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

AMBER A SCHULZ, Complainant

ARMS CORPORATION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200303024


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 makes the following:

FINDINGS OF FACT

1. The respondent, ARMS Corporation (ARMS), operates a Citgo gas station and convenience store in Big Bend, Wisconsin. ARMS is owned by Rene Gharibeh (Gharibeh).

2. The complainant, Amber Schulz (Schulz) was employed as a part-time deli worker for ARMS from May of 2002 through July 28, 2003. Schulz was a student during this entire time period, and worked for ARMS during the school year as well as during school breaks. Schulz received pay raises equivalent to those received by similarly situated employees during the period of her employment by ARMS.

3. Some time prior to July 21, 2003, Schulz gave notice to ARMS that she was leaving Wisconsin to attend college in South Carolina and her last day of work would be August 13, 2003. She requested that she be scheduled to work during school breaks, and was told that ARMS would do so if there were an opening at the time.

4. Schulz's date of birth was October 6, 1984, i.e., she was a minor when hired by ARMS, and turned 18 on October 16, 2002. In July of 2003, there were two minors employed with Schulz in ARMS' deli department.

5. Schulz's immediate supervisor was Patricia Hauck (Hauck), the assistant manager.

6. At the beginning of the summer of 2003, Schulz asked Hauck to schedule her for more hours because she needed to earn more money. Hauck did not agree to do so, explaining that the other deli employees needed to get their hours as well. Even though Gharibeh had not planned to have the deli department open over the July 4 holiday weekend, at Schulz's request, he changed this plan, even though it would not be profitable for him to do so, so that Schulz could work additional hours.

7. On July 21, 2003, Schulz, even though she was not scheduled to work that day, came to the work site and informed Hauck that she had learned that minors were prohibited from operating machines such as the meat slicer used in ARMS' deli department. Schulz handed Hauck a document and Hauck skimmed it, but did not read it carefully, and suggested that Schulz bring the matter to Gharibeh's attention. During this conversation with Hauck, Schulz requested that she be scheduled for additional hours, and became upset when Hauck explained that the other deli Worker's needed to get their hours as well.

8. On July 23, 2003, Gharibeh went to the deli department to talk to Schulz as she had requested. Schulz presented the same documents to Gharibeh as she had presented two days before to Hauck. Gharibeh did not read these documents, but instead asked Schulz to explain them. Schulz told Gharibeh that Worker's under the age of 18 were not allowed to operate belt-driven equipment. Gharibeh asked Schulz where she had heard this, and she told him that she had heard it from a customer and that her mother had then helped her find the information contained in the documents online. Schulz told Gharibeh that she could create a lot of problems for him.

9. Schulz finished working her shift on July 23 and was next scheduled to work on July 28.

10. Gharibeh had operated this business for 18 years, and was unaware that Worker's under the age of 18 were prohibited from operating a meat slicer.

11. Gharibeh questioned the accuracy of the information provided by Schulz so conducted his own inquiry on July 24 by calling other deli owners as well as state government agencies. Eventually, he spoke to an employee of a state agency who told him that Worker's under the age of 18 were prohibited from operating belt-driven equipment such as meat slicers. This state agency employee also told Gharibeh that there would be no problem as long as he did not permit minor employees to use the meat slicer any longer. As soon as Gharibeh obtained this information, he notified the two minor employees in the deli department that they were no longer to use the meat slicer, and that they should search for other work because he was shutting the deli down in two weeks.

12. At all times relevant here, Gharibeh was aware that he could be reported to the state for violating labor laws governing the employment of minors.

13. Gharibeh was aware that Schulz had asked to be scheduled for additional hours because she needed the money. Gharibeh believed that Schulz, relying on information she had obtained from her mother, who had owned a deli for five or six years, was using the system to try to manipulate him into firing the minor employees in the deli so that she could get more hours of work. Gharibeh believed that he had gone out of his way to accommodate Schulz, most recently by granting her request that the deli remain open over the July 4 holiday weekend so that she could work more hours, and that she had responded to this accommodation by trying to take advantage of him. Gharibeh also believed, based on a concern expressed to him by another worker, that Schulz's actions had generated significant gossip and had disrupted the formerly peaceful workplace.

14. Based on these beliefs, Gharibeh discharged Schulz on July 28, 2003, approximately two weeks before the date she had specified as her last day of work before leaving for college. In their discussion on July 28, Gharibeh stated, "Yes, now you have enough time to go and create problems for me."

CONCLUSIONS OF LAW

1. The respondent is an employer within the meaning of the Wisconsin Fair Employment Act (WFEA).

2. The complainant has the burden to prove that she was retaliated against for engaging in a protected activity as alleged.

3. The complainant has failed to sustain this burden.

ORDER

This complaint is dismissed.

