Wis.LIRC WC Decision: Perlongo - June 29, 2000 - ND � 7.32 - Refusal to Rehire Must Have Been Without Reasonable Cause - reasonable cause requires legitimate motivation not to rehire, and absence of motivation related to employe's injury - no obligation to promote employe, but obligation to make good faith effort to return employe to work for which qualified

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

MICHELLE PERLONGO, Applicant

BRETT FAVRE STEAKHOUSE, Employer

THE AMERICAN INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998007877

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 June 29, 2000
perlong.wsd : 175 : 5 ND � 7.32

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer asserts in his petition for commission review that the administrative law judge erred in determining that the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. � 102.35(3) when it failed to hire her for a banquet coordinator position in September 1998. The employer contends that the administrative law judge's order imposes an affirmative obligation upon all employers to promote injured employes. The employer contends that it had reasonable cause not to hire the applicant for the banquet coordinator position and that there was a better qualified applicant.

However, the evidence does not indicate that under the administrative law judge's order the employer was given an affirmative obligation to promote the applicant. Under the employer must make a good faith effort to return the applicant to available for work for which she is qualified. The administrative law judge appropriately noted that the banquet coordinator position was clearly suitable for the applicant. The applicant credibly testified that she had performed work in the past as a party and event coordinator and a unit trainer, as well as a banquet server, waitress and hostess. The administrative law judge did not find that the employer was required to promote the applicant, but rather simply to rehire her into a position to which she was clearly qualified. The applicant testified that she had talked to her supervisor, Mr. Whiteman, about the banquet coordinator position, and that he was familiar with her former work experience and her qualifications for the position.

The evidence indicates that following her work injury the applicant was reemployed to a position on a part time basis with less hours than she had worked prior to her work injury. However, the employer established a legitimate business reason for reducing the applicant's hours due to economic necessity upon her return to work. However, the employer's rehire of the applicant must be in good faith. The applicant testified that she made repeated requests to increase her hours upon her return to work but that Mr. Whiteman refused to increase her hours. The applicant testified that Mr. Whiteman ignored her requests and avoided her and attempted to isolate her. Under Wis. Stat. � 102.35(3) the employer was obligated to rehire the applicant into an available position for which the applicant was qualified but in this case the employer failed to do so, when it refused to rehire the applicant into the banquet coordinator position which involved more hours for the applicant in September 1998. The employer did not establish a reasonable basis for refusing to rehire the applicant.

In Burow v. Woodman's Foods, Commission decision dated June 4, 1990 the commission noted that in the context of the refusal to rehire, reasonable cause must be demonstrated by the presence of a legitimate motivation not to rehire, as well as by the absence of the motivation related to the fact that the employe sustained a compensable work injury. In the current case, the applicant's credible testimony indicates that she was ignored and she treated much differently and with less regard following her return to work from her work injury. The administrative law judge who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility did not find Mr. Whiteman's testimony that he did not treat the applicant less favorably or ignore her requests to be credible. Based upon an independent review of the evidence in the record the commission has found nothing to warrant overturning the administrative law judge's credibility determination. The fact that the applicant returned to a part time job following her work injury for a valid economic reason does not establish that the employer made a good faith rehiring when it refused to place her into the banquet coordinator position in September 1998, a position for which she was qualified.

In West Allis School District v. DILHR, 116 Wis. 2d 410 (1984) a case involving a temporary employe hired under the CETA program who had been injured the Wisconsin Supreme Court noted that there was no good faith rehiring of the applicant in the West Allis School District case where the employer had taken steps to put the termination process in motion three days before the applicant returned to work. The Wisconsin Supreme court noted in the West Allis School District case that the district had a responsibility to provide the applicant a permanent position even though he had initially been hired as a temporary CETA employe. In the West Allis School District case the applicant had a right to be returned to a permanent position that he was qualified for following his work injury, even though if he had not been injured, he would not have a right to be placed in a permanent position when his federal program employment ended. Similarly, in our current case, although the applicant had been hired as an administrative assistant and had been returned to part time work for a valid business reason, the applicant had a right to be returned to any position the employer had that she was qualified for, including work as a banquet coordinator, which would return her to a position which would provide similar hours of work that she had prior to her work injury. Given the applicant's testimony of her efforts to return to more hours of work following her work injury, and given the evidence that the applicant was treated with hostility and isolated, and that the employer did not make a good faith effort to return the applicant to her former level of hours even though suitable work was available, the evidence was sufficient to establish that the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. � 102.35(3).

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The administrative law judge was impressed by the employe's testimony that she was not treated properly by Mr. Whiteman after the accident. The employe was injured on January 20, 1998 and was released to return to full-time work on April 7, 1998 by Dr. Mui. The administrative law judge found that he denied her requests for additional hours after the injury. When she was released for full-time hours she told the employer she was ready to come back full-time. She testified Whiteman told her that the hours were not available. About September, 1998, the employe asked if more hours were available. Whiteman told her "That with the football season opening up there may be an opportunity for more hours." The employe told Whiteman she was restricting her work days. She testified "No, actually he first asked me about working on Sundays and when I told him I was going to be attending church on a more regular basis he asked about Saturday and I had stated because I had not been required to work on Saturdays in the past that I would need, that was my day for myself."

