Wednesday, July 12, 2017

Angel Hernandez, MLB, and Discrimination (Part 1)

With Angel Hernandez's MLB All-Star Game over, it's time to analyze his lawsuit against Major League Baseball. This lengthy discussion is split into two parts, the first of which touches on Hernandez' allegations of racial discrimination, while the second will discuss historical examples alleging religious and sex discrimination in professional baseball, along with factors that contribute to a near-universal underrepresentation of protected classes (non-caucasians, non-whites, non-USA-born persons, non-Christians, and women) in the professional umpiring ranks.

UEFL Analysis of the Hernandez v MLB suit.
Introduction (and Recap): To summarize the main points of this litigation, Hernandez sued MLB alleging racial discrimination and seeking renumeration in the form of back pay (the amount of which was not disclosed in the Complaint), compensatory and punitive damages, and employment benefits to remedy the discrimination (similar to an obstruction type B's "nullify the act" clause).

Hernandez also asked the court to place an injunction against MLB (from, say, retaliation for statements made related to these proceedings), and to grant a jury trial.

Read the full narrative of Hernandez's July 3 complaint here: Angel Hernandez Sues MLB for Racial Discrimination (7/3/17).

Disclosure: The following analysis is theoretical, opinionated, and contains no findings of fact relative to any specific cases. It is based on hypothetical situations of how proceedings might play out, and in no way attributes any statements, characteristics, or findings to the individuals mentioned. The themes, topics, and theories discussed may be uncomfortable for some readers.

Analysis: Hernandez's complaint makes strong and repeated claims against MLB Chief Baseball Officer Joe Torre, stating that before Torre's arrival in the Commissioner's Office, Hernandez's evaluations were positive and trending upward, but after Torre's arrival in 2011, the evaluations took a downturn into less-than-satisfactory territory.

The reason this is so important to note is that, ordinarily, an employee does not have a strong cause of action against his/her employer, simply because of a belief that the boss is acting unfairly. Similarly, a lawsuit will not be successful if the claim simply states that one manager or, perhaps, bad boss, is responsible for negatively evaluating an employee.

Paul Emmel ejects Joe Torre.
As Hernandez's supervising Officer at MLB's corporate office, Torre has the right and responsibility to critically evaluate Hernandez's performance, and, if Torre believes Hernandez's performance is substandard for whatever behavioral reason, he is well within his rights to notate that. Even if he repeats claims from 2001 all the way into 2011, Torre as Hernandez's boss has the right to do so unless, for some reason, Torre were to admit that he made those 2011-era evaluations without bothering to see or consider Hernandez's 2011-era job performance.

It is difficult to believe that any boss under suit would admit to such meddling without even bothering to observe their employee. Simply put, if Torre says Hernandez hasn't changed since 2001, that's all there is to his defense: As Hernandez's boss, he's allowed to say it.

Timeline of Hernandez's pre-suit actions.
Even Hernandez admitted that a perceived feud with Torre isn't legally tenable, in Paragraph 66 of the Complaint, stating, "Though it may seem as if Major League Baseball’s problems with Hernandez begin and end with some personal animus Torre and some other individuals in the Office of the Commissioner may have towards Hernandez, an overview of how Major League Baseball has treated minorities such as Hernandez shows a much deeper and more troubling trend."

As an aside, it probably helps support Torre's "put yourself in the spotlight" comment that Hernandez's first game since filing his lawsuit was the 2017 All-Star Game. Both sides knew well in advance of the filing of the lawsuit that Hernandez had been selected to officiate the All-Star Game, and both sides knew of Hernandez's scheduled week off the field from July 3 through the All-Star Break (umpire schedules are generally predetermined).

Thus, Hernandez must consider a different strategy that is legally actionable. There are two ways to go here. Both relate to discrimination, the first of which is covered under Title I of the Americans with Disability Act (ADA) and the second under Title VII of the Civil Rights Act of 1964.

Oddly enough, tantrum behavior
ADA: Since Torre's "routinely attempting to put yourself in the spotlight" comments appear to be a theme in Hernandez's lawsuit, an ADA-related claim to counter would rely on the argument that such comments are discriminatory based on a disability. The one that most closely responds to such comments is narcissistic personality disorder, whose symptoms of exaggerated feelings of self-importance would address Torre's critical comments; However, there is no evidence (nor admission) to suggest Hernandez suffers from NPD. He has never invoked NPD, and no organization has alleged it (it is just being mentioned here as an example of a legal response to Torre's comments that could support a charge of discrimination). Hypothetically, even if a diagnosed plaintiff were to allege ADA discrimination, this would call for doctors as expert witnesses, intense scrutiny relative to diagnosing the disability, and, even if the disability were severe, consideration of what a "reasonable accommodation" from the employer would look like. Furthermore, an NPD claim wouldn't as easily address Torre's comments regarding Hernandez's alleged lack of rules knowledge, as in the March 2017 letter.
...Heaven forbid an umpire ever fights back.

