Woods v. Midwest Conveyor Co. , 236 Kan. 734 ( 1985 )

The opinion of the court was delivered by

Herd, J.:

This is an appeal from the second trial of a racial discrimination action filed by William C. Woods. Appellant Midwest Conveyor Company, Inc., appeals the district court decision which held appellee Woods’ termination was discriminatory.

Appellee Woods filed his complaint against Midwest Conveyor Company, Inc. with the Kansas Commission on Civil Rights in September, 1977. The complaint alleged the termination of appellee’s employment with Midwest Conveyor constituted racial discrimination.

Appellee, who is a black male, was originally employed by appellant as an entry level laborer. He received job training and was promoted twice. At the end of three years he held the position of painter, second class. During a work force reduction, appellee was “bumped” by a senior employee from his painter position to production operator.

Appellant maintained an absence control policy under which points were assessed for absences from work. Under this policy, appellee was disciplined several times. However, it was found that white employees were not held to the absence control policy and absences from work and tardiness of whites were overlooked by the supervisors. It was the application of this absence control policy, which had been incorrectly calculated, which led to appellee’s termination.

The Kansas Commission on Civil Rights and the district court both found appellee was subjected to a pattern of racial discrimination over an extended period of time by appellant. The discrimination was held to have been the cause of appellee’s termination. Appellee was awarded back wages and compensatory damages for pain, suffering and humiliation.

Midwest appealed to this court. We reversed and remanded the case for a new trial holding the trial court utilized an improper burden of proof and improperly awarded damages for pain and suffering. Woods v. Midwest Conveyor Co., 231 Kan. 763, 648 P.2d 234 (1982) (Woods I). Upon retrial judgment was entered in favor of Woods for back wages and interest, totalling $62,499.04 and reinstatement. Midwest again appeals.

This court’s first consideration is the proper scope of appellate review. In City of Council Grove v. Ossmann, 219 Kan. 120, Syl. ¶ 1, 546 P.2d 1399 (1976), we held:

“Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law.”

Further, the findings adopted by the trial court will not be set aside unless they are clearly erroneous. 219 Kan. at 126.

Midwest concedes the rule set forth in City of Council Grove v. Ossmann is the general standard but contends a different standard should apply in cases such as this where no “live” testimony was introduced. A similar argument was presented to the Kansas Court of Appeals in Webb v. City of Leavenworth, 8 Kan. App. 2d 525, 661 P.2d 1 (1983), and rejected. Further, K.S.A. 44-1011 states that in appeals from KCCR orders:

“The jurisdiction of the district court of the proper county as aforesaid shall be exclusive and its final order or decree shall be subject to review in the same manner as other appeals from the district court in civil cases.”

We conclude, therefore, the general rule relative to appellate review applies in this case. Thus, where the trial court has made findings of fact and conclusions of law in a trial de novo arising from a Kansas Commission on Civil Rights proceeding, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law.

The first time this case was before this court, one of the issues concerned the applicable burden of proof. In Woods I we held:

“The burden of proof in a proceeding under the Kansas Acts Against Discrimination, K.S.A. 44-1001 et seq., is on the complainant to prove by a preponderance of the evidence that the respondent is guilty of a discriminatory practice. Initially, the complainant must present a prima facie case of discrimination. Then the burden of going forward with the evidence shifts to respondent and this burden may be discharged by evidence of a legitimate, nondiseriminatory reason for respondent’s conduct. Once the respondent discharges this obligation, the complainant must continue with the burden of proving by a preponderance of the evidence that the reasons offered by -respondent were merely a pretext for discrimination.” Syl. ¶ 2.

Disputed evidence was presented on whether Woods and other black employees had been discriminated against in various matters including tardiness, absenteeism, and selling goods on the job to other employees. The trial court found evidence of discrimination and concluded Woods had met his burden of presenting aprima facie case his termination was discriminatory. Under the proper scope of review previously discussed, our role on appeal is to determine whether there is substantial competent evidence to support the findings of discriminatory conduct and the conclusion the requisite prima facie case had been presented. We have reviewed the record and hold there is sufficient competent evidence to support the trial court’s determination that Woods had met his burden of presenting a prima facie case of discriminatory termination.

