1 1 BEFORE THE STATE OF INDIANA 2 CIVIL RIGHTS COMMISSION 3 - - - 4 5 PUBLIC MEETING OF MAY 27, 2016 6 7 8 - - - 9 PROCEEDINGS 10 in the above-captioned matter, before the Indiana 11 Civil Rights Commission, Alpha Blackburn, 12 Chairperson, taken before me, Lindy L. Meyer, 13 Jr., a Notary Public in and for the State of 14 Indiana, County of Shelby, at the Indiana 15 Government Center South, Conference Center, 16 Rooms 1 and 2, 402 West Washington Street, 17 Indianapolis, Indiana, on Friday, May 27, 2016 at 18 1:11 o'clock p.m. 19 - - - 20 21 William F. Daniels, RPR/CP CM d/b/a ACCURATE REPORTING OF INDIANA 22 12922 Brighton Avenue Carmel, Indiana 46032 23 (317) 848-0088 2 1 APPEARANCES: 2 COMMISSION MEMBERS: 3 Alpha Blackburn, Chairperson Sheryl Edwards 4 Steven A. Ramos Michelle McKeown 5 Ahmed Young 6 INDIANA CIVIL RIGHTS COMMISSION 7 By Richard Hite, Director/Secretary & Barbara Malone, Deputy Director 8 Indiana Government Center North 100 North Senate Avenue, Room N103 9 Indianapolis, Indiana 46204 On behalf of the Commission. 10 11 OTHER COMMISSION STAFF PRESENT: 12 Shumura Trammell John Burkhardt 13 - - - 14 15 16 17 18 19 20 21 22 23 3 1 1:11 o'clock a.m. May 27, 2016 2 - - - 3 CHAIRPERSON BLACKBURN: Good 4 afternoon. The Indianapolis -- I'm sorry. The 5 Indiana Civil Rights Commission is now in public 6 meeting, and we do have a quorum. I would ask 7 then for approval and adoption of the meeting 8 minutes which you received. 9 COMM. RAMOS: So moved. 10 COMM. YOUNG: Second. 11 CHAIRPERSON BLACKBURN: And all in 12 favor? 13 COMM. EDWARDS: Aye. 14 COMM. YOUNG: Aye. 15 COMM. MCKEOWN: Aye. 16 COMM. RAMOS: Aye. 17 CHAIRPERSON BLACKBURN: Aye. 18 Anyone opposed? 19 (No response.) 20 CHAIRPERSON BLACKBURN: Thank you. 21 And now to our Executive Director's 22 Report. 23 MR. HITE: Good afternoon, Madam 4 1 Chair and members of the Commission. 2 COMM. YOUNG: Good afternoon. 3 COMM. MCKEOWN: Good afternoon. 4 CHAIRPERSON BLACKBURN: Good 5 afternoon. 6 MR. HITE: I'll be as brief as I can. 7 I know we have things on the schedule. I just 8 want to say thank you for all of those who, first 9 of all -- first, thank you for those who sent the 10 invitation to be part of the Commission reports 11 when we have incidents or issues and challenges. 12 We offered for you to help us. 13 We had a situation with the ALJ. We had 14 some consultation and advice relative to that. 15 We had one of our members who was the ALJ move 16 on, and we had members of the Commission for that 17 going-away ceremony, and kind of moving on to 18 bigger and better things. I want to thank you 19 for that. 20 A lot of things have been happening at the 21 Commission, and we want to make sure that we 22 share some highlights of our last 30 to 90 days. 23 As you know, we just moved into the positions, 5 1 and I'd like to commend our Executive Deputy -- 2 well, Executive Deputy Director and legal counsel 3 for all she's done to help us, and thank you for 4 wise counsel relative to that. 5 We've been hitting the road quite 6 frequently. Talking to our partners in HR -- I 7 want to start with that, because one of the 8 things we wanted to do was make sure people 9 understood that the Civil Rights Commission is 10 more than just an entity here in Indianapolis and 11 the state capital, but part of the mission is 12 going to parts of -- throughout the state, 13 sharing good news about what we do, but also 14 working with our HR partners to show that we are 15 in collaboration. 16 The other thing we wanted to do was make 17 some new friends along the way, and those that we 18 find, they really are interested in helping us 19 build a better brand and also be part of the 20 team. 21 One of the things we came across was a 22 couple of incidents that took place in a couple 23 of our subdivisions. One in particular was in 6 1 Plainfield, the other one's here in Indianapolis, 2 with the Burmese Community. We had an inquiry 3 relative to an incident that occurred in a mosque 4 in Plainfield, where graffiti, very racist 5 statements, were being displayed on the mosque, 6 and we were asked to look into it. Well, with 7 the help of FBI, there was an inquiry made and an 8 investigation forthwith. 9 In the Burmese Community, there was an 10 issue with a house where someone -- in a vacant 11 outhouse, where someone put a display, basically 12 disparaging remarks against the Burmese 13 Community. "No more Burmese," and some of other 14 not-so-pleasant thoughts were shared. 15 We had an opportunity to go out to the 16 community and spend some time in the community, 17 and found some community leaders who were part of 18 the discussion and addressed things in terms of 19 the changes that are taking place in that 20 community, and at the same time being able to 21 identify leaders in the community who want to sit 22 down and have a real conversation, community 23 conversation, about the issue. 7 1 So, one of our members of our team is 2 going to be facilitating part of that discussion. 3 We're excited about the opportunity to be able to 4 share the culture and some the challenges that 5 they're faced with, but also having a real 6 conversation about -- to move demographic shifts 7 in parts of the state where people have some 8 concerns and challenges. 9 But on the educational front, we've had an 10 opportunity to do some in-house training with 11 some of hour staff and been able to identify some 12 of the good challenges and also opportunities 13 within the staff. We have creative people, and 14 they were able to share some things that I think 15 were important for us to hear, basically the 16 history of the Commission, and also opportunity 17 to talk about some of the changes they would like 18 to see happen. 19 One of the things that I think was 20 important is they were able to talk to our 21 attorneys. We thank Mike here for his 22 outstanding help in preparing our leaders -- our 23 investigators to become leaders in our community, 8 1 because they take on cases and issues and 2 challenges that I think are important to our 3 community. 4 He did a great job, along with our 5 attorney Fred, to be able to identify, again, 6 challenges within the workplace, but also 7 creative ideas to help them be better 8 investigators. So, I think that was the first of 9 its kind. I want to thank him for having an 10 opportunity to be able to share that information 11 with our staff. 12 And we want to do more of that type of 13 in-service training, bringing leaders in, people 14 like yourself maybe come in and spend some time 15 with our staff, do staff development and identify 16 some things that I think are important to you and 17 the Commission in building a better apparatus. 18 We have some conferences coming up. We 19 have some things that I think are important to 20 you. As you know, this is kind of the season. 21 The Fair Housing Conference was on the 13th 22 and 14th of April. It was well attended. We had 23 an opportunity to spend some time discussing 9 1 issues around the state, but also getting a 2 bird's-eye view as we prepare for the conference 3 in August. 4 The Region V Conference will be held in 5 August, and we want to make sure that we send you 6 information on that. It will be the 8th through 7 the 12th, and it will be an opportunity here -- 8 it will be here, housed in this facility -- to 9 talk about the issues in the five states of -- 10 surrounding areas of Michigan, Wisconsin, 11 Illinois, Indiana and Minnesota. So, you're 12 welcome to attend. We'll give you more 13 information on the -- 14 CHAIRPERSON BLACKBURN: Excuse me. 15 Is that the 8th through the 12th of -- 16 MR. HITE: August. 17 CHAIRPERSON BLACKBURN: Oh, August. 18 MR. HITE: Yes, ma'am. 19 CHAIRPERSON BLACKBURN: Thank you. 20 MR. HITE: Yes, ma'am. And there 21 will be a variety of -- some information will be 22 going out about the variety of -- the various 23 commissions. We're working to build a 10 1 communications line with the commissions to be 2 able to give you information as to when they're 3 having their events and their meetings. We want 4 you to attend. 5 We also want to make sure we reach out to 6 a couple of our HR partners having some 7 challenges, particularly people that no longer 8 have an HR partner, in -- 9 MS. MALONE: Hammond? 10 MR. HITE: Ham -- well, I should 11 know. It's East Chicago -- 12 MS. MALONE: East Chicago. 13 MR. HITE: -- and also in Anderson. 14 So we'll have some educational opportunities for 15 them and also sharing some resources with the 16 regions that they're in. 17 There is an EEOC Domestic Violence 18 Conference. We're real interested in that. 19 That's in October. We'll be talking more about 20 that, because there are some challenges with 21 housing that are really tied into the domestic 22 violence process. 