Rucker v. State
| Decision Date | 15 May 1990 |
| Docket Number | No. 89-0904,89-0904 |
| Citation | 458 N.W.2d 390,156 Wis.2d 824 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Carl RUCKER, Petitioner-Appellant, v. STATE of Wisconsin, LABOR AND INDUSTRY REVIEW COMMISSION, the Department of Public Instruction and Higher Educational Aids Board, Respondents. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment of the circuit court for Milwaukee county: Lee E. Wells, Judge.
Circuit Court, Milwaukee County.
AFFIRMED.
Before MOSER, P.J., and SULLIVAN and FINE, JJ.
This appeal is the latest step in Carl Rucker's thirteen-year fight to prove that he was fired from his job because he opposed racial and sexual discrimination against another employee. The case arises under the Wisconsin's Fair Employment Act, secs. 111.31 to 111.37, Stats. (1977). 1 Specifically, Rucker is appealing from a circuit court judgment affirming an order of the Labor and Industry Review Commission (LIRC). LIRC found no discrimination. We affirm.
Rucker was employed in a supervisory capacity by the Higher Educational Aids Board, Division of Educational Opportunity (HEAB). Rucker and his immediate superior, Paul Spraggins, HEAB's Administrator, are African-Americans. The employee whom he sought to protect from discrimination was Mary Phillips, a white woman. She was initially employed as a secretary and was subsequently promoted to counselor in HEAB's Racine office. The other significant players are Jim Jung, the HEAB executive secretary, John Petterle, HEAB's personnel director, and Assistant Attorney General Robert Repasky, all of whom are white.
In February 1977, HEAB suspended Rucker with pay for one week. Rucker claims that the suspension was in retaliation for his opposing racially discriminatory conditions of employment. Rucker alleged that Spraggins had directed him to write a memo against the promotion of Phillips to the counselor position because the appointment of a white to the particular position would have "programatic [sic] concerns." Rucker also claims that Spraggins wanted to discriminate against Phillips because she had rejected Spraggins's sexual advances.
In response to the suspension, Rucker filed a charge of racial discrimination with the Equal Rights Division of DILHR (ERD). When Rucker was subsequently fired, he amended his ERD charge to allege that the discharge was in retaliation for his initial filing. Prior to the hearing, Rucker also amended the charge to add that he was suspended for objecting to sexual discrimination as well, i.e., Spraggins's sexual harassment of Phillips.
In addition to filing with ERD, Rucker filed a claim for unemployment compensation with DILHR and a charge of discrimination with the federal Equal Employment Opportunity Commission. He also unsuccessfully challenged the termination before the Personnel Board. Unemployment compensation was denied on a finding that Rucker was fired for misconduct. The federal discrimination case was initially decided against Rucker, but it was reversed by the Court of Appeals for the Seventh Circuit and scheduled for a new trial. The parties then agreed to abide by the ERD ruling rather than retry the case. This appeal involves the resolution of the ERD matter.
The termination letter identified Rucker's failure to follow various work rules as the reason for discharge. Specifically included were intentionally failing to follow Spraggins's directives, providing false information about his whereabouts during business hours, providing false information on his employment application, and refusing to turn in state property when directed. Other reasons were problems with Rucker's supervision style, and his failure to improve his style of supervision. Finally, the letter concluded that his intentional misstatements concerning his whereabouts and his refusal to report his activities were evidence of incompetency.
Rucker claimed, and the ERD hearing examiner agreed, that the reasons given in the termination letter were mere pretexts. After a lengthy hearing, the examiner found that the dismissal was in retaliation for Rucker's opposition to attempted racial and sexual discrimination against Phillips and in retaliation for the charge Rucker filed on his own behalf. The examiner found that dissatisfaction with Rucker's work developed because he refused to cooperate with Spraggins against Phillips. In the examiner's findings of fact, he stated that Phillips had told Rucker of Spraggins's unwanted sexual advances, that Rucker had reason to believe Spraggins would make such advances, and that Spraggins told Rucker they had to get rid of Phillips because she had rejected Spraggins. After Phillips applied for the counselor position, Rucker and Spraggins attended a meeting with two Milwaukee ministers who expressed concern about the employment of a white person in the counselor position. The hearing examiner found that Spraggins had arranged the meeting to suggest community opposition to Phillips and that Spraggins asked Rucker to write the memo. Even after Phillips was given the Racine job, she continued to have problems with Spraggins, and she ultimately filed a grievance against him.
