DIANE J WEAVER, Complainant
V & J HOLDING COMPANIES INC, 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:
1. The sixth sentence of paragraph 16 of the administrative law judge's FINDINGS OF FACT is deleted and the following sentence is substituted therefor:
"Akheri arrived at the party a couple of hours after Weaver arrived."
2. The administrative law judge's ORDER is deleted and the following ORDER is substituted therefor:
"1. Time within which respondent must comply with Order. The respondent shall comply with all of the terms of this Order within 30 days of the date on which this decision becomes final. This decision will become final if it is not timely appealed, or, if it is timely appealed, it will become final if it is affirmed by a reviewing court and the decision of that court is not timely appealed.
"2. That the respondent shall cease and desist from discriminating against the complainant based upon her sex or sexual orientation.
"3. That the respondent shall offer the complainant reinstatement to a position substantially equivalent to the position she held prior to her discharge at one of its stores or restaurants located within a reasonable commuting distance from the complainant's home. This offer shall be in writing and shall be tendered by the respondent or an authorized agent. It shall provide reasonable notice of the time and place at which the complainant is to appear for work and shall allow the complainant a reasonable time to respond. Upon the complainant's acceptance of such position, the respondent shall afford her all seniority and benefits, if any, to which she would be entitled but for the respondent's unlawful discrimination, including sick leave and vacation credits.
"4. That the respondent shall make the complainant whole for all losses in pay and benefits the complainant suffered by reason of its unlawful conduct by paying the complainant the amount she would have earned as an employee (based on a 27.5 hour per week schedule at an hourly rate of $8.00) from the date of discharge (August 26, 2009) until such time as the complainant resumes employment with the respondent or would resume such employment but for her refusal of a valid offer of a substantially equivalent position. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter. Any unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory set-offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.
"5. Within 30 days of the date on which this decision becomes final, the respondent shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. The respondent shall submit a copy of the Compliance Report to the complainant at the same time that it is submitted to the commission. Within 10 days from the date the copy of the Compliance Report is submitted to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report.
"Notwithstanding any other actions a respondent may take in compliance with this Order, a failure to timely submit the Compliance Report required by this paragraph is a separate and distinct violation of this Order. 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 December 23, 2013
weavedi_rmd . doc : 164 : 831.4 831.45
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The respondent's petition for commission review contains no argument and the commission has no specific indication as to why the respondent believes it should prevail based upon this record. Notwithstanding this, the commission has reviewed the hearing record in order to determine whether the administrative law judge's findings of fact and conclusions of law are supported. Based upon its independent review of the record, the commission agrees with the factual findings made by the administrative law judge and with her legal conclusion that the complainant established she was subjected to unlawful sexual harassment, was discriminated against in the terms and conditions of her employment based upon her sex and sexual orientation, and was discharged based upon her sex and sexual orientation, in violation of the Wisconsin Fair Employment Act. The finding of discrimination is, therefore, affirmed.
Although the commission agrees with the administrative law judge's decision on the merits, it has modified the administrative law judge's remedial order to include a requirement that the respondent offer the complainant reinstatement into a job similar to the one she held at the time of the discharge and to extend her back pay period until such time as the complainant resumes work or declines an offer of reinstatement. The administrative law judge erroneously cut off the complainant's back pay on February 28, 2011, at which time the respondent purportedly closed the Auntie Anne's store where the complainant worked. However, the record contains no evidence to establish that the store closed on February 28, 2011, (1) nor did the respondent make any argument that the complainant was not eligible for reinstatement or that her back pay should be cut off at any particular time.
The general rule is that liability for back pay will continue to accrue after a discriminatory discharge until the date the respondent makes a valid offer of reinstatement, or the date the complainant ceases making a reasonable effort to mitigate her damages. Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983). The respondent has the burden of establishing that reinstatement is not appropriate, and any uncertainty on this point should be resolved against the discriminating employer. See Nunn v. Dollar General, ERD Case No. CR200402731 (LIRC March 14, 2008).
The commission has held that, where an employer operates several facilities in Wisconsin, the fact that it no longer operates the facility in which the complainant was employed does not serve as a bar to an offer of reinstatement. Achilli v. Sienna Crest Assisted Living, Inc., ERD Case No. 200300152 (LIRC July 18, 2008); Buehler v. Schlueter Investment Co., ERD Case No. 8550559 (LIRC June 5, 1987); Sult v. Jerry's Enterprises, Inc., ERD Case No. CR200402634 (LIRC Feb. 8, 2008). In this case, there was testimony that the respondent operates numerous restaurant franchises, including not just Auntie Anne's, but also Burger King and others, and that it has approximately twelve stores in the district where the complainant's store was located. The commission can see no reason to presume that the complainant would not have been offered a transfer to one of those stores or restaurants, had she remained employed, nor any reason to believe that the respondent could not now offer the complainant instatement into a job at one of its other stores or restaurants within a reasonable commuting distance from the complainant's home. The commission has, therefore, modified the administrative law judge's order to require that it do so.
cc:
Attorney Andre E. Townsel
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