Monday, December 07, 2009

The Larry Flakes Case: Alaska Human Rights Commission Fines Alaska Sales And Service $118,375 For Failure To Promote A Black Salesman To Team Leader

An administrative law judge has upheld a claim by the Alaska State Commission for Human Rights that an Anchorage auto dealership racially discriminated against a Black salesman, Larry Flakes, when it failed to promote him to a "team leader" position. The Commission claimed that Alaska Sales and Service had violated Alaska Human Rights Law, and concluded that Alaska Sales and Service, Inc. must pay Flakes back-pay damages of $118,375. Either party can appeal this decision to the state court system. Primary media story from the Sitka News, but a September 29th, 2008 Anchorage Daily News story provides significant additional background.

According to Flakes, he had been selling cars for nearly 18 years, including two years as a sales manager or assistant manager at two other dealerships. He had worked for Alaska Sales and Service for nearly 11 years and had been named the "sales representative of the month" on 12 occasions. Yet in April 2002, when Alaska Sales and Service selected the team leaders, they passed him over. Flakes claimed that Alaska Sales and Service promoted five non-Black salesmen to be team leaders instead. Caitlin Shortell was the lawyer representing the Commission in this case. The use of the term "non-Black" implies that the five team leaders chosen were not all of the same race, which would also imply that race did not enter into promotion consideration. Those implications are confirmed by the ADN story, in which it was reported that one of the five selected team leaders was Asian, chosen in part because his language skills would help him make sales in the Asian immigrant community.

However, an unidentified second Black salesman for the company alleged that he also was not chosen for the team leader position because of the color of their skin. The professional qualifications of the second salesman were not reported. Nevertheless, the existence of a second complainant of the same protected class as the first complainant may have swayed both the Commission and the judge to presume racial discrimination in the absence of any objective corroborative evidence.

According to the ADN story, when the administrative judge first heard the case on September 29th, 2008, Peter Partnow, a lawyer for Alaska Sales & Service, said that Flakes' claims were baseless. The salesman never told his superiors he wanted a promotion and had attendance problems. Furthermore, the sales manager in question denied making the racist statements.

Partnow said that Flakes had attendance problems and that even though he had experience, he wasn't the best salesman, especially toward the end of his eight years with Alaska Sales & Service. This, of course, indicates that Flakes' salesman awards were earned much earlier in his tenure, which further indicates that in the opinion of the company, Flakes was regressing, making him a poor supervisory candidate. Partnow also said that Flakes had never been mistreated by his employers, had a record of absenteeism and had "walked off the job" after he said he heard a manager tell him he wasn't promoted because of his race. He didn't address the issue with his employer and it wasn't until months later that Alaska Sales & Service learned he'd filed a complaint. Partnow's contentions are corroborated subjectively by a comment posted to the ADN story:

krakelohm wrote on 10/01/2008 06:25:44 AM:
What a joke, I have worked with Larry before and I am not surprised at all he could not cut it in a management position. This case is another example of someone trying to game the system for money. How sad.


The Bottom Line: A Black salesman whose performance had clearly deteriorated doesn't get a promotion, hears an offhand remark that it might have been racial, throws a hissy fit and walks off the job without seeking in-house remediation, then suddenly blindsides his former boss with a "civil rights complaint" can now get a check for $118,375 just because a commission thinks he was the victim of discrimination. This exposes the presumption of guilt embedded within the civil rights enforcement bureaucracy, and was undoubtedly a factor in Anchorage's opposition to the proposed gay nondiscrimination ordinance vetoed earlier this year by Anchorage Mayor Dan Sullivan. Many feared that gays who were fired from jobs would use such an ordinance to launch civil rights suits as payback, and this case tends to validate such fears. Alaska Sales and Service is to be commended for fighting this complaint rather than caving in and "settling", like so many companies do.

Some brief notes about the two lawyers representing the contending parties. A personal blog under Caitlin Shortell's name is available HERE. Back on June 10th, Shortell posted the following comment on Anchorage's Ordinance 64 HERE: "I was hoping to see the Rabbi of Temple Beth Sholom speak in support of the proposed ordinance, in light of Reform Judaism's stated support of equal rights for LGBT people in the early '90s. I hope he does so in the next round of comment".

Peter Partnow’s practice emphasizes litigation and dispute resolution in employment and labor disputes, construction, public procurement and contract claims, and other complex litigation. He is also a former hearing examiner for the Alaska State Commission for Human Rights.

1 comment:

  1. It does not make sense to award the man for his performance then claim he was not up to par. the rwards for performance occurred over a period of time and he received more than 10. For his work to decline shows that he was not appreciated by his employer.

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