23 And we also want to make sure we do a 11 1 piece on educating those who are part of law 2 enforcement, and I've been asked by the 3 administration to talk about tools for officers 4 who respond to domestic violence in housing, 5 emergency housing, and how we can be more 6 effective with that. 7 That's it in a nutshell. I'd be happy to 8 continue on, but I think we have some things on 9 the agenda that we have to get to. At this 10 point, I will have Barbara give the ALJ report. 11 CHAIRPERSON BLACKBURN: Thank you 12 very much. 13 MR. HITE: Thank you. 14 CHAIRPERSON BLACKBURN: Are there 15 any -- 16 MR. HITE: Oh, I'm sorry. Any 17 questions about anything? 18 CHAIRPERSON BLACKBURN: I was about 19 to ask. 20 Are there any questions? 21 COMM. YOUNG: Just a quick question. 22 MR. HITE: Yes. 23 COMM. YOUNG: Well, actually two 12 1 questions. As it relates to the April 13th 2 and 14th Fair Housing Conference, did we meet or 3 exceed goals for attendance for that particular 4 conference? 5 MR. HITE: Yes, sir, we did, but I 6 thank you asking that, because we did have a 7 situation that we won't have happen again. There 8 was a conference -- a conflict with dates, and 9 our FHIP partner had a conference run at the same 10 time, so we're going to work -- the FHIP's and 11 the PHAP's are going to work together to turn out 12 an initiative -- we'll work together to make sure 13 we have combined dates. Also -- they'll be 14 helping us also with the Region V Conference as 15 well. 16 COMM. YOUNG: And -- 17 MR. HITE: We had a chance to talk to 18 the Regional Director of HUD about some of the 19 issues and challenges that he's faced with in the 20 Chicago area and some of the regions, and I think 21 some good things are going to come out of that 22 discussion as well. 23 COMM. YOUNG: And the Region V 13 1 Conference was the exact next question that I 2 had -- 3 MR. HITE: Yes, sir. 4 COMM. YOUNG: -- in relation to CLE 5 offerings for that particular conference. Will 6 there be CLE offerings for that? 7 MR. HITE: We're exploring that right 8 now, because I think we're looking at how we do 9 it with five states involved in that, and then -- 10 and we're also looking at curriculum to make sure 11 it meets the criteria of those states. 12 COMM. YOUNG: Thank you. 13 MR. HITE: It's a good use of time, 14 certainly. 15 COMM. YOUNG: Thank you. 16 MR. HITE: We did extremely well with 17 the CLE's at the last conference, the 13th 18 and 14th, well attended, and many of our 19 attorneys will be traveling to parts of the state 20 to assist with that part of the training, too. 21 COMM. YOUNG: Thank you, sir. 22 MR. HITE: Okay. Thank you. 23 Any other questions? 14 1 CHAIRPERSON BLACKBURN: Very good. 2 Are there any more? 3 (No response.) 4 CHAIRPERSON BLACKBURN: Thank you 5 very much. And now, our Financial Report, and I 6 think Ms. Blackwell is here. No? 7 MS. MALONE: No. 8 CHAIRPERSON BLACKBURN: Are there 9 questions regarding the Financial Report? 10 (No response.) 11 CHAIRPERSON BLACKBURN: None? 12 (No response.) 13 CHAIRPERSON BLACKBURN: All right. 14 Thank you. 15 Then we've got the basic reports out of 16 the way. We are scheduled this morning for an 17 oral -- I mean this afternoon for an oral 18 argument. It is the case of Reginald Baker 19 versus Roman Marblene, and I would ask that those 20 participating in the oral argument please come 21 forward to the front tables, if you will, and I 22 would like you to each introduce yourselves. 23 Before you do, let me see if we can agree 15 1 on the ground rules. We would like the 2 Petitioner to make a 15-minute presentation, and 3 allow ten minutes for rebuttal, or surrebuttal, 4 and likewise for the Respondent. 5 If you will please introduce yourselves. 6 MR. HEALY: Yes. For the 7 Complainant, Michael C. Healy, staff counsel for 8 the Indiana Civil Rights Commission, on behalf of 9 the Complainant, Reginald Baker. 10 MR. UHL: And I'm Attorney Wayne Uhl. 11 I'm here representing the Respondent, Roman 12 Marblene Company. 13 CHAIRPERSON BLACKBURN: Your last 14 name again is? 15 MR. UHL: Uhl, U h l. 16 CHAIRPERSON BLACKBURN: Thank you 17 very much. If we could please begin with you, 18 Mike. Could you -- 19 MR. HEALY: I'm just waiting. 20 (Pause in proceedings.) 21 MR. HEALY: Good afternoon. I'm 22 sorry. 23 Ladies and gentlemen, what we have in this 16 1 case is unfortunately, tragically, a blatant 2 miscarriage of justice. Reginald Baker is an 3 African-American sitting here at the table, a 4 former employee of Roman Marblene Company, the 5 Respondent, who was denied the opportunity to 6 work for the company when he was involuntarily 7 placed on medical leave, and then repeatedly was 8 turned down for employment again, after he 9 presented ample medical evidence that he was 10 fully able to perform the duties of the job. 11 We'll get to that in just a moment, but 12 first, Respondent, in its brief, is claiming that 13 what Baker is asking the Commission to do is to 14 reweigh the evidence, which is inappropriate, 15 according to them. This is incorrect. We're not 16 telling you to do that. 17 The duty of the Commission is, by stat -- 18 is set by statute. The standard for judicial 19 review, according to the Administrative Orders 20 and Procedures Act, is that the burden of 21 demonstrating the invalidity of the action -- 22 that is, the Administrative Law Judge's action -- 23 is on the party to the judicial review proceeding 17 1 asserting invalidity. That's the Complainant. 2 The Commission is to grant relief under 3 this section if it determines that a person 4 seeking judicial relief has been prejudiced by an 5 agency action that is, among other things, 6 unsupported by substantial evidence contained in 7 the record. The role of the court is to, quote, 8 determine whether the Commission's findings of 9 fact and conclusions of law have a reasonably 10 sound basis of evidentiary support. Indiana 11 Civil Rights Commission versus City of Muncie. 12 Despite the weight afforded an 13 administrative body's findings, the agency 14 determination of facts as factual conclusions 15 derived from facts is subject to a reasonableness 16 standard. Because the findings of ultimate fact 17 represent inferences drawn by the Administrative 18 Law Judge, the reasonableness of the inference is 19 a question of law, appropriate for the judicial 20 determination. 21 Now, just what is reasonableness and 22 substantial evidence? Well, the substantial 23 evidence means that you have to have something 18 1 more than just a scintilla of evidence, but 2 something less than a preponderance of the 3 evidence. This standard is met when a reasonable 4 person will conclude that the evidence on which 5 the decision was made is of a substantial 6 character and probative value to support the 7 decision. 8 The law is the province of the 9 judiciary -- that is you -- and the reviewing 10 court is not bound by the ALJ's findings or 11 conclusions of law. The agency's findings are 12 derived from basic facts and, again, are subject 13 to a reasonableness standard. 14 Now, what we have here is a situation 15 where Baker was first hired in 1999, when Roman 16 Marblene was owned by Bruce Hoese, a different 17 individual than is the owner now. His duties 18 were involving gel-coat spraying, molding setup, 19 installing hats on casted molds, et cetera. 20 Because it's a small company, Roman Marblene 21 employees are expected to help one another with 22 various job duties, including lifting. 23 Mr. Triantos, the current owner, says that 19 1 "If you can't handle it, if it's too big, your 2 job is to get somebody to help you, because we 3 expect people to help each other out." It was 4 only after Jim Triantos purchased Roman Marblene 5 that Mr. Baker, the only African-American 6 employee there, was subjected to racial slurs and 7 harassment. 8 Mr. Triantos' brother and co-owner, Frank 9 Triantos, made racial remarks concerning Baker, 10 as did Tom Hurley, another relative and 11 co-worker. These included Baker being called the 12 "N" word, which Baker reported to Triantos. 13 Now, at the hearing -- there's 14 unfortunately more incidents. At the hearing, 15 the Complainant attempted to introduce evidence 16 that Triantos called Baker into his office in 17 order to show him hard-core interracial 18 pornographic images, which fairly disgusted 19 Mr. Baker. Mr. Triantos, we made the offer of 20 proof, said to Baker, "This is why whites don't 21 like blacks." 22 Now, the objection, we think, was 23 improperly sustained. We believe that it should 20 1 have been put in there to show the mindset of the 2 employer, which we think was blatantly racial, 3 and it affected and had an impact upon his future 4 actions. 5 In December of 2009, Baker was involved in 6 an automobile accident and placed under a 7 doctor's care for a week for an injured hand. 8 When the plant reopened, Mr. Triantos docked 9 Baker one day's pay for failing to call in sick 10 in advance, the first employee, and first 11 African-American employee, ever to be so treated. 12 Other employees besides Baker had similarly not 13 called in in advance, but they were never docked 14 pay, according to substantial evidence. 