Wis.LIRC WC Decision: Nemitz - January 11, 1999 - ND � 7.34 - Penalty - Unreasonable refusal to rehire; � 7.35 - No Duty to Mitigate Damages

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

NICHOLE L NEMITZ, Applicant

PROVIMI VEAL CORP, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1996012793

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, except that it makes the following modifications:

1. At page 9 of the ALJ's decision, delete the second sentence of the third paragraph beginning on that page and substitute:

"Discharging an employe for dishonesty should not be undertaken lightly."

2. At page 10 of the ALJ's decision, delete the first full paragraph beginning on that page.

3. At page 13 of the ALJ's decision, delete the second sentence of the second paragraph beginning on that page.

ORDER

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed: January 11, 1999
nemitzn.wmd : 101 : 7 ND � 7.34, 7.35

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

1. Posture.

The applicant suffered a compensable injury in March 1995. She brought a claim under the "unreasonable refusal to rehire" statute, Wis. Stat. � 102.35(3), following her discharge for allegedly lying to the employer about a doctor's visit in March 1996. (1 ) The ALJ found that the employer unreasonably refused to rehire (that is, discharged) the applicant. He also concluded that the employer did not "end the period of refusal" by offering to rehire her in good faith. Accordingly, he found the employer owed the applicant one year's wages in the amount of $16,562.52.

On review, the employer does not challenge the finding that it unreasonably discharged the applicant under Wis. Stat. � 102.35(3). However, it argues that its liability for that unreasonable discharge should be limited to about two week's wages based on its subsequent offer of re-employment. Specifically, the employer contends its liability for damages for the refusal to rehire should end on April 1, 1995 when the applicant failed to appear at the meeting scheduled by its human resources manager, Ms. Bunkelman.

2. Relevant law.

Wis. Stat. � 102.35(3) provides as follows:

"102.35(3) Any employer who without reasonable cause refuses to rehire an employe who is injured in the course of employment, where suitable employment is available within the employe's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employe the wages lost during the period of such refusal, not exceeding one year's wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern."

As noted above, this case involves the employer's liability under Wis. Stat. � 102.35(3) given its purported attempt to return the applicant to work following an unreasonable discharge for misconduct. The commission notes two published decisions of the court of appeals addressing the question of an injured worker's return to work in the context of a claim under Wis. Stat. � 102.35(3). However, these cases did not involve discharges on allegations of misconduct.

In L&H Wrecking, Inc. v. LIRC, 114 Wis. 2d 504 (Ct. App., 1983), the employer discharged an injured worker prior to the end of healing based on the erroneous conclusion that the work injury prevented him from doing his work. The commission found a violation of Wis. Stat. � 102.35, but the circuit court reversed because the worker did not present himself for work after reaching a healing plateau. The court of appeals reinstated the commission's decision stating that "to require a terminated employe to report to work in order to recover under sec. 102.35(3) is an unreasonable construction of the statute." Id., at 114 Wis. 2d 510.

In Hill v. LIRC, 184 Wis. 2d 101 (Ct. App., 1994), a truck driver suffered injuries that would prevent him from returning to work as a truck driver. The employer had other work within his restrictions, but did not offer it to him as he had expressed no interest in work other than truck driving. The commission held that an applicant need not formally reapply when a worker is released to his old job, or when the worker has been terminated while on disability leave. However, where the applicant is not able to return to his old job, he must tell the employer he is interested in other work. The court of appeals affirmed this holding.

Finally, in rehiring an injured worker in the context of Wis. Stat. � 102.35(3), the employer must act in good faith. In order to comply with Wis. Stat. � 102.35(3), an employer must rehire an injured worker in good faith; a pro forma rehire will not protect an employer from liability. West Allis School District v. DILHR, 116 Wis. 2d 410, 415 (1984).

In sum, then, an employer remains liable for an unreasonable refusal to rehire until the period of refusal is ended by rehiring the injured worker in good faith, and the formal duties of an injured worker to ensure rehire are not great. These general principles work well when the employer simply does not allow an injured worker to return to work when he is able. Application of the general principle requires more judgment where the injured worker had returned to work, but the employer later unreasonably discharges the worker for a reason unrelated to physical ability to perform the work.

3. Discussion

The employer's duty to rehire the applicant in good faith in this case poses two interrelated questions: (1) how definite must an offer of rehire be to end the period of unreasonable refusal, and (2) is the offer, even a definite one, in good faith?

