ROBERTHENRY DAVIS SR, Complainant

TIME WARNER CABLE OF SOUTHEAST WISCONSIN, 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.

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

Dated and mailed August 16, 2013
davisro_rsd . doc : 164 :

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The issue presented in this case is whether the respondent discriminated against the complainant for having filed previous discrimination complaints by denying him severance pay, commissions, vacation pay and benefits. The facts demonstrate it did not. The complainant was offered a severance package which he declined because it would have required him to waive his prior discrimination complaints filed against the respondent and because the respondent had not provided him with information about his unpaid commissions. Other employees received the severance package because they were willing to sign the severance agreement, including the portion of the agreement requiring them to waive their claims against the respondent, and because they did not insist on receiving information about unpaid commissions prior to doing so. The complainant ultimately did receive the unpaid vacation time and commissions that were due him, and although these payments were delayed, there is no evidence to suggest that the delay was related to the fact the complainant filed prior discrimination complaints. To the contrary, the other employees whose employment was terminated at the same time as the complainant, but who had not engaged in any protected conduct, also had to wait to receive their unpaid commissions and vacation time.

The arguments raised by the complainant in his brief are difficult to piece together but it appears he is contending, among other things, that the respondent never gave him a reasonable opportunity to sign the severance agreement because it refused to provide him with information about his earnings, that the respondent engaged in "gamesmanship" when it altered the agreement to specifically include a condition that he withdraw his pending charges against it and, further, that this amounted to disparate treatment because other employees did not have that language included in their severance agreements. The complainant also asserts, as a matter of policy, that few employees would file complaints seeking to enforce laws against discrimination if they knew they could be later forced to abandon their claim or lose earned severance pay. Finally, he argues that the administrative law judge was biased against him and denied him due process by deciding the case before the hearing began and by refusing to allow him to file a reply brief.

The commission does not find these arguments persuasive. In the first place, the commission sees no reason to believe that the administrative law judge prejudged the case, nor is his decision to order simultaneous briefs without providing either party an opportunity to file a reply brief evidence of prejudice on his part. Further, the commission has independently reviewed the same evidence that was presented to the administrative law judge, and it agrees with his conclusion that no discrimination was established. Contrary to the complainant's assertion, he was given the same opportunity to sign the severance agreement as all other affected employees. However, the complainant elected not to sign the agreement because he did not want to waive his right to pursue the discrimination complaints he had previously filed and because he was troubled by the fact that the respondent had not released information to him about the amounts of his unpaid commissions. While it is true that a second agreement the respondent offered the complainant, after he requested and received an extension of time to consider the agreement, contained specific language indicating that the waiver included his right to pursue his pending litigation against the respondent, all of the agreements contained generic waiver language, and the specific language that was added to the complainant's agreement was by way of clarification and did not alter the substance of the agreement. Finally, no other employee was provided information about the amount of their unpaid commissions, and the respondent's failure to provide that information to the complainant is not evidence of discrimination against him.

With regard to the complainant's general objection about the effect of a requirement that he waive his legal rights in order to receive severance pay, it should be noted that the complainant did not "earn" the severance pay and had no entitlement to it. The respondent was within its rights in asking the complainant to abandon his claims against it as a condition precedent to his receipt of severance pay, and the complainant had the option -- which he exercised -- of refusing to do so. See, Weier v. Heiden Inc., ERD Case No. 199601631 (LIRC Feb. 5, 1998) (Employers are not prohibited from entering into agreements with their employees whereby the employee waives any claim that he or she may have against the employer. Employees are not obligated to enter into such agreements.)

The commission has considered the remaining arguments raised by the complainant in his brief, but finds them similarly unpersuasive. Because the commission agrees with the administrative law judge that the complainant failed to establish probable cause to believe he was discriminated against as alleged, the dismissal of his complaint is affirmed.

cc:
ATTORNEY ROCKY L. COE
ATTORNEY JILL PEDIGO HALL

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uploaded 2013/09/19