15 After Baker returned to work, he was able 16 to perform all of his work assignments he's 17 ambidextrous and could normally perform work 18 using his left or right hand in operating a spray 19 gun. 20 Now, much is made by Respondent of the 21 fact that Baker claimed he couldn't open up a 22 soda pop can because of his injured hand. That, 23 you would find, took place only on the first day 21 1 that he came back to work. But he remained at 2 work for at least two weeks before he was put on 3 medical leave. The key question is: Why? 4 Well, Dave Hunter, who is sitting here 5 today, was Roman Marblene's Production Supervisor 6 and Baker's immediate supervisor. Mr. Hunter 7 testified that after the injury, Baker had no 8 problems with his job, including operating spray 9 guns, which was a major duty. These spray guns 10 weighed about six pounds. 11 Mr. Hunter also testified that after his 12 injury, Baker had no difficulty lifting items 13 weighing over a hundred pounds, and he helped 14 other co-workers with lifting items when they 15 needed help doing so. This was observed by 16 co-workers Wiseman, Jason Lawalin, and James 17 Carney. That is substantial evidence in the 18 record. All employees worked together in the 19 same open room, although Mr. Triantos does not 20 work in that workshop; he works out of his 21 office, which is separate from the workers. 22 Again, Respondent makes the note that the 23 co-workers couldn't see everything that Baker 22 1 did. They didn't get a good view of what he did. 2 Nevertheless, this was in the workshop. It was a 3 small room, and everyone could see what everyone 4 else was doing. Mr. Triantos could not, because 5 he was in the office. Mr. Triantos himself said 6 that after January 5th, Baker was able to and did 7 perform the work despite not being 100 percent. 8 During this time, Triantos docked Baker 9 for one day's pay. Mr. Baker responded 10 January 19th, 2010, and he wrote a letter, and he 11 made reference that his employer had treated him 12 in a racially discriminatory manner. That was 13 one of the last days that Baker was ever allowed 14 to work there. It's clear that he was the first 15 salaried Roman Marblene employee to be docked pay 16 for failure to call in. 17 But within two days of sending the letter, 18 Triantos came into the work area and asked Baker 19 to change the head of the spray gun. Baker is a 20 highly experienced gun sprayer. There's no 21 reason why he couldn't have fixed that gun. He 22 replied simply that he couldn't because Dan 23 Brown, a co-worker who he was training, was using 23 1 it to spray granite. 2 We contend that Triantos knew that. We 3 contend that this was a setup. Triantos' version 4 is different, saying that Baker refused to 5 perform the task because of his medical 6 restriction. Other than that, there is no 7 corroborating evidence that Baker was unable to 8 perform the task following the accident. 9 Credible eyewitness testimony from Lacey 10 Gleitz and Dave Hunter support Reginald Baker's 11 version. And this is, ladies and gentlemen, 12 substantial evidence contained in the record. He 13 did not refuse to perform a task. 14 Triantos therein placed Baker on 15 involuntary medical leave, and Baker then made 16 frequent attempts to return to work, bringing 17 with him signed physician statements attesting to 18 his ability. Each time Triantos rejected Baker, 19 telling him he wasn't 100 percent. Baker filed 20 his complaint against Roman Marblene, alleging 21 unlawful racial discrimination. 22 But even after that, over the next several 23 months, Baker returned to the plant with 24 1 physician statements. Each time, he's rejected 2 because he wasn't a hundred percent despite the 3 following: July 20th, patient may return to 4 alternative duty, heavy work lifting 100 pounds. 5 That is substantial evidence. September 14th, 6 2010 -- this is eight months after being placed 7 on medical leave -- patient may return to regular 8 duty, no restrictions. October 12th, 2010, 9 patient may return to regular duty October 12th, 10 no restrictions. 11 Mr. Baker returned to the plant for the 12 fifth and final time to get job back on 13 October 12th. This time he had a physician's 14 statement attesting to a hundred percent fit and 15 there were no restrictions. This time Triantos 16 refuses to let him in and demands to see all of 17 Baker's medical records, and a verbal 18 confrontation took place between Baker and 19 Triantos. 20 Baker was ordered off the premises and was 21 effectively terminated. We'll get back to that, 22 but the following persons were also co-workers: 23 Larry Bauer, Caucasian, was a truck diver who 25 1 delivered products to customers, suffering a 2 heart attack. He performed heavy lifting, though 3 he wasn't supposed to do this. He was placed on 4 a pacemaker defibrillator device, he had a double 5 knee replacement, and Respondent gave him a 6 reasonable accommodation, though he wasn't at 100 7 percent. 8 Similarly, Shawn Belty, a Caucasian, a 9 current employee, works as a grinder, has a 10 blood-clotting disease affecting both heart and 11 lungs. Paid during the recuperation period. 12 When he returned to work, he would have to leave 13 to undergo heart therapy. Despite that, he 14 performed heavy lifting, though he was on 15 restriction by his physician. Belty was not 16 placed on involuntary leave. 17 Jason Lawalin could not perform heavy 18 lifting, though he was expected to. Was not 19 placed on involuntary leave. 20 Dan Brown, Caucasian, was trained by 21 Baker, had a history of epilepsy, had to take 22 Dilantin. 23 The Administrative Law Judge incorrectly 26 1 stated that the best comparator to the 2 Complainant is Dave Hunter, who left after 3 suffering a major injury. This overlooks the 4 fact that Dave Hunter left of his own accord 5 because of the injury. They didn't want him to 6 leave. He left because he knew he couldn't 7 perform the work, and he didn't contest the 8 termination. 9 So, eventually, Respondent says, some of 10 these Caucasian men listed here were let go. 11 Yes, but that came later, much later. Before 12 this occurred, they were given their reasonable 13 accommodation and were permitted to stay on, 14 according to the substantial evidence contained 15 in the record. 16 Respondent makes another defense, saying 17 that according to Triantos, Workers' Compensation 18 rates would go up. Well, if so, there's no 19 evidence that Respondent was so concerned about 20 Workers' Compensation for any of its other 21 Caucasian employees. Baker proved that the 22 reasons proffered by Roman Marblene were 23 pretextual and unworthy of credence. 27 1 These defenses were that Baker's hand 2 hadn't sufficiently healed. That statement is in 3 sharp contrast with the substantial evidence in 4 the record, overwhelming evidence that he was 5 able to perform the assigned work. 6 The next reason, arguing with the employer 7 forced his termination. That, we'll get into, 8 was pretextual also. 9 Third, co-workers were not similarly 10 situated to Baker. That's pretextual because all 11 employees in the small workshop helped one 12 another with assigned duties, including lifting. 13 Baker, they said, was placed on 14 involuntary medical leave because he refused to 15 perform a task given by Triantos due to medical 16 restrictions. That's pretextual because Baker 17 did not refuse to perform the task. If there was 18 any doubt as to his ability to perform his tasks 19 in January, there could be no doubt that he was 20 able to perform his duties as of September. 21 I'm citing the case of Sumner versus 22 Goodyear Tire and Rubber Company, which talks 23 specifically about the issue of provocation, 28 1 which the Judge seems -- Judge Allen seems to 2 hinge upon. In that case, it was held that where 3 the harassment was intended to provoke a response 4 from the Plaintiff in order to get him fired, the 5 decision to terminate was not neutral but 6 discriminatory. 7 In Sumner, the Plaintiff, an 8 African-American male, claimed that his Caucasian 9 supervisor verbally abused him, called him a 10 variety of derogatory names, another Caucasian 11 supervisor said something derogatory, and the man 12 proceeded to strike both supervisors. 13 The Supreme Court held for the Plaintiff, 14 saying provocation is not connected with the 15 intended result, but directed to it. If the 16 supervisors intentionally provoked Sumner and he 17 was subsequently discharged for harassment, the 18 discharge is a present violation. 19 Much like those plaintiffs, Baker was 20 treated in such a provocative manner that it 21 revealed Triantos' intent to get rid of him. The 22 provocation was so great it justified his 23 actions. This is another example of pretext. 