JANET C PETERS, Complainant

SATURN OF GREEN BAY, Respondent A

BERGSTROM CORP, Respondent B

An administrative law judge (ALJ) for the Equal Rights 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 conclusion in that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed February 8, 2008
peterja . rsd : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The complainant claims her termination was in retaliation for filing the wage claim, an action protected from retaliation by Wis. Stat. § 111.322(d).
 

Scope of issue

In her charge, the complainant appears to be alleging that she was terminated not only in retaliation for filing a wage claim in 2005 during the period of her employment by Saturn of Green Bay, but also in retaliation for filing earlier equal rights/FMLA charges during the period of her employment by Bergstrom in Oshkosh. However, at hearing (see page 14 of transcript), counsel for complainant clarified that the complainant's sole allegation here is that she was terminated in August of 2005 in retaliation for filing a wage claim in May of 2005.

Complainant has also referenced her dissatisfaction with the manner in which Bergstrom interpreted and applied the terms of the settlement agreement arising from her employment at the Oshkosh dealership. However, neither the actions precipitating that agreement, nor the manner in which it was implemented, are properly before the department or the commission as a part of these proceedings, which, as the complainant clarified at hearing, concern only her employment by Saturn of Green Bay and her allegedly retaliatory termination for filing a wage claim during that employment.
 

Respondent party

The respondents argue that the Bergstrom Corporation is not a proper party to this action because the complainant's employer was Saturn of Green Bay, a different legal entity.

However, since Saturn of Green Bay is owned by the Bergstrom Corporation, and it is not entirely clear from the record which entity would be responsible for implementing any remedy resulting from a decision in the complainant's favor, Bergstrom Corporation remains a named respondent party.
 

Retaliation

This analysis applies the probable cause standard of proof.

In a retaliation case such as the one under consideration here, the respondents' motivation is the ultimate issue. See, Callaway v. Madison Metro. School District, ERD Case No. 9101304 (LIRC, Nov. 27, 1996). In order to establish a prima facie case of retaliation, the complainant must show (1) she opposed an unlawful employment practice, (2) she suffered an adverse employment action, and (3) there was a causal connection between the opposition and the adverse action. See, Sarazin v. W & G Transport, ERD Case No. 199601006 (LIRC, March 9, 1999). The respondents can rebut the prima facie case by showing a legitimate non-retaliatory reason for the adverse action, and the complainant can prevail by showing that the proffered reason is merely a pretext for retaliatory conduct. Acharya v. Carroll, 152 Wis.2d 330, 448 N.W.2d 275 (Ct. App. 1989).

Wisconsin Statutes § 111.322(2m)(a) makes it unlawful to discharge or otherwise discriminate against an individual because the individual filed a complaint or attempted to enforce a right under a number of statutes, including § 109.03 (wage claim).

The record shows, and the respondents do not appear to dispute, that the complainant filed a wage claim in May of 2005, and the alleged retaliator, Jeff Korenak, the general manager of the dealership, was aware of this prior to deciding to eliminate the complainant's title clerk position and terminate her employment.

It is also undisputed that the complainant suffered an adverse employment action when her position was eliminated and she was terminated.

A causal connection may be inferred here from the close proximity in time between the wage claim and the termination. See, Schultz v. Community Living Arrangements, ERD Case No. 199900376 (LIRC Aug. 28, 2003).

The burden then shifts to the respondents to articulate a legitimate, non-retaliatory reason for the elimination of the complainant's position/termination. The respondents sustained this burden by explaining that, due to declining business, it had realigned and consolidated administrative duties into fewer positions, and had eliminated those positions, including complainant's, which did not require a full-time incumbent.

The burden then shifts to the complainant to show that this explanation was a pretext for retaliation.

The complainant asserts that pretext is demonstrated by the fact that the other employees whose positions were eliminated as part of this administrative realignment were transferred to other positions with the respondents, vacated their positions voluntarily for personal reasons, or were discharged for unsatisfactory performance.
The record shows that former employees Kari Stauder, Veronica Ripp, and Jake Roesler, did leave their positions voluntarily for personal reasons.

The record also shows that Dave DeWilde, whose billing clerk position was eliminated as part of the realignment, would have been discharged for unsatisfactory performance had his position not been eliminated.

The record shows that Lisa Kowlkowski was appointed to her former position detailing vehicles after her position was eliminated. The record does not establish that a position was created for Kowlkowski or that she was not required to apply for the detailing position.

Contrary to the complainant's assertion in this regard, however, the competent evidence of record shows, in regard to former employees Kevin Milner, Josh Ritchie, and Teri Ternes, only that their positions were eliminated as part of the administrative realignment and they were terminated as a result. The record does not show that these employees had also filed wage claims. As a result, the complainant has failed to establish that she was treated less favorably than similarly situated workers not in her protected group.

The complainant argues that her testimony regarding the circumstances of Teri Ternes' separation establishes that Ternes left her employment with the respondents voluntarily to take another position at Timber Lodge, and regarding Kevin Milner establishes that Milner was terminated due to unsatisfactory performance. However, the complainant admits that she was unaware of these circumstances during her employment by respondents, and obtained this information from Ternes and Milner by speaking to them after she and they were no longer employed by Saturn of Green Bay. Her testimony, as a result, is hearsay. Moreover, this testimony was not corroborated by the testimony of any witness with knowledge of these events, i.e., Bekkers, who remained employed by respondents and who had reason to be aware of the circumstances of the separations of these employees, testified that Ternes' position was eliminated as part of the administrative realignment, and he could not recall the circumstances of Milner's termination.

