INA L HOWARD, Complainant
LENA'S FOOD MARKET, Respondent
This case began as a complaint of sexual harassment and discharge for opposition to that harassment. The department issued a no-probable-cause determination on both issues. The complainant appealed, and after hearing an ALJ issued a decision dismissing the sexual harassment claim, but finding probable cause to believe the complainant was discharged in retaliation for opposing what she believed to be sexual harassment.
A hearing on the merits of the retaliation claim was scheduled for December 16, 2010, and a notice of hearing was mailed to the parties on September 23, 2010. Neither side was represented by legal counsel at this time. The respondent failed to appear for the hearing. The ALJ took evidence from the complainant and issued a decision on November 14, 2011 concluding that the respondent had violated the Wisconsin Fair Employment Act by discharging the complainant for opposing a discriminatory practice.
The respondent filed a timely petition to the commission and requested a new hearing, stating that it did not appear for hearing because it did not receive a notice of hearing. Soon thereafter, the respondent retained legal counsel, who, after an unsuccessful attempt at settlement, requested and was given a briefing schedule.
The respondent submitted a brief to which the complainant did not reply. The respondent argued that the case should be remanded for a hearing on the question of whether it had good cause for failing to appear at the December 16, 2010 hearing, or in the alternative, reversed because the evidentiary record made at the hearing did not support the ALJ's conclusion of retaliatory discharge.
The respondent's second argument should be considered first, because if that argument is correct the case should simply be reversed, and there would be no need to consider the respondent's failure to appear for hearing.
Does the record support the ALJ's finding of retaliation?
The respondent makes two arguments: first, that the respondent could not have discharged the complainant for a retaliatory motive because there was insufficient evidence that the decision-maker for the respondent was aware of the complainant's opposition to sexual harassment; and second, that the record revealed two non-discriminatory reasons for the discharge, excessive tardiness and a tension between the complainant and her supervisor unrelated to her complaint of sexual harassment, that were not sufficiently rebutted by the complainant.
1. Respondent's awareness of the complainant's opposition
As to the first argument, the legal proposition on which the respondent relies is sound. It is necessary that the employer, and particularly the individuals responsible for the employer's discharge decision, be aware of the complainant's opposition to discrimination, otherwise they could not be acting on a retaliatory motive. (1) Aken v. Blood Center of Southeastern Wisconsin, ERD Case Nos. 19951409 & 199600710 (LIRC Dec. 223, 1998); Cangelosi v. Robert E. Larson & Assoc., ERD Case No. 8821554 (LIRC, Nov. 9, 1990). The respondent targets the complainant's immediate supervisor, a woman named Cynthia, as the person who decided to discharge the complainant, and correctly points out that the complainant's evidence fails to prove that Cynthia was aware of the complainant's opposition to alleged sexual harassment. (2) The respondent is incorrect, however, in asserting that the record established Cynthia as the person who decided to discharge the complainant. The record only established that when the respondent's human resources manager, Kozat Martin, gave the complainant her termination notice she told the complainant that the decision was made by Cynthia. The complainant offered no direct knowledge that Cynthia was the decision-maker. The question of who was responsible for the decision to discharge the complainant was a matter of inference from the full evidentiary record.
Based on that record, the ALJ inferred that the respondent's management, not Cynthia in particular, made the decision to discharge the complainant. The ALJ noted that Cynthia was not present at the termination meeting, and it is apparent from the record that Cynthia did not participate in the complainant's disciplinary meetings prior to her discharge. There was ample evidence that several individuals in management other than Cynthia, who were well aware of the complainant's opposition to sexual harassment and who were at a higher managerial level than Cynthia, were involved in disciplining the complainant, including the individual who informed the complainant that she was being discharged. The evidence was sufficient for the ALJ to infer that the individuals responsible for deciding to discharge the complainant were aware of her opposition to sexual harassment.