As stated in Woods I, the burden of going foward with the evidence then shifted to Midwest, which may discharge the burden “by evidence of a legitimate, nondiscriminatory reason” for Woods’ termination. Appellant claimed Woods’ threatening conduct, as well as his use of abusive language towards his supervisors, resulted in his termination. The KCCR and the trial court both found appellant’s reasons offered for Woods’ termination were not legitimate, nondiscriminatory reasons. We must determine if this finding is supported by substantial competent evidence.

Let us review the facts from William C. Woods’ point of view, since he was the prevailing party below. That is the proper perspective when examining a record for substantial competent evidence to support a trial court’s findings.

Woods had vacation time coming. He followed company procedure and notified the office of the days he would be gone. He stated he would be gone from August 3 to August 10. He concluded this was “five days.” An official of Midwest noticed Woods’ proposed vacation dates encompassed six days, rather than five. The official unilaterally decided to mark through the number 10 and made it a 9, unknown to Woods. Woods returned to work on the 11th, as he had indicated. He was called to the office and advised that his late return caused the company to fire him. This injustice, coupled with the long history of racial discrimination, angered Woods.

A meeting was held in a small office on the premises. Woods was surrounded by four white senior employees whom he considered antagonistic towards him. He tried to show them the company had made a mistake. None would listen. Woods shouted and used profanity but was still ignored. The company personnel manager, Mr. Joslin, who was one of the four white men, started to walk away and leave the scene. Woods shouted that Joslin could not leave the room until he had shown him the mistake. Joslin proceeded out. Woods placed his hand on Joslin in a restraining manner and moved between Joslin and the door. At the same time, Woods removed a ten-inch crescent wrench from his overalls. He waved it in the air and banged it on the table to get everyone’s attention. Joslin stated he was going to call the police. Woods placed his hand on the telephone, preventing the call. Finally, Woods had the men’s attention. They called in a mediator and reluctantly concluded Woods’ claim was correct. He had not returned late and his termination was therefore unlawful. In spite of the mistake, management was determined to fire Woods. It was then decided to fire Woods for getting angry at management for trying to fire him without just cause. It was suggested he should have gone quietly and filed a grievance. Such action sounds rational, but it was an impractical solution to William Woods’ problem. He had previously filed grievances from which nothing transpired. He had been subjected to a pattern of racial discrimination for a long period of time at Midwest. He had been unjustly accused of overstaying his vacation. No one would listen to his side of the dispute. He considered this a mere continuation of the racial discrimination. He protested in righteous indignation, demanding that management listen to his side of the story. He proved he was correct. He testified his waving the wrench and placing a restraining hand on Mr. Joslin were not threatening gestures, but merely an effort to be heard. His testimony was corroborated by John A. Sanders and the circumstances of the meeting. The Civil Rights Commission examiner, who heard the testimony, believed William Woods, as did the trial court.

After Woods discharged his burden of proof by introducing evidence of Midwest’s discrimination, Midwest testified Woods was fired because of his restraining Joslin, brandishing a wrench and using abusive language. It claims this is a nondiscriminatory reason for Woods’ termination. The Civil Rights Commission and the trial court found Midwest’s reason for firing Woods to be a subterfuge and William Woods had sustained his burden of proof that he was fired as a result of racial discrimination. We are bound by that finding of fact if it is supported by substantial competent evidence. We conclude it is so supported. Now let us turn to the question of damages. An employee improperly discharged because of discrimination is entitled to receive the back pay including raises he would have received but for the illegal termination, less wages earned in mitigation. See 2 Larson on Employment Discrimination §§ 55.23 and 55.37 (1982).

The trial court made the following determination on this issue:

“30. The Complainant suffered loss of wages as a direct and proximate result of the discriminatory acts of Respondent and is entitled to an award for loss of wages in the amount of $62,499.04, job reinstatement, interest from the date of the order herein and an order to Respondent directing Respondent to cease and desist unlawful discriminatory practices.

