Wis.LIRC ER Decision: Johnson, Tina - December 15, 1998 - Retaliation - discrimination because of opposition to discrimination or filing complaint - retaliation for wage claim

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

TINA M. JOHNSON, Complainant

SUNSET HOMES, Respondent A

MARY ANN BAZAREK, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199601437

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter dismissing the complainant's complaint, which alleged that she was retaliated against for attempting to enforce a right regarding wage payments under Chapter 109 of the Wisconsin Statutes. The complainant filed a timely written petition for commission review of the ALJ's decision. The respondent filed an answer to the complainant's petition in which it either denied or asserted lack of sufficient knowledge regarding the complainant's assertions made on appeal.

Based upon a review of the record in its entirety, and after consultation with the administrative law judge regarding the demeanor and credibility of the witnesses, the Labor and Industry Review Commission hereby issues the following:

FINDINGS OF FACT

1. The complainant was employed by Sunset Homes in Hayward, Wisconsin, as a nurse's aide from December 11, 1995, until February 8, 1996, when her employment was terminated by Mary Ann Bazarek, Sunset's manager. The complainant had been employed on the night shift at the respondent. Her hours of work were from 10 p.m. to 6 a.m.

2. A snowstorm began in Hayward on January 17, 1996. As a result of the snowstorm, the complainant was snowed in at the respondent's facility following her shift on January 17 until January 19, 1996. While snowed in, the complainant performed work at the facility during times other than her regularly scheduled shifts.

3. During the night of January 17, the complainant got locked out of the respondent's facility while shoveling snow. Ms. Bazarek spoke to the complainant regarding this incident and was informed that the wind had caught the door and shut it.

4. On January 20 or 21, 1996, the complainant spoke to Bazarek and asked if she was going to be paid for the hours she worked while snowed in at the facility. She was seeking overtime pay for 19.5 hours of additional work. Bazarek responded that she did not know, and, according to the complainant, was very rude, more or less stating that she would not be paid, although agreeing to talk to Barry Sepic, the owner of Sepic Enterprises, Inc. Sepic Enterprises, Inc., owns the respondent, Sunset Homes. The complainant spoke to Bazarek about being paid for the hours she had worked during the snowstorm a second time a few days later. Bazarek told the complainant that Sepic was going to pay her for some of the hours.

5. On January 24, 1996, the complainant called Darlene Deyoe of the Labor Standards Bureau in Madison, Wisconsin, regarding her right to payment for the additional hours she worked at Sunset Homes. Ms. Deyoe mailed a wage claim form to the complainant.

6. Sometime during the period of January 24-26, 1996, the complainant called Mr. Sepic and asked him if she would be paid for the hours worked during the snowstorm. In a letter to the complainant dated January 28, Sepic responded to the complainant's inquiry. In this letter, Sepic characterized the complainant's request for overtime pay as a "trivial situation," stated that "this is against the company policy and against my own company budget," that the complainant had been with the respondent a short time "but it seems to me (sic) want quite a lot for a such short time, before even proving yourself," that "(f)or those that are willing to wait rewards will come, and for those that want things now the door is open and they are free to look for greener pasture (sic)", and that he would pay the complainant for 8 hours of work but not for 19.5 hours.

7. Sometime between January 24, 1996, and before the complainant was discharged on February 8, 1996, Bazarek spoke to Deyoe of the Labor Standards Bureau on two or three occasions regarding the complainant's wage claim. Bazarek testified at the hearing that she informed Deyoe that she had told the complainant to go home, that it was not necessary for her to stay at the facility, and that she made it clear (to Deyoe) that she was overstaffed and that the complainant was not to work. In a written statement by the complainant dated January 24, 1996 (and received into evidence as Respondent's Exhibit 1), regarding the days she was snowed in, however, the complainant stated that "she was lead to believe with the crew we had, being shorthanded, that we were to help each other out. I didn't know that I was supposed to just sit around until 10 p.m. my shift."

8. On or about January 26, 1996, Bazarek spoke to the complainant about doing her personal laundry at the respondent's facility. Apparently, the complainant had done her personal laundry at work the previous day. The complainant initially denied that she had been doing her personal laundry but ultimately admitted to Bazarek to having done her personal laundry at work.