Civ Rights: Because Hernandez identifies as Latino in his Complaint, discrimination based on a protected characteristic is a much more suitable course of action: no diagnoses, no doctors, no third-degree: Hernandez has a Cuban heritage and that's it. The Civil Rights Act prohibits employers from discriminating against employees based on race, color, national origin, sex, and religion. Hernandez's protected characteristic is "Latino."

Perhaps it is easier to define what is not protected under Title VII than that which is:
Race: Caucasian;
Color: White;
National Origin: United States of America;
Religion: Christian;
Sex: Male.

The race/color/nat origin route also allows Hernandez to cite statistics that go beyond Torre's critical evaluations and into MLB's overall hiring and promotion history (as alluded to by Paragraph 66, as above).

Not all foreign-born umps go full-time.
Based on legal precedent, a discrimination claim puts the employer in the unenviable position of proving its promotions were based on criteria unrelated to race. If it has ample paperwork and the "math adds up," MLB could successfully refute this claim.

Objective measures would prove most helpful for MLB, as such standard evaluative practices would demonstrate MLB's business operation and personnel movement is not based on subjective conjecture, but rather substantive and logical calculation. As long as the methods are consistently applied to all of its employees—and, moreover, MLB is able to convincingly demonstrate this—then proving unlawful discrimination will be difficult.

Race Composition of Umpires and Supervisors: Hernandez makes some pretty incredible observations about umpires and race statistics, notably that a permanent minority crew chief hasn't existed in the major leagues since the days of AL and NL staffs, with Crew Chief Rich Garcia, who led an American League crew from 1985 through his final game in 1999, when MLB accepted his resignation. Instead of returning to the playing field thereafter, Garcia joined the Commissioner's Office and served as an Umpire Supervisor from 2002 to 2010, when he, Marty Springstead, and Jim McKean were ousted as the result of events that occurred during the 2009 postseason.

Chuck Meriwether has Sup'd since 2011.
Presently, two minority Supervisors serve in the BOC (Cris Jones and Chuck Meriwether), while the current full-time MLB staff features ten minority umpires (Kerwin Danley, CB Bucknor, Laz Diaz, Manny Gonzalez, Hernandez, Adrian Johnson, Alfonso Marquez, Gabe Morales, Alan Porter, Carlos Torres), or 13.2% of the staff.

Four (Gonzalez [2013], Morales [2017], Porter [2013], and Torres [2017]) were hired since Torre took office, and all four filled spots previously held by caucasian umpires.

Carlos Torres was hired to the staff in 2017.
In January 2017, four umpires were hired to the staff. The most experienced had 461 of Major League experience, the second had 389 games, the third had 354 games and the fourth had 160 games. Torres of Venezuela was the 160-game umpire, and leapt over seven non-hired (white) Triple-A call-ups with more experience to get the full-time MLB gig. Torres, at 38-years-old, however, was also the oldest.

To prove Major League Baseball engaged in a pattern of racially-motivated discrimination, Hernandez would need to find evidence that deserving minority umpires were denied justly deserved promotions and assignments at the expense of their non-protected colleagues. Again, this goes back to the existence of objective criteria and evaluations mentioned above, and the quality of MLB's paperwork will determine whether these claims are supported or refuted.

If we are to believe, as we are told, that postseason assignments are an award for exceptional in-season performance, we can surmise that those umpires with routine postseason assignments in the later rounds (e.g., League Championship Series and World Series) are those that MLB has routinely rated the highest on staff. These are surely not the only objective measures MLB has to offer, but they are amongst the only ones that are public knowledge. In his complaint, Hernandez makes specific reference to the World Series, so we'll discuss Fall Classic assignments.

Sampling 'Bubble' White and Latino Umpires for Promotion: Take the case of Alfonso Marquez (Latino), who had officiated three World Series (2006, 11, 15) before his newly-promoted crew chief, Larry Vanover (white), had officiated even one (2016); Fonzie still has more postseason experience than other newer white crew chiefs, such as Fieldin Culbreth (two WS), Sam Holbrook (two WS, 2010 & '16) Paul Emmel (one WS, '13) and Jerry Meals (one WS, '14), yet Marquez himself is not a crew chief. The experience advantage extends to earlier postseason play (e.g., the League Championship Series) as well.

By contrast, Hernandez has officiated two World Series (2002, 05) [beats Vanover, and ties all others, except Marquez, who outpaces Hernandez by one].

