GARY INGRAM, Complainant

BRIDGEMAN MACHINE TOOLING AND PACKAGING INC, Respondent

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 modification:

Paragraph 2 of the CONCLUSIONS OF LAW is deleted and the following paragraph is substituted therefor:

"2. The Complainant has failed to establish probable cause to believe the Respondent violated the WFEA by terminating him from employment because the Respondent believed he had filed or would file a complaint under the Wisconsin Minimum Wage Act, sec. 104.12, Stats."

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

Dated and mailed June 27, 2005
ingraga . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Under the Wisconsin Fair Employment Act, subject to ss. 111.33 to 111.36, it is "an act of employment discrimination...

(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. ... 104.12 ...
...
(d) The individual's employer believes that the individual engaged or may engage in any activity described in pars. (a) to (c)."

Wis. Stat. § 111.322(2m)(Emphasis added.)

Also, Wis. Stat. § 111.325 states that "It is unlawful for any employer, labor organization, licensing agency or person to discriminate against any employee or applicant for employment or licensing." (Emphasis added.)

Wis. Stat. § 104.12 provides as follows:

"Complaints. Any person may register with the department a complaint that the wages paid to employees for whom a living-wage has been established are less than that rate, and the department shall investigate the matter and take all proceedings necessary to enforce the payment of a wage not less than the living-wage. Section 111.322(2m) applies to discharge and other discriminatory acts arising in connection with any proceeding under this section." (Emphasis added.)

In Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 289 (Ct. App. 1993), the court of appeals effectively held that the protections afforded individuals against prohibited discrimination under the Wisconsin Fair Employment Act covers employees, not independent contractors. The court reached this result by looking to Title VII and the federal court decisions interpreting Title VII for guidance in applying the WFEA. In Moore, the court adopted the test set forth in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979), utilized by federal courts to determine whether one seeking the protections afforded under Title VII is an employee or an independent contractor. Moore quoted the test as set forth in Spirides as follows:

"[D]etermination of whether an individual is an employee or an independent contractor for purposes of [Title VII] involves analysis of the 'economic realities' of the work relationship. Consideration of all of the circumstances surrounding the work relationship is essential, and no one factor is determinative. Nevertheless, the extent of the employer's right to control the 'means and manner' of the worker's performance is the most important factor to review here.

Additional matters of fact that an agency or reviewing court must consider include, among others, (1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the 'employer' or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the 'employer'; (9) whether the worker accumulates retirement benefits; (10) whether the 'employer' pays social security taxes; and (11) the intention of the parties."

Moore, 175 Wis. 2d at 569.

Furthermore, under Title VII, it has been held that the plaintiff must prove the existence of an employment relationship in order to maintain a Title VII action against a defendant. Alexander v. Rush North Shore Medical Center, 101 F.3d 487, 492 (7th Cir. 1996). See also, Ost v. West Suburban Travelers Limousine, Inc., 88 F.3d 435, 438 (7th Cir 1996)(Ost has the burden of proof on the issue of whether she was an employee or independent contractor); Knight v. United Farm Bureau Mutual Insurance Co., 950 F.2d 377, 380 (7th Cir. 1991)(Knight must prove the existence of an employment relationship in order to maintain a Title VII action against Farm Bureau).

In the Alexander, Ost and Knight cases, the court again recognized that the employer's right to control is the most important factor when determining whether an individual is an employee or an independent contractor. In those cases, the court focused on the following five factors: (1) the extent of the employer's control and supervision over the worker, including directions on scheduling and performance of work; (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace; (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations; (4) method and form of payment and benefits; and (5) length of job commitment and/or expectations. In Knight, the court noted that other courts had identified eleven factors, in addition to the control factor, for the "economic realities" analysis, but that the five step inquiry adequately covers all the factors identified by the other courts. 950 F.2d at 379 n2.

The commission finds that the complainant has failed to prove the existence of an employment relationship. With respect to the most important factor, the right to control and supervise him, including directions on scheduling and performance of work, the complainant has presented absolutely no testimony or evidence to show that the employer exercised any control over him or his work. As far as the kind of occupation and skill required, the complainant himself asserts that he was hired as a "job placement, recruitment and retention specialist." The only "equipment" mentioned in the testimony is the complainant's assertion about some disks and "other materials" that belonged to him that he never got back. The complainant's place of work is in dispute, as the complainant apparently maintains that he was at the respondent's office from 9 a.m. to 5 p.m. every day while the respondent maintains that the complainant had no set hours and that she hardly ever saw him. The complainant claims that he was to be paid "at least $300 per week" but has presented nothing to substantiate this. The parties do appear to agree, however, that the complainant was to receive $75 for each trainee that he placed in a job, and another $75 if the trainee remained in that job for a specified time, a form of payment more indicative of an independent contractor relationship. Also, the complainant has presented absolutely no testimony or evidence about being afforded any benefits. Finally, there was no evidence presented regarding length of job commitment and/or expectations.

In addition to the above, testimony by Miriam Rogers, the respondent's president and CEO, that she had contracted with an outside corporation to do job placement and recruitment prior to hiring the complainant to do such work would suggest that she had also contracted with the complainant to perform such work.

Further, the commission also notes that it held a credibility conference with the ALJ to discuss her assessment of the credibility/demeanor of the complainant and Rogers, and it was the ALJ's impression that Rogers was the more credible witness and had presented the more credible evidence.

In correspondence from the complainant received at the division on January 10, 2005, he apparently asserts that on May 15, 2004, a Frank Gumina concluded he was an employee of Bridgeman and that Bridgeman was ordered to pay him back pay in the amount of $1,171.60. The complainant has not explained what gave Gumina authority to do this and the commission is unaware of any judge by that name in Milwaukee County. Furthermore, the complainant has not stated the nature of this alleged action nor has he cited a case number for it.

The only other information the complainant apparently cites to "prove" that he was discriminated against in violation of the WFEA is a reference to ALJ James Schacht's prior probable cause decision, a decision which was rendered based on a hearing in which the respondent was not present because it had moved and not received notice of the hearing (apparently because it had not notified the division that it had moved). In any event, that probable cause determination is not relevant. That determination only enabled him to get to a hearing on the merits where he was required to prove his case by a preponderance of the evidence.

The remainder of the complainant's correspondence takes issue with the date the ALJ found that he filed a wage complaint (May 13, 2003) and the date his relationship with the respondent ended (May 15, 2003). In his January 10 correspondence the complainant asserts that he filed the wage complaint on May 15 and that he was "fired" on May 16. However, the summary of proceedings for the hearing shows that what the ALJ found was what the complainant had stated at the hearing.

NOTE: Paragraph 2 of the conclusions of law has been modified because it states that the complainant failed to establish probable cause to believe that the respondent violated the WFEA by terminating the complainant's employment, whereas the findings state that "There is no reason to believe that Ingram was an employee of Bridgeman or that an employment relationship between Ingram and Bridgeman was ended because Ingram filed a minimum wage complaint." See finding of fact no. 10. (Emphasis added.)

cc: Miriam Rogers

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