JOSEPH VAN DEN ELSEN, Complainant
COUNTY OF BROWN, Respondent
On July 28, 2004 an administrative law judge from the Equal Rights Division (Division) of the Department of Workforce Development issued a decision in this matter finding that the respondent discriminated against the complainant based upon his disability. The respondent was ordered to take certain remedial actions, including offering the complainant reinstatement to the same position as he would have held had he not been discharged, and to make him whole for all losses in pay and benefits he suffered as a result of the discrimination against him. The respondent was also ordered to pay the complainant's reasonable attorney fees and costs. A timely petition for review was filed by the respondent and, on June 14, 2005, the Labor and Industry Review Commission (commission), issued a decision affirming the administrative law judge's finding of discrimination and remedial order. The commission also ordered the payment of additional attorney fees and costs reasonably incurred in conjunction with the proceedings before the commission. No appeal was taken, and the commission's order is now final.
On October 4, 2005, substantially after the 30-day deadline set forth in the commission's order, the respondent submitted its compliance report to the commission. The compliance report indicates that an offer of reinstatement has been made and accepted, and that the complainant's attorney fees ordered through the date of the commission's decision have been paid. In addition, the respondent has paid the complainant a total of $20,628.49 in back pay and interest, the amount which it concedes is owed to the complainant.
The complainant contends, however, that he is entitled to back pay and interest in the amount of $79,327.10. The disparity between the respective parties' back pay calculations can be explained, in major part, by the fact that the respondent's payment to the complainant does not include any compensation for overtime, whereas the complainant calculates that he would have earned overtime in an amount equivalent to that earned by a similarly situated co-worker. The respondent apparently takes the position that the individual to whom the complainant compares himself for the purposes of calculating overtime is not an appropriate comparator and, further, that the complainant may not have made himself available for overtime hours had he remained employed. In addition to the factual issues surrounding the payment of overtime, questions arise as to whether the respondent's calculations of the complainant's back pay include an appropriate treatment of the unemployment insurance received by the complainant, which was to be withheld by the respondent and repaid to the Unemployment Compensation Reserve Fund, and of its contributions to the Wisconsin Retirement System.
The commission has attempted to arrive at a determination as to whether the respondent has fully complied with its order. However, as indicated above, a significant factual dispute exists with regard to the complainant's entitlement to back pay, which the commission is unable to resolve based upon the information before it. The commission believes that the satisfactory resolution of the outstanding compliance issues can be best be achieved through the conciliation process or, if warranted, through further hearing.
Based on the above, the commission hereby issues the following:
This matter is remanded to the Equal rights Division (1) for further proceedings as warranted with regard to the outstanding compliance issues.
Dated and mailed November 14, 2005
vandejo . rpr : 164 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney Bruce F. Ehlke
Attorney Anna M. Pepelnjak
Joseph L. VanDenElsen
Joseph L. VanDen Elsen
On April 26, 2006, Brown County commenced an action for a declaratory judgment that LIRC lacked jurisdiction to enter this decision. This declaratory judgment action was dismissed, on LIRC's motion, on June 30, 2006.
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