ANETA C SCHLOEMER, Complainant

CUPOLA HOUSE, Respondent

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 June 14, 2013
schloan . rsd : 107 : 5

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

The complainant's request for back pay relates to a remedy that can be obtained in a proceeding brought under the WFEA. Although the complainant's petition for review does not make specific arguments as to why the complainant believes she is entitled to back pay, the commission takes her petition as a request to review the various claims made in her complaint, and determine whether the findings of fact and conclusions of law of the administrative law judge are supported by the record.

The respondent was an art gallery and gift shop in a historic building in Egg Harbor. The managers of the respondent were Gloria and Richard Hansen. The complainant began her employment there in November 2006; her last day of work was July 16, 2008. She was employed to perform a variety of tasks, including keeping inventory records, cleaning, matting and framing pictures, taking photos of items for insurance, gardening, decorating, shoveling snow, and working at the counter. She alleged in her complaint that her disability was schizophrenia; at hearing she also described having a thyroid condition for which she took a medication that made her drowsy.

At about the time she was hired, the complainant informed the Hansens that she received Social Security Disability benefits, and that she was advised by her caseworker not to earn more than $234 per month, or it would affect the amount of benefits she received. The Hansens set a rate of pay and a number of hours of work for the complainant so as to keep the complainant's paychecks under the limit that she specified, but in reality the complainant spent many more hours at work than shown on her paycheck stubs. The complainant alleged that she was required to work the extra hours; the respondents testified that the complainant was free to come and go as she wanted. The ALJ found the complainant's allegation more credible (see Finding of Fact No. 7 in ALJ's Decision).  
  

Discrimination on the basis of disability

The complainant alleged that she suffered discrimination in compensation and in terms and conditions of employment because of disability. The complainant admitted, however, that she did not inform the Hansens about her medical condition, and she presented no medical records or competent evidence of disability at the hearing. The ALJ noted the complainant's lack of evidence on disability, but stated that there was sufficient evidence to conclude that the complainant was perceived as having a disability. Since this conclusion is in the complainant's favor, and the respondent did not file a petition for review, the commission does not question this finding.

The ALJ also concluded that the complainant's disability was a factor in the respondent's requirement that the complainant perform more hours of work than indicated on her paychecks, and was a factor in her not being compensated for the hours she worked in excess of the number of hours indicated on her paycheck stubs. The ALJ determined, then, that the respondent had discriminated against the complainant on the basis of disability in violation of the WFEA, in terms and conditions of employment and in compensation. Nevertheless, the ALJ awarded no relief other than a cease and desist order. This is because the underpayment of compensation became the subject of a wage and hour complaint filed by the complainant with the ERD's Labor Standards Bureau (Case No. LS200802155), which was resolved in November 2008 with a payment to the complainant of $5,000. The complainant acknowledged that she signed an agreement accepting the $5,000 in settlement of her wage claim (Ex. 11), and that the agreement resolved the issue of her unpaid wages. Whatever the complainant would have been entitled to receive from her claim of discrimination in compensation, then, had already been paid to her through settlement of her wage claim.

The commission therefore affirms the ALJ's decision to award no monetary relief on the complainant's compensation claim. It is clear that the underpayment alleged in the complainant's wage claim was the same underpayment alleged in her discrimination complaint. Even though there is no evidence that the complainant executed a release of her discrimination claim when she accepted the settlement of the wage claim, the lack of a release does not provide a basis for payment of a second recovery to the complainant for the same underpayment.  
  

Discrimination for opposing a discriminatory practice

Under Wis. Stat. § 111.322(3), an employer is prohibited from discharging or otherwise discriminating against an employee for expressing opposition to what the employee perceives to be discriminatory treatment in violation of the WFEA. The complainant's claims of discrimination for opposing discrimination were unsuccessful. Although the ALJ did not say specifically why the complainant failed to prove these claims, a review of the testimony reveals that the complainant acknowledged that she never talked to the Hansens about her medical condition, much less complained to them that they were treating her adversely because of her health or medical condition.

The commission therefore affirms the ALJ's decision that the employer did not discriminate against the complainant, or discharge her, because she opposed a discriminatory practice under the WFEA. In order to make a successful claim of retaliation for opposing a discriminatory practice, a complainant must have engaged in the protected activity of opposition. Kannenberg v. LIRC, 213 Wis.2d 373, 571 N.W.2d 165 (Ct. App. 1997).  
   

