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

DONALD R GOLDSWORTHY, Complainant

ELITE MARBLE CO, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200205097, EEOC Case No. 26GA300446


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

1. The second and third sentences in paragraph 4 of the FINDINGS OF FACT are deleted and the following sentences are substituted therefor:

"When Daniel Haas arrived, he asked Goldsworthy if could report to the plant on Monday, February 18, 2002. On February 18, Daniel Haas briefly interviewed and then hired Goldsworthy. Goldsworthy began work that morning."

2. Paragraph 4 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 which provides details of 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. Wis. Stat. §§ 111.395, 103.005(11) and (12) 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 nor more than $100 for each offense.

DECISION

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

Dated and mailed October 15, 2004
goldsdo . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The ALJ determined that Marlene Haas terminated Goldsworthy's employment because of his diabetic reaction at work on April 4, 2002. The ALJ further determined that the respondent refused to reasonably accommodate Goldsworthy's disability because it did not give him the opportunity to adjust his blood sugar problem, give him time off work to address his medical problem, or take any other action to permit him to deal with his temporary blood sugar problem on April 4. The ALJ further determined that there was no evidence that Goldsworthy had been drinking alcohol on the day in question, and that Marlene Haas did not reasonably believe that he was drunk that day.

The ALJ ordered the respondent to immediately make a written offer of reinstatement to Goldsworthy offering him an equivalent position, that the offer shall entitle him to the wages and benefits equivalent to that which he would have received had he continued in employment from his original date of hire to the date of his reinstatement, and that the respondent shall reinstate him unless after the matter becomes final, Goldsworthy either notifies the department in writing that he does not wish to be reinstated or fails to reasonably report for work at the time and place designated in the respondent's offer of reinstatement.

In the ALJ's labeled "Memorandum Decision" attached to his decision the ALJ stated in part as follows:

The credibility of Marlene and Daniel Haas was significantly affected by the falsified document (Exhibit 4) that was submitted to the Division. The Respondent offered no explanation at hearing for the obviously altered date next to Daniel Haas' signature. The alteration was an effort to support their testimony regarding the hiring process, which was directly at odds with the clear recollection by the Complainant. The Respondent's witness eventually admitted that there were discussions with the Complainant about their shared experiences at a lake in Walworth (sic) County (1). Given the falsified employment application and the Complainant's credible testimony, the Administrative Law Judge has concluded that the Complainant was interviewed and hired on February 15, 2002 and that he informed Marlene Haas of his disability on that date.

It was apparent to the Administrative Law Judge that the Respondent was aware of the disability. First, the credible evidence demonstrated that the Complainant advised Marlene Haas of his disability and of the accommodation (get him a soda or candy bar if he acts goofy) on the day of his interview. The credible evidence also supported the finding that the Complainant announced his diabetes at the lunch table and that Marlene Haas made a statement at that time indicating that she had overheard the comment. The employees that denied the lunch room announcement were less credible than the Complainant and his witness on that issue. They were still employed and were obviously distressed at being required to testify. Their testimony was very cautious and suggested a desire to please their employer. The demeanor of the witnesses supported the conclusion that their testimony was less than forthright. Two of the witnesses basically testified that they value their breaks and mind their own business, so they could neither deny nor affirm that such a statement had been made. The overall weight of the evidence supports the finding that the Complainant announced his disability and his need for accommodation to his coWorker's.

Finally, the Respondent's claim that it believed that the Complainant was drunk is not credible. It is not credible in light of their knowledge that the Complainant had a disability and his direct explanation to Marlene Haas that his condition might cause him to behave in exactly the manner that she observed on April 4, 2002. It is also not credible in light of the fact that the Complainant further told Marlene Haas on April 4, 2002 that his blood sugar must be off. It is also not credible in light of the following facts. The Complainant reported for work at 5:00 a.m., was not impaired when he reported to work, and worked for three hours before anyone noticed an impairment. He never left the premises, there was no evidence of alcohol on the premises, and he did not smell of alcohol. No employee ever observed him drinking alcohol. The Complainant had needed to adjust his insulin that morning before reporting to work. The Respondent took no steps to preserve or check the evidence (the alleged coffee cup that the Complainant had been using for two months) and never looked around or made any effort to find any alcohol that the Complainant might have been consuming on the premises. The Respondent's arguments were a pretext for discrimination. The Complainant has carried his burden of proving that his disability was the real reason for the termination of his employment.

The commission agrees with the ALJ's decision.

On appeal the respondent argues that the ALJ based his decision on an erroneous determination of credibility. The respondent criticizes the ALJ, asserting that he "seized upon a single fact," that of a belief that the respondent had submitted a falsified document (Exhibit 4) to support its testimony regarding the hiring process, as reason for believing Goldsworthy and disregarding the testimony of the respondent's witnesses.