9. A short time before her discharge, the complainant was presented with two sets of work rules. These work rules were admitted into evidence as Complainant's Exhibit 1 and 2. Exhibit C-1 was issued to the complainant before she was issued Exhibit C-2. The first set of work rules state they were "UPDATED JANUARY `96" and includes as a listed violation of company policy, a provision prohibiting doing personal laundry at the respondent. The second set of work rules, also state that they were "UPDATED JANUARY `96," and included the following provision:

Employees must check with management before working over-time, only management can approve any over- time hour(s). The only exception will be to make sure that the next shift is covered. (Example: If you are working the six (6) a.m. to two (2) p.m. shift and the two (2) p.m. to ten (10) p.m. shift is running late, or someone calls in late, we ask that you stay until the shift is covered, then over-time will be paid). No over-time for snow storms...when snowed in, this must be approved by "MANAGEMENT". (underlining emphasis in original)
...
These work rules, four (4) pages long, is (sic) retroactive to (sic) all employees working at Sunset Home (sic), Inc., as well as newly hired. (Retroactive 11-15-94) (bold text added)

10. The complainant considered it wrong that she was required to sign a document that made the respondent's work rule retroactive and refused to sign it.

11. On February 2, 1996, Bazarek suspended the complainant's employment for three days. The complainant testified that when given the suspension Bazarek said something to the effect of, "It would be better if we dealt with the overtime pay dispute by my taking time off so they could figure out what to do about it." After this suspension, the complainant returned to work and worked her normal schedule on February 5 through February 8, 1996.

12. At the end of the complainant's work shift on February 8, 1996, Bazarek asked the complainant to sign four written reprimands, which the complainant refused to do, and then Bazarek fired the complainant.

13. One of the written reprimands was for the complainant having allowed herself to get locked out of the building, thereby leaving the residents unattended, while she was shoveling snow during the night of January 17, 1996. A second reprimand, which did not indicate the date of occurrence, was for giving a resident Kaopectate without checking with the nurse. A third reprimand was for doing personal laundry on January 26, 1996. The final written reprimand was for leaving laundry unfinished on January 27, 1996, and not doing the laundry properly.

14. The complainant denies having left the resident's laundry unfinished and not doing the laundry properly. The complainant testified that at the time of the Kaopectate incident, she was not told that she had done anything wrong. The complainant testified that nurse Pat Bunting told her not to worry about administering the Kaopectate, that she would check in on the resident, and from then on not to give any medicine without first speaking to her. The complainant concedes that Bazarek did speak to her about getting locked out of the facility and doing her personal laundry at work.

15. The complainant's wage claim was a factor in Bazarek's decision to terminate the complainant's employment.

Based upon the above FINDINGS OF FACT, the Labor and Industry Review Commission makes the following:

CONCLUSIONS OF LAW

1. Sunset Homes is an employer within the meaning of the Wisconsin Fair Employment Act. Mary Ann Bazarek is not an employer within the meaning of the Act, but was a supervisor at Sunset Homes who possessed authority to hire and fire employes at Sunset Homes.

2. Tina Johnson is an individual afforded protection under the Act for attempting to enforce a right regarding payment of overtime pay.

3. Sunset Homes retaliated against Tina Johnson in violation of the Act because she attempted to enforce a right regarding her claim for overtime pay.

ORDER

1. That Sunset Homes shall cease and desist from retaliating against the complainant because of her attempt to enforce a right regarding overtime pay.

2. That Sunset Homes shall immediately make a written offer to the complainant offering to reinstate her as a nurse's aide. 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 Sunset Homes in writing that she does not wish to return to work.

3. That the amount of back pay owed to the complainant shall be what she would have earned from February 8, 1996, until the date that she either resumes work with Sunset Homes or notifies Sunset Homes in writing that she does not want to be reemployed, less interim earnings or amounts earnable with reasonable diligence by the complainant. The back pay shall be computed on a calendar quarterly basis, with deductions on a quarterly basis for 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. That within 30 days of the expiration of time within which an appeal may be taken herein, Sunset Homes 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.

Dated and mailed: December 15, 1998
johnsti.rrr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Section 111.322(2m) of the Fair Employment Act states that it is an act of employment discrimination:

To discharge or otherwise discriminate against any individual because of any of the following:

(a) The individual files a complaint or attempts to enforce any right under...(� ) 109.03...
...
(d) The individual's employer believes that the individual engaged or may engage in any activity described in pars. (a) to (c).

Section 109.03(1), Stat., provides in part as follows:

Every employer shall as often as monthly pay to every employe engaged in the employer's business...all wages earned by such employe to a day not more than 31 days prior to the date of such payment....

Section 109.01(3), Stat., defines "wage" or "wages" to mean:

(R)emuneration payable to an employe for personal services, including...overtime pay...

Section 109.03(7), Stat. provides:

PROTECTION OF EMPLOYES. Section 111.322(2m) applies to discharge and other discriminatory acts arising in connection with any proceeding under this section.

