KEVIN MARK GRULKE, Complainant
Q & E CONSTRUCTION, 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 modifications:
1. In paragraph 4 of the FINDINGS OF FACT, the year "2003" is deleted and the year "2002" is substituted therefor.
2. In paragraph 7 of the FINDINGS OF FACT, the 6th, 7th and 8th sentences are deleted and the following sentence substituted therefor: "Radloff and Grulke then got into a heated discussion about overtime pay owed Grulke and Yanke until Radloff stated to Grulke, 'You're fired.' "
3. In paragraph 14 of the FINDINGS OF FACT, the second to the last sentence is deleted and the following sentence substituted therefor: "Grulke testified that Radloff's only explanation for the 10 percent bonus was that by receiving a bonus instead of a dollar raise he (Radloff) thought Grulke 'could make more money by doing the 10 percent maybe give me more initiative to try to knock the job out a little bit faster and push my guys harder.'"
4. In paragraph 15 of the FINDINGS OF FACT, the name "Larsen" is deleted and the name "Larson" substituted therefor.
5. In paragraph 1 of the ORDER, the award of attorney's fees and costs for "$3,148.49" shown on lines three and five are deleted and the amount "$5,590.79" is substituted therefor on those lines.
6. Paragraph 4 of the ORDER is deleted and the following paragraph is substituted therefore:
"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."
The modifications to the ALJ's FINDINGS OF FACT were made to make those findings better conform to the evidence. The modifications to the ORDER were made to reflect the commission's additional award for attorney's fees and costs incurred by Grulke in this matter, and to direct when and where the respondent should submit its compliance report.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed August 10, 2006
grulkke . rmd : 125 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
Kevin Grulke began working in 1999 as an independent contractor for the respondent, a construction and siding installation business. Grulke performed siding work for the respondent and later became a foreman for respondent when hired as an employee.
Grulke alleged in a Fair Employment Discrimination Complaint filed with the Equal Rights Division on August 11, 2003, (1) that the respondent discharged him on June 24, 2003, because it believed he was going to file a Labor Standards Complaint. Grulke asserted that before leaving to go to a job site on June 24, 2003, he confronted the respondent's owner, Tom Radloff, about the overtime pay owed to him and another employee (Mark Yanke), stating that if they could not get this matter resolved he was prepared to file a complaint against him. Grulke asserted that when he returned to the work shop at the end of the day Radloff told him that he was fired, that he (Radloff) didn't have to pay him and the other employees overtime pay, and that in response to his (Grulke's) asking if Radloff knew it was illegal to fire him because he was filing a complaint with the Equal Rights Division, Radloff stated that he would lie and say he did poor work.
The Division issued an initial determination finding probable cause to believe Grulke had been discharged as alleged. Following a hearing on the merits of Grulke's complaint the ALJ issued a decision on January 6, 2006, concluding Grulke had proven by a fair preponderance of the evidence that the respondent had discharged him because it believed Grulke would be filing a complaint under Wis. Stat. § 109.09 regarding the payment of overtime compensation.
Section 109.09 sets forth the department's authority with respect to receiving, investigating and enforcing wage claims filed with the department. Such claims are filed on a Labor Standards Complaint form.
On January 20, 2006, a different attorney than the one who had represented the respondent at the hearing filed a petition for review on behalf of the respondent asserting that the respondent wanted to appeal from "each and every aspect of the Decision, including each of the Findings of Fact and Conclusions of Law, and the Order issued pursuant to said Conclusions of Law", as well as the award for costs and attorney's fees in the amount of $3,148.49.
While requesting an appeal from each and every aspect of the ALJ's decision, the respondent's new attorney has never submitted a brief or otherwise made known the basis for wanting to appeal from each and every aspect of the ALJ's decision. Nevertheless, the record in this matter has been reviewed for the purpose of determining whether the findings of fact and conclusions of law made by the ALJ are supported. Concluding that they are with the minor modifications indicated above, the commission has adopted them as its own.
