CARL E SLOAN, Complainant
HUMAN DEVELOPMENT CENTER, 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, except that it makes the following modifications:
1. In the first sentence of the first paragraph of the ALJ's DECISION, change the word "employee" to "employ".
2. In the third sentence of the second paragraph of the ALJ's DECISION, change "Don Carlos, Jr." to "Don Carlos Scott, Jr."
3. In the fourth sentence of the second paragraph of the ALJ's DECISION, change "Mr. Carlos" to "Mr. Scott".
4. In the second sentence of the first paragraph of the ALJ's FINDINGS OF FACT, delete the word "the" in the phrase "to the troubled youth".
5. In the fifth sentence of the seventh paragraph of the ALJ's FINDINGS OF FACT, change the word "year" to "hour".
6. In the eighth sentence of the seventh paragraph of the ALJ's FINDINGS OF FACT, change the word "contracted" to "contract".
7. In the tenth sentence of the seventh paragraph of the ALJ's FINDINGS OF FACT, delete the word "in" in the phrase "employment in involving".
8. In the first sentence of the ninth paragraph of the ALJ's FINDINGS OF FACT, change the word "state" to "stated".
9. In the first sentence of the twelfth paragraph of the ALJ's FINDINGS OF FACT, change the word "that's" to "that".
10. In the ninth sentence of the thirteenth paragraph of the ALJ's FINDINGS OF FACT, change "2013" to "2012".
11. In the first sentence of the sixteenth paragraph of the ALJ's FINDINGS OF FACT, delete the word "shaped".
12. Delete the second paragraph of the ALJ's MEMORANDUM OPINION.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
August 29, 2014
sloanca_rmd . doc : 107 : 5 156
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
On June 5, 2012 [the respondent] was notified that "due to [the complainant's] extensive criminal histories that exhibit a high level of risk in providing services to Wraparound youth and families the individual would not be approved in the network."
There is no record that the complainant filed a complaint against Wraparound, and no one from Wraparound participated in the hearing in this matter.
Essentially, the ALJ concluded that the respondent had no choice but to deny employment to the complainant because of Wraparound's disapproval. In his petition for commission review, the complainant challenged the factual basis for that conclusion, asserting that the respondent made its own decision to hire him, and then retracted that decision because of its own concerns about the complainant's arrest record. In support of that version of the facts, the complainant testified that after submitting his application to the respondent, on which he reported two criminal convictions, he received a telephone call on
May 20, 2012 from someone identified as Sylvia Reed, who interviewed the complainant, told him he was hired, and invited him to attend training sessions for the position of crisis stabilizer. The complainant further testified that at his first training session, on May 25, 2012, the respondent gave him a packet of documents, including a Provider Consulting Services Agreement with an effective date of May 24, 2012, which he signed on May 25, 2012. He acknowledged that no one had signed the agreement on behalf of the respondent, and that he was told that after he signed the agreement and several other documents, that someone for the respondent would sign them. He further testified that while he was attending the second training session, on May 29, 2012, he met with Reed and Don Carlos Scott, a deputy director of the respondent, and that at this meeting Scott specifically questioned the complainant about his arrest record, then told him that his arrest record was too long, and that he could not stay in the respondent's employment. According to the complainant no one on behalf of the respondent told him that his application had to be approved by Wraparound.
The respondent did not offer any first-hand evidence concerning Reed's conversation with the complainant on May 20th, and the ALJ partially credited the complainant's version of what happened that day, finding that Reed did not make it clear to the complainant that his position as a crisis stabilizer could not be finalized until it had been approved by Wraparound. The respondent also offered no first-hand evidence about what happened at the May 25th training session, but the ALJ highlighted the fact that the documents the complainant was asked to sign on May 25th made reference to the respondent's reliance on Wraparound for payment of any services provided by the complainant.
The respondent offered testimony from Scott disputing the complainant's account of the meeting on May 29th. Scott testified that his motivation for wanting to meet with the complainant on May 29th was the fact that it was reported to him that on May 25th the complainant was telling others that he had been hired. Scott testified that this was a misapprehension by the complainant, and that the respondent could not offer employment until Wraparound had approved of the hiring.
Scott denied that he discussed the complainant's arrest or conviction record in detail in the May 29th meeting, and denied that he told the complainant that the respondent could not employ him. Instead, he testified that he told the complainant that the respondent did not have the authority to hire crisis stabilizers without Wraparound's approval, and that the complainant's application had been submitted to Wraparound, and that the respondent was still waiting for a response. He further testified that he told the complainant that he was welcome to continue to attend the training, pending Wraparound's decision on whether to approve his application, but that the complainant decided not to do so, and left.
