MADISON, Wis. -- A Madison Equal Opportunity Commission hearing examiner has found that CUNA fired a former top executive for complaining about his boss's racist and sexist comments. If upheld, the ruling could force CUNA to pay a substantial amount in back pay and damages.
Last week, Clifford Blackwell of the Madison Equal Opportunity Commission recommended that CUNA pay former Senior Vice President for Association Services Mike Miller $75,000 in damages, as well as back and front pay, benefits, and to reimburse his legal expenses.
CUNA fired Miller on Sept. 9, 2004 "because of his exercise of his right to oppose a discriminatory practice on the part of [CUNA Chief Operating Officer-Madison John] Franklin," Blackwell wrote.
He added that Miller's "continuing objections to Franklin's sexist, racist and homophobic comments played a motivating role in his termination."
On the subject of CUNA's work environment, Blackwell said the association has an "unusually high level of internal fighting and personality conflicts," and, while noting that CUNA President Dan Mica has tried to change that aspect of the culture, it did not happen in this case.
Blackwell's decision must be approved by the full commission. The commission's decision can be appealed within the state court system in Wisconsin. Miller's attorney Michael Fox said they also plan to file a federal lawsuit.
Fox said he is pleased with the decision because Blackwell "accepted our arguments on every major point."
CUNA Vice President of Communications Pat Keefe said in a statement that his organization "strongly disagrees with the findings of the hearing examiner of the Madison Equal Opportunities Commission. CUNA does not discriminate or retaliate against any of its employees under any circumstances and did not do so in the case at issue. CUNA will aggressively explore all options to appeal the decision. Until that decision is made, CUNA cannot comment any further about this case.''
Blackwell sharply criticized how Mica and CUNA Executive Vice President Richard McBride handled the case.
The hearing examiner also said that Mica was more involved in some of the day-to-day decision making than CUNA often led on. Blackwell added that McBride's testimony that he recommended firing Miller solely because of performance issues "simply does not ring true."
McBride, the No. 2 person in CUNA's Washington office, has been a friend and business colleague for Mica's for 30 years. He was a top staffer to Mica when Mica was a Democratic congressman from Florida.
Blackwell also said McBride's efforts to broker some kind of reconciliation between Franklin and Miller "strains the hearing examiner's credulity."
Miller complained to his superiors after Franklin made a range of what Miller considered inappropriate comments, including encouraging Miller to have sexual relations with current and prospective board members. Miller also said that Franklin made a derogatory remark about a credit union league president's homosexuality. Franklin, a former president of the South Carolina Credit Union League, said to Miller "they just don't make league presidents like they used to."
Miller said other employees who heard those and other comments had complained to him and he in turn complained to others within CUNA. Executives at CUNA ordered Franklin to apologize but in one of its filings with the EOC in response to Miller's complaint the organization said Franklin's remarks were made in what he considered to be "a small group of men whom he considered to be friends."
Blackwell said CUNA's response to Miller's complaints "do not appear consistent or logical."
The situation was complicated by the fact that Miller applied and was turned down for the job Franklin was ultimately hired for. CUNA said Miller lacked the maturity for the position and that appraisal was backed up by the independent human resources consultant that CUNA hired to help fill the post. Franklin, who was on the board of the consulting firm, HR Value Group, a Chicago-area firm, had recently been fired from the presidency of the South Carolina Credit Union League.
Miller contended that he was fired in retaliation for complaining about Franklin's comments, while CUNA maintained that Miller was fired because he was trying to undermine Franklin's efforts to reorganize and improve the work environment at CUNA-Madison.
Blackwell said he needs additional information before determining the amount of back pay and front pay to recommend CUNA pay Miller. The front pay would finance Miller's efforts to obtain additional education so he can build up the consultancy he began since leaving CUNA. Miller has been unable to find full-time work since he was fired by CUNA and his consulting work has brought in much less money than he made from CUNA.
In an interview, Blackwell said this case was the longest and most complex one he has handled. The hearing record contained about 2,700 pages and 15 volumes of testimony. The hearing in this case lasted 15 days, while most hearings of this kind last two or three days.
"The length was the result of the way the attorneys decided to litigate the case. The decisions about what theories they used and what evidence could be contested contributed to that," he said.
About 250 cases are filed with his office each year, 85% are employment related and 90% are resolved by mediation.
Nationally, about 40% of all employment-related discrimination lawsuits that are filed involve a complaint about retaliation, according to Jonathan Segal, a Philadelphia lawyer who represents companies in this kind of litigation.
Segal said the number of sexual harassment cases has leveled off in recent years while there has been an increase in racial and other harassment suits. He said that many companies don't do enough employee education in this area because "they mistakenly think that everybody gets it."
He also said while the law makes it clear that the defenses of "we were joking" or "it was consensual" are not acceptable, the courts have made it clear that not every offensive comment is unlawful; for harassment to exist it must be "severe or pervasive," Segal said.