29 1 Now, Mr. Triantos said that the weight of 2 the spray gun was over 30 pounds. In the record, 3 Respondent gives four photographs of a man known 4 to be Dan Brown, in Respondent's Exhibit B, to be 5 holding such a spray gun. Ask yourselves whether 6 this looks like it's 30 pounds. Well, Dave 7 Hunter said it was no more than six pounds and 8 Reggie Baker was able to perform this work. 9 But even if you take the word of the 10 Respondent and say somehow that this is 30 11 pounds, you should still rule for Baker, because 12 the medical restriction said that he could -- had 13 a 100-pound restriction, not a 30-pound 14 restriction. We don't believe, then, and you 15 should not believe, the statement that this is 16 somehow a 30-pound spray gun. Mr. Baker was able 17 to perform all of this, according to the 18 overwhelming evidence that's in the record. 19 I submitted to you a time-line chart 20 showing that as soon as Mr. Baker was docked pay 21 and he alleges for the first time discrimination, 22 that was the key, that was the linchpin, if you 23 will, toward having Baker removed, and we think 30 1 that the incident involving the spray gun was a 2 setup to get rid of him. He never came back to 3 work after the incident involving that spray gun. 4 Not one person ever came forward in this 5 hearing to say that Reginald Baker could not 6 perform the work. The substantial evidence in 7 the record, and the only credible evidence in the 8 record, points to the Complainant. The 9 Administrative Law Judge did not see pretext, and 10 she should have. 11 She didn't see pretext the first time that 12 we came before you, on summary judgment. You 13 righted that wrong. You sent the case back for 14 trial, because there was sufficient evidence, you 15 believed, to show a trial. You can right that 16 wrong again. You, the Commissioners, have the 17 opportunity to correct this wrong. Please look 18 at the substantial evidence in the record and 19 rule in favor of the Complainant. 20 Thank you. 21 CHAIRPERSON BLACKBURN: Thank you 22 very much. 23 Mr. Uhl. 31 1 MR. UHL: Thank you, Chairperson 2 Blackburn. I'm pleased to be back before the 3 Commission again today. I'm sorry that my 4 client, Mr. Triantos, couldn't make it. He had 5 some family medical issues to tend to this 6 weekend, so he's not here today, but I'm here on 7 his behalf and on behalf of the company, Roman 8 Marblene. 9 I'm glad Mr. Healy talked about the last 10 time we were here, and Chairperson Blackburn will 11 remember and Comm. Ramos will remember, the last 12 time we were here was on a summary judgment 13 motion. That is a motion that we said all of the 14 evidence showed that there was no possibility of 15 race discrimination in this case. 16 This Commission reversed that and said, 17 "No, we think that this needs to be tried. 18 Somebody needs to hear the evidence. Somebody 19 needs to judge the credibility of these competing 20 stories. There's a dispute here, a dispute of 21 evidence. There are two sides to this story." 22 So, what the Commission did was sent it back to 23 their ALJ. 32 1 The ALJ is the person who is charged, 2 then, with hearing the evidence live, in -- live, 3 looking at these photographs, not just the ones 4 that have been shown here, but all of the 5 photographs that were put into evidence, watching 6 the video that we presented at the hearing of how 7 this spray gun works and how, with all of the 8 tubes that are connected to it and all of the 9 paint that's in it, that the entire apparatus is 10 30 pounds, and it's very difficult to maneuver 11 with only one hand. 12 The ALJ is the one who makes those 13 determinations of credibility. It is not the 14 role of this Commission to reweigh that evidence 15 that's already been submitted to and heard by the 16 ALJ in a day-and-a-half hearing, where she heard 17 many witnesses live in Court testify to these 18 competing versions. 19 The only job of this Commission is to look 20 at the record that the ALJ has prepared for you 21 and determine whether there's any substantial 22 evidence that would support her findings in this 23 case. The burden is on Mr. Baker to show that 33 1 there's no substantial evidence in the record to 2 support what the ALJ held. 3 In fact, we've argued in our brief that it 4 would really be a denial of due process for this 5 Commission to accept the invitation that you 6 heard here today, and that is to take conflicting 7 evidence and reweigh it and decide, "No, the ALJ 8 was wrong in believing this witness. The ALJ was 9 right to believe this particular witness." She 10 was the one who heard the witnesses and who could 11 make those judgments. 12 And I think Mr. Healy has been honest with 13 the Commission today to say that there were two 14 different sides to this story. Mr. Triantos told 15 one version of the story, Mr. Baker told another 16 version of the story on some of these points. 17 Different witnesses came at this from different 18 perspectives. That's why you sent this back for 19 a hearing. But now that the ALJ has heard that 20 evidence, she's the one who's decided, "These are 21 the people whose stories should be believed, 22 these are the ones whose should not." 23 And the other important perspective that 34 1 the ALJ brings to this is that the burden of 2 proof was on Mr. Baker at the hearing, and 3 there's no question about that as a legal 4 principle, and I don't think Mr. Healy is 5 disputing that. 6 So, at that hearing, what that means is 7 that even if the evidence is all exactly even -- 8 that is, you have two witnesses who testify, one 9 says the light was red, one says the light was 10 green -- even if the ALJ can't think of a reason 11 why one is more credible than the other, then the 12 one with the burden of proof loses, because the 13 burden of proof is to come forward not just with 14 substantial evidence, but with a preponderance of 15 the evidence; that is, more evidence, evidence 16 that has more weight than what the opposing party 17 has been able to come up with. 18 And if you look through Mr. Baker's brief 19 before the Commission, you'll see all kinds of 20 language indicating that what he's asking you to 21 do is basically to do the ALJ's job over again 22 and make credibility determinations. He argues 23 that our evidence was unworthy of credence, that 35 1 the evidence contradicted -- that he presented 2 evidence that contradicted our evidence. 3 He refers in his brief to evidence that's 4 not corroborated. And by the way, there is no 5 rule that evidence has to be corroborated. The 6 testimony of one credible witness is sufficient 7 to establish a point before the ALJ and before 8 this Commission. So, I want to start with that 9 principle, that you are not to reweigh the 10 credibility determinations that the 11 Administrative Law Judge made. 12 I also want to make sure that the 13 Commission understands our position, which is 14 that the issues before the Commission today are 15 limited to those issues that were found in the 16 reasonable cause determination that started this 17 case oh so long ago in July of 2011. 18 At that time, the Commission was presented 19 with a reasonable cause determination on only two 20 points that were submitted. One was the point 21 that Mr. Baker was not allowed to return to work 22 until he was at 100-percent capability to do his 23 job, and the reasonable cause determination was 36 1 that that was based on race. 2 The other point, which we haven't talked 3 about very much, was this point that Mr. Baker 4 appears to have been the only person ever issued 5 a written warning for failure to submit a written 6 request for time off work. Those are the only 7 two questions over which the Commissioner has -- 8 the Commission has jurisdiction. 9 So, when you hear Mr. Healy arguing about 10 racially harassing conduct, showing pornography, 11 using language that's inappropriate in the 12 workplace -- and by the way, I'm not conceding 13 those points happened, or that they happened as 14 Mr. Healy has described them, but those are 15 beyond the scope of what the Commission has 16 before it today. 17 The only question really before the 18 Commission is whether Mr. Baker was subjected to 19 terms and conditions of employment, and 20 specifically was treated differently as an 21 African-American with respect to the requirement 22 that he be a hundred percent able to do his job, 23 as opposed to white employees who were not 37 1 subjected to that requirement. 2 So, let's talk a little bit about the 3 evidence that supports the Administrative Law 4 Judge's determination on that point. When we 5 talk about employees who were permitted to work 6 even though they were recuperating from an 7 injury, Exhibit 1 is Mr. Baker. 8 The evidence showed -- and this was not 9 disputed; in fact, Mr. Baker agreed -- that a 10 couple of years before the incidents that we've 11 been arguing about in this case, Mr. Baker had 12 suffered a wrist injury, and he splinted his 13 wrist with a scraper -- I think it was an ice 14 scraper -- and worked for six months. 