ROBERT J SOWLE, Complainant
DENNIS SOMNIAK, Respondent
d/b/a DMD TRUCKING
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. Delete the second sentence of paragraph 7 of the ALJ's FINDINGS OF FACT, and replace it with:
"At the time of discharge, DMD Trucking gave Robert Sowle a paycheck from which the sum of $1,110 was withheld to offset the damages to truck #324."
2. In paragraph 8 of the ALJ's FINDINGS OF FACT, delete the word "final".
3. In paragraph 9 of the ALJ's FINDINGS OF FACT, delete "$1,100" and replace it with "$1,110".
4. Delete paragraph 14 of the ALJ's FINDINGS OF FACT, and replace it with:
"The deductions and withholding taxes taken from the check issued to Robert Sowle by DMD Trucking after the Labor Standards Bureau investigated the wage claim were not made in retaliation for Robert Sowle's filing of the wage claim."
5. In paragraph 3 of the ALJ's CONCLUSIONS OF LAW, delete the phrase "discriminated against him" and replace it with "violated the Wisconsin Fair Employment Act by retaliating against him"; delete the phrase "or withholding income taxes from his final check" and replace it with "or by making deductions from the check issued".
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed October 14, 2013
sowlero_rmd . doc : 107 : 5 134, 745
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The complainant was employed by the respondent approximately one month. The respondent discharged him on February 17, 2011 and handed him a paycheck at that time, from which $1,110 had been deducted to offset damages to the truck that the complainant had driven during his employment. The complainant immediately informed the respondent that he would be filing a wage complaint challenging the deduction, but the respondent had no belief prior to the discharge that the complainant might file a wage claim. The act of discharging the complainant was not a retaliatory act, because it occurred before a wage complaint was filed and before the possibility of the filing of a wage complaint was contemplated.
The complainant filed a wage complaint with the Labor Standards Bureau of the Department of Workforce Development under Wis. Stat. § 109.03 on February 23, 2011. Less than one month later, on March 16, 2011, the investigator assigned to the wage complaint issued a letter to the complainant along with a check in the amount of $843.03, made out to the complainant, in settlement of the wage claim. The investigator stated in the letter that with payment of the check, the complainant had been paid in full, and she was closing his case file.
The check was accompanied by a stub indicating that the gross amount of the check was $1,100, and that it was in the form of a payroll check with the following deductions applied to the gross amount: $136.50 for federal income tax withheld; $46.20 for Social Security tax; $15.95 for Medicare tax; and $58.28 for state income tax withheld. In making the payment to settle the labor standards complaint, the respondent had incorrectly added $1,100 to the complainant's gross earnings. This was incorrect because that amount had already been counted in the complainant's gross earnings when he received his paycheck on the day he was discharged. (1)
The complainant alleged that the respondent's characterization of the settlement check as a payroll check, and the deductions made from the gross amount, were acts of retaliation by the respondent. The ALJ did not find probable cause to believe that a retaliatory motive prompted the respondent's actions. The commission agrees.
First of all, it is important to note that the respondent's reaction to having received the complainant's wage complaint was in large measure to cooperate rather than retaliate. The respondent accepted the investigator's opinion that it could not deduct money from the complainant's paycheck for alleged damage to property without a written agreement to that effect, and within a month of the filing of the wage complaint the respondent made payment to the complainant. It is difficult to reconcile the respondent's acceptance of the major point of the complainant's wage complaint with the idea that it took payroll deductions from the settlement check in order to retaliate for the filing of the complaint. Second, the respondent's witness testified that his characterization of the payment as a payroll check was based on the advice of the labor standards investigator. Although the respondent's documentation (Ex. 5) makes it apparent that the $1,100 representing the damage to the complainant's truck was subjected to payroll tax deductions twice, the commission does not find it incredible on its face that the respondent's witness and the labor standards investigator were simply mistaken about whether the money initially had been taxed as earnings when it was deducted from the complainant's pay. The commission defers to the credibility judgment of the ALJ, who was able to observe the demeanor of the witnesses, that the respondent's witness was sincere in his testimony that he treated the payment as a payroll check based on the advice of the labor standards investigator, and not in retaliation for the wage complaint. Third, with respect to the respondent's subjecting the settlement check to federal and state withholding taxes, the evidence showed that the complainant's W-4 form was ambiguous, showing one allowance while at the same time claiming to be exempt from any withholding. The respondent's witness testified that he was aware during the complainant's employment that the complainant had claimed to be exempt from withholding, and he had not been subjecting the complainant's paychecks to withholding, but he was unsure whether that was appropriate, so he sought the advice of his accountant. He testified that based on the accountant's advice he withheld state and federal income tax from the settlement check. The complainant did not provide any evidence to dispute this testimony, and the commission finds it credible.
The commission agrees with the ALJ that the complainant failed to show probable cause that he experienced discrimination under the Wisconsin Fair Employment Act for having filed a wage complaint against the respondent.
The complainant raised a discovery issue in his petition for review; he argued that the ALJ failed to compel discovery. It does not appear, however, that he ever asked the ALJ to compel discovery. At hearing, the complainant stated that he had asked the respondent to provide documents to him prior to hearing, and the respondent failed to do so. The complainant acknowledged, however, that the respondent had brought to the hearing most of what he had wanted in discovery, and that it had been marked as evidence at the hearing. The complainant argued that he should have had the documentation prior to hearing. The file in this matter, however, contains nothing to suggest that the complainant communicated with the respondent prior to hearing about the respondent's failure to deliver the documents, or that he asked the ALJ for an order to compel discovery prior to hearing. It was the complainant's responsibility to take steps to resolve discovery disputes prior to hearing. Washburn v. Darrow & Dietrich, SC, ERD Case No. CR200703629 (LIRC Oct. 18, 2011). The complainant has not shown any prejudice as a result of his not having the documentation he sought prior to hearing.
NOTE: This case raised a question about the viability of a retaliation claim based on the acts of a former employer. Once the employment relationship between parties has been severed, and an individual's claim of retaliation concerns an alleged adverse act of a respondent as a former employer, the alleged adverse act can be considered an act of discrimination under the Wisconsin Fair Employment Act (WFEA) only if it is related to an individual's employment. Usually, this requires that the adverse action of the former employer have some negative effect on an employment opportunity of the individual. See, Pufahl v. Niebuhr, ERD Case No. 8802054 (LIRC Aug. 16, 1991); Seeman v. Universal Foods Corporation, ERD Case No. 900807 (LIRC Sep. 22, 1994); Garner v. University of Wisconsin-Milwaukee, ERD Case No. CR200400867 (LIRC Feb. 10, 2006). In this case, however, there is no connection alleged or apparent between the respondent's payment in settlement of the labor standards complaint and any employment opportunity of the complainant.
The commission recognizes, however, that under unusual circumstances the act of a former employer can relate to the former employment relationship between the parties, and in that sense can come under consideration as an act of retaliation under the WFEA. The primary example of this is Dreckman v. Henkel Transport, ERD Case No. 199900800 (LIRC Feb. 16, 2001), in which a former employer was found to have violated the Act's retaliation provision by canceling a former employee's COBRA health insurance policy because the former employer had filed a wage complaint against it. The commission has accepted the retaliation claim in this matter, like the situation in Dreckman, to be sufficiently connected with the complainant's employment relationship with his former employer to come within the reach of the WFEA.
cc:
Attorney Patrick Madden
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