As noted above in the first paragraph of the ALJ's Memorandum Decision, the ALJ stated that given the falsified employment application and Goldsworthy's credible testimony, he concluded that Goldsworthy was interviewed and hired on February 15, 2002, and that he informed Marlene Haas of his disability on that date.

At the hearing two copies of Goldsworthy's application for employment, Exhibits 4 and 5, were entered into evidence. The respondent submitted Exhibit 4 and Goldsworthy submitted Exhibit 5. Goldsworthy's applications were identical, except that near the bottom of the second page of the application where it states "DO NOT WRITE BELOW THIS LINE", on Exhibit 4 it states that Daniel Haas interviewed Goldsworthy on "2/18/02" and on Exhibit 5 it states that Daniel Haas interviewed Goldsworthy on "2/15/02."

The respondent argues that there was no attempt to falsify a document. The respondent argues that a comparison of the two exhibits indicated that both were marked on the front "hired 2-18-02". The respondent argues that "[a]pparently at some point in time following hire, the signature of Daniel Haas dated 2-15-02 was changed to 2-18-02 on a copy to reflect the actual hire date." The respondent argues that the facts adduced at hearing, including Goldsworthy's own testimony, were that February 18, 2002, was the correct date of hire. The respondent argues that the ALJ incorrectly concluded that a falsified document (Exhibit 4), rather than the original (Exhibit 5), was provided to the Division. The respondent argues that while it is obvious that at some point a copy was changed to reflect the true date of hire, the original was intact in the file, and, in fact, Marlene Haas transmitted Exhibit 5 to the Division in correspondence dated February 11, 2003.

The commission agrees with the respondent to the extent that it argues the facts show that Goldsworthy was hired on February 18, 2002. However, the fact of the matter is that the obviously altered date on Exhibit 4 was an effort by the respondent to support its testimony regarding the hiring process, which was directly at odds with the clear recollection of the process by Goldsworthy. The record provides good reason to question the respondent's credibility. First of all, the February 11 correspondence of Marlene Haas referenced by the respondent as transmitting Exhibit 5 shows that Marlene Haas' reason for providing this document was to show that it was Daniel Haas, not her, that had interviewed Goldsworthy in an attempt to discredit Goldsworthy's allegation that she knew that he was diabetic from his extensive interview with her on February 15, 2002.

Furthermore, Marlene Haas' hearing testimony that she had not interviewed Goldsworthy on February 15 is entirely unconvincing. Marlene Haas asserted that she did not recall interviewing Goldsworthy on February 15. However, Marlene Haas' basis for asserting she did not recall interviewing Goldsworthy was that February 15 was a Friday and the respondent does not work on Fridays. Yet Marlene Haas admitted that she sometimes does work on Fridays. Further, Marlene Haas admitted she could not deny that Goldsworthy had come in on February 15 or that she had not come in to work on Friday, February 15. T 151. Furthermore, after considerable questioning by Goldsworthy, Marlene Haas eventually admitted, as testified by Goldsworthy regarding his interview with Marlene Haas on February 15, that during their meeting she had noticed that his application stated he had gone to school in Burlington and then engaged in a conversation about her father-in-laws' (2) cottage at Bohners Lake, which was near Burlington. T 155. Further, Marlene Haas' credibility is called into question because even though admitting she noticed that Goldsworthy's application stated he had gone to school in Burlington, she asserted that she had noticed this "when he had come in 5 or 6 times" looking for work. However, in what could only have been a few minutes earlier, Marlene Haas had testified that those times that Goldsworthy had come in looking for work were "before you ever brought me the application." T 152. (Emphasis added.)

In addition to the foregoing, there is also further reason to question Marlene Haas' credibility as a witness because she frequently responded that she "did not remember" or "did not recall" when asked a question. In fact, even when asked by her own counsel on direct examination if she ever told Goldsworthy "you're fired", Marlene Haas' response was, "I don't remember ever saying that to him." T 147. It would seem that certainly this would have been something Marlene Haas would have remembered without question and specifically responded that she did not tell Goldsworthy he was fired, if she indeed had not told Goldsworthy he was fired.

Moreover, Marlene Haas' assertion that "I guess (Goldsworthy) assume[d] he's fired" (T 147) makes no sense. What reason would there have been for Goldsworthy to "assume (that) he's fired?" And, if Marlene Haas had indeed not fired Goldsworthy, why didn't she tell him that he was not fired instead of letting him collect his belongings, giving him his check and letting him leave the premises?

Like the ALJ, the commission finds Goldsworthy to be credible. Unlike Marlene Haas, his testimony shows that his recall of the events is clear. Unlike Marlene Haas, his testimony regarding the events is also consistent. Furthermore, the persistence with which Goldsworthy pursued questioning of the respondent's witnesses about having notified them of his diabetic condition, particularly Marlene Haas during his meeting with her on February 15, 2002, suggests evidence of the sincerity of an individual that had made his diabetic condition known to Marlene Haas.

