Wis.LIRC ER Decision: Tharpe - October 2, 1998 - - Retaliation - discrimination because of opposition to discrimination or filing complaint

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DEANNA LYNNE THARPE, Complainant

B-4 TIME, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199700688

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 conclusion in that decision as its own, except that it makes the following modifications:

Paragraphs 2, 3, 4 and 5 of the ORDER are deleted and the following three paragraphs are substituted therefor:

"2. That the respondent immediately make a written offer to the complainant offering her employment as a billing clerk. The offer shall entitle the complainant to all back pay, benefits and other privileges that she would have enjoyed but for the unlawful termination of her employment. The respondent shall rehire the complainant, unless within 21 days after the date this matter has become final the complainant notifies the respondent in writing that she does not wish to return to work for the respondent.

3. The back pay award shall make the complainant whole by paying her the amount she would have earned from January 25, 1997, through the date on which she either begins employment or notifies the respondent in writing that she does not wish to be reemployed. The back pay shall be computed on a calendar quarterly basis, with deductions on a quarterly basis for any interim earnings received by the complainant. Also, any amounts that the complainant received as unemployment insurance or welfare payments shall not reduce the back pay otherwise allowable, but shall be withheld from her and immediately paid to the unemployment reserve fund, or in the case of welfare payments, to the welfare agency making the payment. (Reimbursement for unemployment insurance shall be in the form of a check made payable to the Department of Workforce Development, Unemployment Insurance Division, and show the complainant's social security number and the ERD case number.) Additionally, the amount payable to the complainant after all statutory setoffs shall be increased by interest at the annual rate of 12% simple interest. The interest is to be computed by calendar quarter, figured from the last day of each quarter to the date payment is made. The sum of the net back pay plus interest owed for all calendar quarters shall constitute the total back pay owed.

4. 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 it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708."

DECISION

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

Dated and mailed: October 2, 1998
tharpde.rmd : 125 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant worked full time as a billing clerk for the respondent during the summer of 1996. Jonathan Henderson, is the president of the respondent, H & S Corporation, d/b/a B-4 Time Express. In September 1996, the complainant began working part time. The part-time work was performed on Saturdays. She was apparently scheduled to work from 8 a.m. to 3:30 p.m., with a half hour off for lunch.

In November 1996, another employe of the respondent, Veronica Fulsom, filed a wage claim against the respondent with the Equal Rights Division under ch. 109, Wis. Stats. The complainant submitted a letter as a witness in support of Ms. Fulsom's wage claim. Apparently, an investigator for the division mailed a copy of the complainant's witness statement, and a decision in favor of Ms. Fulsom on her wage claim, to the respondent on January 24, 1997.

On January 24, 1997, Mr. Henderson had met with the complainant to discuss a performance evaluation prepared for her. The complainant was accompanied by her mother, Melinda Lumpkin, who apparently drove the complainant to the respondent's office. Veronica Fulsom was present at work on January 24, 1997. The complainant was rated "Above Average" for eight out of the eleven "Factors" listed on the evaluation. She received a rating of "Satisfactory" for the "Availability" factor. (1 ) The availability factor was described as "The degree to which an employee is prompt, follows rules concerning break and meal periods and overall attendance." In the comments section regarding this factor, Mr. Henderson stated, "Does good! Could Try to be more prompt (sic) Timely..." In the performance evaluation Mr. Henderson presented to the complainant on January 24, 1997, the section of the evaluation entitled "AREAS WHICH NEED IMPROVEMENT" was left blank. Also, Mr. Henderson gave the complainant a pay raise.

The complainant conceded that Mr. Henderson told her to be more prompt, but also indicated that Mr. Henderson was not always at work on time to let her in and that she had never gotten a written warning about tardiness. Veronica Fulsom testified that the complainant showed her the performance evaluation after the meeting with Mr. Henderson, and that the complainant mentioned that Mr. Henderson might eventually make the complainant an office assistant.

The complainant left three telephone messages for Mr. Henderson on January 25, 1997. The complainant's mother testified that on Saturday, January 25, 1997, the complainant called the respondent at 7:45 a.m., 8 a.m. and 8:15 a.m. to inform Mr. Henderson that the complainant would not be at work that day because she (complainant's mother) was ill.

During the afternoon on January 25, 1997, Mr. Henderson called the complainant and told her that her employment was terminated.

On February 17, 1997, the complainant filed a complaint with the Equal Rights Division alleging that the respondent retaliated against her by terminating her employment because she had written a letter to the division in support of Veronica Fulsom's wage claim against the respondent. In her complaint the complainant asserts that Mr. Henderson fired her for not coming in to work that day, but that she had left three messages, at 7:15 a.m., 8 a.m. and 8:15 a.m. that day, stating that she would not be in to work because her mother was ill. The complainant asserted that when Mr. Henderson called she was on another line talking to Veronica Fulsom, who stated that she had won her case and that Mr. Henderson would probably be mad.

Mr. Henderson testified that he received the complainant's letter regarding Ms. Fulsom's wage claim on January 27, 1997.

The complainant testified that after filing her complaint, she received a copy of her January 24, 1997 performance evaluation from the Equal Rights Division which showed that the section entitled "AREAS WHICH NEED IMPROVEMENT" now contained the comment, "Must Arrive at work on time to Keep job!!!" The complainant, her mother and Ms. Fulsom all testified that this comment had not appeared on the January 24, 1997 evaluation received by the complainant.