Marquez's #s sure look promotion-worthy...
As for Replay Reviews and Review Affirmation Percentage (RAP), Marquez again comes out a winner. His 2016 RAP of .667 ranked seventh in the League (compared to Holbrook [20th], Vanover [25th], Culbreth [29th], Emmel [46th], and Meals [81st]). In 2015, Marquez again beat out his colleagues, finished second in the entire League with a .750 RAP (Holbrook [5th], Culbreth [11th], Emmel [18th] Vanover [42nd], Meals [64th]). In 2014, Marquez' .700 RAP [11th] again beat the other recent crew chiefs (Culbreth [15th], Vanover [32nd], Meals [34th], Emmel [78th], Holbrook [BL]).

By contrast, Hernandez's .389 RAP ranked 65th in 2016 (beats only Meals), .579 RAP ranked 26th in 2015 (beats Vanover and Meals), and .450 RAP ranked 58th in 2014 (beats only Emmel).

Why Marquez was not promoted at the expense of less-experienced and less-accurate white umpires is a conundrum, but one that MLB as a private entity has the right to keep secret (perhaps, until Hernandez's suit goes to trial [if it gets that far]; if Marquez never actually sought promotion, that'll be disclosed at discovery). As for Hernandez, personally, he doesn't stand above-and-beyond as Marquez does—on these specific metrics. Still, Marquez's non-promotion bolsters Hernandez's claim, especially when Fieldin Culbreth, as Crew Chief, in 2013 was suspended for incorrectly applying baseball rules during a pitching change sequence in Houston...yet Hernandez received comments from Torre criticizing his own rules knowledge.

General Discrimination (Race/Religion/Sex): Finally, the underlying message is one of systematic discrimination that begins all the way at the bottom of professional baseball, at PBUC/MiLBUD's hiring program for the Rookie Leagues, and for every promotional step along the way. To get into those statistics would surely take weeks to discuss, suffice it to say, but I have a theory—and it doesn't seem too absurd—that the composition of students at the two Umpiring Schools (Wendelstedt's HWS, and MiLB's TUS) are still majority-white, Christian, and male.

It's a historical perspective: In the past, I'd surmise that the racial makeup of each class was less diverse (thus, more white), and that in recent times, that composition has trended toward more equitable representation. It's a slippery slope argument to extract the precise reason for underrepresentation at school, and there are likely many causes.

First, the schools' cost can prove prohibitive to poorer students, who may trend toward racial minority status. To address the cost, MLB, MiLB and similar entities have instituted scholarships.

Second, there may exist an "ambition gap" wherein certain underrepresented groups (e.g., women [*administrative note* women aren't minorities]) remain underrepresented due to a lack of interest in the profession. Emerge America: Women Leaders for a Democratic Future, for instance, found that "the greatest hurdle for women in achieving gender parity in politics is not in the number of votes they get or their level of fundraising. It's overcoming the political ambition gap and convincing more women to run for office."

Third, and this is related to the ambition gap, if a potential umpire doesn't feel like (s)he will be successful in professional baseball, that person will likely not seek to attend school.

SABR demonstration of MLB's ethnic makeup.
We know that it routinely takes up to a decade's time for the chosen ones to reach the MLB level, which means that in Hernandez's class, there's an even greater chance Latinos were underrepresented at school, and thus, were underrepresented every step of the way up to and including in Major League Baseball.

Bear in mind that when Hernandez debuted in 1991, just 16% of players were Latino. Considering the amount of time it takes the average umpire to break into the Majors, even with the league's racial composition on the rise, umpiring's distribution, by necessity, will likely always be behind the curve, unless intervention causes the balance to skew by promoting umpires too quickly or keeping them in the minor league game too long.

Comparison, Racial Makeup of MLB Players vs Racial Makeup of MLB [Full-Time] Umpires:
Players: In 2007 ("10 years ago"), 26.1% of players were Latino. In 2016, it was 27.4%.
Umpires: In 2007, 5% of umpires were Latino. In 2016, it was 5.4%. In 2017, it's 7.9%.
*Non-Hispanic Black Players, 2007: 8.5%; 2016: 6.7%.
*Non-Hispanic Black Umpires, 2007: 4.4%; 2016: 4.0%.
*Asian Players, 2007: 2.2%; 2016: 2.1%. Asian Umpires, Both Years: 0.0%.

Putting it another way, 86.8% of 2017's umpires are white. By contrast, the last time 86.8% of MLB players were white was 1958. The last time only 7.9% of the league's players were Latino was 1961, and the last time 4.0% were black was 1953.

The natural question here is whether these percentages correspond to the umpires coming out of school (~10 years prior to the respective marks). If the statistics are comparable, we go back to the school attendance and ambition gap, and posit a theory as to why minorities are underrepresented at school. If not, we need to dig deeper.

We'll have more on this tomorrow...


Post a Comment