Second, contrary to argument by the respondent, the falsified document was not the sole basis for the ALJ's believing Goldsworthy's testimony and disregarding the testimony of the respondent's witnesses. In addition, the ALJ found the testimony of the witnesses employed by the respondent to be less credible than Goldsworthy and his witness on the question of whether Goldsworthy had announced his diabetes at the lunch table. The ALJ concluded this was so stating, "They were still employed [by the respondent] and were obviously distressed at being required to testify. Their testimony was very cautious and suggested a desire to please their employer. The demeanor of the witnesses supported the conclusion that their testimony was less than forthright."

The respondent argues that it and counsel present for the trial, "must state a certain degree of shock" from the portion of the Memorandum Decision which addresses the demeanor and testimony of the respondent's other witnesses. The respondent argues that the ALJ in essence asserts that those witnesses perjured themselves for the sake of their employer. The respondent asserts that it is "mind- boggling" to the persons present how this conclusion could have been arrived at, that certainly no such indication appears in the transcript. Further, the respondent argues that "the impression in the Memorandum Decision is so disconnected from the reality witnessed by those present, the Respondent can only interpret it as a bias that would have been virtually impossible to overcome with any testimony."

While the respondent takes issue with the ALJ's assessment of the employees who appeared as witnesses for it, clearly the ALJ was in a position to observe the demeanor of these witnesses while testifying in order to draw conclusions about their credibility. The commission has found no compelling reason in the testimony or elsewhere in the record to question the ALJ's credibility determinations. There is also clearly no evidence in the transcript that is suggestive of any bias on the part of the ALJ. If anything, what the transcript shows is that the ALJ had been somewhat stern with Goldsworthy, admonishing him that he had been warned three times about asking the same question of Marlene Haas. T 157, 159-160.

Finally, as noted in the ALJ's Memorandum Decision, there is also a third reason for believing the testimony of Goldsworthy and disregarding the testimony of the respondent's witnesses. This evidence is noteworthy because it indicates that the respondent's claim that it believed Goldsworthy was drunk on April 4 is not credible. As stated in part by the ALJ:

"The Complainant reported for work at 5:00 a.m., was not impaired when he reported to work, and worked for three hours before anyone noticed an impairment. He never left the premises, there was no evidence of alcohol on the premises, and he did not smell of alcohol. No employee ever observed him drinking alcohol. The Complainant had needed to adjust his insulin that morning before reporting to work. The Respondent took no steps to preserve or check the evidence (the alleged coffee cup that the Complainant had been using for two months) and never looked around or made any effort to find any alcohol that the Complainant might have been consuming on the premises."

The respondent also argues that an employee has a duty to provide an employer sufficient notice and an opportunity to accommodate the employee's disability but Goldsworthy has admitted that he never asked for any accommodation. Further, the respondent argues that it is particularly odd that, after being accused of being drunk on the job, Goldsworthy never provided a doctor's statement that he had a diabetic condition. However, the respondent's first argument ignores Goldsworthy's testimony that prior to his hire he had notified Marlene Haas that he was diabetic and that on April 4 when asked if he had been drinking he told Marlene Haas no, that his blood sugar must be low. The respondent's second argument ignores Goldsworthy's testimony that when Marlene approached him a second time on April 4 and told him he was fired for coming to work drunk, Goldsworthy denied being drunk and repeated that his blood sugar must be off but Marlene replied, "I don't care. You're dangerous" and that "Nobody wanted to work with you." Based on these comments by Marlene Haas, Goldsworthy had no reason to believe that providing a doctor's statement would have made any difference.

Finally, the respondent also takes exception to the fact that the ALJ has ordered back pay from April 4, 2002 through reinstatement. The respondent argues that the back pay should be terminated as of the date of the hearing, August 4, 2003.

The transcript indicates that on the morning of August 4, 2003, prior to the start of the hearing there had been a discussion between the respondent's attorney and Goldsworthy about "resuming employment" or "go[ing] back to work with [the respondent]." The transcript reads as follows:

MR. RATHJEN: I have just discussed with Mr. Goldsworthy, you know, whether or not there was any resolution with regard to resuming employment or not, and that's not an option with him.

THE ADMINISTRATIVE LAW JUDGE: Okay. I guess I didn't understand. Does this mean that you don't want to go back to work for them, is that what the issue is?

MR. GOLDSWORTHY: That's the question that he posed to me this morning, is whether I would be willing to go back to work with them and I --

THE ADMINISTRATIVE LAW JUDGE: Okay.

MR. GOLDSWORTHY: - - told him that I would not.

T 13-14.

Respondent argues that back wages after August 4, 2003 would not be appropriate "where the Complainant declined to return to the job, and stated upon the record, unequivocally, that he was not interested in returning to work for the employer."