Discrimination for pursuing a wage and hour complaint

Under Wis. Stat. § 111.322(2m), an employer is prohibited from discharging or otherwise discriminating against an employee because the employee filed a wage complaint, or because of the employer's belief that the employee has filed or may file a wage complaint. Again, these claims were unsuccessful. As to the employer's having a belief that the complainant had filed or would file a wage complaint, the complainant acknowledged that she neither informed the Hansens that she intended to file a wage complaint, nor spoke to them about it after filing it.

As to the allegation that the respondent retaliated against the complainant for the actual filing of the wage complaint, the ALJ accepted the respondent's evidence that it was not aware of the filing until after the termination of the complainant's employment. Although the wage complaint appears to have been filed before the complainant's last day of work, Richard Hansen testified that the Hansens did not know about the filing until July 31, 2008, when they received a letter from the labor standards investigator dated July 29, 2008. (Ex. 6). By that time, according to the complainant (and as found by the ALJ-Finding of Fact No. 10), the respondent had essentially terminated the complainant by placing her on an indefinite leave and changing her status to on-call. The investigator's letter of July 29th indicated that it was a "second and final request" for information about the wage complaint, but Richard Hansen testified that he never received an earlier notice. He offered in evidence a handwritten note of a telephone conversation he had on July 31st with the investigator (Ex. 7), and a copy of a letter dated July 31st to the investigator following up on the telephone conversation (Ex. 8).

The complainant did not offer any evidence challenging the respondent's contention that it was unaware of the wage complaint until July 31st. The ALJ's acceptance of the respondent's evidence was reasonable. Therefore, the commission affirms the ALJ's decision that the employer did not discriminate against the complainant, or discharge her, because she filed a wage claim, or because the employer believed she had filed or would file, a wage claim.  
  

Flawed recording

Because of the poor quality of the recording of the hearing, the ERD did not produce a summary of proceedings for the Commission. Instead, the ALJ produced a summary based on his notes. Nevertheless, the recording itself has been audited, both to check the accuracy of the ALJ's notes and to glean additional testimony that was not contained in those notes. The commission is satisfied that the ALJ's notes are accurate.

It is a statutory requirement that "[t]he testimony at the hearing shall be recorded or taken down by a reporter appointed by the department." Wis. Stat. § 111.39(4)(b). The commission dealt with a failure to produce an entire recording of testimony in Krenz v. Lauer's Food Market, ERD Case No. 8802475 (LIRC Sept. 27, 1990). In Krenz, the ALJ failed to record the direct examination of the complainant and at least part of the cross examination. The commission stated:

Testimony at hearings on complaints filed under the Wisconsin Fair Employment Act must be recorded or taken down by a court reporter. Sec. 111.39(4)(b), Stats. There was a partial failure to meet that requirement here, and that partial failure was a very significant one, involving as it did what is likely to be some of the most important testimony in any case of discrimination, that being the direct and cross-examination of the Complainant. Adequate review of the decision cannot be conducted consistent with the Statutes and with due process when the testimony on which the decision is based has not been recorded and is therefore unavailable to the reviewer, unless there is a stipulation from the parties adequate to cure the defect.

In Krenz, the commission remanded the case for a completely new hearing, deciding that it would invite problems to try to limit the hearing to the part that was not recorded.

In Saccomandi v. Pocus and Company, ERD Case No. 9051655 (LIRC Sept. 9, 1993), the commission was again asked to review a case with a partially missing record of hearing. The missing part involved: (1) a preliminary discussion in which the complainant objected to having to proceed to hearing without an attorney and requested a postponement, which the ALJ denied; and (2) testimony of a witness who apparently testified to having heard one of the respondents make negative statements about the complainant's nationality. The commission determined that it could not reliably review the case without this part of the record, therefore remanded for a new hearing.

In Popp v. Rhinelander Paper Company, ERD Case No. 9402056 (LIRC July 28, 1995), there was a failure to record approximately 30 minutes of the hearing, consisting of a portion of the complainant's adverse examination of the respondent's manager of labor relations. This time, the commission did not remand for a new hearing:

However, [the gap in the recording] has not had any effect on the commission's ability to complete a full and fair review in this matter...In this case, the commission had available to it the Summary of Proceedings prepared by the Administrative Law Judge. The commission is satisfied that the Summary of Proceedings is an accurate record of the substance of the material testimony and that it served as a satisfactory basis for its review.