15 Nobody told him he had to come back to 16 work at a hundred percent. Nobody told him that 17 he was unable to recuperate while on the job. 18 So, when we're talking about whether 19 African-American employees and white employees 20 were treated differently, we have to start with 21 Mr. Baker, who was given a break a couple of 22 years before this incident and was allowed to 23 work even though his wrist was injured. 38 1 The second time Mr. Baker was given that 2 opportunity to work even though he was 3 recuperating was after the accident in this case. 4 The car accident he had off work was right before 5 Christmas break when the plant shut down. 6 Mr. Baker was told at the holiday party, "Be sure 7 to see a doctor about that, because you're a 8 valuable employee and we want you to be able to 9 come back." 10 Mr. Baker didn't go see a doctor over the 11 holiday break. He waited until the very end of 12 the holiday break and then went to see the doctor 13 on the first day back, and did not call in until 14 very early that morning to let his employer know 15 that he would not be back to help set up the 16 plant again after the holiday break. 17 Nevertheless, even though he said he 18 couldn't open a pop can because his hand hurt so 19 much, even though his doctor said, "Come back 20 with a ten -- come back with a ten-pound lifting 21 restriction," Mr. Baker was allowed to come back 22 to work. And as far as Mr. Triantos knew, 23 Mr. Baker was doing his job. So, this is the 39 1 second time that Mr. Baker, as an 2 African-American employee, was permitted to come 3 back while recuperating from an injury. So, this 4 notion that only white employees were allowed to 5 do that is simply not supported by the record. 6 Now, what happened that was different in 7 Mr. Baker's case was this: At the -- toward the 8 end of that two weeks, when Mr. Triantos said, 9 "Can you unscrew the cap on the gun?" his 10 testimony is that Mr. Baker said, "No, I can't do 11 that because of my ten-pound lifting 12 restriction." 13 Well, at that point, when he's saying, "I 14 cannot do the job at all due to this injury," 15 Mr. Tri -- and then, when Mr. Triantos found out 16 on top of it that Mr. Baker had not returned to 17 his doctor, even though the doctor had said, "I 18 need to see you back for re-evaluation," that's 19 when Mr. Triantos said, "Fine. You need to come 20 back when you're a hundred percent able to do the 21 job." That was the reason that Mr. Baker was 22 given that particular restriction, not because he 23 was African-American. 40 1 There is disputed evidence as to whether 2 he was fully able to do the job even during that 3 two weeks. The evidence that the ALJ accredited 4 was that -- in effect, Mr. Baker testified to 5 this himself -- was that Mr. Baker was really 6 only able to do the job with one hand. 7 And again, you have to look at the video, 8 but the video shows that this is a two-handed 9 job, because you're spraying with one hand and 10 manipulating heavy hoses with the other one. But 11 Mr. Baker testified, "I was trying to do this job 12 with one hand." 13 As Mr. Healy has acknowledged, there were 14 people in the plant who said they didn't know, 15 they thought he was doing his job just fine, but 16 in fact, the spray booth where he was, there 17 wasn't a clear visual shot at being able to see 18 what was going on there. I mean even witnesses 19 testified to that. 20 Mr. Triantos was in the front office and 21 really didn't know whether Mr. Baker was doing 22 his job well until the day when Mr. Baker said, 23 "No, I can't unscrew the cap on that gun, I can't 41 1 screw the cap back on that gun, because I've got 2 this ten-pound lifting restriction." 3 Then to follow through with the facts, 4 Mr. Baker was told, "You need to come back when 5 you're a hundred percent." In fact, he went down 6 at that point. He actually ended up having to 7 have surgery on that wrist, was unable to come 8 back to work, then came back with note after note 9 saying that he was gradually getting better, but 10 the doctors always wrote things like, "Well, he's 11 still experiencing pain, he's still experiencing 12 some numbness with this injury." 13 And at that point, Mr. Triantos 14 testified -- and Mr. Healy can call this pretext, 15 but the Administrative Law Judge believed this, 16 and there's no basis for you to overturn it. 17 Mr. Triantos said he became concerned that if he 18 allows Mr. Baker to come back, he's going to lose 19 his grip with something, he's going to reinjure 20 that hand, and then it becomes a Workers' 21 Compensation issue. 22 And Mr. Triantos testified that he had 23 problems with his Workers' Compensation insurance 42 1 in the past. So, he very reasonably asked 2 Mr. Baker, "We need you to have a release of your 3 medical records so that the Workers' Comp people 4 can take a look at it and make sure that you can 5 come back to work. 6 Mr. Baker refused to do that, and this 7 ended up with the incident that we've talked 8 about quite a bit where Mr. Baker got upset, used 9 some very profane and insubordinate language that 10 I will not repeat here but is all over the 11 record, and Mr. Triantos at that point said, "I 12 can't have an employee who's going to talk to me 13 like that in front of other employees," and 14 terminated him for insubordination. 15 Now, Mr. Healy wants you to engage in a 16 reweighing of this, the differences between how 17 the white employees were treated and the 18 African-American employees. I've already 19 described to you that Mr. Baker in fact had had 20 accommodation of injuries in the past, and was 21 accommodated on this injury until he refused to 22 do part of his job. 23 Overall, the evidence was that 43 1 Mr. Triantos testified that even though some of 2 these employees were recuperating from injuries, 3 et cetera, that his understanding was that they 4 were fully capable of doing their jobs, just as 5 he hoped that Mr. Baker would be fully capable of 6 doing his job. 7 We were able -- and the Administrative Law 8 Judge pointed out two Caucasian employees who in 9 fact were not permitted to continue in their 10 employment with restrictions. Mr. Bauer, who's 11 been referred to here today, came back with a 12 restriction after a heart attack and knee 13 surgery, and he was told, "You cannot continue to 14 do your job on the floor, but you will have to 15 do -- be the truck driver." 16 And Mr. Triantos testified that that was 17 based on his understanding that even with his 18 restrictions, Mr. Bauer could drive the truck. 19 Then when Mr. Bauer had a pacemaker and the 20 regulations for a commercial driver's license 21 changed, Mr. Bauer was told, "You can't work here 22 anymore because you are no longer qualified to do 23 even the truck driving job." 44 1 With respect to Mr. Hunter, as Mr. Healy 2 has, I think, correctly acknowledged, Mr. Hunter 3 suffered a shoulder injury, and it became clear 4 that was not going to be able to work in the 5 plant, it required the heavy lifting, et cetera, 6 so he also was let go and was terminated from 7 employment. 8 So, we certainly do not have a situation 9 here where African-American and white employees 10 were treated differently, and the Administrative 11 Law Judge correctly found that this was not a 12 situation of race discrimination, or at least 13 that Mr. Baker had not carried his burden of 14 showing that the intent was to discriminate 15 against him on the basis of race. 16 Mr. Healy cited a couple of cases from 17 Michigan about this issue of whether or not 18 provocation can -- or whether or not somebody can 19 be provoked by harassment or discrimination 20 into -- into committing some kind of 21 insubordinate act. These cases really don't 22 apply here for two reasons. 23 First of all, one of the cases he cited, 45 1 the Sumner cases -- case -- wasn't really an 2 evaluation of the facts at all. It was on a 3 motion to dismiss because the statute of 4 limitations had expired, and in that context, the 5 Court, the Michigan Supreme Court, held that 6 racial harassment that provoked misconduct was a 7 continuing violation that would extend the 8 statute of limitations, and they reversed the 9 motion to dismiss. 10 And that's a lot of legal stuff, but what 11 I'm here to tell you is that Sumner was not a 12 case where the Court was evaluating facts as 13 you're being asked to do here. And in addition, 14 the Sumner case was later overruled by the 15 Michigan Supreme Court and the result reached in 16 Sumner was reversed. 17 The other case is a little bit closer, but 18 what's interesting about the other case is this 19 Downey case that involved an employee who, I 20 think, hit somebody or engaged in some kind of 21 misconduct, and the Court talked about whether 22 that employee might have been provoked. 23 Well, here's what's interesting about 46 1 Downey: Just like this case, Downey came to the 2 Court in the context of a summary judgment 3 motion, and the lower court granted summary 4 judgment, just as the ALJ in this case had 5 granted summary judgment. 