2. Proffered non-discriminatory reason
If in the course of a complainant's case evidence is offered of a non-discriminatory reason for the challenged action of the respondent, the complainant must show the non-discriminatory reason to be a pretext for illegal discrimination. Browder v. Best Foods United of CPC North America, ERD Case No. 8300114 (LIRC Jan. 9, 1987). The termination document entered into evidence cites tardiness on March 13 and 14, 2008 as the immediate cause for termination, and refers to earlier instances of tardiness and no-shows. That document served as an articulation of a non-discriminatory reason for discharge. The complainant, however, denied that she was tardy on March 13 or 14, 2008, and that denial, of course, was undisputed. An ALJ is entitled to infer a discriminatory motive if the evidence from the complainant is sufficient to find that the proffered non-discriminatory reason is false. Cole v. Greyhound Bus Lines, ERD Case No. 200303930 (LIRC Sep. 16, 2005); Mateski v. Nuto Farm Supply, ERD Case No. CR200200727 (LIRC Feb. 15, 2005). The heart of the ALJ's rationale for rejecting the proffered non-discriminatory reason for discharge was that: 1) the timing was close between the initiation of discipline for tardiness and the complainant's opposition to sexual harassment; and 2) the respondent's disciplinary documents made false statements about her tardiness and absence from work:
In December of 2007, Howard was mistakenly disciplined for being tardy for work on December 7 and 8, 2007. After Howard discussed with Tom Johnson and Anthony Martin that she had not been tardy on those days, the discipline was withdrawn and was not mentioned again by Lena's management. After Howard began working at Lena's Holton store in January of 2008, Howard was often significantly tardy for work and often worked more than her scheduled work hours. However, Lena's management did not take any disciplinary action against Howard for being tardy until February 29, 2008, six days after Howard filed a written complainant with Lena's about being sexually harassed by Brown, the stocking manager of Lena's Holton store. The February 29, 2008 corrective action report referred to prior verbal and written discipline that had never been given to Howard and for which Lena's provided no documents to support. On March 12, 2008, Howard was given two disciplinary forms for allegedly failing to show up for work or call into work on March 4, 2008, even though both Howard and Howard's mother talked to Lena's management to state that Howard was too ill to report for work and Howard subsequently provided physician notes to excuse her absence from March 3 until March 12, 2008. Lena's management then falsely claimed that Howard was late for work on March 13 and 14, 2008 and Howard's employment with Lena's was terminated less than three weeks after Howard filed a written complaint that Brown was sexually harassing Howard.
(ALJ Dec., FOF 34.) The evidentiary record is sufficient to support the ALJ's conclusion that the asserted non-discriminatory reason for discharge was false.
The respondent argued that a second non-discriminatory reason for the complainant's discharge was articulated in the evidence, namely some tension that the complainant felt between herself and Cynthia that developed in January 2008, that the complainant believed had to do with Cynthia being blamed for the complainant's being assigned to work one day at a different store. The respondent asserted that the complainant believed the tension influenced the discharge decision, but the record does not support that assertion. The portion of the complainant's testimony on which the respondent relies simply relates the complainant's confusion over why tension developed; it does not indicate that the complainant believed the tension had any influence on the discharge decision; in fact, the complainant ended her speculation by saying "but that's something different." The tension the complainant spoke about between herself and Cynthia did not reach the level of an articulation of a non-discriminatory reason for her discharge.
The commission does not conclude, then, that the complainant failed to prove that the respondent discriminated against her and discharged her in retaliation for her opposition to a perceived discriminatory practice under the WFEA, therefore the commission declines to reverse the decision of the ALJ.
Should the case be remanded for a hearing on whether the respondent had good cause for its failure to appear at the December 16, 2010 hearing?
The respondent argued that this case is essentially the same as Hernandez v Starline Trucking, ERD Case No. CR201002662 (LIRC Feb. 29, 2012), which the commission remanded for a hearing on whether a party received notice of the administrative hearing at which it failed to appear. The commission sustains the respondent's position on this point. In Hernandez, the party who failed to appear, the complainant, based his petition to the commission on the allegation that he did not receive any notification about the hearing until he received the ALJ's order dismissing the complaint. The respondent here is making the same allegation-that it received no notice of hearing, and first discovered that a hearing occurred when it received the ALJ's decision.
