MARGIE M BROCKMANN, Complainant

ABACUS BERTZ INSURANCE, 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 modifications:

Paragraph 6 of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:

Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12).

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

Dated and mailed May 31, 2012
brockmk . rmd : 164 : 5 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

The Wisconsin Fair Employment Act prohibits the termination of employment of an individual because he or she files a wage claim under Wis. Stat. § 109.03 or attempts to enforce any right under that statute, or because the employer believes he or she may do so. See Wis. Stat. § 111.322(2m)(a) and (d).

In those cases where an employee has not actually filed a wage claim or made a specific threat to do so, the question is whether the employee has given some indication that he or she intends to file a wage claim and whether the record establishes that the employer believed the employee intended to take such action. Jancik v. Advantage Learning Systems, ERD Case No. CR200100941 (LIRC Sept. 16, 2005). In deciding that question, the commission will consider not only the employee's words, but the entire context of the interactions between the employee and employer. For example, the commission has held that a statement made by an employee during an argument with her employer to the effect that the employee was going to "take it to Equal Rights" was insufficient to put the employer on notice that the employee intended to file a wage complaint, where the argument was unrelated to wages and the employer had no reason to believe there was a wage dispute. Freeman v. Animal Motel, LLC, ERD Case No. CR200600904 (LIRC, July 18, 2011). On the other hand, the commission has held that, where an employee was discharged on the same day that her daughter filed a claim for unpaid vacation and overtime, a matter over which the employer was visibly upset, it could be inferred that the employer believed the employee was going to a wage complaint, too, even though the employee said nothing to indicate she planned on doing so. Klatt v. Hallie Chiropractic LLC, ERD Case No. CR200404041 (LIRC Aug. 28, 2006).

In this case, the complainant and respondent had an ongoing dispute about the complainant's wages, which the respondent acknowledged were not always paid on time. There was also a dispute as to whether the complainant should be treated as a salaried or hourly employee, the complainant contending that she was a salaried employee and that her wages were improperly reduced to reflect that she had begun to leave early on Fridays and report late on Mondays. In a letter to the respondent regarding the wage dispute, the complainant stated that she believed it was violating state labor laws. While that statement alone may not have conveyed that the complainant intended to file a wage claim, given that the letter was written in the context of an ongoing wage dispute, and considering that the respondent knew it was paying the complainant late and that the complainant believed she was not being paid in full, it is reasonable to conclude that the respondent believed the complainant might be planning on filing a wage claim.

The next question to resolve is whether the respondent's belief that the complainant might file a wage claim was a motivating factor in its decision to terminate the employment relationship. The commission concludes that it was. The day after receiving the complainant's letter the respondent's owner warned her that she should watch the allegations she made in her letter and that she should be careful. At the hearing the respondent's owner contrasted the complainant unfavorably with another employee whom he claimed had never challenged him in writing and did not suggest he was violating state labor laws. While in its petition the respondent argues that it had legitimate business reasons for the discharge, the commission finds the respondent's assertion that the complainant was discharged because of her work performance to be not credible. The complainant received only positive feedback about her job performance in the months prior to the discharge, and there is no evidence to suggest that the respondent had ever warned or disciplined the complainant for performance related reasons, let alone that it was considering firing her for those reasons. The timing of the discharge, coming just two days after the complainant submitted a letter to the respondent accusing it of a failure to adhere to state labor laws -- a letter about which the respondent was clearly unhappy -- without any intervening performance issues or acts of misconduct on the complainant's part, suggests a causal relationship between the two events.

Under all the circumstances, the commission is satisfied that the complainant has met her burden of establishing that she was discriminated against in the manner alleged, and that the respondent's actions were undertaken in violation of the Wisconsin Fair Employment Act. Accordingly, the administrative law judge's decision is affirmed.

cc:
Attorney Marilyn Townsend
Attorney Michael Luttig

Appealed to Circuit Court.  Affirmed, January 9, 2013.

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