STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

JENNIFER K MATUSZEWSKI, Complainant

KIDDIE KARE AKADEMIE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200901608


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, except that it makes the following modification:

Delete the Memorandum Opinion.

DECISION

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

Dated and mailed February 13, 2014
matusje_rmd . doc : 107 : 5   134

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

Background

A claim of retaliation consists of three elements: a) that the complainant engaged in a statutorily protected activity; b) that she suffered an adverse employment action; and c) that a causal connection exists between the two -- which is to say that the employer was motivated to take the adverse action because of the complainant's protected activity. Gunty v. City of Waukesha, ERD Case No. 200401540 (LIRC Mar. 31, 2010).

The statutorily protected activity involved in this case is set out in Wis. Stat. § 111.322(2m), by which an employer is prohibited from taking an adverse employment action against an individual based on the individual's: 1) filing a complaint or attempting to enforce a right under any of a variety of statutory sections, including the wage payment act, Wis. Stat. § 109.07; or 2) testifying or assisting in any action or proceeding under any of those statutory sections. In addition, paragraph (d) of § 111.322(2m) prohibits an employer from taking an adverse employment action based on a belief that the individual engaged in or may engage in any of the protected acts set out in the statute.

This case involves the complainant's actions with respect to her rights to receive wages. During her employment, the complainant did not file a wage claim, and there was no proceeding in which she testified or assisted. The contested issues concerning protected activity are whether: 1) the complainant attempted to enforce a right under the wage payment law; or 2) the employer believed that the complainant may file a complaint or attempt to enforce a right under the wage payment law. The commission concludes that the findings of fact of the ALJ are supported by the evidentiary record, and that the findings support the conclusion that the complainant failed to show that she attempted to enforce a right under the wage payment law during her employment, and failed to show that the respondent acted in the belief that she may attempt to file a complaint or otherwise attempt to enforce her right. While deferring to the credibility determinations of the ALJ, the commission also concludes that even under the complainant's version of the critical events, the complainant has not shown that the respondent took adverse action against her because she engaged in a protected activity or because of a belief that she may do so.

 

Attempt to enforce a right to wages

Commission decisions have consistently held that the phrase "attempted to enforce a right" refers solely to "formal attempts to enforce a right by resort to the governmental agency charged with enforcement of that right." Pampuch v. Bally's Vic Tanny Health and Racquetball Club, ERD Case No. 9350083 & 9253152 (LIRC Mar. 7, 1994); Alarcon v. Avenue Bar, ERD Case No. CR201000846 (LIRC Dec. 28, 2012). The complainant here believed that her employer was violating the law by not paying her for attending certain meetings she was required to attend. She testified that in March 2009, at one of these meetings, she mentioned this belief to her boss, Holly Tuttle, the administrative director of the respondent, and that Holly Tuttle told her that if she brought in documentation that supported her right to be paid she (Tuttle) would be glad to pay her. The complainant then testified that she made contact with the state Equal Rights Division (ERD), which was the state governmental agency charged with enforcement of wage claims. She did not indicate, however, that her purpose in contacting the ERD was to initiate any formal attempt to enforce her right to receive wages, and did not describe any interaction she had with anyone at the ERD. She simply explained that the ERD was the source of a document she obtained and then passed on to Holly Tuttle. (1)  The document was a fact sheet from the U.S. Department of Labor which contained a paragraph on being paid for meetings. (2)   Obtaining this document was the complainant's only interaction with the ERD that is noted in the evidentiary record.

This interaction falls short of an attempt to enforce a right. It lacks elements that show an interest in enlisting the ERD's assistance - there is no evidence that the complainant asked ERD to investigate, or asked for assistance or advice in filing a complaint, or asked generally about how to file a complaint, or gave the agency her name or the name of the employer. These elements, or something similar, distinguish the protected act of attempting to enforce a right through a formal process from the unprotected act of engaging in self-help oppositional activity to obtain a right.  (3)   Pampuch, supra; Werth v. TMS Carriers, ERD Case No. 9252002 (LIRC Feb. 9, 1995).