The commission concludes that there is significant evidence from which it can be inferred that Sunset Homes retaliated against the complainant because of her attempt to enforce a right regarding overtime pay. Clearly, Sunset Homes knew that the complainant was in contact with the Labor Standards Bureau regarding her overtime pay claim because Bazarek spoke to investigator Deyoe regarding the complainant's wage claim. Further, in a letter to the complainant dated January 28, 1996, Sepic expressed in no uncertain terms his strong disapproval of providing the complainant overtime pay, and stated that he would only pay her for 8 hours of work. Bazarek admitted that prior to the snowstorm there was "nothing about the Complainant that deserved discipline or a reprimand." In fact, Bazarek described the complainant as "an excellent worker...(who) tried hard and learned well." Undisputed testimony by the complainant shows that she was discharged when she refused to sign four written reprimands, reprimands that were not presented to her until after it was known that she was pursuing a wage claim with the Labor Standards Bureau. The commission also finds it curious that the written reprimands were all presented to the complainant at the same time. Moreover, testimony by the complainant calls into question two of the incidents for which she received reprimands, and the commission questions the appropriateness of a third written reprimand she received for accidentally having gotten locked out of the facility when shoveling snow. Bazarek herself testified that when she spoke to the complainant about getting locked out of the facility, the complainant explained that the wind had caught the door and shut it. Also, there was testimony by the complainant that at the time of her suspension, which occurred shortly prior to her discharge, Bazarek said something to the effect of, "It would be better if we dealt with the overtime pay dispute by my taking time off so they could figure out what to do about it." In addition to the above, the evidence shows that also shortly before her discharge, that Bazarek had requested but the complainant refused to sign a new work rule, retroactive back to November 15, 1994, which provided that employes would not be paid overtime, without prior approval, when snowed in. It seems fairly obvious that this new work rule that Bazarek wanted the complainant to sign was nothing more than an attempt on the part of Sunset Homes to avoid having to pay the complainant overtime pay.

The commission consulted with the ALJ regarding his impressions as to the demeanor and credibility of the witnesses. The ALJ did not note any observations of any witness's demeanor as having been a factor in his assessment of the credibility of the witnesses, but stated that he did not believe the complainant to be credible, that Bazarek struck him as being more credible and that he found the respondents' story "more plausible." In short, the ALJ indicated that it was the content of the witnesses' testimony that led to the decision he reached. The commission respectfully disagrees with the ALJ's assessment of the witnesses' testimony. The ALJ indicated as a basis for his belief about the complainant's credibility, that she denied or left out things and then said, "yeah, this happened," and that she seemed to be that way about all things. The commission does not find the record to support this view. The ALJ did not indicate what it was the complainant had left out of her testimony and then said, "yeah, this happened." The only indication in the record that the complainant had denied something happening is when she initially denied doing her personal laundry to Bazarek while still employed at Sunset Homes.

The commission simply does not find it plausible that the complainant's attempt to enforce a right regarding entitlement to overtime pay played no part in Sunset Homes' decisions to suspend and terminate the complainant's employment.

Bazarek testified that after her second discussion about overtime pay with the complainant (which must have occurred on about January 24, 1996), that she (Bazarek) thought the matter was settled. However, the record indicates that between January 24, 1996, and February 8, 1996, Bazarek was having conversations with Ms. Deyoe regarding the complainant's wage claim.

The ALJ found at par. 13 that Bazarek suspended the complainant's employment from February 2-5, 1996, when she refused Bazarek's directive to "initial posted orders." His findings indicate that these "posted orders" were something in addition to the new work rules that the complainant was asked to sign. Bazarek did testify that when she and Ms. Bunting "put orders out," it was important that the complainant initial them. However, nowhere in the record is it disclosed what "posted orders" the complainant had allegedly failed to initial. The commission believes that it was the new retroactive work rule not allowing overtime when snowed in that the complainant had refused to initial. In fact, the record shows Bazarek testifying about giving the complainant a three day leave of absence immediately after testifying about giving the complainant the new set of work rules prohibiting overtime pay when snowed in. See synopsis, p. 9. It is also interesting to note that there was no evidence that any write-up was issued the complainant for refusing to "initial posted orders."

Bazarek does not deny that it was not until February 8, 1996, that the complainant was asked to sign the four written reprimands for alleged performance problems. These alleged performance problems occurred between January 17 and 27, 1996. Apparently, Bazarek's explanation for not issuing these written reprimands earlier was that she "Kept giving the Complainant one chance after another" and that she "hoped (the complainant) would work out her problems and things would get better." This explanation is hard to believe, however, considering that earlier on February 2, 1996, Bazarek had already taken the strong disciplinary measure of suspending the complainant from work, for alleged work-related problems, for three days.

For all of the above-stated reasons, the commission finds that the respondent retaliated against the complainant because of her attempt to enforce a right regarding overtime pay.

cc:
Tina M. Johnson
Curtiss N. Lein

Appealed to Circuit Court. Affirmed January 24, 2000.

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