The hearing examiner's findings were appealed, and LIRC reversed the findings. LIRC rejected several of the examiner's conclusions, including the conclusions that Rucker's strong community ties outweighed false material statements on his application and that Spraggins set up the ministers' meeting. LIRC found that vague complaints about Rucker's harsh and intimidating supervisory style surfaced about the time Phillips applied for the promotion. LIRC gave credence to testimony that Rucker had threatened Spraggins. After the threat, Jung contacted Repasky for assistance and ultimately directed Repasky to conduct an investigation. LIRC found that Jung ordered the investigation to deal with an obvious power struggle between Rucker and Spraggins. In concluding that Rucker had failed to establish that the discharge was retaliatory, LIRC relied heavily upon Repasky's testimony. Repasky recommended discharge and testified that the recommendation was unrelated to whether Spraggins also deserved disciplinary action. LIRC found that Repasky was not motivated by any desire to retaliate against Rucker and that Jung reasonably relied upon Repasky's recommendation.
HEAB contends that either res judicata or collateral estoppel bars Rucker from relitigating the reason for discharge. In deciding Rucker's unemployment compensation claim, LIRC ruled that he was fired for misconduct, i.e., a willful and wanton disregard of his employer's interests. See sec. 108.04(5), Stats. HEAB argues that the decision in that proceeding precludes further consideration of the reason for the discharge. This argument was advanced and rejected in a separate proceeding for a writ of prohibition, State of Wisconsin ex rel. La Follette v. DILHR, No. 80CV2988, slip op. at 6-7 (Cir.Ct.Dane Co.Wis. Dec. 17, 1980), and in the federal court action. 2 Both forums rejected HEAB's argument after finding that Rucker had been prevented from presenting evidence to prove that the discharge was discriminatory. This factual finding is controlling here through the doctrine of collateral estoppel. Collateral estoppel precludes relitigation of an issue of fact determined in a prior proceeding. See Crowall v. Heritage Mut. Ins. Co., 118 Wis.2d 120, 123-25, 346 N.W.2d 327, 329-30 (Ct.App.1984). Thus, collateral estoppel prevents HEAB from now challenging the findings of fact that Rucker was unable to fully litigate his discrimination claim in the unemployment compensation proceedings.
As to the merits of HEAB's contention, a final, valid judgment on the merits of a claim is conclusive between the parties if there was both identity of parties and of claims. DePratt v. West Bend Mut. Ins. Co., 113 Wis.2d 306, 310-11, 334 N.W.2d 883, 885 (1983). The first judgment operates as res judicata in any subsequent action on the same claim. Id. Adjudication by an administrative agency can also operate as res judicata. Restatement (Second) of Judgments sec. 83(1) (1980). Res judicata cannot be invoked, however, where the party against whom it is sought did not have an opportunity to obtain a full and fair adjudication in the initial proceeding. Desotelle v. Continental Casualty Co., 136 Wis.2d 13, 22, 400 N.W.2d 524, 527 (Ct.App.1986). Because Rucker was denied the opportunity to present evidence of his discrimination claim in the unemployment compensation hearing, the ruling in the unemployment compensation matter cannot be res judicata on the discrimination claim.
Similarly, the unemployment compensation decision does not operate as collateral estoppel. The application of collateral estoppel can be avoided when the party against whom it is sought establishes that he or she did not have " 'a fair opportunity procedurally, substantively and evidentially' " to present the claim in the initial proceeding. Crowall, 118 Wis.2d at 126, 346 N.W.2d at 331 (citation omitted).
HEAB also challenges LIRC's jurisdiction to consider the sex discrimination prong of Rucker's claim. HEAB argues that the notice of hearing did not raise the issue. The findings and recommendation of LIRC are limited to those issues specified in the notice of hearing. Chicago, M. St. P. & P. R.R. v. DILHR, 62 Wis.2d 392, 399, 215 N.W.2d 443, 447 (1974). In Chicago, Milwaukee, St. Paul & Pacific Railroad, the court held that there was no authority for a cease and desist order against discriminatory practices against "like situated employees or applicants for employment" where the written notice of hearing specified only "an act of discrimination due to handicap." Id. at 399-400, 215 N.W.2d at 446-47. The notice did not specify any ongoing acts of discrimination necessary to...
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