TIFFANY CUNNINGHAM, Applicant
ERNIE'S RIVERDALE INN, Employer
SOCIETY INSURANCE A MUTUAL CO, Insurer.
An administrative law judge (ALJ) for the Worker's Compensation 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 order in that decision as its own.
The findings and order of the administrative law judge are affirmed.
Dated and mailed
November 30, 2011
cunning . wsd : 101 : 2 ND6 8.32
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The applicant worked for the employer, a restaurant and bar, as a cook. She was injured on July 15, 2008, when she was burned while attempting to clean a deep fryer. She returned to work in September 2008, but was fired in January 2009. The employer's former owner testified that he fired the applicant for theft. He testified that three employees told him in October 2008 the applicant was stealing product.
It appears from the owner's testimony that he claims that the applicant was stealing prepared food--not unprepared food like boxes of meat. He did not actually see the applicant stealing any food, nor did he bring any witnesses to the hearing to give firsthand testimony. One of the three employees whom the owner said accused the applicant of stealing food was a manager, Amy John.
The applicant testified that workers were allowed one free meal for each day they worked. She testified all she did was take a sandwich that she had made for her free meal from the employer's premises when she left for the day. She testified further that the manager, Amy John, had okayed the meal that she took home. She testified, too, that Amy told her she had never complained to the owner about her (the applicant) stealing food.
The unreasonable refusal to rehire statute, Wisconsin Stat. § 102.35(3), provides in part:
102.35 (3) Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, where suitable employment is available within the employee's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employee the wages lost during the period of such refusal, not exceeding one year's wages....
The statute applies to unreasonable discharges following a work injury, as well as simple failures to rehire; an employer cannot evade liability by showing a
short-term pro forma rehire. Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App. 1982).
A worker has the burden of proving he or she was an employee with a compensable injury who was denied rehire or discharged. The burden then is on the employer to show reasonable cause for the failure to rehire or for the discharge. Dielectric Corp., 111 Wis. 2d at 278. This "very correct standard" set out by the court in Dielectric was adopted by the supreme court in West Bend v. LIRC, 149 Wis. 2d 110, 121 (1989) which stated that "after an employe shows that she has been injured in the course of employment and subsequently is denied rehire, it becomes the burden of the employer to show reasonable cause for not rehiring the employe." West Bend, at 149 Wis. 2d 123.
If there is suitable employment available, an employer can only refuse to rehire "for a cause or reason that is fair, just, or fit under the circumstances." West Allis School Dist. v. DILHR, 116 Wis. 2d 410, 426 (1984). An employer must provide evidence showing to a reasonable degree of medical certainty that the worker cannot perform his or her old job or other available work, if it refuses to rehire a worker for that reason. West Bend, supra, at 149 Wis. 2d 126.(1) Finally, the supreme court and court of appeals have held that Wis. Stat. § 102.35(3) "must be liberally construed to effectuate its beneficent purpose of preventing discrimination against employees who have sustained compensable work-related injuries." Great Northern Corp. v. LIRC, 189 Wis. 2d 313, 317 (Ct. App. 1994), citing West Allis School Dist. v. DILHR, 116 Wis. 2d 410, 422 (1984).
In this case, the ALJ properly found an unreasonable refusal to rehire here. The applicant has made her prima facie case by establishing that she was an employee who was injured and then discharged by the employer. The employer, in turn, has failed to prove a reasonable cause for the discharge. The owner brought in no witnesses to the theft, nor did he bring in anyone to substantiate his testimony that he was told that the employee was stealing. The record includes only hearsay testimony about the alleged theft.(2) Beyond that, the owner's testimony about what Ms. John and the others told him is less credible than the applicant's testimony about the events in question. In short, the employer has not met its burden of showing reasonable cause for the applicant's discharge.
In its brief, the employer argues that it fulfilled its duty under Wis. Stat. § 102.35(3) by rehiring the applicant for a short period of time. However, as stated above, the court in the Dielectric case held an employer does not avoid liability under Wis. Stat. § 102.35(3) by a pro forma rehire.
The employer also argues that because the discharge was not based on the work injury--but rather on an unsubstantiated theft accusation--there is no liability under Wis. Stat. § 102.35(3), even if the discharge for theft was unreasonable. This raises the question of whether an employee, in making his or her prima facie case, must show that he or she was discharged due to his or her work injury. See, for example, Ray Hutson Chevrolet, Inc. v. LIRC, 186 Wis. 2d 118, 122 (Ct. App. 1994).