“31. The record herein does clearly reflect the rate of pay the Complainant was receiving and what he would have received but for the discriminatory conduct of the Respondent. Complainant met his duty to mitigate his damages by reasonably and continually seeking and accepting comparable work and benefits. Complainant would have been entitled to $5.90 per hour for a forty (40) hour week or $236.00 per week from the week of August 15, 1977. On May 27, 1978, the Complainant would have moved to the next wage scale by reason of the fact that he would have been in Respondent’s employ for two (2) years. The new wage scale would have been $6.25 per hour plus a night differential of $.20 per hour or $6.45 per hour or $258.00 for a forty (40) hour week. As of May 27, 1979, he would have moved to a pay rate of $7.00 per hour plus $.20 per hour night differential or $7.20 per hour or $288.00 per week up to the time of the public hearing. The above pay rate basis is computed as follows:

$ 236.00 Per Week x 41 Weeks from August 15, 1977 thru May 26, 1978

$ 9,676.00

$ 258.00 x 52 Per Week Weeks from May 29, 1978, thru May 25, 1979

$13,416.00

$ 288.00 x 34 Per Week Weeks from May 28, 1979 to January 19, 1980

$ 9,792.00

$ 9,676.00 13,416.00 9,792.00

$32,884.00 Total Complainant would have earned to date of original KCCR public hearing.

Interim earnings of Complainant to date of original KCCR public hearing were as follows:

Unemployment Compensation:

$ 77.00 x 20 Weekly Benefit Weeks from November 9, 1977, to March 17, 1978 $ 1,540.00

29.99 Weekly Benefit for Week ending March 24, 1978

$ 1,569.00 Total Unemployment Compensation

Economic Opportunity Foundation, Inc. (Kansas City, Kansas)

$ 5,466.10 2,148.00 For Year, 1978 For January, February & March, 1979 @$716 per month

$ 7,614.10

“It must be noted at this point that the duty to mitigate one’s damages when wrongfully discharged demands only reasonable efforts in that regard. In that case it did not require Complainant to maintain his employment with Kansas City, Kansas in 1979, when he had an opportunity to gain a better paying position at another job. The Kansas City, Kansas job paid less than what he would have been earning at Respondent had Respondent not fired him. If he had a reasonable opportunity to gain employment at a rate of pay closer to that which he lost at Respondent, he had a duty to try to do so. Otherwise, Respondent would now be arguing that Complainant’s failure to reasonably seek that better paying job should bar him from wage loss award. The fact that Complainant’s reasonable efforts to procure a higher paying job in California failed does not bar him from damages. He did not actually have to procure the job and mitigate his damages. He just had to try, which he did. He met his duty of mitigation, proved the wage loss and is entitled to the award of the Commission and District Court of $23,700.90 to date of original Kansas Commission on Civil Rights public hearing.

Total Earnings

$ 1,569.00 7,614.10 $ 9,183.10

Total Net Wage Loss to Date of Original KCCR Public Hearing

$32,884.10 -9,183.10 $23,700.90

“By agreement of the parties an evidentiary deposition of William Woods was taken on March 18, 1983. The purpose of the deposition was to update the situation as to wage loss, interim earnings, mitigation of damages, etc., to determine whether Mr. Woods would be entitled to an award for lost wages since the original Kansas Commission on Civil Rights hearing. Recognizing that during the long period while the case has been on appeal since the Kansas Commission on Civil Rights hearing, Mr. Woods may have incurred more losses which were continuing up to the Kansas Commission on Civil Rights hearing according to the Kansas Commission on Civil Rights order, the Court allowed this procedure. The testimony and evidence at that deposition reveal that:

“Had Complainant not been terminated at Midwest Conveyor he would have continued working as a full time employee in that position of production operator during the period since the original Kansas Commission on Civil Rights hearing (said period after January 21,1980, has not been addressed so far) until October 5, 1982, when he would have been laid off in a reduction of force. He would have been laid off and making no wages from Midwest Conveyor Co. from the October 5, 1982, layoff to the present date. Therefore, as a direct and proximate result of his discriminatory discharge by Respondent, Complainant lost wages from January 21,1980, to October 5,1982. He is entitled to have an additional award from this Court for the loss of wages which continued past the date of the Kansas Commission on Civil Rights public hearing and up to which time only the original Kansas Commission on Civil Rights order had addressed. Said amount should be offset by any wages he actually earned in that period.

