LAMONT D MCGLOWN, Complainant
SOUTH STAR INC, Respondent
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 makes the following:
1. The complainant worked four years as a dump truck driver for the respondent, a trucking company.
2. This driving work was seasonal, from April 1 through December 31. It was the respondent's practice to contact eligible drivers prior to April 1 and offer them the opportunity to work during the upcoming season.
3. On April 29, 2005, the complainant injured his neck/shoulder in the course of performing his work duties. As a result of this injury, the complainant filed a workers compensation claim.
4. Between the date of his injury and November 2, 2006, the date of the subject separation, the complainant frequently requested leave due to an inability to work as well as medical or physical therapy appointments. The respondent granted each of these requests.
5. In September 2006, Eric Johnson (EJohnson), the respondent's owner, became aware that the complainant's work restrictions limited him to five days of work each week and eight hours of work each day. The complainant made it known to the respondent that, despite these restrictions, he would like to work as many hours as he could because he needed the income.
6. Bryant Johnson (BJohnson), Eric's brother and the respondent's dispatcher/estimator/shop foreman, and EJohnson considered the complainant to be a reliable employee who always showed up to work his assignments.
7. At the end of October 2006, due to damage to one of its trucks, the respondent had nine available employee drivers but only eight trucks.
8. By Friday, October 27, 2006, the complainant had already worked five days and 50 hours that week.
9. Although it was BJohnson's typical practice in October 2006 to communicate the complainant's assignments to him by calling the complainant's home phone the evening before the assignment, on Friday, October 27, BJohnson communicated to the complainant over the respondent's two-way radio system that the complainant was scheduled to work at a Waukesha location for client Payne and Dolan beginning at 6:30 a.m. on Saturday, October 28. The complainant replied to BJohnson that he could not work on Saturday because he was in too much pain. BJohnson replied, "Pardon me?" The complainant reiterated that he would not be able to work on Saturday.
10. The complainant did not report to work on Saturday, October 28, but instead took pain medication, which required him to remain in bed all day.
11. The respondent had communicated to Payne and Dolan that truck #1804, the truck assigned to the complainant, would be at the Waukesha job site on Saturday. When this truck did not report to the job site, Payne and Dolan contacted BJohnson who arranged for another driver. BJohnson then phoned the complainant at home and, when the complainant did not answer, left him a message asking why he had not reported to work that day.
12. The complainant did not retrieve this message until Sunday, October 29. After the complainant listened to it, he phoned BJohnson and, when BJohnson did not answer, left a message stating in effect that BJohnson knew that the complainant would not be at work on Saturday, and he should stop playing games.
13. BJohnson's typical practice in October 2006 for communicating Monday assignments to drivers was to contact the driver on Sunday by texting to the driver's cell phone, or, for those drivers like the complainant who did not have a cell phone, by calling the home phone number and speaking to the driver or leaving a message. The drivers understood that, if they did not receive a message by early Sunday afternoon, they were expected to call BJohnson to receive their Monday assignment.
14. BJohnson left a message for the complainant on Sunday, October 29, that he was assigned to the Waukesha job site for Payne and Dolan on Monday, October 30. The complainant did not receive this message.
15. Despite not receiving a message as to his Monday assignment, the complainant did not contact BJohnson on Sunday, October 29.
16. The complainant did not work on Monday, October 30.
17. The respondent communicated to Payne and Dolan that truck #1804, the truck assigned to the complainant, would be at the Waukesha job site on Monday. When this truck did not report to the job site, Payne and Dolan contacted BJohnson.
18. BJohnson did not contact the complainant on Monday to determine why he had not reported to work the assignment, and the complainant did not contact the respondent.
19. The complainant was not scheduled to work on Tuesday, October 31, because he had a medical appointment. After his appointment, the complainant visited his union representative. The union representative and the complainant discussed his work injury and the pain and discomfort he was still experiencing from it. During this meeting, the union representative phoned and spoke to BJohnson who agreed with the representative that, if the complainant's physical condition was still limiting his ability to work, he should continue his workers compensation claim.
20. Some time after October 31, EJohnson decided to end the respondent's employment relationship with the complainant.
21. By letter to the complainant dated November 2, 2006, EJohnson stated as follows:
Given the lack of work, you are laid off as of 10/27/06.
22. The respondent did not contact the complainant in the spring of 2007 to offer him a chance to work during the upcoming season.
23. The complainant underwent a cervical fusion on January 29, 2007. The complainant's recovery period for this surgery was six months, and he was not released by his physician to return to full-time work until the end of July 2007.
24. The complainant underwent shoulder surgery on November 17, 2008, and, as of the date of hearing (January 26, 2009), remained unable to work.
25. After his discharge by the respondent, the complainant utilized the services of a job/rehabilitation counselor. Either through this counselor or independently, the complainant applied for more than 160 suitable jobs.
1. The respondent is an employer within the meaning of the Wisconsin Fair Employment Act (WFEA).
2. The complainant is an individual with a disability within the meaning of the WFEA.
3. The complainant failed to sustain his burden to prove that the respondent did not reasonably accommodate his disability when it assigned him to work on Saturday, October 28, 2006.
4. The complainant sustained his burden to prove that the respondent discriminated against him based upon his disability when it discharged him on November 2, 2006.
1. The respondent shall cease and desist from discriminating against the complainant on the basis of disability in violation of the WFEA.