At the hearing Grulke testified, as he had asserted in his discrimination complaint, that after informing Tom Radloff during the morning on June 24, 2003, that he was going to mail a fair labor standards complaint about overtime pay owed him if this matter could not be resolved, when he returned to the shop that night Radloff told him he was fired, that he didn't have to pay employees overtime pay, and that when he (Grulke) asked if Radloff knew it was illegal to fire him for filing the complaint Radloff stated he would just make up lies and say he did poor work. Further, Grulke testified that when the matter of overtime pay was first raised on April 3, 2003, he and Radloff had gotten into a heated discussion about overtime pay and Radloff told him he was fired but when he told Radloff he had gotten a fair labor complaint form to fill out Radloff then said he wasn't fired and if he leaves he will be quitting. Further, Grulke testified that on April 9th after Radloff told him there was no work for him that day, he and Radloff got into a heated discussion about overtime pay, that Radloff tried to choke him and that he pushed Radloff back. Grulke testified that they then talked about this matter and Radloff then instructed him to go to work, stating they'd work this out. Furthermore, the evidence shows that subsequently on April 11, 2003, Radloff included with Grulke's regular paycheck a check for $500.00 as a bonus and that on the following Monday, April 14, Radloff told Grulke he would also be receiving 10% of the profit on the jobs he completed. Grulke testified that the only explanation Radloff gave as to why he was being given a percentage of the profit on jobs was that "instead of giving me a dollar raise he thought I could make more money by doing the 10 percent maybe give me more initiative to try to knock the job out a little bit faster and push my guys harder." T. 34. See also, T. 72.
Radloff testified that he fired Grulke "in the heat of the moment" on April 3, 2003, because Grulke was disputing his decision about it not raining hard enough that day to prevent the employees from working. T. 211-212. Radloff denied that he had fired Grulke that day because of the overtime issue. T. 214. Radloff offered no testimony in response to Grulke's testimony about what occurred on April 9. Radloff testified that the check for $500 given to Grulke was a "peace offering", but denied that it was peace offering regarding the overtime issue. T. 221-222. Radloff testified that the respondent came up with the idea of giving Grulke a percentage of the profits because maybe that would motivate him to get jobs done quicker. T. 222. Radloff denied that Grulke and Yanke had approached him on the morning of June 24, 2003, about the overtime issue. T. 225-226. Radloff testified that he discharged Grulke on June 24 because the respondent was losing money due to Grulke's poor work performance, because Grulke was having conversations with an individual (Christine Grimm) with whom Radloff was having an affair about Radloff's personal business and because he suspected Grulke of using marijuana while on the job. T. 225, 226-229, 236.
The ALJ noted in the memorandum decision portion of his decision, as evidenced by the conflicting testimony cited above, that witness credibility and demeanor were substantial factors in his decision. The ALJ's memorandum decision fully explains why he credited the testimony of Grulke and his witnesses over that of the respondent's witnesses. A review of the record provides no reason to question the ALJ's assessment of witness credibility and demeanor.
In a brief submitted to the ALJ, the respondent's original attorney, citing the actual Labor Standards Complaint Grulke filed under § 109.09 with the Division following his discharge on June 24, 2003, argued that at no time has Grulke alleged or proven violations of any of the rights he may have attempted to enforce as set forth in Wis. Stat. § 111.322(2m)(a)-(c). This attorney argued that "An overtime-related violation of DWD 274 or of Section 109.09 fails to fit the requirements of Section 111.322(2m)(a)-(c), Wis. Stats.," and therefore the Division lacked jurisdiction over Grulke's claim. However, the focus of this matter is Grulke's Discrimination Complaint claim under the WFEA, not the Labor Standards Complaint he filed under § 109.09.
Section 111.322(2m) of the WFEA makes it 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. 103.02, 103.10, 103.13, 103.28, 103.32, 103.455, 103.50, 104.12, 109.03, 109.07, 109.075 or 146.997 or ss. 101.58 to 101.599 or 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. 103.02, 103.10, 103.13, 103.28, 103.32, 103.455, 103.50, 104.12, 109.03, 109.07, 109.075 or 146.997 or ss. 101.58 to 101.599 or 103.64 to 103.82.
(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 s. 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).
Chapter 109 of the Wisconsin Statutes addresses the failure of employers to pay wages due. Section 109.03(1) requires that "Every employer shall as often as monthly pay to every employee engaged in the employer's business, except those employees engaged in logging operations and farm labor, all wages earned by the employee to a day not more than 31 days prior to the date of payment." Section 109.01(3) defines "Wage" or "Wages" to mean "remuneration payable to an employee for personal services, including...overtime pay..."
