DOROTHY L (GRANT) ACHILLI, Complainant

WENDY DENECKE, Complainant

MARY C SHEPHERD, Complainant

SIENNA CREST ASSISTED LIVING INC, Respondent

For the reasons set forth in the memorandum opinion below, the Labor and Industry Review Commission issues the following:

These cases are remanded to the Equal Rights Division of the Department of Workforce Development for hearing and decision as to the amount of back pay to be awarded to the complainants.

Dated and mailed January 28, 2009
grantdo . rpr : 115 :

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

1. That the Respondent shall cease and desist from discriminating against the Complainants on the basis of their protected activities under these Acts.

2. That the Respondent shall reimburse the Complainants for their reasonable attorney's fees and costs incurred in pursuing this complaint. The amount of those attorney's fees to the date of this order are $64,500.00, and the amount of the costs are $727.15....

3. The Respondent shall offer the Complainants reinstatement to positions substantially equivalent to the positions each held prior to their discharges, with all seniority and benefits, including sick leave and vacation credits, to which each would have been entitled had she been employed continuously from the date of discharge until the date of reinstatement. These offers shall be tendered by the Respondent or an authorized agent and shall allow the Complainants a reasonable time to respond.

4. The Respondent shall make the Complainant, Mary Shepherd, whole by paying her the amount that she would have earned from February 18, 2002, through such time as the Complainant resumes employment with the Respondent or would resume such employment but for her refusal of a valid offer of a substantially equivalent position. Amounts earned by the Complainant after February 18, 2002, and during the period of the make whole award shall be offset from this amount....

5. The Respondent shall make the Complainant, Dorothy Grant, whole by paying her the amount that she would have earned from March 9, 2002, through such time as the Complainant resumes employment with the Respondent or would resume such employment but for her refusal of a valid offer of a substantially equivalent position. Amounts earned by the Complainant after March 9, 2002, and during the period of the make whole award shall be offset from this amount....

6. The Respondent shall make the Complainant, Wendy Denecke, whole by paying her the amount that she would have earned from June 16, 2002, through such time as the Complainant resumes employment with the Respondent or would resume such employment but for her refusal of a valid offer of a substantially equivalent position. Amounts earned by the Complainant after June 16, 2002, and during the period of the make whole award shall be offset from this amount....

7. Within 30 days of the date on which this order becomes final either by virtue of expiration of time within which an appeal may be taken herein or by final denial of or refusal to hear any such appeal, Respondent shall submit a compliance report...

By letter dated August 1, 2008, counsel for respondent indicated respondent's intent to offer reinstatement to each of the three complainants, requested payroll information for each complainant for each pay period during the back pay period, and attached a list of respondent's current facilities. This list included facilities in Darlington, Dodgeville, Fort Atkinson, Marshall, Mineral Point, and Oregon, Wisconsin.

In response, counsel for complainants filed an "Expedited Motion for Clarification and/or Reconsideration,", requesting that the commission rule that respondent's August 1 communication did not constitute a valid offer of reinstatement to any of the complainants, and that the commission reconsider that part of its decision reversing the ALJ's imposition of a fee enhancement.

By letter to the parties dated August 7, 2008, the commission indicated that the motion was premature as it related to the issue of reinstatement since the August 1 correspondence "does not appear to be an offer of reinstatement but instead an initial inquiry as to whether any of the complainants would consider reinstatement;" and indicated that it did not intend to reconsider its holding as to the fee enhancement issue. In this letter, the parties were also reminded that, "...the parties are expected to engage in a good faith and exhaustive effort to reach agreement on reinstatement and back pay before requesting action by the commission."

There then ensued a flurry of correspondence between the parties relating to requests for payroll records, and to reinstatement. The parties brought their continuing disagreement as to these matters to the commission for guidance.

By letter to the parties dated November 5, 2008, the commission attempted to provide such guidance. In this letter, the commission also indicated as follows:

Hopefully, this guidance is helpful to the parties, and enables them to achieve agreement as to the remedies. By providing this guidance, the commission is attempting to avoid the delay and expense of further hearing and, as a result, expects the parties to engage in diligent and good faith efforts to resolve the matters which remain in dispute, and to exhaust those efforts before requesting further commission assistance or intervention.

Despite this caution, the parties remained at odds and unable to reach agreement as to the amount of back pay to be awarded to the complainants. As a result, by letter dated December 18, 2008, the commission stated, as relevant here:

It is apparent from Attorney Radtke's correspondence that the parties have not yet reached agreement on the amount of back pay due the complainants. The commission has decided, based upon its review of the history of the relationship of the parties and their attorneys, not to attempt mediation.

Accordingly, if the parties do not reach agreement on the back pay issue, or any other remaining remedy issues, on or before January 15, 2009, the commission intends to remand this matter to the department for hearing and decision as to these issues.

The commission did not receive notice from the parties on or before January 15, 2009, that agreement on the back pay issue had been reached.

Although not convinced that the parties' efforts to reach agreement were optimal, the commission has concluded that there is no alternative but to remand this case for hearing and decision of the back pay issue. The commission has held that the usual practice in discrimination/retaliation cases is to issue a generally-worded back pay order if a statutory violation is proved, and then to hold a hearing to determine the specific amount of back pay owed if the parties, as here, cannot agree. See, Kaczynski v. WSR Corporation, ERD Case No. 9350108 (LIRC Oct. 29, 1997); Biggers v. Isaacs Lounge, ERD Case No. 9150422 (LIRC March 25, 1998); Erwin v. Don & Cary's Nokomis Inn, ERD Case No. CR200600547 (LIRC Sept. 28, 2007).

Due to the age of these matters, the commission urges the Equal Rights Division to schedule the ordered remand hearing, if practicable, on an expedited basis before the same administrative law judge who held the original hearing in this matter.

cc:
Attorney Sandra G. Radtke
Attorney Gregory P. Seibold

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