ZHENGNAN SHI, Complainant
UW SYSTEM BOARD OF REGENTS, 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:
In the first sentence of the third paragraph of page 4 of the ALJ's Decision, change "set" to "sent".
In the second sentence of the fifth paragraph of page 4 of the Decision, change "we" to "he".
In the third sentence of Finding of Fact No. 9, add "assist" between the words "to" and "people".
Delete Finding of Fact No. 10 and replace it with:
In September 2009 Dr. Jonathan Kane, who was a colleague of Dr. Shi's and was involved in his hiring, became concerned about the level of anger Dr. Shi was expressing to him about the members of his peer review committee for the 2010-11 year. Dr. Kane did not see any problem with the make-up of the peer review committee. Dr. Kane reported his concern to the Department chair, Dr. Letellier.
Dr. Shi did not work on a regular basis with the LEARN Center to improve his teaching until February 2012.
In the first sentence of Finding of Fact No. 22, change "themselves" to "himself".
Delete the third and fourth sentences of Finding of Fact 22 and replace them with:
One week Dr. Shi brought up the topic of the shooting twice to Dr. Kane in connection with a discussion of the stress that he felt at UW, asking Dr. Kane "Do you think I could have done that?" Dr. Kane, not wanting to be the person who heard warning signs but ignored them, told Dr. Shi he would have to report Dr. Shi's statements to Dean Pinkerton.
He provided the following conclusion to Chief Kiederlen:
During my investigation of Shi regarding his spring semester classes, I found no conduct by Shi that could have been considered as in violation of any violation [sic] enforceable by law enforcement. It was clear that those students that expressed complaints about Shi, complained that Shi was not a good "teacher". It should be made clear that all students that raised concerns or complaints reference Shi, were directed to contact Pinkerton.
Delete Finding of Fact Nos. 38 and 39.
In Finding of Fact No. 50, delete "concluded".
Delete the third and fourth sentences of Finding of Fact No. 53, and insert the following:
At one point in the document, however, it states:
Where is the department coming from with all of this nonsense? Is it racism? Xenophobia?
During these meetings the faculty considered both Dr. Shi's response received on February 18, 2011, and his "purple book," a book of materials selected by Dr. Shi for the committee's consideration.
Delete the last sentence of Finding of Fact No. 81.
Delete Finding of Fact No. 87.
In the ALJ's Memorandum Opinion, in the first sentence of the last paragraph on page 24, delete the words "when credibility consideration is limited".
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed September 11, 2015
shizhen_rmd . doc : 107 : 5 745
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Nonrenewal recommendation by MCS faculty
On appeal to the commission, the complainant aims much of his argument at the recommendation made by the MCS faculty not to renew the complainant's contract beyond the 2011-12 year-a recommendation that the respondent itself overturned upon the complainant's internal appeal to the FAGDC. The complainant's argument is that probable cause to believe that the recommendation was discriminatory is shown by the fact that those who voted not to renew his contract were white, Christian U.S. citizens, while those who voted to renew were non-white and of non-American heritage. Showing that the employer's decision-makers are of a different race, national origin or religion than the complainant, however, is not enough to support an inference of discrimination. Holdmeyer v. Veneman, 321 F.Supp.2d 374 (USDC Conn. 2004). A complainant's prima facie case usually involves evidence comparing the employer's treatment of the complainant to its treatment of similarly situated employees who are not in the complainant's protected class,(1) direct or circumstantial evidence sufficient to raise an inference that the employer's treatment of the complainant is based on his or her protected class,(2) or a combination of the two.
The complainant's evidence that the faculty recommendation was the result of discriminatory animus or a desire to retaliate for the complainant's expressions of opposition to perceived discrimination was insufficient. There was no direct evidence that any faculty member harbored a dislike for the complainant because he was Chinese. There was, on the other hand, evidence that the faculty had in the past recommended tenure of members who were Asian. In fact, in the fall of 2009, the faculty voted to renew the complainant's contract for one year, 2010-2011, which kept him on a tenure track, and it did so fully aware of his race and national origin. The renewal also occurred despite the complainant's having sent an email in September 2009 to a colleague making a veiled accusation that his peers were hostile to him because of "sinophobia."
The evidence does not support the allegation that a year later, when the faculty considered another renewal of the complainant's contract, his race, national origin, or his continued references to his peers' alleged sinophobia, had any more significance for the faculty than they did in 2009.