In Pampuch v. Bally's Vic Tanny Health & Racquet ball Club (LIRC, 03/07/94), the commission noted that one of the activities which 111.322(2m) protects is attempts to "enforce" a right under one of the referenced statutes. Further, the commission determined that the term enforce was intended to refer to formal attempts to enforce a right by resort to the governmental agency charged with enforcement of that right.
Grulke's Discrimination Complaint assertion is that the respondent fired him after he advised the respondent that he was prepared to file a complaint against the respondent regarding overtime pay owed if that matter was not resolved. Grulke's Discrimination Complaint adequately alleges a violation under Wis. Stat. § 111.322(2m).
It was also argued in the respondent's brief to the ALJ that the decision to discharge Grulke stemmed primarily from poor performance, in combination with Grulke's interference in the personal affairs of Tom and Marcia Radloff. However, Radloff admitted that he did not tell Grulke that these were the reasons for his termination when he fired him on June 24. T. 251-252. With respect to Grulke's work performance what the evidence indicates at most, as found by the ALJ in finding 22, is that "To the extent that the Respondent wanted to encourage Grulke to work faster, the issue was not one that had risen to a level where the Respondent was considering the termination of Grulke's employment." Further, there is no reason to question the ALJ's determination that there was not credible evidence to support the conclusion that Radloff terminated Grulke for interfering between Radloff's wife and mistress. As noted by the ALJ, this had not been the first time that Radloff had had these concerns, that Radloff had not acted on them before, that Radloff did not begin terminating Grulke by talking about his mistress, that Radloff terminated Grulke and told him he did not have to pay overtime, and then, after the argument heated up, the mistress and other threats were brought into the conversation. See. finding no. 14 and mem. decis. at p. 10.
Another argument made to the ALJ was that the 10 percent of net profit bonus given to Grulke reflected the Radloff's concerns regarding Grulke's lack of productivity and inability to bring jobs in on a profitable basis and that this bonus was to inspire Grulke to complete projects on a more profitable basis. However, Radloff admitted on cross-examination that he implemented the 10 percent of profits bonus because he figured "Maybe it could heal the wounds" after Grulke "threatened" him with "Taking me to Workforce Development and -- and -- and the overtime." T. 248.
A further argument made before the ALJ as reason for Grulke's termination was that Radloff suspected Grulke of using marijuana while in a leadership capacity. However, Radloff admitted that he had not informed Grulke that this was a reason for terminating his employment. T. 252. Furthermore, while Radloff claims that he suspected Grulke of smoking marijuana because he found drug paraphernalia in the company vans and because employees were telling him Grulke was doing this, Radloff never confronted Grulke about this and never otherwise conducted any type of investigation into this matter. T. 253-255, 282.
As alleged evidence that Radloff had not terminated Grulke over the overtime issue but because of poor work performance, a further argument made before the ALJ was that on the morning of June 24, 2003 (and earlier on April 3, 2003), both Grulke and Yanke had met with Radloff to discuss overtime pay but that evening when they returned from work Radloff never terminated Yanke, only Grulke. However, the evidence shows, as stated by the ALJ in finding of fact 21, that while Yanke was also claiming overtime pay, Grulke was the spokesperson and was the individual talking to other employees [about overtime pay] and confronting Radloff about overtime compensation. See for example, T. 112, 115-116. (See also T. 107-108 about who had discussed overtime pay with Radloff on April 3rd.)
Finally, it was argued before the ALJ that Radloff had listened to Grulke's "threats" about alleged overtime violations for over three months and not terminated his employment because the respondent was satisfied that Grulke's complaints were groundless; that what changed between April 3 and June 24, 2003, was that the respondent had given Grulke the opportunity to prove himself as a capable foreman and that Grulke failed the test. However, there is no evidence that during this period the respondent had ever told Grulke that he was under any kind of test or that his work performance was inadequate.
As remedial relief for the respondent's unlawful discrimination, the ALJ included in his order of relief a requirement that the respondent make Grulke whole for all lost wages and benefits by paying him what he would have earned from June 25, 2003, through the date of the hearing, August 10, 2005, at which time Grulke withdrew his interest in reinstatement. This order included an offset for amounts Grulke earned after June 24, 2003, and during the period of the make whole award and a withholding of amounts received by Grulke as unemployment insurance during this period and payment of the amount received as unemployment insurance to the Unemployment Reserve Fund. Further, it was ordered that on the amount owing after these offsets that interest was to be paid at a rate of 12 percent per annum, simple interest.
