The Montana Supreme Court upheld a decision last week that found an African American man was subjected to racial discrimination at his Anaconda workplace.
According to court documents, Jerry James Bright was allegedly called or referred to as a “nigger” on four occasions by his supervisor while working at KB Enterprises, a small business that makes insulated pipe fittings in Anaconda, between 2015 and 2016.
Bright was awarded nearly $40,000 in lost wages and emotional distress damages by the Montana Human Rights Commission, a five-member, governor appointed group that offers independent judgement on discrimination complaints investigated by the Montana Department of Labor and Industry bureaus.
The commission’s final decision mirrored that of the department’s Office of Administrative Hearings, finding that Bright was subjected to racial discrimination, which led him to quit his job with KB Enterprises in 2016 and take a lower-wage position elsewhere, court documents say.
But the owner of KB Enterprises, Kevin Beck, and its founder, David Beck, feel the commission’s decision was an “egregious injustice.” The father-son duo claim the Department of Labor and Industry’s initial Human Rights Bureau investigation wasn’t thorough and that the Office of Administrative Hearings disregarded their other employees' testimonies, which alleged they never heard Bright’s supervisor used the "N-word" toward him.
“No one ever heard him (the supervisor) say the "N-word." Had he done that, he would have been fired,” Kevin Beck said. “I just don’t understand how you can prove a he-said, she-said kind of scenario like this.”
Here’s how the Montana Human Rights Bureau process works: Once a discrimination complaint is filed, the bureau has 180 days to complete its initial investigation. This investigation is to determine if there is reasonable cause to believe the complainant was discriminated against, based on the evidence.
According to Human Rights Bureau Chief Marieke Beck, the bureau’s investigators undergo training on how to conduct investigative interviews, and follow a checklist to ensure they are completing a quality investigation. Most of these investigators come from law enforcement backgrounds, Marieke Beck said.
Marieke Beck noted that not all investigations are conducted in person. Due to the bureau’s tight budget, some interviews are conducted over the phone, including those in the KB Enterprises vs. Jerry James Bright case.
KB Enterprises’ Kevin and David Beck said they felt because these investigative interviews were conducted over the phone, the bureau did not reach the right conclusion.
“The person who decided to make this ruling didn’t have the courtesy to even come down to our manufacturing plant,” David Beck said. “I almost have the feeling that once they decided the word was used it became a rubber stamp process.”
Although Marieke Beck acknowledged these concerns, she said she is a huge fan of the state’s administrative process in investigating discrimination complaints, and that her investigators conduct quality interviews no matter if they are in person or over the phone.
Marieke Beck explained that if the Human Rights Bureau makes the initial “reasonable cause” finding, the original complaint goes to the Office of Administrative Hearings, where a formal district court-like contested case hearing is held. The investigation behind the Human Rights Bureau’s cause finding never goes to the Office of Administrative Hearings, giving the complaint “a whole new set of eyes,” she said.
During this contested case hearing, both parties present their sides through witness testimony or documentary evidence to a hearing examiner. Based on this testimony and evidence, the examiner issues a decision on whether discrimination occurred or not, and can award damages if discrimination is found, according to Human Rights Bureau documents.
The hearing examiner for the KB Enterprises vs. Bright case found that racial discrimination did occur, and awarded Bright the nearly $40,000 in damages in summer 2017. About seven people gave testimony during the hearing, including Kevin Beck and Jerry Bright, court documents say.
The examiner’s 42 “findings of facts” were outlined in a 2017 Department of Labor and Industry Office of Administrative Hearings document.
In summary, the facts determined by the examiner acknowledge that KB Enterprises is a small business with less than 15 employees, and is a loud place to work. Employees frequently wore hearing protection while operating the shop equipment, including saws, the hearing document says.
Bright’s supervisor was described in the hearing document as having a “condescending and demeaning attitude toward anyone who reported to him,” including Bright. This supervisor allegedly called Bright the "N-word" in March, June and November of 2015, and in mid-April of 2016.