The ALJ considered both issues. In support of his conclusion that the employer did not offer to rehire the applicant in good faith, the ALJ noted that Ms. Bunkelman did not really learn anything new in the conversation with Dr. Van Sistine after the discharge, so he questioned the motive behind the decision to rehire her. Regarding the definiteness of the offer, the ALJ noted that Ms. Bunkelman's phone messages to the applicant after the discharge did not indicate the reason for the call. He also noted that the eventual letter stated somewhat ambiguously that the applicant's status would "remain active," and that a meeting was necessary to discuss a return to work. Because Ms. Bunkelman's letter did not offer work and because he reasoned that the applicant had no duty to "discuss" her return to work by analogy to L & H Wrecking, the ALJ concluded the employer never made a good faith offer of work.

The employer argues it could not have made a specific job offer before the April 1 meeting as it did not know the extent of the applicant's restrictions at the time. (2 ) It further characterizes the meeting as a reasonable attempt to clear the air regarding the parties "misunderstanding" and the applicant's employment status made necessary by the applicant's refusal to return Ms. Bunkelman's phone calls. (3 ) The employer also asserts that it cannot be said for certain what would have happened at the April 1 meeting because the applicant did not attend. Finally, the employer points to the applicant's testimony that she had no intention of returning to the work for the employer. Transcript, page 146.

However, the commission cannot accept the employer's position that its liability ended on April 1, 1996. Ms. Bunkelman's March 22 letter does not actually offer re- employment in good faith so much as conditionally rescind the discharge. In the commission's view, these are different things. Telling the applicant that her employment status remains active and summoning her to a meeting to resolve misunderstandings and discuss a return to work is not the same as offering work. Given the facts of the discharge, the wording of Ms. Bunkelman's March letter, and the fact that the employer still insists the applicant lied to it, the April 1 meeting could reasonably be viewed as giving the applicant a chance to plead her case for a "second chance."

The applicant's attorney informed Ms. Bunkelman by letter that he did not understand the terms of her March 22 letter. (4 ) Yet the employer did not respond to the attorney's letter. If the employer really meant the letter to express an offer of work within the applicant's restrictions, it could have ended any speculation on the issue by so informing the applicant's attorney. But it did not. In short, the commission cannot view Ms. Bunkelman's letter as sufficient to establish an end to the "period of refusal" upon the applicant's failure to appear at the April 1 meeting.

Even assuming that the employer in fact made a sufficient offer of work, however, the record raises signficant questions about whether the employer was acting in good faith. Even on appeal, the employer still insists the applicant lied to it; certainly Ms. Bunkelman still holds that view. However, the commission must question the employer's underlying motivation in so readily inflating the "seen" versus "contacted" distinction into an offense warranting discharge, particularly after the employer had been provided with valid excuses for the time the applicant missed work due to her work injury in March 1996.

Beyond that, as the ALJ pointed out, the additional information the employer received from Dr. Van Sistine that purportedly led it to reconsider the discharge was hardly dispositive on the issue of the alleged lie. True, in his conversation with Ms. Bunkelman after the discharge, Dr. Van Sistine stated that the complainant had called his office to contact him on Monday, March 18, and that she had been excused from work. But Ms. Bunkelman was already aware of these facts by March 19, at the latest, two days before the discharge.

Dr. Van Sistine obviously could not prove or disprove the alleged "lie"; i.e., whether the applicant told Ms. Bunkelman and Mr. Bohm that she had "contacted" Dr. Van Sistine or that she had "seen" him. Dr. Van Sistine's conversation with Ms. Bunkelman may well demonstrate that the "seen" versus "contact" distinction was not material in any practical sense, or that any "lie" on the point would have been gratuitous or innocent. Again, however, Ms. Bunkelman would have known that after her conversation with the applicant on March 19. Additionally, as noted above, even after the conversation with Dr. Van Sistine, the employer still insists the applicant's "lie" justified the discharge. In sum, the record provides ample reason to doubt that, after talking to Dr. Van Sistine, Ms. Bunkelman intended to rehire the applicant with the good faith intention she remain employed.

In addition, the record includes the applicant's testimony about the January 1995 meeting with plant manager Mr. McDermid and safety manager Dan Schober. On this point, the commission notes that Mr. McDermid did not outright deny the applicant's testimony that Mr. Schober accused her of malingering or withholding information. Even if Mr. Schober did not directly accuse the applicant of withholding information or malingering, however, the applicant's description of this meeting plainly indicates the employer's dissatisfaction with the applicant's continued time on light duty.