Given that Holly Tuttle told the complainant that she would be glad to pay her for attending the meetings if the complainant showed her documentation requiring her to do so, there is every reason to believe that the complainant's purpose in going to the ERD was simply to obtain that documentation so that Holly Tuttle would "gladly" pay her, and there would be no need for formal action. It is clear that at the time of the complainant's single contact with the ERD during her employment she was engaging in a self-help campaign to get her pay, and not attempting to enforce her right as that term is interpreted by the commission.

 

Respondent's belief that the complainant either: a) filed a wage complaint or otherwise attempted to enforce a right to wages; or b) may do so

If the complainant did not actually attempt to enforce her right to receive wages, the next question is whether, by the time of the complainant's separation, the respondent believed that the complainant either: 1) had filed a complaint or attempted to enforce a right; or 2) may file a complaint or attempt to enforce a right. If either one of those were true, the next question would be whether the respondent was motivated by that belief to take adverse action against the complainant, in this case, by discharging her.

There is nothing in the record of this case to suggest that at the time of the separation the respondent believed the complainant had already filed a complaint or had already taken formal steps to enforce a right. The real issue in this case is whether the record supports the conclusion that the respondent believed the complainant may file a claim or attempt to enforce her right. The respondent did not admit to having such a belief.

In deciding this issue, "the commission will consider . . . the entire context of the interactions between the employee and employer." Brockmann v. Abacus Bertz Insurance, ERD Case No. CR200801789 (LIRC May 31, 2012). The undisputed evidence is that the complainant dropped off the Department of Labor fact sheet for Holly Tuttle on or about April 6, 2009, and that on April 7, 2009 Holly Tuttle responded with a letter delivered to the complainant's mailbox at work. In the letter, Holly Tuttle indicated that she was declining to pay the wages that the complainant was seeking, on the grounds that the complainant was not working while at the meeting. (4)   The complainant testified without dispute that she then met with Holly Tuttle on April 7th and tried to convince her that she was wrong, and that she had to pay her for attending mandatory meetings. Eventually, Holly Tuttle told the complainant that she would not have to come to the meetings but she would be accountable for whatever was talked about. The complainant testified that she responded that that was fine. It is not clear from the record whether, by the end of the meeting, the complainant was still insisting that she be paid for attending past meetings.

Up through April 7, 2009, the evidence is not convincing that the respondent had formed a belief that the complainant may file a wage complaint or take some other formal step with ERD to enforce her rights. There is no evidence that the complainant made any threat to do so during her conversation with Holly Tuttle, or even that she expressed dissatisfaction with Holly Tuttle's apparent compromise proposal-that the complainant would no longer be required to attend the meetings, but be responsible for their content. There is a major dispute between the parties, however, about what happened the next day, April 8, 2009, which turned out to be the complainant's last day of employment.

The complainant's version of what happened on April 8, 2009

According to the complainant, shortly after lunch Gerald Tuttle, an owner of the respondent (and Holly Tuttle's father), approached the complainant in an open area of the facility, handed her a letter and asked her to review it and sign it. The letter said that she was going to attend mandatory meetings and not be paid for them. She told Gerald Tuttle that she had a document from the Department of Labor that said the respondent had to pay her for attending mandatory meetings, and went into a nearby room, retrieved the document and gave it to him, saying that those were her rights as a citizen. He did not review the document, but set it on a table and asked her if she was going to sign the letter. She replied that she would not sign it because it violated her rights. He asked again, and she refused again. Then he told her she was fired. She took the letter from Gerald Tuttle, went into a classroom and told a teacher there named Renee Hoff what had just happened. She gathered her things and clocked out, and left, but she forgot to take the letter with her. She left it on top of some employee mailboxes. Neither the letter nor a copy of it was offered in evidence.