The administrative law judge relied heavily on Exhibits 6 & C. Exhibit 6 was written to another part-owner of the business on February 26, 1998 and in this letter, the employe makes numerous complaints against Mr. Whiteman. On the day of her injury she returned to the employer from the hospital because "no paperwork was brought to the hospital for insurance purposes." She also noted that the repair work had been completed on the hot water heater and she asked "all 3 staff managers on duty why the water tank did what it did and for a copy of the repair report." The employe went to work on a day following the injury when she should have stayed home but she believed that she was the only one trained to do the reports. She is then irritated when the general manager called her on February 6, 1998 to see when he can expect her back to work. While she indicated that he ignored her calls and failed to return them, at least he did call her on February 6th.

While the employe was working part-time due to doctors order she had plenty of time to think of things she believed needed to be done in the business. I believe she had a conflict with Whiteman because it appears that the employe believed he could drop everything to respond to her questions and suggestions. She also seemed to be looking at the business from the prospective of her job. For example, she wrote Monfort "Each Monday, all work is sent to Saugus office including Payables. Common sense would dictate that Payables should be done on a timely basis. I have repeatedly discussed this with Jeff. He continually refuses to accept the fact that approving these several times during the week instead of the last minute on Monday is a logical system. The same with payroll."

The employe writes Monfort that "last December you had joined me in bussing tables at lunch - you certainly have first hand knowledge that I simply don't look for recognition, but in fact I am a hard worker and will and can do what it takes to get the job done. While it wasn't expected, I certainly thought that I would have been recognized at Christmas or received and "extra effort" bonus from the company or at least the general manager."

It is clear that the employe believed that because she had been willing to pitch in to do extra work in December when the employer's business was at its peak, that she is now entitled to do the same kind of work now to fill out a 40 hour schedule. The problem with this that the employer has had at least a 60% decline in business. On page 63 of the transcript, Whiteman testified "Give you an idea, the summer of '98 which had been our first summer, volume went from say in December of '97, $140,000 a week to $50,000 a week." The employe was returned to the same assigned duties she had prior to the injury once she was released for full-time work. Whiteman was asked about her job doing payroll and how it changed. He answered "It's a lot less paperwork plus the fact that you don't even - If it is only the employes, they're not all new employes, so their paperwork is already done. The payroll process is just the learning curve of a business. You learned to be more efficient, you learn how to process things more quicker, more efficient." Whiteman testified that the employe had worked 11.72 hours in the week of January 3, 1998, and 34.8 hours in the week of January 10 both prior to her injury.

The employe also wrote Monfort "There has been a number of times when Jeff has not taken me seriously and has taken me for granted." While the employe subjectively believed that Whiteman was treating her differently after the accident, I do not believe that it was objectively true.

Ray Hutson Chevrolet, Inc. v. LIRC, 186 Wis.2d 118, 123, 519 N.W.2d 713 (Ct. Appeal 1994) reports "if am employer shows that it refused to rehire an injured employe because the employe's position has been eliminated to reduce costs and therefore to increase efficiency, the employer has shown reasonable cause under section 102.35(3)." Here the employer did rehire the employe and she really was in the same position she would have been in if she had not been injured because the work she would have done had substantially decreased. The employer reduced the number of workers substantially but the employe was rehired in good faith.

The administrative law judge would put the employe in a better position than she would have been if she had not been injured because he would require the employer to give her the banquet coordinator position along with her payroll duties so she would have a full-time job. The administrative law judge would require the employer to promote her to a vacant position if she could do the work regardless of whether someone else might be more qualified. The employer would not be able to rely on her past statement that she was not interested in supervisory positions. The employe also did not want to work on Saturday and Sunday. It is common knowledge that banquets frequently occur on weekends when the employe did not want to work.

I have some difficulty with the employe's story that she had submitted a previous applicant. If I look at the case the most favorably to the employe and even accept the resume she submits with her brief (which I would ordinarily find not part of the record) she still does not show that she had previous experience as a banquet coordinator. The employe adds some hand written information on the resume but I would not find that the "theme party coordinator" was a banquet coordinator. The work she did for the dinner theatre was waitress and then she lists box office, prep cook, bookkeeper, stage director and performer. I infer from all those jobs that she worked for a fairly small place. Most of her past experience was as a waitress. There is no evidence that she previously supervised other workers.

I believe that in looking at 102.35(3) we should first look to see if the employer has returned the employe to their job. If they had then we should look at whether it is a valid rehire or just pro forma with an intent to fire. Here the employer was not trying to fire the employe or induce her to quit. Parts of her job were not taken away from her (except while is was healing and things needed to be done).

The statute reads "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 lost wages 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." If the employer goes out of business there is no unreasonable refusal to rehire. Other employes do not need to be bumped from their jobs so as to give an employe suitable employment. In our case the situation is the employe was rehired but business took a down turn. It was not so bad as to close the business but it was bad enough to reduce the work. I believe you only look at without reasonable cause if the employer does not rehire the employe. I believe you also look at whether the employer had intent to fire the employe later. This was a good faith rehire. If business improved a lot, the employe would have had more hours of work.

For all these reasons, I reverse and find no unreasonable refusal to rehire and I dissent.

_____________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY JOHN E DRANA
LINDNER & MARSACK SC

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