The ALJ resolved the factual disputes concerning the May 29th meeting in favor of the respondent. In particular, the ALJ found that the respondent did not bar the complainant from employment on May 29th. Accepting June 5, 2012 as the date the respondent received the disapproval from Wraparound, the ALJ found that the respondent waited until after it received Wraparound's disapproval of the complainant's application before informing the complainant that it could not employ him as a crisis stabilizer, indicating that the respondent, rather than making its own decision to reject the complainant's application, continued to consider him an applicant after May 29th, and that Wraparound's disapproval was the crucial element causing the rejection of his application. (2) The ALJ was also persuaded to accept the respondent's version of the May 29th meeting over the complainant's because the complainant bore the burden of proof, meaning that the complainant's version had to be considered more credible than the respondent's in order to be accepted. The ALJ did not consider the complainant's version more credible than the respondent's.
The commission finds additional support for the respondent's version of the facts in the respondent's evidence of the relationship between itself and Wraparound. Scott testified that Wraparound was a mental health program through Milwaukee County's Health and Human Services Department that identified youth qualified for one-to-one crisis stabilization services, and referred them to the respondent's providers of those services, so long as the providers met criteria set out in county resolutions and in Wraparound's contract with the respondent. The service of crisis stabilization was described in the provider consulting services agreement as a medical service reimbursed by Medicaid. The agreement made it clear that the crisis stabilizer's compensation was contingent on monthly reimbursement by Milwaukee County for billed hours of service. Scott's description of the relationship between the respondent and Wraparound made it credible that Wraparound had to approve applicants for the crisis stabilizer position before they could be hired.
The commission realizes that it is seldom easy to resolve a case with two conflicting versions of the facts. However, the ALJ who conducted the hearing was in a good position to make a determination as to credibility and, where the two versions differed, the ALJ did not credit the complainant's version. The commission has found no reason in the testimony or elsewhere in the record to question the ALJ's credibility determination. Therefore it will defer to the judgment of the ALJ as to credibility. The commission finds that substantial and persuasive evidence supports the findings that the respondent did not have the authority to hire the complainant as a crisis stabilizer without the approval of Wraparound, which funded the position, and that the respondent only denied the complainant's application after it received a disapproval of his application from Wraparound.
Even given this set of facts, however, this case is somewhat similar to several commission decisions finding liability on the part of an employer whose defense consisted of pointing to the discriminatory motive of some third party as the cause for an adverse employment action. The first case in which the commission discussed this issue in depth was
Swanson v. State Street Stylists, ERD Case
No. 199600028 (LIRC Nov. 26, 1997). The commission's rationale concerning this issue is set out here in full:
The issue presented by this case is simply one of whether an employer violates the law when it knowingly makes an employment decision, which it would not have made itself, because some third party who is in a position to coerce the employer insists on that decision out of a discriminatory motive. The answer, generally, is yes: the employer who yields to such coercion with knowledge of the discriminatory motive behind it, has discriminated. The classic example of this is the "customer preference" area: the situation in which an employer disclaims any bias, but asserts that the employer's customers will withdraw their patronage unless the employer discriminates. The law's answer to this assertion is unsympathetic. The landmark case here is Diaz v. Pan American World Airways, Inc., 442 F. 2d 385, 389 (5th Cir. 1971), cert. denied, 404 U.S. 950, 92 S. Ct. 275, 30 L. Ed. 2d 267 (1971). In this case, Pan Am sought to avoid liability for sex discrimination in the selection of flight attendants by explaining that, even though it did not care what sex these employes were, its customers preferred female flight attendants and it would be at a competitive disadvantage if it did not provide what the customers wanted. The court rejected this argument, observing that to permit an employer to circumvent the dictates of the antidiscrimination statute by declaring an individual unfit because of the prejudices of others would be "totally anomalous" with the purposes of the law.
This construction of the law is not limited to cases in which the third party pressure on the employer arises from customers. It is also not limited to sex discrimination cases. Thus, for example, it has been recognized that an employer can not avoid liability for discrimination against a handicapped employe by explaining that it was not biased but that co-workers were: the "unreasonable and unfounded fears of co-employees is not an exception to an employer's obligation not to discriminate against a handicapped person." Jansen v. Food Circus Supermarkets, 110 N.J. 363, 373, 541 A. 2d 682, 687 (1988); see also Leonard, AIDS and Employment Law Revisited, 14 Hofstra 53 Empl. Prac. Dec. (CCH) 40,021 L. Rev. 11, 40-41 (1985). It is similarly forbidden to refuse on racial grounds to hire someone because customers or clientele do not like his race. Rucker v. Higher Educ. Aids Bd., 669 F. 2d 1179, 1181 (7th Cir. 1982) (citing Fernandez v. Wynn Oil Co., 653 F. 2d 1273, 1276-77 (9th Cir. 1981)); see also 29 C.F.R. § 1604.1(ii) (stating "the refusal to hire an individual because of the preferences of co-workers, the employer, clients or customers" not permissible under Title VII).