The complainant's version was corroborated by a witness, the co-employee Renee Hoff, who was fired about two weeks after April 8th. Hoff was in a classroom at the time of the confrontation between the complainant and Gerald Tuttle. She testified that she heard Gerald Tuttle yelling at the complainant, and that she heard him say to the complainant that she was fired. She also testified that immediately after her confrontation with Gerald Tuttle the complainant entered the classroom where Hoff was, and was crying hysterically. She testified that the complainant told her that she was fired for not agreeing to sign a letter stating that she would come to meetings without being paid, and that the complainant had the letter with her and showed it to her.

The respondent's version of what happened on April 8, 2009

Gerald Tuttle testified that although he had had very little contact with the complainant other than to say hello, on April 8th he handed a letter to her and asked her to acknowledge receiving it. He identified Ex. B, offered by the respondent, as a copy of the letter he handed to the complainant. Exhibit B, which is quoted in the ALJ's decision (FOF No. 10), has nothing to do with pay for attending meetings. It is a "reminder" to all staff concerning their requirement to complete certain training kits, plus a description of particular continuing education obligations. There is no signature line on the letter for acknowledging receipt. According to Gerald Tuttle, the complainant did not read the letter; her immediate response was: "I'm not signing anything. My mother told me I don't have to sign anything. I don't have to do anything. I'm not going to do anything that you tell me." Then she started crying. He denied that there was an argument or that he spoke in a loud voice. He testified that the complainant threw the letter on the floor and punched out. He denied that there was any other letter that he asked the complainant to sign.

Two other witnesses for the respondent testified about what happened on April 8th. Corinne Arndt, a pre-kindergarten teacher and educational director, testified that copies of Ex. B were distributed on April 8th. She testified that after lunch she heard a loud conversation between Gerald Tuttle and the complainant. She testified that she heard Tuttle mention something about state requirements, and knew they were talking about Ex. B because she had read her copy shortly before the incident. She said the complainant read Ex. B, flung it at Gerald Tuttle and walked around a table into her room. Then she saw the complainant come out of her room looking upset, with her boots and purse. She clocked out, threw her time card at Holly Tuttle and left. She said she did not hear Gerald Tuttle tell the complainant that she was fired. On cross examination, she conceded that she did not know for certain that Ex. B was the document that the complainant threw.

Holly Tuttle testified that she drafted Ex. B, and that it was meant to remind all staff of their training requirements, including completing certain training kits. She testified that the complainant had told her that she was not going to do any of the kits, so she had a feeling the complainant would not receive Ex. B well. She called her father and asked him to come in and give the complainant her copy of Ex. B so that she would know that compliance with it was required. According to Holly Tuttle, when the complainant was walking toward the time clock to check out, Gerald Tuttle handed her a copy of Ex. B. She glanced at it, but did not read it, and threw it at him, saying "I'm not signing anything." There were some other loud words exchanged, but Holly Tuttle did not indicate what they were, except to say that she did not hear the word "fired." She then clocked out and flipped her time card at her (Holly), went into a classroom, came out a few minutes later and left. Holly Tuttle testified that at some point she picked up the letter that the complainant had thrown and threw it in the garbage. Exhibit B, she testified, is a copy of that letter. Holly Tuttle denied telling the complainant that she was fired. The complainant never came back to work.

The ALJ accepted the respondent's version, finding that the letter Gerald Tuttle gave her was the reminder letter about training, and that the complainant did not read the letter, threw it to the ground, and walked out. He did not find that the complainant was discharged. The commission asked the ALJ if he had any demeanor impressions that contributed to his credibility determinations and he reported that he had none. The commission concludes that there is substantial evidence in the record supporting the ALJ's findings, and there are reasons to reject the complainant's version. The complainant offered no explanation why the respondent would make a complete about-face, from agreeing on April 7th to allow the complainant not to attend the meetings, to insisting on April 8th that the complainant attend and not be paid. The complainant also failed to present the alleged letter in evidence to corroborate her testimony. The commission defers to the ALJ's determinations regarding the credibility of witnesses. Accepting the ALJ's findings results in the complainant's case failing to show: 1) that the respondent's actions on April 8th were based on a belief that the complainant may file a wage complaint or otherwise attempt formal enforcement of her right to wages; and 2) that the respondent carried out an adverse employment action on April 8th-there is no finding that the complainant was discharged,5(5) and the cause of her walking off the job was not related to payment of wages.