While Wis. Stat. § 111.39(4)(c) provides that when there is a finding of a violation of Wis. Stat. § 111.322(2m), compensation of not less than 500 times nor more than 1,000 times the hourly wage of a person discriminated against when the violation occurred, shall be awarded in lieu of reinstatement if requested by all parties and may be awarded if requested by any party, this provision has no applicability here since there was no request made by either party for an award of compensation in lieu of reinstatement. Grulke simply stated at the hearing that he was not seeking to be reinstated to employment with the respondent. T. 50. This is why the ALJ did not extend the back pay period beyond the date of the hearing, August 10, 2005.
Grulke requested in a petition for attorney's fees and costs to the ALJ dated December 1, 2005, fees for 19.2 hours of work at $125.00 per hour, plus costs of $90.99, plus $95.00 for the work involved in drafting the fee petition and preparing an affidavit and cover letter for this petition. Although given an opportunity to respond to the request for attorney's fees and costs, the respondent did not file a response. The total sum requested was $3,148.49, which the ALJ awarded. A review of the invoices for the work performed and the costs incurred by Grulke's counsel indicates that the amount of time spent and costs incurred on the case is reasonable. Grulke's counsel's affidavit avers that the hourly rate she charged Grulke for legal services was her customary rate and is reasonable in light of comparable attorney's fees in the county, and that she expended .75 hours to draft the fee petition and to prepare the affidavit and cover letter for the petition for fees and costs.
On June 9, 2006, the commission received Grulke's "response brief" and an affidavit in support of a request to recover additional attorney's fees and costs totaling $2,442.30. The commission has awarded this additional amount for the reasons set forth below.
The affidavit of Grulke's counsel states that on January 25, 2006, she contacted the respondent's new attorney who stated that the respondent did not intend to order a transcript, "but that if complainant wanted to order a transcript respondent would pay half." Further, counsel's affidavit states that after ordering the transcript the respondent's attorney told her the respondent would not pay half of the costs for having the transcript prepared. Counsel states that the costs associated with ordering the transcript totaled $1,254.80. (This included an invoiced amount of $1,165.00 to have the transcript prepared, $80.00 to have a copy made for the respondent and $9.80 to have this mailed to the commission and the respondent's attorney.)
The commission has awarded Grulke the additional amount of $1,254.80 for the transcript expenses based on his counsel's affidavit statement that the respondent's attorney had agreed to pay for half of the costs of having a transcript prepared, and because the commission has received nothing from the respondent to dispute the assertion that the respondent had agreed to pay half the cost of having the transcript prepared.
Included as an attachment to Grulke's counsel's affidavit were what was asserted to be copies of invoices evidencing what Grulke was charged for "work related to [the] petition for review." The invoices are dated November 30, 2005, January 31, 2006, February 28, 2006, and May 31, 2006. The amounts shown on these invoices total $687.50. While the commission has no reason to question whether or not the services shown were actually performed, it does note that the November 30, 2005 invoice lists services for four dates beginning on "11-16-05" and ending on "11-29-05". These dates all preceded Grulke's fee petition to the ALJ dated December 1, 2005, and the respondent's January 20, 2006 petition for review. The commission has awarded the entire requested amount of $687.50 with the view that the November 30, 2005 invoice was likely not available to counsel at the time of her fee petition dated December 1, 2005, because counsel obviously could not have meant to state that an invoice for services performed in November of 2005 was related to the respondent's January 20, 2006 petition for review, because the 3.1 hours expended (@ $125/hr.) for the services shown on the November 30 invoice appears to be reasonable and because, in any case, the respondent has not objected to this requested amount.
Finally, Grulke includes a request for an additional amount of $500.00, an amount counsel's affidavit states is for 4 hours work to draft a "response brief" and to prepare her affidavit and an accompanying cover letter that Grulke will be charged for. While counsel's response brief was quite short and not absolutely necessary, the majority of counsel's effort seems to have been directed towards preparing her affidavit, which is quite detailed. Considering these items as a whole, the commission has awarded Grulke's request for $500.00 for this work because this amount appears to be reasonable, and also because the respondent has not objected to this requested amount.
Attorney Vicki Zick
Attorney Gordon K. Aaron
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(1)( Back ) The ALJ's decision inadvertently states that the year was 2004.