Dated and mailed June 14, 2005
schulza . rrr : 115 : 9

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


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:...

(a) The individual files a complaint or attempts to enforce any right under s....103.64 to 103.82.

(b) The individual testifies or assists in any action or proceeding held under or to enforce any right under s. 103.64 to 103.82....

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

Wisconsin Statutes § § 103.64 to 103.82 relate to the employment of minors.

The complainant could prevail here if she proved any of the following:

(1) She filed an employment of minors complaint with the Equal Rights division (ERD) and the respondent had reason to be aware of this filing.

(2) She otherwise attempted to enforce an employment of minors 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 employment of minors action or proceeding.

(4) Gharibeh believed that the complainant had engaged in, or may engage in, (1), (2), or (3).

Schulz did not file a complaint with ERD prior to her discharge. Although Schulz appears to be arguing that references she made to the employment of minors in the fair employment charge at issue here would satisfy the requirement stated in (1), above, this could not be the case since the fair employment charge was obviously filed after the discharge and could not, therefore, have influenced the discharge decision. Schulz did not contact ERD prior to her discharge, or otherwise invoke its authority in any way within the meaning of (2), and did not testify or assist in any employment of minors proceeding within the meaning of (3).

The only remaining question then is whether Gharibeh believed that Schulz engaged in, or may engage in, any of these activities within the meaning of (4).

By the time he discharged her, Gharibeh, the alleged retaliator, did not believe, or have reason to believe, that Schulz would have had any basis for filing a complaint, otherwise invoking the authority of ERD, or assisting or testifying in an action in regard to the minor deli employee/meat slicer issue, because he had already halted the practice and been assured by a state official that he would have no exposure to liability as a result.

As a result, the most that can be concluded here is that Gharibeh discharged Schulz at least in part for participating in an informal oppositional activity, not a formal participatory one.

As the commission recently explained in Domini v. Jason Schultz Trucking, Inc., ERD Case No. CR200201825 (LIRC Feb. 24, 2005), in its decisions 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.

The material facts at issue here are more akin to those relied upon by the commission in Domini, supra, and Hephner v. Rohde Brothers, Inc., ERD Case No. 200200512 (LIRC June 30, 2004), to conclude that no retaliation within the meaning of Wis. Stat. § 111.322(2m)(d) had been proved, than those relied upon by the commission in Travis v. D. C. Nevels Trucking, Inc., ERD Case No. 200003726 (LIRC Oct. 7, 2002) to conclude that such retaliation had been proved.

In both Domini and Hephner, the commission, in assessing the circumstantial evidence, relied upon the fact that the alleged retaliator was unaware that the respondent was out of compliance with the subject requirement, and, once he became aware through the complainant's informal oppositional activity, took immediate action to bring the respondent into compliance, as support for the conclusion that, once such action was taken, the alleged retaliator would have had no reason to believe that the complainant would initiate or take part in an enforcement action. In Travis, supra, in contrast, the alleged retaliator was aware that the respondent was not complying with the subject requirement, took no action to bring the respondent into compliance once the complainant brought it to her attention, and was aware of, and upset about, the fact that the complainant had been in contact with the enforcement agency.

Here, as in Domini and Hephner, Gharibeh, the alleged retaliator, was unaware that minors were prohibited from operating equipment such as the meat slicer in the deli, and took immediate action, prior to the complainant's discharge, to discontinue the practice. As a result, Gharibeh would have had no reason to believe, at the time of the discharge, that the complainant, who had not initiated an enforcement action when ARMS was out of compliance with the requirements at issue here, would initiate or take part in a future enforcement action, within the meaning of Wis. Stat. § 111.322(2m)(d), after ARMS had come into compliance.

NOTE: The administrative law judge indicated to the commission that she had not relied upon her impressions as to witness demeanor in reaching Finding of Fact 17. in her decision, the finding overturned by the commission here. The commission's reversal of her decision, as a result, was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

 

JAMES T. FLYNN, Chairman, (dissenting):

I respectfully dissent from the majority decision.

The language of Wis. Stat. § 111.322(2m) does not require that the alleged retaliator believe that the complainant certainly will file a complaint, participate in a proceeding, or attempt to enforce a right, but only that he believe the complainant may engage in such actions. In this matter, the complainant's presentation to the respondent of copies of the laws enforced through an employment of minors action, considered in conjunction with Gharibeh's statement to the complainant at the time of discharge that she would now have time to make problems for him, is sufficient to support a finding that he believed that she may file a complaint or attempt to enforce a right under such laws. This is so even though such efforts may have been unsuccessful given his recent compliance and the assurance he had received through his contact with a state agency.

/s/ James T. Flynn, Chairman

 

cc:
Attorney Kerri T. Cleghorn
Attorney Robert M. Mihelich


Appealed to Circuit Court.  Affirmed December 18, 2005.

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