On the first occasion, the supervisor said “I don’t know why Kevin hires ("N-words") or (Hispanics) anyway,” in response to helping Bright with a work task. Bright testified that he talked with other employees about this comment, but is not sure if the employees heard it firsthand.
The other three times the supervisor reportedly used the "N-word" toward Bright were related to Bright asking work-related questions or not knowing something work-related, the document states.
The hearing document also states that Bright informed his employers of the racial slurs reportedly directed at him. Meetings between Bright, the supervisor and Kevin Beck were reportedly held to discuss their working relationship, and the police were called in one instance when Bright retaliated against the supervisor by allegedly saying he was going to break his neck, the hearing document states.
But overall, the hearing document states KB Enterprises did not conduct an investigation into Gustafson’s reported use of the "N-word," which was a “painful and dark experience” for Bright.
“KB’s racial harassment of Bright, by and through its employee and Bright’s supervisor, … created an intimidating, hostile, and offensive working environment sufficiently severe so as to alter the conditions of Bright’s employment,” the hearing document states.
The hearing examiner concluded that KB Enterprises discriminated against Bright by allowing a hostile work environment to exist.
According to current KB Enterprises owner Kevin Beck, he knew nothing about the discrimination allegations made against his business until a Human Rights Bureau investigator called him.
Beck said there was friction between Bright and his supervisor, which he met with them about, but that he nor any of his employees heard the supervisor call Bright the "N-word."
Though the hearing document notes that other employees testified that they did not hear the n-word used by the supervisor toward Bright, it also states that Bright’s testimony is more credible than the evidence offered by KB Enterprises.
“The fact that no one other than Bright heard the words uttered does not lend credibility to the idea that the events that Bright described did not occur,” the hearing document states.
KB Enterprises appealed this decision to the Human Rights Commission, which upheld the hearing examiner’s conclusion and made the final agency decision.
The Anaconda business then filed a petition for judicial review of this decision in Anaconda-Deer Lodge District Court, but Judge Ray Dayton upheld the Montana Human Rights Commission’s final decision in September 2018.
Lastly, KB Enterprises and their Butte-based lawyer filed an appeal with the Montana Supreme Court, asking the state justices to evaluate whether the Anaconda District Court erred in affirming the commission’s final decision.
On June 4, the Montana justices affirmed the original Department of Labor and Industry investigation conclusion for a fourth time, detailing their opinion in an 11-page court document.
According to this opinion, delivered by Justice Ingrid Gustafson, the Montana Supreme Court did not find any of the labor and industry hearing examiner’s “findings of fact” to be erroneous.
The state Supreme Court acknowledged KB Enterprises’ complaint about the hearing process, and said that the business was essentially asking the state justices to believe the testimony of its witnesses over Bright’s witnesses, according to the opinion document.
The document also notes that the other witnesses besides Bright and his supervisor “generally testified” that they did not hear the supervisor call Bright the "N-word," but states that a hearing officer’s findings are highly respected and trusted.
“Substantial credible evidence exists to support these Findings of Fact as noted by the District Court in its Order,” the Montana Supreme Court opinion document states. “The Hearing Officer is in the best position to determine the credibility of witness testimony and his determination that Bright’s testimony was true is entitled to great deference.”
David and Kevin Beck of KB Enterprises still aren’t satisfied with the way this case was handled. Both men said they are extremely disappointed and are considering moving the local fabrication business elsewhere, which they feel would negatively impact Anaconda’s economy.
Beck said KB Enterprises does not have discrimination or employment practices liability insurance, and is figuring out how to pay Bright the nearly $40,000 in damages.
According to Montana Human Rights Bureau data, over 500 discrimination cases were filed between July 2017 and June 2018. Of those cases, 88 were related to discrimination against African Americans because of their race.
When Bright’s case was filed in 2016, over 737 discrimination cases had been filed and 23 were related to discrimination against African Americans.
Although KB Enterprises is upset with the recent Montana Supreme Court decision, for Bright and his attorney, Ben Everett Jr. of Everett Law in Anaconda, the ruling was a victory for minorities across the state.