In a few other cases in which all or a significant portion of the testimonial record were missing, the commission has directed hearing to replace or recreate the testimony [citing Saccomandi and Popp]. In those cases, however, there were specific reasons for believing that the commission's ability to review the case could be compromised. In view of the availability of an adequate Summary of Proceedings as a basis for its review, and considering all of the other circumstances here, the commission sees no purpose to be served at this point by directing that the testimony in question be repeated in this case.

In Clarke v. Plast-O-Con Inc., ERD Case No. 199703063 (LIRC Sept. 28, 1999), the commission again remanded a case for a new hearing because the complainant's testimony was not recorded. The case involved an exchange of allegedly racial slurs between two co-workers; but the complainant, who was black, maintained that he did not call the co-worker a "white fat ass", as found by the ALJ. The commission received a synopsis of the testimony prepared by the ALJ, but found it to be inadequate, largely because the synopsis only indicated that the complainant called the co-worker a fat ass, not a white fat ass. The commission concluded that the ALJ's notes were either incomplete on a material point or his finding of fact was incorrect. The commission acknowledged that in Popp it proceeded to review a hearing based on the ALJ's notes alone, but distinguished that case on the grounds that there the commission was able to conclude (by comparing the ALJ's notes to a verbatim transcript that was prepared from the incomplete recording) that the ALJ' notes in general were very reliable, and that the gap in testimony was merely that of a collateral witness.

Finally, in Dygon v. Smurfit Stone Container Corp., ERD Case No. 200403754 (LIRC Feb. 28, 2007), the commission had the following problem with the record of hearing:

An audio tape was used at the hearing to record the testimony and other evidence taken at the hearing in this matter. However, when the commission attempted to prepare a written synopsis of the record to the hearing to review this matter it discovered that the audio tape had stopped before the complainant, apparently the only witness to testify, started testifying. Furthermore, the commission contacted the ALJ to have him prepare, form his handwritten notes taken at the hearing, a summary of proceedings for possible commission use to review this matter but the ALJ stated that he was only able to locate the first page of his notes for this case.

Not surprisingly, the commission remanded for a new hearing.

Even though the more common disposition in this kind of situation has been to remand the case for a new hearing, no purpose would be served by doing so in this case. First, the complainant, the only party to appeal, won on her disability claims, at least as to liability. To the extent her appeal relates to the failure to obtain any financial remedy with respect to her compensation claim, the record is clear that she acknowledged coming to an agreement with the respondent for receipt of $5,000 in resolution of her wage claim. That is a sufficient record to support the ALJ's decision not to award a financial remedy on the compensation claim.

Second, with respect to her opposition claims, the recording did capture the complainant's testimony acknowledging that she never expressed to the respondent's managers that she felt they were mistreating her in any way because of a disability or because of any medical condition. A retaliation claim cannot succeed without evidence that some opposition to perceived discrimination was expressed. Whatever the testimony might have been in portions of the recording that were not decipherable, the complainant's recorded admission that she did not express any opposition to perceived discrimination is fatal to her retaliation claims based on opposition to perceived discrimination.

Third, with respect to the complainant's retaliation claims based on her pursuit of a wage and hour complaint, the recording did capture the complainant's testimony that she did not talk to the Hansens about filing a labor standards complaint, and did not complain to them about the number of hours she was working. She had no competent evidence, then, to rebut the Hansens' testimony that they were unaware of the complainant's intent to file a wage claim. As to the claim that the complainant was discharged in retaliation for the actual filing of the wage claim, the recording captured the complainant's admission that she did not know when the Hansens became aware of her complaint. The complainant's admitted lack of knowledge on this point, and her failure to present any rebuttal evidence to the Hansens' testimony that they knew nothing about the wage complaint until after the complainant's last day of work, is a sufficient basis on which to uphold the ALJ's conclusion that the complainant failed to prove that she was discharged in retaliation for having filed a wage complaint.

The guiding principle of the cases cited above is that if the record, while incomplete, is nevertheless sufficient to allow the commission to fully evaluate the findings and conclusions of the ALJ, and does not deprive the parties of their due process rights to a fair hearing, it is not required that a new hearing be held. Here, the recording and the ALJ's notes together constituted a sufficient record for a full and fair consideration of the case.

cc:
Attorney Jeffrey Schmeckpepper
Attorney Nicholas Harken
Mr. Keys
Mr. Glen Begrow, Jr.

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