Wis.LIRC ER Decision: Ellis - October 2, 1998 - Retaliation - discrimination because of opposition to discrimination or filing complaint - retaliation for wage claim; Procedure - evidence - hearsay

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

NATHANIEL ELLIS, Complainant

DIONNE CONSTRUCTION AND TRAFFIC COMPANY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199602810

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:

1. The following shall be added to the third paragraph of the ORDER:

"The back pay award shall be reduced by any interim earnings received by the complainant. Any such reduction shall be calculated on a quarterly basis. Amounts received by the complainant as unemployment insurance or welfare benefits shall not reduce the back pay otherwise allowable, but shall be withheld from the complainant and immediately paid to the unemployment reserve fund or, in the case of a welfare payment, 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.)"

2. The first sentence in paragraph 5 of the ORDER is deleted and the following sentence is substituted therefor:

"That the Respondent shall pay the Complainant's reasonable attorney's fees and costs in the amount of $6,958.46."

3. Paragraph 6 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 detailing the specific action taken to comply with the commission's order. 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
ellina.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The respondent appeals from the ALJ's decision which found that the respondent retaliated against the complainant by terminating his employment because he filed a wage claim under Wis. Stat., � 109.03.

The complainant began employment around March 30, 1996, with the respondent, a construction and landscaping company. He worked as a general laborer/leadworker. Walter Ward Jr. is the owner of the respondent.

The complainant filed a wage claim with the Equal Rights Division against the respondent in which he asserted that the respondent was indebted to him for unpaid wages. The division notified the respondent that a wage claim had been filed against it by the complainant in a letter to the respondent dated June 13, 1996.

Apparently, on June 13, 1996, the complainant had an altercation with his supervisor, Johnny Gentry, at the Windlake worksite concerning retrieval of a two-by-four from a truck. The complainant left the worksite after this altercation. Mr. Ward and Mr. Gentry assert that they thought the complainant quit. The complainant asserts that he did not quit, that Gentry told him that he "was not doing anything anyway, so (he) may as well go home."

The complainant testified that the next day, Mr. Gentry gave him a 3-day disciplinary suspension but that Mr. Ward lifted the suspension and assigned him to work at Humboldt and Brady streets. He testified that he worked at this location for an hour and a half until this job was completed, and then returned to the respondent's office to collect his paycheck. Apparently Mr. Ward was not available so the complainant left and returned a couple of hours later. The complainant testified that when he did meet with Mr. Ward, Mr. Ward proceeded to read the letter dated June 13, 1996, from the division regarding his wage claim and asked what that was about. The complainant testified that Mr. Ward said "he was put in a bind" because of the wage claim, and that the complainant would receive his money through the Equal Rights Division. The complainant testified that at that point he believed Mr. Ward had fired him. The complainant testified that the following Monday morning, he called the office and spoke with the respondent's secretary, Dionne Richards, whom he asserts told him that Mr. Ward "didn't appreciate the fact that I wnet (sic) to the EEOC (sic) on him so I no longer was an employee for his company." The evidence shows that in addition to performing secretarial duties, Ms. Richards sometimes relayed job assignments to employes.

The record supports the ALJ's finding that the respondent retaliated against the complainant by terminating his employment because he filed a wage claim against the respondent. While Mr. Ward contends that he thought the complainant quit on June 13, 1996, and that he did not assign the complainant to a job on June 14, 1996, Mr. Ward admits to paying the complainant for one and a half hours worth of work on June 14, 1996. Further, the complainant's claim is supported by his statement that he was told by Ms. Richards on Monday, June 17, 1996, that Mr. Ward did not appreciate his going to the Equal Rights Division and that he was no longer an employe for the respondent. The complainant's statement about what Ms. Richards told him is considered an admission by the party opponent. This statement was offered against the party and is the party's own statement, in either the party's individual or a representative capacity. Wis. Stat., � 908.01(4)(b)1. As noted by counsel for the complainant, it is not necessary that the employer authorized the employe to make the statement. Mercudo v. County of Milwaukee, 82 Wis. 2d, 781, 791-792, 264 N.W.2d 258 (1978).

NOTE: The commission has modified the order issued by the ALJ to include the statutory setoffs applicable to back pay awards, to increase the attorney's fee award from $6,228.46 to $6,958.46 to provide compensation for the additional legal services rendered on behalf of the complainant since the ALJ's decision and to advise the respondent where its compliance report should be filed.

cc: Attorney Brenda Lewison
Attorney Scott F. Anderson

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