Wis.LIRC WC Decision: Bachhuber, Margaret - July 27, 1994 - ND � 7.34 - Unreasonable refusal to rehire - Penalty - calculating wages for seasonal workers - applicant, a crossing guard, did not work year round, thus wages lost depend on number of weeks applicant would have worked - remanded for further hearing to determine the wages applicant lost during the refusal to rehire period, not exceeding one year's wages based on average weekly wage

The employer has submitted a petition for commission review alleging error in the administrative law judge's findings of fact and order issued on August 23, 1993. At issue is whether the employer unreasonably refused to rehire the applicant, within the meaning of section 102.35 (3), Stats.

The commission has reviewed the record in this matter and hereby affirms the administrative law judge's ultimate finding of an unreasonable refusal to rehire, but substitutes for his findings and order the following:

The applicant worked approximately 10 years as a crossing guard for the employer. On December 22, 1987, while an employe of the employer, applicant suffered a conceded work injury. She was off work, except for brief periods of attempting to return to work, until February of 1991 and was paid temporary total disability until February 22, 1991. Applicant also received additional sums as permanent disability.

The applicant was released to return to work as of February 18, 1991. Prior to the effective date of that release, the applicant presented her release to work to her immediate supervisor, the chief of police, Chief Appleton. At that time, Chief Appleton told the applicant "Who in the hell do you think you are, asking for your job back? You'll get hurt again. We have no jobs."

On February 15, 1991, Chief Appleton sent the applicant a letter requesting information verifying that applicant was a resident of the city and noting that the city's ordinance required that city employes "reside within corporate city limits." The letter further requested information from applicant's doctor identifying whether or not applicant was physically and mentally capable of performing all duties of a crossing guard with no restrictions or, in the event that applicant was unable to perform all the duties of the crossing guard with no restrictions or that such position was not currently available, information from the doctor regarding any mental or physical limitations which applicant had in order to allow the employer to determine whether suitable work was available.

Applicant's doctor responded on February 21, 1991, stating that applicant was capable of performing all duties of a crossing guard with no restrictions, provided she started at an easy corner and gradually progressed to a more complicated corner depending on her tolerance and performance. Applicant, for her part, on February 22, 1991, submitted evidence of residency in the form of a tax bill for one residence that she owned within the city limits and providing other evidence of another residence outside the city limits. The applicant concluded her February 22, letter stating "Should I be given the opportunity to perform duties as I did for 10 years, or other suitable employment. I will perform them to the best of my ability."

Chief Appleton responded by letter dated March 1, 1991, indicating that no crossing guard position was available, and, based on the response from applicant's doctor and a review of current employe staffing requirements and available appropriations, no other suitable employment was available within the city. Applicant responded to such letter with her own letter on March 7, reiterating that she wished to return to work when there was a position available.

On September 9, 1992 and September 11, 1992, the employer ran an advertisement in the local newspaper stating the following:

PART-TIME CROSSING GUARD
WANTED FOR THE CITY OF KAUKAUNA
-must be a resident of the city-
Applications will be accepted through September 18
Applications available at: Kaukauna Police Department
201 W. 2nd Street

The applicant filed an application for employment as a part-time crossing guard in response to the above advertisement. Applicant listed her address as her home within the city limits. On the application, applicant indicated she was willing to work full-time, part-time, and in the temporary applicants' portion of the Application, clearly indicated that she was applying for a position as a crossing guard. That application was filed on September 16, 1992. The applicant received no verbal or written response from the employer to her September 16, 1992, application.

The applicant applied for rehire in February of 1991 and was refused hire by the employer. Based on statements of the applicant's immediate supervisor, Chief Appleton, it is clear that the employer did not wish to rehire the applicant because she had previously incurred a work injury and the employer feared that she would reinjure herself and thus subject the employer to further liability. However, there is insufficient evidence to support finding that a crossing guard position was available in February of 1991 or that other suitable work was available for the applicant.

The applicant again applied for rehire on September 16, 1992, and was refused rehire by the employer. Based on the plain reading of the advertisement placed by the employer, it is found that work was available at that time as a part-time crossing guard. It is further found, based on the employer's original statement to the applicant regarding its unwillingness to rehire her, and based on the employer's failure to respond to the applicant's application, that the employer did not rehire applicant in September of 1992 because of her work injury.

The employer's argument that its refusal to rehire applicant in September of 1992 was based on the fact that no positions were available is not considered credible based on the above findings. Further, the employer's allegation that the applicant was not rehired because she was not a resident of the city is likewise found not to be credible. First, there is no evidence that respondent was aware, based on applicant's September 16, 1992, application that applicant did not in fact meet its residency requirements. Further, the resolution submitted by the respondent in support of its position that it enforces such residency requirement does not define residency as residing in the corporate limits of the city, rather, there is a noninclusive list of factors to be considered in determining residency of which the employe's intention is the controlling factor. Finally, the employer had never informed the employe when she originally sought rehire in February of 1991, nor when she submitted an application in September of 1992, that she was being refused rehire based on lack of residency within the city.

Based on all the evidence in the record, the commission finds that applicant, an employe of the employer when she sustained a work injury, applied for rehire in September of 1992, and was refused rehire although suitable work was available and the employer has not presented reasonable cause for refusing to rehire the applicant. Rather, the employer refused to rehire the applicant because of her work injury.

The second issue that must be addressed is compensation due applicant based on the employer's unreasonable refusal to rehire. Section 102.35 (3), Stats., provides, in relevant part:

The wages the applicant lost during the period of refusal to rehire consisted of the wages she would have earned as a part-time crossing guard. Those wages are not to exceed wages she would have earned in a one year period. As a crossing guard, applicant did not work year round. Thus, the wages lost depend on the number of weeks the applicant would have worked. There is testimony that applicant worked from late August until early June and three weeks in July. The precise number of weeks applicant would have worked as a part-time crossing guard is not clear from the record, but it is clearly less than 52 weeks. Accordingly, this matter will be remanded for further hearing to determine the wages applicant lost during the refusal to rehire period, not exceeding one year's wages based on an average weekly wage of $ 133.68.

This matter is remanded to the department for a hearing and order on wages lost during the period of the employer's refusal to rehire the applicant, not to exceed one year's wages.

Jurisdiction is reserved for any other and further claims applicant may make out of her injury. The sole issue determined by this order is a refusal to rehire claim and the above findings shall not be relitigated respecting said claim..

In the petition for review, the employer maintains that the administrative law judge improperly shifted the burden of proof to the employer. The employer maintains that it was the employe's burden to establish that the employer failed to rehire her because of her injury. In support of this proposition, the employer cites Universal Foods Corp. v. LIRC, 161 Wis. 2d 1, 467 N.W.2d 793 (Ct. App. 1991). However, while the court in Universal Foods did repeat the language in West Bend Co. v. LIRC, 149 Wis. 2d 110, 438 N.W.2d 823 (1989) to the effect that the employe must demonstrate that she was refused rehire because of her work injury, that language must be read in the context of both cases. Both West Bend and Universal Foods involved situations where the employers conceded that it was because of the employes' work injuries that the employes were denied rehire. Where the employer does not rely on the employe's inability to perform work due to the work injury, it remains the employer's burden to show reasonable cause for not rehiring the applicant. Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 33 N.W.2d 606 (Ct. App. 1983).