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


CINDY DEGENEFFE, Applicant

GREEN BAY AFFORDABLE HOUSING LP, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1995066941


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.

ORDER

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

Dated and mailed September 24, 1999
degenef.wsd : 101 : 5 ND § 7.32

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner




MEMORANDUM OPINION

The applicant contends the employer unreasonably refused to rehire her in violation of Wis. Stat. § 102.35(3). The ALJ found for the applicant. The employer appeals.

1. Facts.

The facts may be briefly recited to aid in the discussion of the commission's reasoning. The applicant began working as a leasing agent for the employer, a property management company, on August 29, 1995. She was injured on September 15, 1995, apparently on the premises of a commercial tenant (TJ Max). The applicant recovered and asked to return to work on January 4, 1996. However, the employer did not return the applicant to work at that time, despite testimony from the employer's owner (Keifenheim) that the applicant's job was held open for her return until January 7 or 17, 1996.

The applicant contends she was not returned to work because the employer wanted her to drop a legal action she had commenced against TJ Max arising from her injury. According to the applicant, her supervisor (Kelley Louscher) conveyed this to her. Kelley did not testify at the hearing. Owner Keifenheim acknowledged that Kelley was the applicant's supervisor. However, Keifenheim denied ever telling anyone either not to hire the applicant or to try to dissuade her from suing TJ Max.

Nonetheless, Keifenheim acknowledged that after the applicant asked to return to work on January 4, 1996:

"some other event occurred that prohibited her from returning to work. I don't recall what that was."

Hearing synopsis, page 4.

The applicant was eventually offered work by the employer over a year later some time after August 1997. The applicant returned to work in the fall of 1997. She subsequently quit, because she did not like the location she worked at and thought the employer was backing out of a promise to assign her to a more favorable location.


2. Law.

Wisconsin Statute § 102.35 provides:

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....

The "unreasonable refusal to rehire" statute applies to unreasonable discharges following a work injury, as well as simple failures to rehire. (1)

In an unreasonable refusal to rehire case, a worker has the burden of proving he or she was an employe 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. (2)

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. (3) 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 employes 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).

3. Discussion.

The applicant has shown that she was an employe of the employer who was injured in November 1995 and then denied rehire upon presenting herself for work in January 1996. She has made her prima facie case. The burden thus shifts to the employer to show reasonable cause of the failure to rehire.

Ms. Keifenheim admits that in January 1996 the applicant requested work, and that the applicant's job was available, but some unknown reason prohibited her return. The applicant suggests the unknown reason was her refusal to drop the suit against TJ Max. Whatever the reason, the employer's simple referral "to some unknown reason" does not show reasonable cause for not re-employing the applicant.

Ms. Keifenheim does raise performance concerns, based on a need for supervision and numerous requests for time off work for childcare. As the ALJ pointed out, however, the applicant had only worked for the employer for about two weeks when she was hurt, so a need for supervision is not a surprise. And the time off for her childcare occurred after her rehire in the fall of 1997; it would not justify the refusal to rehire in January 1996. But most significantly, Keifenheim simply did not raise performance concerns when asked directly about why the applicant was not returned to work in January 1996.

Nor can the employer rely on the fact that it eventually hired someone else after January 1996 who filled the applicant's duties. Hiring another worker might have provided a defense had the employer been required to fill the applicant's position for business reasons before she presented herself for work in January 1996. However, Wis. Stat. § 102.35(3) obviously cannot permit an employer to unreasonably refuse to rehire a worker, then hire someone else and claim that it has no opening for the worker. And again, the availability of work was not the "unknown reason" mentioned by Ms. Keifenheim who specifically testified the applicant's job was held open. In sum, the employer has failed to met its burden of proving reasonable cause for its failure to rehire the applicant in January 1996.

A large part of the testimony in this case involves the applicant's dissatisfaction with her reassignment in the fall of 1997. By that time, of course, the employer had already refused to rehire for some unknown reason between January 1996 and August 1997, a period of 19 months. In other words, the full one year's wage penalty under Wis. Stat. § 102.35(3) had accrued by the time of the applicant's rehire. Thus, the testimony about what happened after August 1997 is largely irrelevant.

cc: RICHARD R MALMGREN
THE RENAISSANCE GROUP


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Footnotes:

(1)( Back ) Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App., 1982).

(2)( Back ) 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 specifically 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. See also Ray Hutson Chevrolet v. LIRC, 186 Wis. 2d 118, 123 (Ct. App., 1994).

(3)( Back ) West Bend, supra, at 149 Wis. 2d 126.