Moreover, even if the complainant's testimony regarding Ternes and Milner constituted competent evidence, Bekkers testified that Josh Ritchie's position was also eliminated as part of the administrative realignment, and the complainant admits that she obtained no information regarding the separation of Ritchie.

The complainant also argues that pretext is demonstrated by the fact that Bekkers resented her salary, and, as a result, treated her unfairly during the entire period of her employment by Saturn of Green Bay. This argument, however, actually undermines the complainant's contention that Bekkers, and, through him, Korenak, were motivated by her May 2005 wage claim in terminating her employment. It should also be noted that, even if Bekkers had been improperly motivated in his treatment of the complainant, the record does not show that he made or recommended her termination, the only adverse action at issue here.

The complainant further contends that, unlike Kowlkowski, she was not transferred by the respondents to another position when her position was eliminated. The record, however, does not show that there was an available position for which the complainant was qualified in August 2005. Although the complainant points to an administrative assistant position in the respondents' Enterprise unit, the record shows only that this position was advertised in September of 2005, not that it was available on or before August 2, 2005. Moreover, the record shows that employees whose positions were eliminated were considered for appointment to other positions only if they applied for these other positions. The complainant admits that she did not apply for the Enterprise administrative assistant position or any other position. Finally, the record does not show that the respondents either created a position for Kowlkowski or transferred her back to her former position even though she had not applied for it.

The complainant next argues that her title clerk position was not actually eliminated but instead filled by another individual, i.e., Jim Smith. However, although the position Smith was hired to fill after the complainant's termination included the title clerk duties, these duties were a minor component of the Smith position and apparently at the lower end of its responsibilities.

Finally, the complainant asserts that pretext is demonstrated by the fact that she was qualified for the Smith position but yet not considered for it. However, the complainant did not show that she was qualified to perform the higher level duties of the Smith position, e.g., create and analyze inventory flow spreadsheets and develop inventory acquisition matrix, perform accounting functions, and assume management functions. The record also does not show that the complainant's educational background was comparable to Smith's, i.e., complainant had a high school education, whereas Smith had a college degree in business and was completing another one in accounting.

Moreover, simply because Smith, due to subsequent corporate consolidation decisions, never completed the inventory acquisition matrix or assumed all of Bekkers' management responsibilities, as originally planned, does not establish that the creation of the Smith position, or the appointment of Smith to the position, was not reasonably justified, or was not respondents' actual strategy, in 2005.

Complainant argues further that the fact that respondents' creation of the Smith position was inconsistent with its administrative consolidation effort demonstrates that its articulation of this effort as justification for its elimination of her position was a pretext for retaliation. However, the fact that the Smith position actually assumed the functions of more than three eliminated positions (title clerk, billing clerk, finance assistant) belies this argument.

The complainant failed to demonstrate pretext.

In addition to the complainant's attempt to show retaliation through indirect proof, she also attempts to do so through direct proof. Specifically, the complainant alleges that she overheard a conversation in which Bekkers "was telling [Korenak] about my wage complaint," and Korenak stated, "Well, she's gotta go."

The ALJ did not credit the complainant's version of events in this regard, and the commission agrees.

First, despite the incriminating nature of this alleged incident, the complainant did not mention it in her charge or at any time during the department investigation of her charge. Although the complainant argues that her attorney, not she, prepared the charge, she admits that she discussed the facts and allegations with her attorney before the charge was prepared.

In addition, considering the record as a whole, it is apparent that complainant is contending this conversation occurred on Monday, July 26, or Tuesday, July 27, 2005. The complainant testified (see page 36 of transcript) that she received the $135 check from the respondents resolving the wage claim "in the middle of July." It would make little sense then, as complainant's version of events clearly implies, for Bekkers to be disclosing the wage claim to Korenak for the first time on July 26 or July 27 when Bekkers would have needed Korenak's authorization and signature prior to the "middle of July" in order to issue the check.

Finally, it would have been unlikely for Bekkers to have been discussing the complainant by speakerphone in his office while, as she has represented, she was standing outside his office and was visible to him, or, even if he had not noticed her standing there, he was necessarily aware that her cubicle was immediately adjacent to his.

As a result, the complainant failed, either directly or indirectly, to sustain her burden to show that probable cause exists to believe that retaliation occurred as alleged.

The complainant raised certain other matters in her appeal to the commission.

The complainant first asserts that there was an excessive number of inaudibles in the hearing transcript. First, the number does not appear to be unusual. More importantly, however, the complainant has failed to specifically explain how any of the untranscribed testimony prejudiced her case.

The complainant contends next that the ALJ was rude to her and her attorney throughout the proceedings, and unfairly excluded evidence she offered. However, the commission has reviewed the transcript and, although the ALJ was very direct on occasion, his statements were not rude, and, even if reasonably perceived as such by the complainant, do not appear to have affected the outcome here in any way. In addition, the commission has reviewed each of the ALJ's rulings and found none that were erroneous. The complainant wanted to offer evidence in regard to her earlier actions against Bergstrom and the resulting settlement agreement. In view of the issue clarified by the complainant at hearing, this evidence was relevant only insofar as it established how and why the complainant was hired for the subject title clerk position. The ALJ allowed the evidence offered to establish this. The complaint also objects to the exclusion of evidence describing discussions she held with her former attorney, Brian Hough. However, the substance of these discussions was never even offered into the hearing record because the complainant's counsel at hearing, Carey Reed, instructed the complainant not to testify as to these discussions (see page 53), i.e., this evidence did not become part of the hearing record due to the actions of the complainant and her attorney at hearing, not the ALJ.

It is also noted that the complainant offered facts not of record in her appeal, and these facts were consequently not relied upon by the commission in reaching its decision.

cc: Attorney Theresa E. Essig

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