RAENETTE K STEPHENS, Complainant
RENAISSANCE PLACE, 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 makes the following:
1. The respondent, Renaissance Place (hereinafter, respondent), is in the business of providing services and facilities for banquets and other social events in Milwaukee, Wisconsin.
2. The complainant, Raenette K. Stephens (hereinafter, complainant), a female, was employed by a staffing agency called Hatch Staffing, and was given the assignment of working for the respondent.
3. Scott Munoz and Michael Valentine, employees of the respondent, gave the complainant her daily duties. The complainant performed her duties under the direction and control of Munoz and Valentine.
4. The complainant's job category was known as waitstaff. At first, her primary job was to clear dining tables, but she also performed miscellaneous tasks at Munoz's direction, such as making sure the facility's restrooms were suitable.
5. The complainant's starting wage rate was $8.00 per hour. At some point prior to the time relevant to this complaint, she received a raise to $8.50 per hour.
6. At some point in the first several months of 2010 a male who was performing services for the respondent, Aaron Burton, no longer appeared for work, because he became incarcerated.
7. In April 2010, Munoz asked the complainant if she wanted to do Burton's job. He said it would be more money for her, but did not say when she would get more money or how much it would be. The complainant accepted the offer. Shortly thereafter, the complainant took a leave of absence for more than a month.
8. When the complainant returned from her leave, Munoz gave her some tasks that she had not done before. She picked up trash in the yard; she vacuumed the carpet; she shampooed the border of the carpet; and she assembled and dis-assembled the dance floor. Another male, Travis Marshall, performed all these duties as well. Marshall was paid $8.50 per hour. The complainant had only one additional duty that she did which Marshal did not do-changing light bulbs.
9. At some point the complainant brought to Munoz's attention that her wage rate had not increased since performing her new tasks. Munoz replied that it was because of the economy.
10. The complainant's new duties did not encompass the full range of duties that Burton had done. Burton was the highest level employee under Munoz; he had helped Munoz supervise, standing in for him as supervisor if Munoz was not present. Burton trimmed hedges and mowed the lawn. Burton shampooed the entire carpet. Burton stripped, waxed and buffed the floors. Burton fixed some of the cleaning equipment, including the shampooer and a de-greaser. The complainant did not perform these tasks, and did not have supervisory authority.
11. In late September 2011 the complainant got into a name-calling altercation with an employee named Vicki. They were reprimanded by supervisor Valentine. Shortly thereafter, the complainant contacted Hatch Staffing and said she had had an altercation at work and as a result did not want to work for the respondent anymore. She said nothing about being treated differently because of her sex. She was taken off the placement, and later terminated by Hatch.
12. At some point prior to her altercation with Vicki, Burton began to work for the respondent again. The complainant was upset that he returned, but she did not talk to Munoz or anyone else in management about what her job duties and pay would be compared to Burton. She did not complain to anyone in management at the respondent or at Hatch Staffing about her pay or job duties before quitting her placement at the respondent.
1. The complainant failed to establish probable cause to believe that the respondent violated the Wisconsin Fair Employment Act by discriminating against her in compensation because of sex.
2. The complainant failed to establish probable cause to believe that the respondent violated the Wisconsin Fair Employment Act by constructively terminating her employment because of sex.
The complaint in this matter is dismissed with prejudice.
Dated and mailed December 12, 2013
stephra_rrr . doc : 107 : 127.5
745 769
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
After the complainant rested her case, which consisted of her own testimony and a transcript of her pre-hearing deposition, the respondent moved for dismissal on the grounds that the complainant failed to show probable cause to believe that the respondent violated the Wisconsin Fair Employment Act as alleged. Concerning a dismissal at the conclusion of the complainant's case, the commission has established the following standard:
A dismissal at the close of the complainant's case-in-chief contemplates a circumstance in which it is clear that, whether or not the respondent introduces any evidence on its behalf, there is simply no way in which the complainant can reasonably prevail.
Roberge v. Department of Agriculture, Trade and Consumer Protection, ERD Case No. CR200303360 (LIRC May 31, 2005). It is clear in the present case that the complainant cannot reasonably prevail based on the evidence she presented, therefore the commission has affirmed the dismissal.
In a claim of discrimination in compensation because of sex, an essential element of the complainant's case is that there was in fact a disparity between the complainant's compensation and the compensation of the male to whom the complainant compared herself. Here, the complainant's comparator was Burton. The only evidence of Burton's rate of pay was hearsay. Although hearsay evidence is admissible at hearing, an ultimate or crucial finding of fact may not be based solely on uncorroborated hearsay evidence. Merta v. Johnson Controls, ERD Case No. CR200000926 (LIRC Oct. 30, 2003). Proof of a disparity in income between the complainant and her comparator is crucial to the complainant's claim, and therefore must be proven by more than uncorroborated hearsay evidence.