6 And all that Downey holds is that because 7 there was evidence on both sides of that question 8 about provocation, it should have been sent back 9 for trial, which is exactly what this Commission 10 did with this case, sent it back for trial on the 11 question of whether or not -- was it provocation, 12 racial provocation, that caused this misconduct, 13 or was this misconduct that deserved to be 14 punished regardless of race? 15 And that exactly what's happened here. 16 The problem in this -- we don't know what 17 happened in Downey after it went back to the 18 trial court, but we do know what happened here. 19 The ALJ has heard the evidence, has weighed both 20 sides of the story -- heard both sides of the 21 story, heard disputed evidence, and resolved that 22 evidence, finding that Mr. Baker had failed to 23 carry his burden of proving that the reason he 47 1 was treated the way he was treated was because of 2 his race. 3 There's no basis here for this Commission 4 to overturn what the ALJ has done. There's no 5 basis here for the Commission to send this back 6 for yet another hearing because the ALJ made some 7 kind of a legal error. So, our request here is 8 that we put an end to this case and that the 9 ALJ's findings and conclusions be affirmed and 10 adopted by the Commission. 11 CHAIRPERSON BLACKBURN: Thank you, 12 Mr. Uhl. 13 Mr. Healy, do you have any rebuttal? 14 MR. HEALY: Yes, Your Honor. Thank 15 you. 16 I had several points that I wanted to 17 make. Mr. Uhl, at the outset of his argument, 18 says -- keeps saying what it is that the Civil 19 Rights Commission can't do in this case regarding 20 reweighing evidence. Well, I'm saying, based on 21 statute, what the agency can do and what the 22 agency's duty is to do here, which is to 23 determine if there is substantial evidence in the 48 1 record to support the Administrative Law Judge's 2 decision. 3 You need to see where is that substantial 4 evidence. If you cannot determine where the 5 substantial evidence lies, you may as well close 6 up this agency. You may as well close it all up, 7 because that means you have no power at all. 8 It's not a case of two persons telling two 9 different versions, as he says. We have one 10 person on their side giving a version, and on the 11 Complaint's side, there are six or seven people 12 giving a version corroborating the Complainant. 13 There is no corroboration of the Respondent. 14 Yes, one credible witness, as Mr. Uhl 15 says, is sufficient, but who's the credible 16 witness for the Respondent? He doesn't exist. 17 This is a straw man that he's put up. There is 18 absolutely no credible -- credibility toward 19 James Triantos. So, the substantial evidence 20 lies with the Complainant. 21 Mr. Baker, they said, was expected to be 22 100 percent, and Mr. Uhl makes the statement that 23 years before, there was an injury and Baker was 49 1 not let go. So, why let him go now? The reason, 2 we think, is plain: Because in January of 2010, 3 Baker complained of racist behavior on the job, 4 in his letter. 5 Significantly, only one day later or two 6 days later, the Respondent did let him go, after 7 he got that letter. We say that that sprang from 8 the letter that came out, and there was 9 corroborating evidence that Baker never refused 10 to perform the tasks that were assigned. 11 The spray gun issue, we think, was 12 pretext. It was a hoax. It was an issue that 13 was there devised by the Respondent to get rid of 14 Baker, because that was the last day Baker ever 15 worked there. This is a small shop. Dave 16 Hunter, the supervisor, worked next to Reggie 17 Baker day in and day out. Did he see Reggie 18 Baker spray every minute? No, he didn't. But he 19 could certainly see that Reggie was able to use 20 the spray gun while he was there. 21 Mr. Triantos did not work there. 22 Mr. Triantos, I will say now, has lied throughout 23 his testimony. Here we have a situation where 50 1 Mr. Uhl brings up that other employees were 2 similarly situated and they were let go. He 3 mentions Larry Bauer. He mentions Dave Hunter. 4 Bauer, they said, would have to become a truck 5 driver. 6 Well, there, there's a reasonable 7 accommodation given to Bauer that's not given to 8 Baker. Now, let's understand that a heart attack 9 is a more serious event than the spraining of a 10 wrist, at least that's where the -- this Court 11 should -- Commission should notice something like 12 that. So, Baker's wrist should not compare with 13 Bauer's heart attack. 14 As far as Dave Hunter is concerned and his 15 injury, there's no evidence that Dave Hunter was 16 terminated without consent. Dave Hunter knew he 17 couldn't work. The company, we believe, wanted 18 to keep him, but he couldn't do it because he 19 knew he couldn't work. He didn't try to go back 20 to work, so he is not a comparator to Mr. Baker. 21 As far as the issues of law regarding the 22 Sumner case, I'm going to stand by my original 23 statement which I said on Sumner. This was the 51 1 Supreme Court of Michigan holding that 2 provocation not -- is not only connected with the 3 intended result, but is directed to it. If the 4 plaintiff's supervisors intentionally provoked 5 Sumner and he was subsequently discharged for the 6 harassment, the discharge is a present violation. 7 If this case was later overturned by some other 8 court, we contend it was done on some other 9 ground and not on the statement that I just made. 10 The overwhelming evidence that we have 11 here -- and you should look at it yourself. 12 Complainant's Exhibit 1, page 24 has the last 13 medical release from the physician, stating, 14 "Patient may return to work 10-12-10, no 15 restrictions." Not "sitting work only," it's not 16 checked; "light work" isn't checked; "medium 17 work" isn't checked; "heavy work" isn't checked. 18 The only thing that says in there for 19 recommendation, "Continue elbow pad on the 20 wrist." But there was absolutely nothing in 21 there that says that he couldn't work, and 22 Mr. Baker still wasn't permitted to work, and in 23 fact, we believe that the outburst came as a 52 1 direct result of giving not one or two, but four 2 medical release forms over a period of several 3 months and being denied each time. 4 Because it was ample provocation, that 5 should not be faulted to the Complainant. We 6 think the entire incident was a hoax, and because 7 of that, there was a miscarriage of justice. We 8 ask that the Commission reverse the ALJ's 9 decision. 10 Thank you. 11 CHAIRPERSON BLACKBURN: Thank you, 12 Mr. Healy. 13 Do you have surrebuttal? 14 MR. UHL: No, I think the 15 Commission's heard everything that it needs to. 16 Thank you very much, Chairperson. 17 CHAIRPERSON BLACKBURN: Thank you. 18 Commissioners, have you questions 19 regarding the case we've just heard? 20 COMM. RAMOS: Were there any issues 21 on the quality of painting that -- were there any 22 issues on the quality of painting that -- since 23 Mr. Baker had gone back to work? I know you 53 1 mentioned that he couldn't be seen, but were 2 there -- I would think if there were challenges 3 there, you would see quality as a factor. 4 MR. HEALY: Who are you addressing 5 the question to, sir? 6 MR. UHL: Well, I'll answer, because 7 no, Your Honor -- no, Commissioner, there were no 8 specific -- there was no evidence about the 9 quality of the work that he turned out. And it 10 wasn't paint. I think this was spraying like a 11 gel-coat onto molded sink basins. But there 12 was -- no, there were no -- there was no evidence 13 that the end product was defective in any way. 14 COMM. RAMOS: Okay. 15 CHAIRPERSON BLACKBURN: I have a 16 question as to the date of the first medical 17 clearance that Mr. Baker presented to Triantos. 18 MR. UHL: Are you talking about after 19 his surgery, Chairperson? 20 CHAIRPERSON BLACKBURN: Yes. 21 MR. UHL: There were -- there were 22 multiple -- there were multiple doctor's notes 23 that came back over a period of several months, 54 1 and they had increasingly -- or decreasingly 2 restrict -- decreasing restrictions on them. So, 3 you may have them actually lined up in some 4 fashion -- 5 MR. HEALY: Yes. 6 MR. UHL: -- Mr. Healy. 7 MR. HEALY: We have evidence of -- 8 the first one, I believe, was April 13th, 2010, 9 and I should point out that that was just a 10 couple of weeks after Mr. Baker filed his 11 complaint of race discrimination with the Indiana 12 Civil Rights Commission. Therein the physician 13 stated that the patient may return to work on 14 that day with the restriction of light work, ten 15 pounds maximum, frequent lifting or carrying 16 restricted to objects using, et cetera. 17 After that, there was another -- there was 18 another one in July, July 20th, which said he 19 could do heavy work, lifting up to 100 pounds 20 maximum. And again, I should point out that 21 there is significant difference between what the 22 weight of this spray gun really was. We don't 23 think it was more than about six pounds. 