The complainant's evidence that the faculty vote of nonrenewal was the product of religious discrimination, or of his opposition to religious discrimination, was also insufficient. The only statement attributed to the complainant indicating that he felt he was being treated adversely due to the fact that he was an atheist was a message left on Professor Kane's phone in May 2010 ("I am being punished for my atheism"). There is no evidence connecting that statement to the faculty vote on nonrenewal, so it fails to show retaliation for opposition to perceived religious discrimination. The complainant cited several statements of faculty members indicating that they believed in God, or advocating being considerate of those who believe in God, but there is no indication in these statements of hostility toward anyone who does not believe in God.
The complainant's evidence is insufficient to rebut the nondiscriminatory reasons articulated by faculty members for voting against renewal of the complainant's contract, which included his difficulties teaching the 220 course, his teaching performance as measured by student evaluations,(3) several specific instances of bad interactions with students, especially the incident involving student RD, and several testy conversations with colleagues. The perceptions of the faculty members voting against renewal, whether or not they were accurate in every detail, were not shown to be pretexts for discrimination or retaliation.
Telfer's actions in February 2011
Similarly, the actions taken by Chancellor Telfer in February 2011--temporarily relieving the complainant of teaching duties on the recommendation of the Campus CARE Team subcommittee, and restricting his ability to be on campus on the recommendation of the campus police chief--were not shown to be discriminatory or retaliatory. Telfer was motivated by the information communicated to him by the CARE subcommittee and the police chief, which was gathered over the course of a year, focusing on accounts of the complainant's conduct. On its face, the four-page list of incidents presented to Telfer by the CARE subcommittee reasonably justified Telfer's decision. There is no evidence that Telfer himself harbored a dislike of the complainant because of his race, national origin, atheism or his accusations of sinophobia. The complainant's case depended on the argument that the individuals responsible for presenting the information to Telfer distorted it because of discriminatory or retaliatory animus, leading Telfer to unknowingly make a discriminatory decision. The complainant's evidence did not make that case.
Telfer's termination decision
Telfer's decision of May 4, 2012, rejecting the recommendation of the FAGDC, and terminating the complainant's employment as of August 2012, was based largely on Telfer's assessment of the complainant's teaching performance. This assessment was based not only on the accounts of specific complaints from students and criticisms of his teaching performance by colleagues, but also on an average score from evaluation forms completed by students. With respect to this last aspect of teaching performance, the complainant made an argument that he was treated differently from colleagues who were not in his protected class. The complainant contended, based on an email of a Professor Ahmadi, that two white faculty members (Szabo and Mickelson), who apparently became tenured, were evaluated according to the "global mean number," rather than from "question 23" on the evaluation forms. The complainant contended that if he had been evaluated by the global mean number his score would have been 1.5 points higher. This is the one example in which the complainant has contrasted his treatment with treatment of someone not in his protected class.
The evidence of disparate treatment, however, is too sketchy to support probable cause: A majority of the FAGDC could not say that the use of the different measurements prejudiced the complainant; Ahmadi's statement is hearsay; it is not clear in the evidence how the complainant's score would have been 1.5 points higher; and there is no evidence about Szabo and Mickelson to support a finding that they were similarly situated. For instance, there was no evidence about other aspects of Szabo's and Mickelson's teaching performance, such as whether colleagues had specific criticisms, or whether students had specific complaints; and there was no evidence about whether using the global mean number actually worked to the advantage of Szabo or Mickelson.
ALJ's ruling terminating discovery
Finally, the ALJ made a number of procedural rulings that the complainant challenged. In review of an ALJ's rulings on procedural issues and discovery, the commission applies a deferential standard, in which it asks whether the ruling was a reasonable exercise of discretion or an abuse of discretion. Silva v. City of Madison, ERD Case No. 90002000 (LIRC Nov. 12, 1993); Reed v. Heiser Ford, Inc., ERD Case No. 200504107 (LIRC Dec. 7, 2007); Anderson v. Columbia-St. Mary's Hospital, ERD Case No. 201201503 (LIRC Apr. 16, 2013).
The standard for whether a judge has abused his or her discretion has been established by case law. Generally, a ruling is not an abuse of discretion if a judge has "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Loy v. Bunderson, 107 Wis. 2d 400, 415, 320 N.W.2d 175 (1982); Paytes v. Kost, 167 Wis. 2d 387, 393, 482 N.W.2d 130 (Ct. App. 1992) (cited by the commission in Kutschenreuter and Schoenleber v. Roberts Trucking, Inc., ERD Case Nos. 200501465 & 200501422 (LIRC Apr. 21, 2011).
