LUZ E LOOPER, Complainant

IHOP RESTAURANT, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modification:

Paragraph 18 of the administrative law judge's FINDINGS OF FACT is deleted and the following substituted therefor:

"The respondent did not constructively discharge the complainant based upon her sex. Its refusal to pay the complainant back pay was not related to her sex, nor did that decision create a work environment that was so difficult or unpleasant that a reasonable person would have felt compelled to resign as a result."

The decision of the administrative law judge (copy attached) is modified and, as modified, is affirmed.

Dated and mailed March 21, 2012
loopelu . rmd : 164

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

In order to establish a claim of sex discrimination with respect to compensation, the complainant must prove either that the respondent paid different wages to employees of the opposite sex for substantially equal work, or that the respondent had discriminatory motives in setting her compensation. See, Buran v. Menomonee Falls School Dist., ERD Case No. 199600643 (LIRC March 17, 2000). The complainant has not met her burden of proof. At the hearing the complainant testified, without benefit of corroborating testimony or documentary evidence, that she was promised she would be paid $8.00 an hour to work as a crew chief, but was only paid $6.50 an hour. When the complainant complained to the respondent's owner that she would quit if she did not receive $8.00 an hour, the respondent agreed to adjust her pay, but refused to do so retroactively to when the complainant began working as crew chief. Upon being informed that she would not be receiving back pay, the complainant decided she would no longer work for the respondent and provided two weeks' notice of her intention to quit. During the complainant's notice period, at which point she had already tendered her resignation, the respondent hired a male crew chief to replace her. That individual was paid $8.00 an hour. The respondent explained that its practice is to pay crew chiefs who do not routinely wait tables $8.00 an hour, and to pay crew chiefs who routinely wait tables $6.50 an hour, and that, because the complainant fell in the latter category, she was paid $6.50 an hour. While the male employee who replaced the complainant was paid $8.00 an hour, although he also waited tables at least some of the time, there is no evidence to indicate that he did so routinely and therefore insufficient evidence to conclude that he was similarly situated to the complainant. Further, at the time the complainant decided to quit her employment, the respondent had agreed to pay her $8.00 an hour, the same hourly wage as her male comparator. There is no evidence whatever to suggest that the fact the complainant began the job at $6.50 an hour was because of her sex, nor any basis to conclude that the respondent's refusal to pay her back wages constituted sex discrimination.

The commission has considered the arguments raised by the complainant in her petition for review, but finds them unpersuasive. The commission notes that in her petition the complainant has argued, for the first time, that the respondent retaliated against her by paying her male replacement the wage she complained about but did not receive. However, the complainant has not previously raised a claim of retaliation, and the sole issues before the commission are whether the complainant was discriminated against in compensation and/or discharged because of her sex. Because the commission agrees with the administrative law judge that the evidence fails to demonstrate that the complainant was discriminated against in the manner alleged, the dismissal of her complaint is affirmed.

NOTE: The commission has modified the administrative law judge's decision to clarify that, in order to establish a constructive discharge under the Wisconsin Fair Employment Act, the complainant must demonstrate not only that his or her working conditions were intolerable, but that they were intolerable for a reason that violates the Act. See, Toborg v. Shopko, ERD Case No. CR200102517 (LIRC March 30, 2005); Cole v. Northland College, ERD Case No. 199802086 (LIRC March 19, 2001).

cc:
Ms. Erin Boeger
IHOP Restaurant (Madison, WI)

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