 

Consideration of the case assuming the complainant's evidence to be true

The commission also concludes that even if the complainant's version of what happened on April 8th were true, the complainant has not established that the respondent took adverse action against her in the belief that she may file a wage claim or otherwise attempt to enforce her right to wages by formal means.

Although the complainant's version of the events of April 8th provides a simple explanation of the respondent's motive for discharge-the respondent fired the complainant for refusing to agree to attend mandatory meetings for no pay-that is not the motivation that establishes a violation of the Act. The motivation prohibited by the Act is to discharge an employee because of the belief that the employee may resort to some formal court or agency process to force the respondent to pay the wages in dispute. Under the complainant's version of the events of April 8th, while it is certainly possible that the respondent believed that by getting the complainant to sign an agreement not to be paid for attending the meetings it would insulate itself from a possible wage complaint, the evidence is not persuasive enough to support that conclusion as opposed to the conclusion that the respondent simply wanted to force its will on the complainant.

The situation under the complainant's version of the facts is close to that of Brockmann v. Abacus Bertz Insurance, ERD Case No. CR200801789 (LIRC May 31, 2012). The situation described in Brockmann was as follows:

In this case, the complainant and respondent had an ongoing dispute about the complainant's wages, which the respondent acknowledged were not always paid on time. There was also a dispute as to whether the complainant should be treated as a salaried or hourly employee, the complainant contending that she was a salaried employee and that her wages were improperly reduced to reflect that she had begun to leave early on Fridays and report late on Mondays. In a letter to the respondent regarding the wage dispute, the complainant stated that she believed it was violating state labor laws. While that statement alone may not have conveyed that the complainant intended to file a wage claim, given that the letter was written in the context of an ongoing wage dispute, and considering that the respondent knew it was paying the complainant late and that the complainant believed she was not being paid in full, it is reasonable to conclude that the respondent believed the complainant might be planning on filing a wage claim.

The elements in Brockmann that came together to support the inference that the employer believed the employee might be planning to file a wage claim were: 1) the employee's letter to the employer about the wage dispute, asserting that the employer was violating wage laws; 2) the ongoing nature of the dispute; and 3) the employer's knowledge that it might be vulnerable to being found in violation of the law because it had not been paying the complainant on time. It is the third element that is missing here. There is no indication, at least as of April 8th, that the respondent thought it might be wrong in deciding not to pay the complainant for attending mandatory meetings. Even accepting the complainant's version of the events of April 8th for the sake of argument, then, the respondent's lack of knowledge of its own liability distinguishes this case from Brockmann, and prevents the inference that the respondent believed the complainant may go through the effort of filing a wage complaint against it.

 

cc: Attorney Shannon McDonald


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Footnotes:

(1)( Back ) It is clear from the record that the complainant later initiated a formal complaint for wages with the ERD, but this did not occur until after her separation from employment.

(2)( Back ) The paragraph stated:

Lectures, Meetings and Training Programs: Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if four criteria are met, namely: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.

(3)( Back ) Oppositional activity is only protected under Wis. Stat. § 111.322(3), referring to retaliation for opposing a discriminatory practice.

(4)( Back ) This was clearly a misinterpretation of the DOL fact sheet. First, Tuttle was apparently thinking that the fact sheet exempted the employer from having to pay if any one of four criteria applied; actually, it exempted the employer only if all four of the criteria applied. Second, the idea that the complainant was not working for the employer when attending a required meeting was simply unreasonable.

(5)( Back ) In the complainant's brief to the commission, the primary attack on the respondent's credibility involved its alleged inconsistency on this issue. The complainant pointed to Ex. 3, a statement from Holly Tuttle dated April 15, 2009, apparently written in response to the complainant's unemployment insurance claim, which characterizes the complainant's separation as a discharge, not a quit. The complainant's attorney, however, never moved Ex. 3 into evidence. Instead Holly Tuttle was simply cross-examined about this, and she stated that she did not recall telling the unemployment division that the complainant was fired.

 


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