Reduced to its essence, the salient principle of Diaz is that an employer may not discriminate simply because some third party urges or pressures it to do so. Platner v. Cash & Thomas Contractors, Inc, 908 F. 2d 902, 905 n. 5 (11th Cir. 1990), 53 Fair Empl. Prac. Cas. (BNA) 940. The source of the third party pressure is not relevant. Whether it is the unwillingness of biased customers to patronize a business, or the unwillingness of biased employes to work there, or the unwillingness of biased suppliers to sell to the business, or the unwillingness of biased investors or lenders to provide financial backing for the business, the extent of the pressures brought to bear on the business may be equally serious, but the law remains the same: the employer may not serve as a conduit for the discriminatory intent of the third party.
A commission decision reflecting the spirit of this rule, is Stanton v. Abbyland Meat Processing, Inc., May 30, 1985, aff'd, Abbyland Processing v. LIRC, Taylor Co. Cir. Ct., No. 85-CV-53, February 14, 1986. In that case, the employer discharged an employe because another employe, whose services the employer did not wish to lose, was insisting on it. The other employe's desire to see Stanton terminated arose from his resentment at her unwillingness to enter into a romantic relationship with the other employe -- a motivation which would be illegal if acted on by an employer. The commission held that by acquiescing to the pressure from this other employe to fire Stanton, the employer violated the Fair Employment Act. In effect, by doing what the third party (the other employe) was pressuring it to do because of an improper motive, the employer itself acted because of an improper motive.
The commission proceeded to find in Swanson that the owner of the employer, who was in negotiations with another individual to form a partnership, knew that the potential partner wanted a particular employee fired because of that employee's record of disability, and acquiesced to the potential partner's condition that he fire the employee as a condition of forming the partnership. The commission concluded:
The fact that the desire to discriminate may have originated with a third party is no defense, because whatever the origin of that discriminatory motive, the employer knew of it, and carried it out. The employer therefore engaged in discrimination.
Similarly, the commission held that a business owner who decided to discharge an employee because she was pregnant, in order to attempt to make the business more attractive to a party who was in negotiations to purchase the business, had engaged in unlawful discrimination. Trainor v. Hanson, DDS, S.C., ERD Case No. 199703044 (LIRC Apr. 28, 2000). And in Murray v. Waukesha Memorial Hospital, Inc., ERD Case No. 199901234 (May 11, 2001), the commission held that an employer who discharged a nurse because of a fear that his criminal conviction would attract negative media attention if he were to continue in employment, had engaged in unlawful discrimination.
The liability of each of the employers in Swanson, Trainor and Murray was based on two factors: first, that it knew, or believed, that a third party either had or would have a negative attitude about an employee based on that employee's protected status under the WFEA; and second, that even though it had the ability to not acquiesce to the perceived discriminatory animus, it submitted to it by taking an adverse action against the employee.
Here, as to the first factor, it appears that the respondent had a belief, at least, that Wraparound had rejected the complainant's employment application because of his "extensive criminal histories," an ambiguous phrase that could have referred to the complainant's conviction record, arrest record, or both. If the respondent had maintained some control over the hiring process, its decision to carry out what it believed to be Wraparound's desire not to hire the complainant because of his arrest or conviction record could have exposed the respondent to liability. (3)
The respondent's lack of control, however, separates this case from the others. In Swanson, Trainor and Murray, the question of whether to take an adverse action against the employee was still in the control of the employer, regardless of the amount of pressure the employer felt from the third party. Here, as noted above, the respondent and Wraparound had divided their authority over the respondent's workforce in such a way that the respondent had ceded its hiring authority for crisis stabilizers, and its ability to pay them, to Wraparound, and did so prior to and independent of the occurrence of the facts giving rise to the complainant's complaint. In this unique set of facts Wraparound's rejection of the complainant's application serves, for the respondent, as a separate, non-discriminatory cause of the complainant's non-hiring.
NOTE: The last paragraph of the ALJ's Memorandum Opinion has been deleted because there is insufficient evidence in the record to support anything more than speculation about the actual reasons that Wraparound rejected the complainant's application. The letter the respondent produced, purporting to quote Wraparound to the effect that its rejection was based on the complainant's criminal history, was hearsay.
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