A valid offer of reinstatement will end the accrual of back pay. Anderson v. LIRC, 111 Wis. 2d 245, 254, 330 N.W.2d 594. In Anderson, the court stated that "It is apparent to this court that a requirement that an offer of reinstatement be specific and unconditional would inure to the benefit of both employers and their employees." Id. at 255. (Emphasis added.) The court went on to state the following guidelines for what constitutes a valid offer of reinstatement: First, the offer of reinstatement must be for the same position or a substantially equivalent position. Second, the offer of reinstatement must be unconditional. Third, the employee must be afforded a reasonable time to respond to the offer of reinstatement. Finally, the offer should come directly from the employer or its agent who is authorized to hire and fire, rather than from another employee or other unauthorized individual. Id. at pp. 256-257.

One difficulty here appears to arise in connection with the first requirement. There is no indication in the transcript of "what employment or job" the respondent's attorney and Goldsworthy had been discussing prior to the hearing. Furthermore, the respondent's attorney's statement that they had been discussing whether or not there had been any "resolution" to Goldsworthy resuming employment suggests that there was some impediment as reason for Goldsworthy's unwillingness to go back to work for the respondent. The transcript is not clear as to the impediment that existed to Goldsworthy resuming employment with the respondent. In his brief to the commission, Goldsworthy asserted that because the respondent's attorney, not the respondent, had asked if he would go back to work for the respondent, and because compensation for the time he had been off was not offered, he declined. Moreover, the record fails to disclose not only whether or not the respondent's attorney had the authority to make an offer of reinstatement to Goldsworthy, but also whether such action by the attorney would have been unconditionally binding on the respondent. The commission is therefore inclined to believe that the ALJ is correct in requiring that the "respondent make a written offer of reinstatement to the Complainant which offers him the position equivalent to the position that he held prior to the discriminatory discharge .  . ."

The respondent also argues that the evidence does not support an award of backpay due to Goldsworthy's failure to make any real attempt at mitigation or reasonable diligence. The respondent has the burden of proving a failure of reasonable mitigation. Anderson, 111 Wis. 2d at 255. Furthermore, to meet the burden of proving the affirmative defense of failure to mitigate, the employer must establish 1) that the complainant failed to exercise reasonable diligence to mitigate his or her damages; and 2) that there was a reasonable likelihood the complainant might have found comparable work by exercising reasonable diligence. Biggers v. Isaac's Lounge (LIRC, 10/29/99). However, the only evidence in the record regarding Goldsworthy's effort to obtain other employment came from Goldsworthy in response to a question by the ALJ as to whether he had obtained other employment after leaving the respondent. Goldsworthy testified that he had been unable to find work, even though he had continually checked at some of the places he had applied for, and that some of the places had given him indication of a negative reference from Elite Marble. T 32. The respondent has not met its burden of showing that Goldsworthy failed to exercise reasonable diligence to mitigate his damages.

Further, the respondent argues that during the awarded back pay period Goldsworthy had periods of incarceration during which he was unavailable for work of any kind. Goldsworthy concedes that he was incarcerated for failure to pay child support, but argues that payment of child support had been coming out of his paychecks from the respondent prior to his termination and that he was unable to pay his child support because he was terminated by the respondent. In response, the respondent argues that the child support system takes note of the fact if someone's inability to pay is due to unemployment, that incarceration is only resorted to if the individual does not make good faith efforts to attempt to obtain employment.

There is nothing in the record regarding Goldsworthy's incarceration. Moreover, the respondent's argument about Goldsworthy's "unavailability" due to incarceration does not state when this period of incarceration occurred. The respondent terminated Goldsworthy's employment on April 4, 2002, and the hearing in this matter was not held until August 4, 2003, more than 16 months later. In any event, not only is there an absence of evidence in the record as to the alleged standard utilized to incarcerate Goldsworthy on the grounds that he "did not make good faith efforts to attempt to obtain employment," it has not been established by the respondent that there was a reasonable likelihood the complainant might have found comparable work by exercising reasonable diligence. That is, the respondent still has not proven the second prong of the affirmative defense of failure to mitigate.

For all of the above-stated reasons, the commission has affirmed the decision of the administrative law judge.

cc: Attorney Thomas A. Lorenson


Appealed to Circuit Court. Affirmed in part and reversed in part April 5, 2005.  Appealed to the Court of Appeals.  Circuit court affirmed in part and reversed in part, commission order reinstated in all respects, in unpublished per curiam decision, May 25, 2006.

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Footnotes:

(1)( Back ) The lake, Bohners Lake, is in Racine County, near Burlington.

(2)( Back ) Goldsworthy thought Marlene Haas had mentioned a daughter-in-law but this difference in recollection is not significant.


uploaded 2004/10/18