William S. Rosen, Daniel N. Rosen, Andrew M. Silverstein, Rosen & Rosen P.L.L.P., 2510 Minnesota World Trade Ctr., 30 E. Seventh St., St. Paul, MN 55101 (for Relator)

Jeffrey R. Anderson, Joanne Jirik Mullen, Barbara J. Felt, Reinhardt & Anderson, E-1000 First National Bank Bldg., 332 Minnesota St., St. Paul, MN 55101 (for Respondents Drake, et al.)

Considered and decided by Short, Presiding Judge, Davies, Judge, and Willis, Judge.

In this consolidated employment discrimination proceeding, relator Occies, Inc., d/b/a/ Knicker's Pub, challenges two awards by the Minneapolis Commission on Civil Rights (commission). As to respondent Eric Anthony Weston, we reverse. As to respondent Martin Mendell Drake, we affirm in part, but reverse as to punitive damages.

Respondent Weston, an African-American male, was employed by Knicker's Pub as a janitor and bouncer from July to November 1992, at which time he voluntarily left employment.

On September 8, 1992, after a verbal exchange, Weston made an obscene hand gesture directed at another employee, Raymond Kapishkowit. Kapishkowit responded by punching Weston in the face. Weston did not retaliate. To avoid any further contact between the two, owner Harold L. Blumenthal decided to assign Weston and Kapishkowit to separate work shifts. It took several days to implement the change, and a photocopy of Weston's timecard indicates that he did not work his regular schedule on September 9, September 11, or September 12. Weston testified that he also did not work September 10, his regular night off, but he admits he was paid for six hours as indicated on his timecard for that day. Weston resumed his normal schedule on September 13. He received a pay raise in mid-September.

Weston first filed a discrimination charge with the Minneapolis Department of Civil Rights in February 1993, alleging unequal imposition of discipline. Probable cause was determined in August 1994 and, on May 23, 1996, Weston was awarded: (1) $156 for lost wages; (2) $1,000 for mental anguish; and (3) statutory punitive damages of $8,500. The commission assessed a single civil penalty of $2,000 against Knicker's Pub, covering both the Weston and Drake claims.

Drake Facts

Respondent Drake worked at Knicker's Pub as a bartender and as manager two nights per week. Drake observed the incident between Weston and Kapishkowit and believed Weston was subsequently treated unfairly. When Drake spoke to management on Weston's behalf, Blumenthal replied that Weston was just "another smooth-talking black guy." Drake then advised Weston to pursue a civil rights claim. Drake testified that Blumenthal became aware of this advice.

Blumenthal fired Drake on September 16, 1992. Blumenthal claimed he had the following performance and liability concerns with respect to Drake: (1) Drake had been admonished for drinking in Knicker's Pub after hours, which jeopardized its liquor license; and (2) a customer had complained about Drake's conduct and Blumenthal paid a settlement to resolve a civil suit based on that conduct.

Drake filed a charge with the Minneapolis Department of Civil Rights in November 1992, alleging reprisal discrimination. Probable cause was determined in September 1994 and, on May 23, 1996, Drake was awarded $1,000 for lost wages and statutory punitive damages of $8,500.

The Weston and Drake cases were consolidated during December 1995 hearings before the commission. The commission denied relator's motion to dismiss for investigative delay. By petition for writ of certiorari, relator appeals the commission's orders in favor of Weston and Drake.

In employment discrimination cases involving claims of disparate treatment, the commission must apply the three-step analysis set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Minneapolis Police Dep't, 425 N.W.2d at 239.

The commission determined that the Minneapolis Department of Civil Rights pursued its investigation diligently, witnesses testified with confidence and clear memory, and the death of a witness was not prejudicial. (A writing of the deceased was allowed into evidence.) The record supports the commission's finding of no prejudice. In the absence of prejudice, dismissal for delay would have been improper.

When the alleged discrimination is disparate treatment due to unequal imposition of discipline, an employee establishes a prima facie case by demonstrating the following:

(1) That plaintiff was a member of a protected group;

(2) That there was a company policy or practice concerning the activity for which he or she was [disciplined];

(3) That non-minority employees either were given the benefit of a lenient company practice or were not held to compliance with a strict company policy; and

(4) That the minority employee was disciplined either without the application of a lenient policy, or in conformity with the strict one.

Shockency, 439 N.W.2d at 718-19 (quoting E.E.O.C. v. Brown & Root, Inc., 688 F.2d 338, 340-41 (5th Cir. 1982)). Weston failed to demonstrate elements (2), (3), and (4).

Most significantly, racial motive cannot be inferred because Weston failed to establish that he was treated less favorably than any non-minority employee. Like Weston, Kapishkowit, an American Indian, belongs to a protected class. Relator responded to their altercation by temporarily changing their work schedules to avoid further contact. A few days later both employees resumed normal schedules. Under these circumstances, relator did not impose a disciplinary measure on Weston.

Moreover, the commission's finding that Weston lost four days' work from September 9 through 12 is not supported by the evidence. Weston had been scheduled to work for only three days between September 9 and 12, and he admits that he was paid for September 10 and resumed his normal schedule on September 13. Weston lost only two days' wages following the incident, a reasonable consequence as the employer adjusted work schedules to avoid conflict.

We reverse because the commission's findings of fact, conclusions of law, and memorandum fail to demonstrate a proper application of the McDonnell Douglas requirement of a prima facie case. An independent review of the record, likewise, fails to demonstrate a prima facie case of employment discrimination. Accordingly, the Weston decision is reversed and a portion of the fine we allocate to the Weston proceeding is rescinded.

The commission found that Blumenthal had serious and legitimate performance and liability concerns about Drake prior to Drake's advice to Weston. The commission, nevertheless, concluded that Drake's firing was, in part, based on an impermissible retaliatory motive. See Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 627 (Minn. 1988) (plaintiff's burden met if one of employer's reasons for action at issue is discriminatory). The decision was not arbitrary or capricious. Accordingly, we affirm Drake's compensatory damage award of $1,000 and a civil penalty of $1,000.[2]

only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others.

Minn. Stat. § 549.20, subd. 1(a). Any award of punitive damages must "be measured by those factors which justly bear upon the purpose of punitive damages." Minn. Stat. § 549.20, subd. 3. Specific findings must be made with respect to these factors. Minn. Stat. § 549.20, subd. 5.

The commission erred with regard to punitive damages because it made no finding that relator acted with willful indifference to the rights or safety of others. Further, the record is devoid of such evidence. Accordingly, the punitive damages award is reversed.

Affirmed in part and reversed in part.

[ ]¹ We note that the court in RSJ held that if 31 or more months pass before a probable cause determination, the delay is prejudicial per se and requires dismissal. RSJ, 552 N.W.2d at 703. That is not the case here, though.

[ ]² The commission assessed a single, $2,000 civil penalty against relator covering both the Weston and Drake claims. In the interests of judicial economy, we assume that 50 percent of it was to be allocated to Drake's claim, and affirm that award.