FREDA MARIE MORK, Complainant

SUPER 8 MOTELS, Respondent A

SINGH RESTAURANT OPERATIONS INC, Respondent B

SURINDER MANAK, Respondent C

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:

1. In paragraph 12 of the FINDINGS OF FACT, the last sentence is deleted.

2. In paragraph 13 of the FINDINGS OF FACT, the first sentence is deleted and the following sentence is substituted therefor:

"Mork also gave Manak the envelope with the notice of her wage complaint."

3. Paragraph 5 of the ORDER is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the Respondent shall submit a compliance report which provides details of the specific action it has taken to comply with the remedial relief ordered in this matter. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. Wis. Stat. § § 111.395, 103.005(11) and (12) provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense."

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed December 17, 2009
morkfr . rmd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The complainant, Freda Mork, worked for the prior owner of Respondent A, Super 8 Motels, performing both managerial and non-managerial job duties. Specifically, Mork worked 16 hours per week as a desk clerk and during the balance of the 40-hour work week she performed managerial tasks. She was paid $10.50 per hour for her work as a desk clerk. Mork was also provided an apartment at the motel, in which she and her husband lived which was assigned a value of $1,000 per month.

In late 2006, Respondent C, Surinder Manak, purchased the Super 8 Motel. Manak continued to employ Mork and paid her under the same compensation arrangement that she had with the prior owner. However, in addition to desk clerk work and managerial duties, Mork performed housekeeping duties because Manak had not retained enough housekeeping staff. On several occasions during December 2006 Mork attempted to talk to Manak regarding the amount of hours she was working but each time Manak would say, "We'll talk later" and then walked out the door.

On December 27, 2006, Mork filed a Labor Standards Complaint with the Equal Rights Division in which she complained about the amount of hours she was working and the compensation she received for her work.

Mork's duties as desk clerk included receiving and opening the mail. Notice of Mork's Labor Standards Complaint arrived in the mail at the motel on Saturday, January 6, 2007, and Mork opened the letter.

On Monday, January 8, 2007, at about 4:30 p.m., Mork, accompanied by her husband, went to the lobby where Manak was working and asked to speak to Manak. Manak objected to Mr. Mork being present, so Mr. Mork stood some distance away. Mork testified that she told Manak about the amount of hours she had been working, that she was willing to work Monday through Friday, but she wanted Saturday and Sunday off. Mork testified that Manak responded that they would have to get someone in to work weekends because Manak could not work the weekend hours, and that Manak agreed that Mork could train someone or bring in a former employee to work weekends. Mork testified that she also requested an employment contract like she had with the prior owner. Mork testified that Manak responded that they did not need a contract, but when she insisted Manak stated he would talk to his lawyer and draw one up.

During this same January 8, 2007 conversation with Manak, Mork gave Manak the letter containing the notice regarding her wage complaint. Mork testified that she told Manak she had filed a wage complaint with the state and that he really needed to read the letter. Mork and her husband then returned to their apartment.

Mork testified that about 45 to 60 minutes after returning to her apartment she received a call from Manak stating that he wanted to see her "right then" at the front desk. Mork testified that Manak sounded upset. Mork testified that as she got outside her apartment door she was met by Manak who asked her, "Why did you stab me in the back?", and then stated, "You are done."

Mork further testified that later on January 8, 2007, and again on January 9 and 10, Manak called and told her that she had to pay rent for her apartment and that if she did not pay it he was going to call the police and forcibly evict her. Mork testified that during Manak's January 9 telephone call she told Manak that there was no way she could pay him the rent. Mork testified that during the January 9 telephone call Manak also threatened to have her cars towed. Mork testified that she and her husband vacated the apartment by 9:50 p.m. on January 10, 2007.

Manak testified that when Mork spoke to him on January 8, 2007, Mork stated that she was not going to work weekends anymore, but never mentioned that it was because of the number of hours she was working and the amount of compensation she was receiving. Manak further testified that Mork never mentioned having a written employment contract with the previous owner or wanting to enter into an employment contract with him. Manak admits that Mork handed him an envelope and said that she had filed a complaint against him, but he testified that Mork never stated that it was for wage and hour issues. Manak testified that he did not know what the complaint was about and that he put the envelope given to him by Mork in his pocket without opening it. Manak testified that after meeting with Mork he put the envelope in a desk drawer. Manak testified that he did not look at the contents of the envelope on January 8, 2007, because he had a lot of guests coming in and because of a problem he had with the key card machine which made individual room keys for the guests.

Manak contends that Mork quit her employment in response to being told she would be working weekends. Manak testified that the conversation with Mork on January 8, 2007, ended with Mork saying that if she had to work weekends she was done working for him. Manak testified that he did not look at the envelope that Mork had given him at any time on January 8, 2007. Manak testified that he took the envelope that Mork gave him on January 8 and dropped it off at his attorney's office without reading it. Manak testified that he gave Mork's complaint to his attorney on either January 9 or 10, 2007.

Manak testified that on January 8, 2007, he did not communicate anything to Mork about the apartment, and that at no time did he ever state to Mork that she had to get out of the apartment or he would call the police. Manak testified that on January 9 he told Mork over the phone that if she wanted to stay in the apartment she had to pay him rent or she had to move out.

DISCUSSION

The ALJ concluded, largely on grounds of credibility, that the respondents discriminated against and discharged Mork because she had filed a complaint under the Wisconsin Hours of Work and Overtime Law, in violation of the WFEA.

The ALJ stated in his memorandum opinion, in part, as follows:

After observing their demeanor at the hearing and considering their testimony in detail, the Administrative Law Judge has concluded that the Complainant presented the most credible testimony in this matter.

There was nothing about the Complainant's demeanor that undermined her credibility at this hearing. Her testimony was credible and makes the most sense under the circumstances. The Complainant was clearly upset with the changes to her employment made by Manak after he purchased the motel. Yet she had no reason to suddenly and voluntarily quit her job without explanation and put herself in a position of being immediately both jobless and homeless. The timing of the presentation of the wage complaint and termination of the Complainant's employment strongly supports the inference that the termination of her employment was in retaliation for her having filed a wage complaint.
. . .
The Administrative Law Judge does not credit the testimony of Manak. This is based both upon the factual circumstances of the case and upon the observation of the demeanor of Manak. A large part of the Respondent's case was based upon the assertion that, because English is not the Respondent's first language, he did not understand the significance of the complaint when the Complainant presented it to him.

It is undisputed that the Complainant told Manak that she had filed a complaint with the State of Wisconsin against him. Manak, by his own testimony, admits that he knew that this paper was important enough to get it to his lawyer in Minnesota by the next business day.

Manak has been in the United States for 26 years. He has successfully become a business person owning and managing independent businesses in two states....He worked the front desk [of the motel], taking payment and credit from customers for the rental of rooms. He was admittedly able to read that the envelope was from the State of Wisconsin.

Manak's petition for review in this matter does not specifically challenge any of the procedural and evidentiary rulings made by the ALJ, nor does it challenge any specific findings of fact as being unsupported by the record, nor does it specifically assert whether and why any conclusions of law are claimed to be in error. The commission has conducted an independent review of the record and finds no compelling reason in the testimony or elsewhere in the record to question the ALJ's assessment of Mork and Manak's credibility.

Accordingly, the commission has affirmed the decision of the administrative law judge.

cc:
Attorney David C. Schoenberger
Attorney Joseph M. Paiement (courtesy copy)

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