The administrative law judge issued a decision concluding that the respondent terminated the complainant's employment because she assisted with a complaint under section 109.03, Stats., of the Wage Payment Act. In a memorandum opinion attached to his decision, the ALJ included the comments that he found the complainant's testimony to be more credible than that of the respondent, and that he found the timing of the complainant's discharge (three days after the complainant's witness letter was submitted to the ERD) to be too much of a "coincidence" considering that Mr. Henderson had met with the complainant on January 24, 1997, and had failed to warn her that her attendance was a problem.

DISCUSSION

Wisconsin Statute � 111.322(2m)(b) makes it an act of employment discrimination to discharge or otherwise discriminate against any individual because "The individual...assists in any action or proceeding held under or to enforce any right under s. ... 109.03 ..."

On appeal, the respondent asserts that the complainant worked on Saturdays from 8 a.m. to 3:30 p.m. with a half-hour lunch break and asks the commission to review the complainant's time cards. He also requests the commission to note the performance evaluation comment that "she could be more prompt to get to work on time..."

A second assertion by Mr. Henderson is that the complainant left three different messages on the respondent's answering machine on January 25, 1997: First, that she could not open the garage; second, that the car would not start; and third, that her mother was sick. Mr. Henderson apparently asserts that the complainant does not have a driver's license and should have found another way to work if her mother was sick. Mr. Henderson asserts that 90% of the billing was to be done the last and first weeks of every month and the complainant knew these were critical times. Mr. Henderson asserts that he gave the complainant a raise "to help motivate her to get to work, but mainly to do this on Time!"

A third assertion by Mr. Henderson is that when he hired the complainant he knew the complainant and Ms. Fulsom were good friends (2 ) and that "it did not bother me one bit for Complainant to support Mrs. Fulsom in letter to ERD."

Finally, Mr. Henderson asserts that he terminated the complainant's employment because he knew of all the past tardiness. He then apparently asserts that the complainant did not come to work on the one day that she was scheduled to work, and asks which of the "3 excuses" given was the reason.

The respondent's assertions that he terminated the complainant's employment due to attendance problems and not because the complainant had submitted a witness letter in support of Ms. Fulsom's wage claim against the respondent are unworthy of credence. Only one day prior to the termination of the complainant's employment, Mr. Henderson had provided the complainant with a generally favorable written performance evaluation. The evaluation contained no indication that the complainant's job was in jeopardy due to attendance problems. Also, Mr. Henderson gave the complainant a raise. After the complainant filed her complaint of retaliation against the respondent, she received a copy of a performance evaluation, dated January 24, 1997 and signed by Mr. Henderson, from the Equal Rights Division which contained the language "Must arrive at work on time to Keep job!!!" as an area which needed improvement. The respondent apparently claims that he did not have the opportunity to include this statement on the evaluation copy that the complainant received because she left before the end of the performance review. However, the testimony of both Ms. Fulsom and the complainant's mother indicate that after the performance review was over the complainant had remained at the respondent's office for a period of time waiting for Ms. Fulsom to get off work.

Further, Mr. Henderson's credibility is also called into question because subsequent to the complainant's discharge he instructed Ms. Fulsom to write a letter stating that the complainant was dismissed for failing to show up for work on January 25, 1997, after which he read it over and "made corrections."

As for the complainant's attendance, her time cards do show several absences and occasions of tardiness. However, there is no credible evidence that the complainant was ever warned that her job was in jeopardy because of her attendance. The complainant conceded that on January 24, 1997, Mr. Henderson told her to be more prompt for work, but she also testified that Mr. Henderson was not always at work on time to let her in. Furthermore, the evidence shows that there were occasions that the complainant took a shortened lunch break (once she took no break at all) and/or worked beyond her scheduled 3:30 quitting time when she was late for work.

Testimony by the complainant's mother supports the complainant's assertion that she left three messages for Mr. Henderson on January 25, 1997, stating that she would not be in to work that day because her mother was ill.

Even assuming that Mr. Henderson knew that the complainant and Ms. Fulsom were good friends when he hired the complainant, there is substantial circumstantial evidence from which it may be inferred that the respondent terminated the complainant's employment on January 25, 1997, in violation of the Wisconsin Fair Employment Act, because she had assisted Ms. Fulsom with her complaint under Wis. Stat., � 109.03.

NOTE: Since the complaint filed by the complainant indicates that she was seeking whatever relief she was entitled to by law as a remedy for the respondent's discrimination, and the hearing record fails to disclose any change in the relief that the complainant is seeking, the ALJ's order has been modified to require the respondent to offer the complainant reinstatement as a billing clerk. The ALJ's order has also been modified to require that the back pay award be reduced by any interim earnings received by the complainant. Finally, a new compliance paragraph directing the respondent to submit its report detailing the action taken to comply with the commission's order has been added.

cc: Jonathan D. Henderson

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Footnotes:

(1)( Back ) The complainant also received satisfactory ratings for the "Creativity" and "Productivity" factors.

(2)( Back ) Mr. Henderson has apparently submitted what purports to be the complainant's employment application, which lists Veronica Fulsom as a reference, to support the claim that he knew that the complainant and Ms. Fulsom were good friends when he hired the complainant. This document was not submitted as evidence at the hearing.