Another essential element of the complainant's claim of discrimination in compensation because of sex is to show that the complainant's job and the job of the male comparator required the same skill, effort and responsibility. Each of these three factors must be shown to be reasonably equivalent in order to make a prima facie case. Gaulke v. School Dist. Of Stratford, ERD Case No. CR200303518 (LIRC Dec. 8, 2006). As for skill, the complainant in the present case acknowledged that Burton was a handyman and repaired some of the cleaning equipment, a skill that the complainant did not claim to have. As for effort, the complainant acknowledged that she did not run the stripper or waxer, did not shampoo the entire carpet, and did not trim the hedges or mow the lawn, which Burton had done. And as for responsibility, the complainant acknowledged that at times Burton acted as a supervisor, something the complainant never claimed to have done. On this record there is no reasonable way the complainant can prevail on a claim of discrimination in compensation because of sex. Without proof of discriminatory treatment, it is impossible for the complainant to prove constructive discharge, because constructive discharge requires a showing that working conditions were intolerable for a reason that violates the Act. Looper v. IHOP Restaurant, ERD Case No. CR200800503 (LIRC Mar. 21, 2012). In addition, setting aside the complainant's failure to link her separation to a discriminatory condition, the complainant failed to show that her working conditions were intolerable when she quit, having testified that she quit without trying to resolve her dissatisfaction about her wage rate.
NOTE: In addition to moving for dismissal for failure to show probable cause, the respondent moved for dismissal on the grounds that the complainant had abused the discovery process by lying at her deposition, (1) and by refusing to answer a question during her deposition. The ALJ announced that she was going to consider the motion over the lunch break, but the complainant then told the ALJ that she had to leave for the day for personal reasons. The ALJ informed the complainant that if she left the ALJ would be forced to dismiss her case. The complainant asked if she could appeal such a dismissal, and was told she could, whereupon she left.
The ALJ then issued a written Order of Dismissal, based on the complainant's abuse of discovery and on the complainant's leaving the hearing at the close of her case. The ALJ considered these two things together as egregious and obstructive conduct warranting dismissal.
To the extent the ALJ based her order on the complainant's leaving at the close of her case, she exceeded her authority:
The commission has held that an administrative law judge who dismisses an entire complaint as a sanction for the complainant's abandonment of a hearing, when the record does contain some evidence upon which factual findings could be made, has exceeded his authority. See, Jackson v. City of Milwaukee Public Library (LIRC, October 28, 1993). Rather than dismissing the complaint, the appropriate course under these circumstances would be to treat the complainant as having rested at the point at which he walks out or otherwise abandons the hearing, afford the respondent an opportunity to present its case if it chooses to do so, and issue a ruling on the adequacy of the evidence presented.
Clemons and Scherer v. Opportunities Industrialization Center of Greater Milwaukee, ERD Case No. 200102575 (LIRC Feb. 14, 2003).
The ALJ also exceeded her authority in dismissing based on the fact that the complainant lied in answer to a deposition question. ALJs have only such authority as is given to them by statute. Peterson v. Natural Resources Board, 94 Wis.2d 587, 592, 288 N.W.2d 845, 848 (1980) ("[A]n administrative agency has only those powers which are expressly conferred or which are fairly implied from the statutes under which it operates.").
Through Wis. Admin. Code § DWD 218.14, ALJs have the power to impose sanctions as set out in Wis. Stat. ch. 804. The sanctions power under ch. 804 is conferred in two sets of situations. First, under Wis. Stat. § 804.12(4), a judge may impose sanctions, including dismissal, for certain listed failures by a party. Lying in a deposition is not one of the failures listed in Wis. Stat. § 804.12(4). The only one of the listed failures committed by the complainant in this case was her failure to attend her deposition when it was initially scheduled, and the ALJ chose not to dismiss the complaint based on that failure. Second, under Wis. Stat. § 804.12(2), a judge may impose sanctions for a party's failure to comply with an order compelling discovery. The ALJ's order compelling discovery was her order of August 13, 2012 requiring the complainant to attend a rescheduled deposition, which she did. There was no order to answer any particular deposition question, truthfully or otherwise.
There is a process spelled out in Wis. Stat. ยง 804.12(2), whereby a party taking a deposition can object to a deponent's refusal to fully answer a question, and can seek an order compelling the deponent to give a complete answer. That did not happen here. Of course, the respondent was not at fault for failing to seek an order with respect to the complainant's false testimony, (2) because the respondent had no reasonable way of knowing that the complainant had lied until she admitted it at the hearing. Nevertheless, the fact remains that the complainant's lying at her deposition was neither in non-compliance with an order compelling discovery under Wis. Stat. § 804.12(2), nor grounds for the sanction of dismissal under Wis. Stat. § 804.12(4).
Because the ALJ did not have authority to dismiss the complainant's case for the reasons she articulated, the commission has rejected the ALJ's rationale. Dismissal, however, is still appropriate based on the complainant's failure to show probable cause.
cc:
Attorney Luis I. Arroyo
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