55 1 MR. UHL: So, Chairperson, that was 2 on July 20th, and I'll just note that on 3 July 20th, the doctor's note also said that 4 Mr. Baker was still experiencing pain while 5 lifting, which my client felt wasn't good enough 6 to prevent the possibility that he wouldn't be 7 lifting something and have pain and drop it and 8 hurt himself or somebody else. 9 Then there was another note on 10 September 14th of 2010 that he was still 11 experiencing some numbness with the injury, and 12 then it was on October 12th that he brought back 13 this note that said he was cleared to return to 14 work, but as my client testified, both on that 15 date and prior to that date, my client had asked 16 him, "Please give us a release for your medical 17 records so that the Workers' Compensation carrier 18 can take a look at this, so that we're protected 19 against you injuring yourself on the job and then 20 being subjected to a Workers' Compensation claim 21 and our premiums shooting up because of that." 22 And Mr. Baker refused to do that, and that 23 is then when Mr. Baker lost his temper and said 56 1 the things that I'm not going repeat here but are 2 repeated in -- on paragraph 15 of the ALJ's 3 decision, the things that he said to Mr. Triantos 4 that day in front of the other employees. 5 COMM. MCKEOWN: You mentioned that 6 there was a concern that he would injure others 7 by dropping something. Could you describe -- are 8 there people underneath? Are there other things 9 being lifted besides the sprayer and the -- 10 MR. UHL: Sometimes two workers might 11 lift something at the same time. Some of these 12 desk tops or these sink apparatuses weigh well 13 over a hundred pounds and it would take two 14 people. So, what I'm thinking of here is that if 15 you've got two people lifting something and one 16 of them goes, "Ouch, my wrist is gone" and drops 17 it, then it may hit the other person in the foot 18 or the leg, and that's how an injury to somebody 19 else might occur. Or if they're just walking 20 along trying to carry a very heavy piece by 21 themselves, if they walk by another worker and 22 drop it on them. 23 MR. HEALY: Some of those pieces 57 1 weigh over 100 pounds, and during the time that 2 Baker was working after his injury there, he had 3 no difficulty in lifting those items when others 4 needed his help in doing so, and this is 5 corroborated by the substantial evidence in the 6 testimony. 7 CHAIRPERSON BLACKBURN: Are there 8 other questions? 9 COMM. YOUNG: One very quick question 10 for Mr. Healy. You cited on a couple of 11 occasions the Michigan Supreme Court case law. 12 Do you have any Indiana case law that would 13 support a similar or same proposition? 14 MR. HEALY: If I was able to find 15 that, I would certainly do that, but that -- 16 COMM. YOUNG: I just wanted to make 17 sure. 18 MR. HEALY: -- that does not mean you 19 can't use that. 20 COMM. YOUNG: I understand that. 21 MR. HEALY: Michigan law can be used 22 where Indiana law is silent, to come to a 23 reasonable result. 58 1 COMM. RAMOS: Well, I don't think 2 it's germane to the overall facts in this, but is 3 there an explanation why Mr. Baker did not go to 4 seek medical advice until returning to work, 5 Mr. Healy? 6 MR. HEALY: I think that he perhaps 7 under -- he didn't really think that the injury 8 was of such a nature that he had to have it 9 looked at. He's not someone who goes crying to 10 the doctor every time something goes wrong. But 11 I don't know if he could -- he can't answer that 12 for you, but I don't think he had -- he did not 13 believe that he was unable to do the work. 14 COMM. RAMOS: Okay. 15 CHAIRPERSON BLACKBURN: Thank you. 16 Any other questions? 17 (No response.) 18 CHAIRPERSON BLACKBURN: I want to 19 thank you both for your participation in this 20 hearing. The Commissioners will consider this, 21 and you will be apprised of the decision of the 22 Commission. 23 MR. HEALY: Thank you. 59 1 MR. UHL: Chairperson, I do want to 2 reiterate our concern that has been expressed 3 earlier in this case, that if the 4 Commissioners -- that the Commissioners not 5 deliberate in an executive session that hasn't 6 been publicly noticed, and I just want to state 7 for the record that we would just remind the 8 Commission of its obligation under the public 9 records law with respect -- under the open 10 meetings law with respect to that. 11 CHAIRPERSON BLACKBURN: We thank you 12 for that reminder. We don't need it -- 13 MR. UHL: Okay. 14 CHAIRPERSON BLACKBURN: -- but I 15 would make sure you understand that there will 16 not be an executive session to discuss the case. 17 There is, however, within our practice and rules 18 the ability for Commissioners to consider the 19 case beyond today, and as soon as each has 20 decided, a vote will be taken, and you'll be 21 apprised as to the decision of the Commission. 22 MR. UHL: Perfect. Thank you. 23 MR. HEALY: Thank you. 60 1 CHAIRPERSON BLACKBURN: Thank you. 2 (Pause in proceedings.) 3 CHAIRPERSON BLACKBURN: Everybody 4 ready to continue? 5 COMM. YOUNG: Yes, ma'am. 6 COMM. EDWARDS: Yes, ma'am. 7 CHAIRPERSON BLACKBURN: We will go on 8 to the Report by Commissioners on Complaint 9 Appeals. Are there any? 10 COMM. YOUNG: I have some that were 11 previously assigned -- 12 COMM. RAMOS: Yes. 13 COMM. YOUNG: -- but I will be 14 reporting on those at the next -- June meeting. 15 CHAIRPERSON BLACKBURN: In June? 16 COMM. YOUNG: Yes, ma'am. 17 CHAIRPERSON BLACKBURN: How many 18 cases do you have? 19 COMM. YOUNG: Two. I don't recall 20 the exact names, but I know I have two of them. 21 CHAIRPERSON BLACKBURN: Okay. 22 COMM. RAMOS: There were four that 23 were assigned at the last meeting, and I don't 61 1 know if Barbara has the listing of -- 2 COMM. MCKEOWN: I don't think -- 3 CHAIRPERSON BLACKBURN: I don't have 4 the -- 5 COMM. MCKEOWN: They're not in the 6 minutes. 7 COMM. RAMOS: They are in the 8 minutes. 9 COMM. MCKEOWN: Oh, they are? 10 COMM. RAMOS: Yeah, they're in the 11 minutes. 12 CHAIRPERSON BLACKBURN: Were you 13 assigned one? 14 COMM. RAMOS: I was, McKeown was, 15 Edwards was. 16 COMM. EDWARDS: I was not. I 17 requested not to be assigned one. 18 COMM. RAMOS: Okay. 19 COMM. MCKEOWN: So, I have one, and I 20 will let the Commission know that I am requesting 21 to report on mine in June. 22 CHAIRPERSON BLACKBURN: All right. 23 We'll move ahead then to assigning the 62 1 appeals that are listed in your agenda today. We 2 can start around this end of the table. 3 Comm. Edwards, if you would consider 4 Jessica Rainey -- 5 COMM. EDWARDS: Okay. 6 CHAIRPERSON BLACKBURN: -- versus 7 Developmental Service Alternatives. 8 These two -- the next two cases, being 9 probably related, Comm. Young, would you consider 10 those? 11 COMM. YOUNG: Yes, ma'am. 12 CHAIRPERSON BLACKBURN: The case of 13 Tom Pietrzak versus First Financial Bank, I will 14 be glad to review these two cases, and 15 Comm. Ramos, if you could take Crystal Jones 16 versus Marion County Superior Court, and if you, 17 then, Comm. McKeown, would consider Tony Early 18 versus Indiana Professional Management. 19 COMM. YOUNG: And just for the 20 record, Madam Chair, Jessica Rainey is assigned 21 to Comm. Edwards; correct? 22 CHAIRPERSON BLACKBURN: Oh, yes; I'm 23 sorry. 63 1 COMM. EDWARDS: That's correct, you 2 said me. 3 CHAIRPERSON BLACKBURN: Yeah. Sadly, 4 one of our Commissioners cannot meet the schedule 5 of our meetings and has, as a result of that, 6 dropped from the Commission, which is sad to 7 report. 8 MS. MALONE: Is it Suzanne? 9 CHAIRPERSON BLACKBURN: I'm sorry? 10 MS. MALONE: Is it Suzanne? Is it 11 Comm. Gaidoo? 12 CHAIRPERSON BLACKBURN: That was my 13 understanding. 14 MS. MALONE: Okay. You were copied. 15 CHAIRPERSON BLACKBURN: In the flood 16 of things that you would see, you'll find it. 17 MS. MALONE: Okay. 18 CHAIRPERSON BLACKBURN: Findings of 19 Fact, Conclusions of Law and Order. We have the 20 case of Melissa J. Davis versus Knox County 21 Association for Retarded Citizens. May I have a 22 motion to accept the findings? 23 COMM. RAMOS: So moved. 64 1 CHAIRPERSON BLACKBURN: And a second? 2 COMM. EDWARDS: Second. 3 CHAIRPERSON BLACKBURN: All in favor? 4 COMM. EDWARDS: Aye. 5 COMM. YOUNG: Aye. 6 COMM. MCKEOWN: Aye. 7 COMM. RAMOS: Aye. 8 CHAIRPERSON BLACKBURN: Aye. 9 Anyone opposed? 10 (No response.) 11 MS. MALONE: Are you -- I'm sorry, 12 madam. Are you at G, Findings of Fact? 13 CHAIRPERSON BLACKBURN: Yes. 14 MS. MALONE: Okay. That -- the 15 Melissa Cope Davis versus Knox County, you 16 mentioned the rest of that title, Knox County 17 Association, that should not be entered as a 18 final -- a final order. Objections are pending 19 on that. 20 CHAIRPERSON BLACKBURN: Objections 21 are pending? 22 MS. MALONE: Yes. 23 CHAIRPERSON BLACKBURN: All right. 65 1 MS. MALONE: I apologize for that one 2 remaining in there. 