P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ANDREA M SMITH, Complainant


ERD Case No. 200301761

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.


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

Dated and mailed April 13, 2005
smithan . rsd : 115 : 9

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


Wisconsin Statutes § 111.322 provides as follows, as relevant here:

111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following:...

(2m) To discharge or otherwise discriminate against any individual because of any of the following:...

(c) The individual files a complaint or attempts to enforce a right under s. 66.0903, 103.49, or 229.8275, or testifies or assists in any action or proceeding under 66.0903, 103.49, or 229.8275.

(d) The individual's employer believes that the individual engaged or may engage in any activity described in pars. (a) to (c).

(3) To discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified or assisted in any proceeding under this subchapter.

Wisconsin Statutes § 66.0903 relates to the prevailing wage rate requirements for units of local government and their contractors and subcontractors, and Wis. Stat. § 103.49 to the parallel requirements for state government.

In regard to that part of her complaint claiming a violation of Wis. Stat. § 111.322(2m), the complainant could prevail here if she proved any of the following (see, Domini v. Jason Schultz Trucking, Inc., ERD Case No. CR200201825 (LIRC Feb. 24, 2005)):

(1) She filed a prevailing wage complaint with the Equal Rights Division (ERD) and the respondent had reason to be aware of this filing.
(2) She otherwise attempted to enforce a prevailing wage right by invoking the authority of the ERD, and the respondent had reason to be aware of this.
(3) She testified or assisted in any prevailing wage action or proceeding.
(4) The respondent believed that the complainant had engaged in, or may engage in, (1), (2), or (3).

It is undisputed that the complainant is not claiming that she filed a prevailing wage complaint with ERD, or otherwise invoked the authority of ERD, within the meaning of (1) and (2), above. Although the complainant apparently provided copies of sales/commission documents to one of the respondent's former employees, the record does not show that these documents were utilized in a prevailing wage action or proceeding within the meaning of (3), above.

The remaining question then is whether Longrie, the respondent's owner and the individual who the complainant is alleging retaliated against her, believed that the complainant engaged in, or may engage in, any of these activities. The complainant cites her repeated requests to speak with Longrie about increases in her share of group health insurance costs, and her statement that she intended to seek legal counsel in regard to such increases, as the basis for her contention that Longrie had reason to form such a belief. However, the record does not show that Longrie believed, or would have had reason to believe, that the work performed by the complainant qualified as prevailing wage work; that respondent's decrease in its share of group health insurance costs violated prevailing wage requirements; (1)  or, in fact, that complainant's concerns related in any way to the prevailing wage law. Moreover, the record does not show that Longrie believed, or had reason to believe, that the complainant had filed a prevailing wage claim with the Equal Rights Division or intended to file such a claim, or, in fact that Longrie was even aware that such a right or process existed. The record shows instead that Longrie believed that the complainant intended to file a small claims action in regard to her health insurance concerns, and, in fact, this is what she ultimately did. Finally, the most that can be said of the complainant's activities in this regard were that they were "oppositional" rather than "participatory." In Roncaglione v. Peterson Builders, Inc., ERD Case No. 9111425 (LIRC Aug. 11, 1993), and Pampuch v. Bally's Vic Tanny Health and Racquetball Club, ERD Claim Nos. 9350083, 9253152 (LIRC March 7, 1994), and their progeny, the commission clarified that Wis. Stat. § 111.322(2m), by its terms, applies only to formal participatory activities, not informal oppositional ones. See, Domini, supra

The complainant also appears to be alleging here that she was discriminated against when she was required to pay a higher percentage of her group health insurance premium than a male employee, and when she was retaliated against for bringing this to Longrie's attention. It should first be noted that this allegation was not part of the complainant's charge, and was not part of the issue noticed for hearing. However, even if this issue were properly before the commission, the complainant failed to prove that she was similarly situated to this other employee, i.e., the record shows that she had single health insurance coverage but this male employee had family coverage. In fact, the record shows that the complainant paid the same percentage as a male employee with single coverage. The complainant failed, as a result, to demonstrate differential treatment based on sex. In addition, the record does not show that the complainant ever brought her concerns about differential treatment based on sex to Longrie's attention, and failed, as a result, to demonstrate that she engaged in a protected fair employment activity within the meaning of Wis. Stat. § 111.322(3).

cc: Attorney Marc R. Soderbloom

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(1)( Back ) "Prevailing wage rate" is defined as the hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly, for a majority of the hours worked in the trade or occupation on projects in the area. Wis. Stat. 66.0903(1)(g).


uploaded 2005/04/18