The commission does not suggest the January meeting was improper or by itself shows bad faith. However, coupling the meeting with facts surrounding the discharge lead the commission to conclude that the employer was not serious about rehiring and continuing to employ the applicant.

The employer also argues that certain of the ALJ's findings were inappropriately based on references to appeal tribunal decisions issued in the applicant's unemployment insurance case (the UI ATDs.) Specifically, the ALJ agreed with the remark in one of the UI ATDs that discharges for dishonesty should not be undertaken lightly; he also noted the apparent inconsistency between now asserting the discharge was an innocent mistake while attempting to prove misconduct in the UI hearing; finally, he also noted that information in the other UI ATD regarding the type of work the applicant would have had available.

The ALJ should not have considered the UI ATDs which were not admissible under Wis. Stat. � 108.101 and in fact were not admitted at the hearing. However, the ALJ's passing reference to the basic principle that a discharge for dishonesty should not be undertaken lightly is hardly objectionable. Nor can the commission conclude that the other references to the UI ATDs played any real role in the ALJ's decision-making process; certainly they played no role in the commission's de novo review of the case.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. This is a strange case but I do not see this case as an L&H Wrecking case. The employer here had provided the employe with light duty work after her injury until March 14, 1996. On March 14, 1996, the employe complained of increased right shoulder pain and was examined by Dr. Lindstrom. The company policy expected the employe to bring in a doctor's excuse for time off for medical reasons. The employe did not have a doctor's excuse on March 19th. There is a dispute as to whether the employe said she saw a doctor on March 18 or only contacted a doctor. The doctor's excuse the employe had sent to the employer had a date of March 19 but excused the employe from March 18-21. The employer never understood that the employe had medical permission to decide her pain was too great to work on a specific day.

The employer fired the employe and then attempted to contact the employe by phone on March 21, 1996 after talking to Dr. Van Sistine. The employer left a message asking the employe to return the call. The next day they called the employe again with no response. The employer then wrote the employe a letter saying that her employment was in active status. The letter proposed a meeting on April 1, 1996 at 2:00 p.m. or an opportunity for the employe to reschedule it if it was inconvenient. The letter was to discuss the employe's return to work. If the employe didn't respond within three days to the employer's letter, the employer would assume she quit. The employe contacted her attorney who responded by a letter of March 28, 1996 which says "We do not recognize your attempt to reinstate my client's employment with Provimi Veal." The attorney goes on to object to the idea that the employe quit by not responding promptly and gives permission for the employe's brother to clean out her locker.

I do not find that the employe was similar to the employe in L&H Wrecking because it was clear that the employe's attorney understood that the employer was offering reinstatement. There might have been discussions about the need for light duty but the employer had a job for the employe. The reason the employe did not get all the specifics was because her attorney refused to participate in returning the employe to work. I agree that the employe is entitled to pay under 102.35(3) through April 1, 1996.

I believe the administrative law judge had difficulty understanding why the employer would contest the employe's unemployment case at the same time arguing that they wanted to reinstate the employe. It is true that once the employer fired the employe that the employment relationship could not be reinstated without mutual agreement. Therefore, for unemployment purposes, under these facts, the employe was discharged and did not quit. It does not appear that the employer understood the law.

For these reasons, I would reverse the decision and allow payment of benefits for unreasonable refusal to rehire to terminate after April 1, 1996.

Pamela I. Anderson, Commissioner

cc: ATTORNEY STUART J SPAUDE
ATTORNEY DOUGLAS M FELDMAN

Appealed to Circuit Court. Affirmed December 22, 1999.

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Footnotes:

(1)( Back ) The "unreasonable refusal to rehire" statute applies to unreasonable discharges following a work injury, as well as simple failures to rehire. Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App., 1982).

(2)( Back ) Ms. Bunkelman testified that the purpose of the meeting was to discuss possible changes in restrictions and, assuming the restrictions had not changed, to return the applicant to former job. Transcript, page 117. This, of course, was not mentioned in Bunkelman's March 22 letter.

(3)( Back ) Employer's brief dated July 7, 1998, page 8.

(4)( Back ) The employer and the dissent quote a portion of Attorney Spaude's letter to show that he knew the employer intended to reinstate the applicant. See: employer's brief dated July 7, 1998, page 9. Neither, however, includes the quotation marks Mr. Spaude used around the word "reinstate" which, of course, suggests Mr. Spaude did not view the March 22 letter as offering actual reinstatement.