3 CHAIRPERSON BLACKBURN: We will 4 strike, then, from that action and await a final 5 recommendation and findings. What about the 6 case, then, of Casey Stouder versus B & K 7 Automotive? Is there anything pending there that 8 would preclude our acceptance of the finding? 9 MS. MALONE: No, there are not. 10 CHAIRPERSON BLACKBURN: Then may I 11 ask for a motion to accept? 12 COMM. RAMOS: So moved. 13 CHAIRPERSON BLACKBURN: And a second? 14 COMM. EDWARDS: Second. 15 CHAIRPERSON BLACKBURN: All in favor? 16 COMM. EDWARDS: Aye. 17 COMM. YOUNG: Aye. 18 COMM. MCKEOWN: Aye. 19 COMM. RAMOS: Aye. 20 CHAIRPERSON BLACKBURN: Aye. 21 Anyone opposed? 22 (No response.) 23 CHAIRPERSON BLACKBURN: Thank you. 66 1 There being no Consent Agreements, is 2 there any Public Comment to be made? 3 (No response.) 4 CHAIRPERSON BLACKBURN: Hearing none, 5 are there any Announcements to be made? 6 (No response.) 7 CHAIRPERSON BLACKBURN: On your 8 agenda are meeting dates for 2016. We will try, 9 even as we did today, against great odds, on a 10 weekend when we are all tempted to stray from the 11 work of the people, we showed up and showed out 12 [sic], so thank you very much to our Director and 13 Deputy Director for rising to the occasion -- 14 MR. HITE: Thank you, ma'am. 15 CHAIRPERSON BLACKBURN: -- despite 16 the tumult around us. 17 MR. HITE: And I ask a favor of the 18 Chair and the Committee. The 21st through 19 the 24th is something that we are looking forward 20 to. It's the Consortium Conference in Evansville 21 of all of the partners around the state. The 22 24th happened to coincide with your next meeting 23 date. Would you -- I'm here to ask you to take 67 1 that into consideration, Madam Chairperson, as 2 you schedule the next meeting. 3 CHAIRPERSON BLACKBURN: Do you want 4 me to withdraw to accommodate this thing and -- 5 MR. HITE: I would just be asking you 6 to -- I'm saying that we're willing to do 7 whatever's necessary for the good of the cause, 8 but I'm just making -- I would love to have you 9 there if you could make it to doing that meeting. 10 CHAIRPERSON BLACKBURN: Well, 11 Evansville is quite a jaunt. 12 MR. HITE: It is. 13 CHAIRPERSON BLACKBURN: And I know 14 that in preparation for that, and in your desire 15 to be fully participating within the Conference, 16 I would certainly entertain a recommendation from 17 the Commission regarding whether or not we should 18 proceed under the leadership of somebody left in 19 the office to conduct the meeting. 20 MR. HITE: Okay. 21 CHAIRPERSON BLACKBURN: May I have a 22 motion? 23 COMM. RAMOS: So, to go ahead with 68 1 the 24th? I'm not sure of -- the question is 2 continuing the 24th, or -- 3 CHAIRPERSON BLACKBURN: Or not, and 4 it's up to you to make a recommendation. 5 COMM. RAMOS: Or to move to another 6 date or geography? 7 MR. HITE: Another date would be fine 8 and geography would be fine, but it's just a 9 matter of putting myself at the mercy of the 10 Commission at this point. What's your pleasure? 11 COMM. EDWARDS: I recommend we maybe 12 move to June 11th. It's coming pretty quick. I 13 have a conflict on the 17th up in Batesville. 14 CHAIRPERSON BLACKBURN: I'm sorry? 15 COMM. EDWARDS: I have a conflict on 16 the 17th, but we can't move to the 4th, so the 17 only other date in June would possibly be 18 the 10th, so is anyone -- 19 CHAIRPERSON BLACKBURN: Let me start 20 here: How many of you would be interested in 21 going to Evansville on the 24th for a meeting? 22 (No response.) 23 CHAIRPERSON BLACKBURN: That's what I 69 1 thought. Okay. How difficult would it be for 2 you to change the date of the Commission meeting 3 from the 24th to another date? 4 MR. HITE: I -- 5 COMM. RAMOS: It depends on the date, 6 but -- 7 MR. HITE: We have only, I think, one 8 other commitment that really impacts our office 9 in the month of -- no, pretty much everything 10 else is pretty much workable. 11 CHAIRPERSON BLACKBURN: I'm sorry? 12 MR. HITE: I'm just saying, Madam 13 Chairman, that as I look at -- as I peruse the 14 schedule, I think everything else is pretty 15 much -- we can make adjustments as needed for 16 your -- to accommodate your needs. 17 MS. MALONE: Well, if you do it 18 July 1st, you run across the same issue as today, 19 potentially, the following Friday after 20 June 24th. 21 CHAIRPERSON BLACKBURN: And if we -- 22 and if we did it the preceding Friday, that would 23 be what, the 20 -- 70 1 MS. MALONE: The 17th. 2 CHAIRPERSON BLACKBURN: -- 24th? 3 COMM. RAMOS: 17th. 4 CHAIRPERSON BLACKBURN: Oh, the 17th. 5 COMM. RAMOS: I'm not available. 6 COMM. EDWARDS: I'm not available. 7 CHAIRPERSON BLACKBURN: And you two 8 are not available. I hate to see us take a 9 summer sabbatical from the work of the 10 Commission. 11 COMM. YOUNG: Is there appropriate 12 staff in place to stand in in your stead 13 during -- 14 MR. HITE: Well, because it is a 15 statewide conference, the majority of my staff's 16 going to be probably not only participating, but 17 it counts as a training as well, and putting it 18 on and training. 19 COMM. RAMOS: And those dates are, 20 again, the 20th through the -- 21 MR. HITE: 21st through the 24th, 22 sir, the 21st through the 24th. It's the 43rd 23 Annual Consortium Conference of State Human 71 1 Rights Agencies, so this is a big one. I 2 wouldn't come before you if it wasn't that big of 3 a deal. 4 COMM. MCKEOWN: Would it be possible 5 to just -- since I also work for state agencies, 6 sometimes we will just do a doodle poll of our 7 board members and see what works for them, and 8 then -- I don't think that scheduling a meeting 9 violates the open door law, for any agency that I 10 have served. 11 So, given that various Commissioners are 12 not available on the Fridays, perhaps it would be 13 helpful if the Commission staff just sent a 14 doodle poll for like a two-week or -- you know a 15 period to see if there's a date that's not going 16 to override with the dates of your conference, 17 but also could get a full quorum, since not all 18 Commissioners are here. 19 And if there's a Commissioner that's going 20 to be replaced, it might be that there are four 21 members, so we'll want to choose a date that 22 works for you all, but so long as it's properly 23 noticed, you won't run into an open door problem. 72 1 It just doesn't seem like any of the Fridays are 2 working out to figure that out right now. 3 MR. HITE: Just -- 4 CHAIRPERSON BLACKBURN: Right. So, 5 then what -- she's saying it doesn't have to be 6 on a Friday, so let's try to schedule it before 7 or immediately after you return from the 8 Conference, on whatever day we can get a 9 quorum -- 10 MR. HITE: Okay. 11 CHAIRPERSON BLACKBURN: -- so the 12 commission work can not be -- 13 MR. HITE: Would you rather us -- 14 CHAIRPERSON BLACKBURN: -- abdicated 15 for either of those two months. 16 MR. HITE: So, my understanding is 17 we'll just submit dates to you, or are you going 18 to poll your members, or how would you like us to 19 proceed? 20 COMM. MCKEOWN: We'll we've been 21 meeting -- 22 CHAIRPERSON BLACKBURN: Thursday 23 would work. 73 1 COMM. MCKEOWN: Well, the Thursday 2 still is your conference; right? 3 MR. HITE: That's the 21st? 4 COMM. MCKEOWN: The 21st through 5 the 24th? 6 MR. HITE: Yes. 7 COMM. YOUNG: So, the reasonable next 8 step would be just to have a member from the ICRC 9 staff send a doodle poll to all Commissioners -- 10 MR. HITE: Okay. 11 COMM. YOUNG: -- and the 12 Commissioners will then respond to that 13 particular poll, and then we'll pin down a date 14 from there. 15 COMM. MCKEOWN: And then the 16 Commission staff person can look through that and 17 say, "On Tuesday or Wednesday on X and Y, I have 18 a quorum, and we are therefore going to set it 19 for that date" -- 20 COMM. YOUNG: Uh-huh. 21 COMM. MCKEOWN: -- so that the work 22 can go forward. 23 CHAIRPERSON BLACKBURN: I think 74 1 that's a reasonable approach for June and July, 2 because -- 3 MR. HITE: It makes perfect sense. 4 CHAIRPERSON BLACKBURN: Yes, there 5 are too many variables. 6 MR. HITE: Yes. 7 CHAIRPERSON BLACKBURN: And as long 8 as we can get four Commissioners and two staff 9 members, we can make -- 10 MR. HITE: That's correct. 11 CHAIRPERSON BLACKBURN: -- make the 12 business. 13 COMM. YOUNG: Sounds good. 14 CHAIRPERSON BLACKBURN: Sound good? 15 All right. In that case, the meeting is 16 adjourned. 17 Thank you. 18 MR. HITE: Thank you. 19 - - - Thereupon, the proceedings of 20 May 27, 2016 were concluded at 2:26 o'clock p.m. 21 - - - 22 23 75 1 CERTIFICATE 2 I, Lindy L. Meyer, Jr., the undersigned 3 Court Reporter and Notary Public residing in the 4 City of Shelbyville, Shelby County, Indiana, do 5 hereby certify that the foregoing is a true and 6 correct transcript of the proceedings taken by me 7 on Friday, May 27, 2016 in this matter and 8 transcribed by me. 9 10 _________________________ 11 Lindy L. Meyer, Jr., 12 Notary Public in and 13 for the State of Indiana. 14 15 My Commission expires October 27, 2016. 16 17 18 19 20 21 22 23