2. The respondent shall offer the complainant reinstatement to a position substantially equivalent to the position the complainant held prior to his discharge, unless, within ten (10) days of the date of this order, the complainant indicates in writing to the respondent that he does not wish to be reinstated. This reinstatement offer shall be for a position with all seniority and benefits, including sick leave and vacation credits, to which the complainant would have been entitled had he been employed continuously from the date of discharge until the date of reinstatement. This offer shall be tendered by the respondent or an authorized agent and shall allow the complainant a reasonable time to respond. This offer shall be conditioned upon the complainant providing medical clearance for his return to work with limitations no more restrictive than those in effect at the time of discharge.
3. The respondent shall make the complainant whole for all lost pay he would have received as an employee for the following time periods:
October 30, 2006 through December 31, 2006
August 1, 2007 through December 31, 2007
April 1, 2008 through November 16, 2008
In addition, the complainant is entitled to back pay beginning on the date after January 26, 2009, on which he was first medically able to work with limitations no more restrictive than those in effect at the time of discharge, and ending on the date of the offer of reinstatement or the complainant's refusal of such offer. The back pay shall be computed on a calendar quarterly basis with an offset for interim earnings during each calendar quarter. Any unemployment or welfare benefits received by the complainant during the back pay period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or to the applicable welfare agency. (Reimbursement for unemployment insurance should be in the form of a check and made payable to the Department of Workforce Development and include the complainant's name and social security number.) Additionally, the amount payable to the complainant after all statutory setoffs have been deducted shall be increased by interest at the annual rate of 12% simple interest. Interest shall be computed based on the net amount of the back pay due for each calendar quarter. The interest shall be computed by calendar quarter from the last day of each calendar quarter to the date of payment. The back pay, plus interest, due shall be in the form of a check made payable to the complainant. Pending any and all appeals from this order, the total back pay due will be the total of all such amounts.
4. The respondent shall pay to the complainant reasonable attorney fees and costs associated with these proceedings in the total amount of $35,303.94 ($33,907.50 in fees and $1,396.44 in costs). A check in that amount shall be made payable jointly to the complainant and Attorney Rebecca L. Salawdeh and delivered to Attorney Salawdeh.
5. Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's order. The compliance report shall be directed to the Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes 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 $10.00 nor more than $100.00 for each offense. Wis. Stats. § § 111.95, 103.005(11) and (12).
Dated and mailed February 24, 2011.
BY THE COMMISSION:
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The respondent does not dispute that the complainant qualifies as an individual with a disability within the meaning of the WFEA.
The record establishes that the respondent was aware of the complainant's disability.
The complainant's theory is that the record shows that the respondent, for a discriminatory purpose, intentionally sabotaged the complainant by putting him on the client's schedule for October 28 even though the complainant had informed BJohnson that he would be physically unable to work that day, and by putting him on the client's schedule for October 30 without informing the complainant of this assignment.
However, it is not plausible that the respondent would jeopardize its relationship with its most important client this way.
The record reflects instead that both the complainant and the respondent were at fault for the no-shows on October 28 and 30, the respondent by failing to note the complainant's statement that he would not be able to report to work on October 28, and the complainant for failing to contact the respondent on October 29 after, as he claims, he did not receive notice of his October 30 assignment.
The evidence of record is not strong enough to establish, particularly given the respondent's history of accommodating the complainant, that the respondent's actions relating to the October 28 assignment constituted an intentional failure to reasonably accommodate the complainant's disability.
The remaining question then is whether the record shows that the respondent decided to end its employment relationship with the complainant "because of" his disability. Under the circumstances present here, this would require the complainant to prove that the respondent was motivated by a discriminatory animus in taking the adverse action. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, ¶ 42, 264 Wis. 2d 200, 225, 664 N.W.2d 651; Target Stores v. LIRC, 217 Wis. 2d 1, 9, 576 N.W.2d 545 (Ct. App. 1998). See, also, Daniel v. Berlex Laboratories, ERD Case No. 200601724 (LIRC July 25, 2008).
The critical circumstance here is that the respondent, which acknowledges that the complainant was a reliable four-year employee who had always reported to work his assignments, ended the relationship without talking to the complainant or otherwise attempting to reconcile his work history with what the respondent claims to have been his failures to report to work on October 28 and 30. The fact that this occurred soon after the complainant told BJohnson on October 27 that he was experiencing pain and was unable to work the next day as the result of his earlier injury, and immediately after the complainant's union representative discussed continuing the complainant's workers compensation claim with BJohnson, is sufficient to establish the requisite link between the complainant's disability and the separation.
This conclusion is strengthened when consideration is given to significant problems with the credibility of both BJohnson and EJohnson, particularly in regard to testimony they offered in relation to the circumstances of the separation at issue.
Specifically:
The record supports a conclusion that the complainant was discriminated against based upon his disability when he was discharged by the respondent in
October 2006.
Remedy
Although the respondent questioned the complainant at hearing regarding his efforts to obtain work after his discharge by the respondent, it did not sustain its burden to prove that such efforts were insufficient, and, in fact, did not argue to the commission that the complainant failed to mitigate his damages. In addition, failure to mitigate damages is required to be pleaded as an affirmative defense (see,
Kalsto v. Village of Somerset, ERD Case No. 100902509 (LIRC Oct. 3, 2000)), and the commission is unable to locate any such pleading in the record or even in the file in this matter.
Attorney's Fees and Costs
Counsel for complainant has filed two requests for attorney's fees and costs, one with the ALJ, and a supplemental one with the commission. The respondent has not offered any objection to these requests. The commission has reviewed them and has not found them unreasonable.
cc:
Attorney Rebecca L. Salawdeh
Attorney F. Thomas Olson
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