Regarding rulings of an evidentiary nature, even if it is determined that a judge abused his or her discretion, the judge's ultimate decision may still stand, unless a substantial right of a party is affected. Martindale v. Ripp, 2001 WI 113, 246 Wis. 2d 67, 88, 629 N.W.2d 698. For an error to affect the substantial rights of a party, there must be a reasonable possibility that the error contributed to the outcome of the case. Id. A reasonable possibility of a different outcome is a possibility sufficient to "undermine confidence in the outcome." State v. Dyess, 124 Wis. 2d 525, 544-45, 370 N.W.2d 222 (1985).
With one exception, the ALJ's rulings were not an abuse of discretion. The exception is the ALJ's pre-hearing order without warning terminating discovery months before the hearing.
In approximately March 2013, the ERD's hearing section started receiving copies of discovery requests that the complainant was serving on the respondent. The ERD hearing section chief asked one of the ALJs, Alice DeLaO, to set some discovery guidelines. ALJ DeLaO sent a letter to the parties in which she made it clear that she was not going to be assigned to hear the case, but she set a deadline for completion of discovery of August 9, 2013.
The complainant continued sending discovery documents to the respondent, and on May 10, 2013 respondent's legal counsel sent a letter to the head of ERD's Hearing Section, asking that the case be assigned to an ALJ so that the respondent could make a request for a protective order.
An ALJ was assigned to the case, and in his first letter to the parties, dated May 23, 2013, he declared:
I hereby determine that no more discovery demands will be allowed. Discovery was opened with the certification to hearing of the first case in June 2012, almost a year ago. This is a probable cause hearing. Significant discovery requests have been made. I am looking to schedule this matter for hearing in October. This case is already over three years old and needs to be heard. In order to meet the discovery deadlines and have this matter ready for hearing in October, this order is necessary.
As it turned out, the hearing did not start until March 2014, but the ALJ never modified his ruling prohibiting further discovery. The complainant asked the ALJ in September 2013 for permission to do more discovery, but the ALJ denied his request.
There is no doubt that the complainant was serving confusing and burdensome discovery requests on the respondent, and that a protective order would have been justified, but there was no justification or rationale to put a stop to all further discovery without warning five months before the expected hearing date (or, as it turned out, 10 months before hearing), especially considering that at that time the parties were about one month into a four-month period of discovery permitted by ALJ DeLaO.
It might be pointed out that putting an immediate end to discovery falls on both parties equally, but that fact does not make the act more rational. The question of whether an arbitrary act prejudices one side or the other is the second half of the abuse-of-discretion analysis. The first half, as noted above, is whether the judge has "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Administrative rule § DWD 218.14 grants the parties the right to engage in discovery once a case is certified to hearing. No distinction is made in the rule between whether the hearing is on the merits or on the issue of probable cause. It is true that the parties could have started to engage in discovery in late June 2012, and that the complainant did not start his discovery until early February 2013 (a little over seven months after discovery was allowed on the first ERD complaint; but only two weeks after discovery was allowed on the second), but considering that the ERD had set no hearing date, and the ALJ did not expect to set a date before October 2013, the complainant's delay in beginning discovery did not justify a surprise discovery cutoff. The ALJ's act was an abuse of discretion.
The complainant, however, has not articulated how the termination of discovery has prejudiced him. His only argument about the effect of the termination of discovery was a statement in his reply brief about his inability to obtain a full copy of a report, called the Mertens report, which was used by the FAGDC in overturning the faculty's nonrenewal recommendation. He has not articulated how his possession of the report might have altered his proof of discrimination in any specific way. Other than his reference to the Mertens report, the complainant has not mentioned any other discovery he would have undertaken, or how that discovery might have changed the outcome of the case. In addition, even without the availability of discovery, the complainant still had a wealth of documentary information, and still had the right to request that witnesses and documents be subpoenaed to hearing. For instance, as to his student evaluation score, he was in possession of the email from Ahmadi suggesting differential treatment compared to Szabo and Mickelson. He could have requested that Ahmadi be subpoenaed to the hearing, as well as Szabo and Mickelson, or Szabo and Mickelson's records, so that a comparison of student evaluation scores could be made. The termination of discovery may have presented an obstacle, but the complainant had a way around it; he failed to pursue it.
cc:
Attorney Jennifer Sloan Lattis
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(1)( Back ) Gruebling v. Wisconsin Bell, ERD Case No. CR200500835 (LIRC Aug. 26, 2011).
(2)( Back ) Oertel v. K & A Manufacturing Company, ERD Case No. CR201104472 (LIRC June 16, 2014), citing Troupe v. May Department Stores, 20 F.3d 734, 736 (7th Cir. 1994).
(3)( Back ) The complainant presented some evidence in support of a disparate treatment argument with respect to student evaluations, but it was not sufficient to show pretext (see discussion below under the heading "Telfer's termination decision").
uploaded 2015/09/24