“His hourly wage as of January 21, 1980 (as set out in Complainant’s figures above) would have been $7.20/hour. Had Woods not been terminated, he would have made at least $7¡20/hour and worked forty (40) hours per week from January 21, 1980, through October 5, 1982. If Mr. Woods had actually procured comparably-paying, full time permanent employment in that time period (or if he had refused such employment when available) perhaps his entitlement to an award for the continuing wage loss would have ceased at that point. However, he never found such comparable work. He had some temporary work in 1980 under a CETA program with Economic Opportunity Foundation at which his hourly earnings were apparently less than $3.00/hour (39 days, 8 hours/day for a total of 312 hours, gross wages $805.94 which equals $2.26/hour), some work at Perfection Motor Services at which he made about $4.17/hour (see below), and a few menial odd jobs which involved a total of $110.00 gross earnings over two years and certainly were not $7.20, or more, per hour jobs.

“As above set out, by January 21, 1980, Complainant was making $288.00 weekly gross wages. This amounts to $57.60/8-hour day or $7.20/hour.

“Looking at a 1980 calendar, it appears there were 251 week days for which Woods would have been paid either for actually working (or for which he would have had vacation or other leave if absent and would have been paid for). Two hundred fifty-one (251) days multiplied by $57.60 per day equals a loss of gross wages in 1980 of $14,457.60.

“In 1981 he would have had 261 paid weekdays/workdays. Two hundred sixty-one (261) days multiplied by $57.60/day equals a loss of gross wages in 1981 of $15,033.60.

“In 1982 up to October 5,1982, when he would have ceased making wages due to layoff, there would have been 198 weekdays/workdays. One hundred ninety-eight (198) days multiplied by $57.60/day equals a loss of gross wages in 1982 of $11,289.60.

“Thus, his total additional loss of gross wages from January 21, 1980, to October 5, 1982, was $40,780.80.

“That figure must be offset by what he actually made in that period. He received no interim unemployment benefits. Mr. Woods worked at Perfection Motor Services from August 28, 1982, to beyond October 5, 1982. He made $200.00/week gross wages for a 48-hour work week. That amounts to a wage rate of $4.17/hour or $33.36 day. From August 28, 1982, to October 5, 1982, there were five (5) full weeks and two (2) workdays when he earned wages. Thus, he made $1,066.72 which must offset his loss of wages. He also made $805.94 at the EOF job in 1980 which must offset. He also made $110.00 at odd jobs. Thus, his total interim compensation from January 21, 1980, to October 5, 1982, was:

$1,066.72 805.94 110,00

Total $1,982.66

Therefore, Woods should be awarded an additional net wage loss from Respondent by this Court in the amount of $38,798.14 ($40,780.80 less interim earnings of $1,982.66) for the period of January 21, 1980, to October 5, 1982.

“Thus, the total award which this Court must now award Woods for loss of wages is $62,449.04 which represents a net loss of $23,700.90 to January 21, 1980 (date of Kansas Commission on Civil Rights hearing) plus the net loss from January 21, 1980, to October 5, 1982.”

The record adequately supports Woods’ claim for damages with proper mitigation and efforts to mitigate, stated as follows by the trial court:

“Ultimately to survive, he [Woods] was forced to seek and accept welfare, food stamps, and emergency energy assistance. (Amounts received from welfare and public assistance programs are not compensation or wages which must be considered to offset interim wage loss, so the amounts he received from such programs is irrelevant to a computation of net interim wage loss. Also, while the duty to mitigate wage loss does not require seeking welfare-type assistance, the fact is that Woods left no stone unturned in his efforts to survive his discriminatory discharge.)”

We conclude the findings of fact of the trial court are supported by substantial competent evidence and therefore will not be disturbed on appeal.

Though the author of this opinion would order reinstatement of William Woods to his position with appellant, a majority of this court believe reinstatement improper in this case because of the animosity between the parties.

The judgment of the trial court is affirmed except the appellee shall not be reinstated.