In Hernandez, the commission was satisfied that the notice of hearing was mailed to the address that had been used for the complainant from the time the complaint was filed, and there was no dispute that it was the correct address for him. Similarly here, there is no reason to doubt that the ERD mailed its notice of hearing to the respondent at the address that had been used since the filing of the complaint. The respondent has not alleged that the address was not correct. (3) Nevertheless, the commission decided in Hernandez that a direct assertion by a party that it did not receive notification of a hearing raises a question of fact. As the commission reasoned in Hernandez:
The commission has held that the question of whether the notice of hearing was received is a question of fact. Whitlow v. Air Trans Airways, ERD Case No. CR200203151 (LIRC, December 13, 2004). It has also held that as a general rule, factual assertions as to grounds for failure to appear at a hearing will not be rejected without an opportunity for hearing where the non-appearing party suggests that he may be able to demonstrate good cause for failing to appear. Kieck v. Mas Graphics, ERD Case No. 200502527 (LIRC August 28, 2006); Hopson v. Family Dollar Stores, ERD Case No. CR200203179 (LIRC, October 30, 2003). More recently, it has stated that a plausible assertion of non-receipt of a notice of hearing cannot be rejected or resolved, consistent with due process, without providing an opportunity for hearing. Wills v. TA Operating LLC, ERD Case No. CR200903932 (LIRC, March 31, 2011).
The commission's test of plausibility is not rigorous. An express denial of receipt, so long as it is not incredible on its face, may be sufficient. Willis, supra; Hernandez, supra. The respondent's assertion here is not incredible on its face. There is nothing in the file casting doubt on the respondent's allegation beyond the fact that the notice appears to have been properly mailed. For instance, there is no record of any communication to the respondent in the file, such as a copy of a disclosure of witnesses or exhibits by the complainant, suggesting that the respondent should have known a hearing was scheduled or was imminent in December 2010. In Hernandez, the commission reasoned that a presumption of receipt of a properly mailed document cannot overcome a plausible denial of receipt:
While the commission has on some occasions invoked the presumption of receipt of mailed items, referred to in State ex rel. Flores v. State, 183 Wis. 2d 587, 612-613, 516 N.W.2d 362 (1994), see, e.g., Griffin v. Manor Care Health Service, ERD Case No. CR200700667 (LIRC, Mar. 23, 2010), it has also noted that Flores holds that if receipt of the mailing is denied the presumption is spent and a question of fact is raised. Salley v. Nationwide Mortgage & Realty, ERD Case No. CR200502419 (LIRC, Dec. 13, 2007). Wisconsin accepts that the presumption of receipt cannot be given conclusive effect without violating the due process clause. Mullen et al. v. Braatz, 179 Wis. 2d 749, 508 N.W.2d 446 (Ct. App., 1993).
In view of the foregoing, the commission now issues the following:
The November 14, 2011 decision of the ALJ in this matter is set aside, and the case is remanded to the Equal Rights Division for a hearing, at which the first issue to be addressed shall be whether the respondent received adequate notice of the December 16, 2010 hearing held in this matter. The respondent shall be deemed to bear the burden of proof by a preponderance of the evidence to establish that it did not receive adequate notice. Both parties shall be allowed to present evidence on that issue.
If after considering the evidence introduced on the issue of whether the respondent had adequate notice of the December 16, 2010 hearing, the ALJ finds that the respondent has established by a preponderance of the evidence that it did not receive such notice, the ALJ shall (at that time or at another time as scheduled by the ERD) conduct further hearing on the issues originally noticed for hearing and issue a decision on those issues based on the evidence at that further hearing.
If after considering the evidence introduced on the issue of whether the respondent had adequate notice of the December 16, 2010 hearing, the ALJ finds that the respondent has not established by a preponderance of the evidence that it did not receive such notice, the ALJ shall re-issue the decision originally issued on November 14, 2011.
Dated and mailed January 30, 2014
howarin_rpr . doc : 107 : 133 765
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
cc:
Attorney Alan E. Seneczko
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