an exhibit, Respondent suggested that the transcript should be considered only for a limited purpose, but Complainant would not agree to any limitation of purpose. In these circumstances the Commission feels it is appropriate to consider the transcript for any purpose, including impeachment.


uploaded 2001/03/07