The commission has rejected this argument on a consistent basis in the past. See: Newberry v. Robert Hansen Trucking, WC claim no. 1996-022382 (LIRC August 6, 1999); Borrego v. Gordon Aluminum Ind., Inc., WC claim no. 2002-025461 (LIRC April 14, 2006); Fedde v. Heartview Inc, WC claim nos. 2002-047359, 2002-022001, 2002-000201 (LIRC October 28, 2008). As stated above, the court in West Bend cited with approval the language from Dielectric which requires only that a worker show that he or she was discharged.
Moreover, as the commission noted in the Fedde case:
In the West Allis case the Wisconsin Supreme Court made no mention of requiring a causal link between the cessation of employment and the work injury; and to the contrary, the facts of the case made clear that no such link was required.
Specifically, in the West Allis case, the supreme court imposed liability under Wis. Stat. 102.35(3) when an injured worker was unreasonably denied rehire because the employer unreasonably concluded it could not rehire him under federal CETA program. According to the supreme court, however:
An employer, if there is suitable employment available, can only refuse to rehire for a cause or reason that is fair, just, or fit under the circumstances.
West Allis School Dist., 116 Wis. 2d at 426. The court did not limit refusals to rehire to cases where the refusal was based on the work injury; again, the reason for the refusal to rehire in the West Allis case was the employer's understanding of the CETA provisions, not the work injury.
However, in the recent DeBoer case, the supreme court suggested that its holdings have been inconsistent as to whether the employee must show, as part of his or her prima facie case, that the employer refused to rehire the employee because of the work injury. The court noted that in the West Allis case and its first expression of the elements of an employee's prima facie case in the West Bend case, it required only that the employee show that the employer refused to rehire him or her without tying the refusal to any particular reason. However, the supreme court noted that in the second formulation of the elements of an employee's prima facie duty in West Bend, it stated that the last element of the applicant's prima facie case requires an employee to show he or she had been discharged and denied rehire because of the injury sustained in his or her work. DeBoer Transportation, Inc. v. Swenson and LIRC, 335 Wis. 2d 599, 40-41.(3) Given the facts in DeBoer, the supreme court did not have to resolve the inconsistency it had identified. Id., at 335 Wis. 2d 599, 42.
The commission has previously suggested the inconsistency in West Bend is due to the fact that the second expression of the employee's prima facie case is simply summarizing what the facts in that case actually were. See: Newberry and Borrego. In West Bend (unlike West Allis) the employer admitted it had discharged the worker because of the work injury, but asserted the discharge was necessary because of work restrictions imposed after the injury. West Bend, 149 Wis. 2d at 126-27. To the contrary, in Ray Hutson, Inc.--one of the court of appeals decisions that purports to add the requirement that the applicant prove that he was discharged because of the work injury--the court of appeals found the employer had met its burden of showing a reasonable cause unrelated to the work injury: increased deficiency and reduced costs as a business reason for eliminating the injured worker's job.(4)
Stated another way, the court of appeals in Ray Hutson, Inc., did not find that the injured worker had failed in his burden of making a prima facie case because he did not show the work injury caused the discharge, but rather found that the employer met its burden of proving a reasonable cause for the discharge albeit one unrelated to the work injury. Likewise, the supreme court in West Allis did not find that the injured worker had failed in his burden of making a prima facie case because he did not show the work injury caused the discharge, but rather found that the employer did not meet its burden of proving reasonable cause on its (the employer's) assertion of a cause unrelated to the work injury. Neither decision actually turned on the conclusion that the injured worker had failed to show, as part of his prima facie case, that he was discharged because of his work injury.
Finally, the commission declines to read the West Bend as overruling West Allis or Dielectric. In fact, the West Bend court concluded its decision by noting:
...In West Allis, we stated that "reasonable cause" meant, in the context of this statute, whether the conduct of the employer was "fair, just, or fit under the circumstances." 116 Wis. 2d at 426. This statement was made in circumstances where there was suitable employment available. The situation here is factually different, but the same general test is applicable. Where, as here, the employer offers a medical reason or prognosis for refusing to rehire, it is only "fair, just, or fit under the circumstances" to require competent medical opinion to support that reason.
West Bend, 149 Wis. 2d at 130.
cc:
Attorney William Parsons
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