JESSEE P MATTOCKS, Complainant
VILLAGE OF BALSAM LAKE, 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, Village of Balsam Lake, is a governmental body in Wisconsin that employs a workforce.
2. The complainant, Jesse Mattocks, was a volunteer firefighter for the Village beginning in 1998. For a period of about five years, Mattocks was also a fire inspector for the Village. The Village eliminated Mattocks's fire inspection duties around July 26, 2010, and terminated his employment as a volunteer firefighter on January 14, 2011.
3. The Village compensated Mattocks for his services, both as a volunteer firefighter and as a fire inspector. Mattocks's supervisor was Tim Moore, the Village fire chief.
4. During his employment with the Village, Mattocks filed the following complaints related to his work at the Village:
1) A complaint filed with the federal Department of Labor, Occupational Safety and Health Administration (OSHA) at some point prior to July 26, 2010, following up on a citation Mattocks, in his capacity as fire inspector, had issued to a local business;
2) A complaint filed with the state Department of Commerce on November 9, 2010, alleging fire safety and public safety hazards at the Village's fire department building;
3) A complaint filed with the Wisconsin Equal Rights Division (ERD), a copy of which was mailed to the Village on November 9, 2010, alleging discrimination on the basis of creed in the respondent's removal of the complainant from his duties as fire inspector in late July 2010;
4) A complaint filed with the ERD, a copy of which was mailed to the Village on December 29, 2010, alleging that the respondent had violated the state wage payment law by failing to pay wages and mileage reimbursement totaling $45.86.
5. Mattocks's OSHA complaint had its origin in a citation that Mattocks had issued as a fire inspector to a company called Nick's Trucking and Excavating. Mattocks had found the company in violation of certain safety and health standards, and he believed the company had failed to address the violations, so he filed the OSHA complaint. Some of the other firefighters resented the fact that he had filed the OSHA complaint, and gave him a hard time about it. After he filed the OSHA complaint his fire inspection position was taken away, around July 26, 2010. (1) Because the elimination of Mattocks's fire inspection duties preceded the filing of his ERD complaints, it could not have been in retaliation for the ERD complaints.
6. In mid-December 2010, before Mattocks had filed his wage complaint with the ERD, Moore consulted the Village president and reported concerns he had with Mattocks, going back to the issues that caused him to take away Mattocks's fire inspection duties (see note 1), and including a report that Mattocks had poor relationships with co-workers and was disruptive at meetings. The Village president advised him to bring his concerns to the board's labor committee.
7. By the time of Moore's consultation with the Village president, Moore had become aware that Mattocks had filed both his ERD complaint alleging discrimination on the basis of creed in his removal from his duties as fire inspector, and his complaint with the Department of Commerce alleging fire and safety hazards at the Village fire department. Although Moore was irritated with Mattocks for filing the ERD complaint because he considered it meritless, the ERD complaint was not one of the concerns about Mattocks that he reported to the Village president.
8. Moore's consultation with the Village president preceded Mattocks's filing of his ERD wage complaint.
9. The decision to terminate Mattocks's employment was made at a closed session of the Village board's labor committee on January 11, 2011. The three board trustees who voted to discharge the complainant were Gene D'Agostino, Mike Voltz and Dave Knutson. Moore attended the closed session. Moore reported that several firefighters were threatening to leave unless something was done. The problems raised by Moore had to do with: 1) citations Mattocks had issued as a fire inspector; 2) Mattocks's poor attendance at mandatory events and emergencies; and 3) his problems getting along with his co-workers. The members of the board's labor committee relied on Moore's information in deciding to terminate Mattocks's employment. Moore did not mention either of Mattocks's two ERD complaints to the committee, and the committee did not discuss either of them in the meeting.
10. The Village board approved the committee's decision, and Mattocks's employment was terminated on January 14, 2011.
11. Mattocks acknowledged in testimony that he did not get along well with some firefighters. He believed that his filing of the OSHA complaint was the source of bad feelings between himself and some co-workers, and that it remained a significant cause of his personality clashes after he had filed his ERD discrimination complaint.
12. Mattocks acknowledged that he failed to attend fundraising meetings, and that that fact also caused some tension between himself and other firefighters.
13. Neither Mattocks's ERD discrimination complaint nor his ERD wage complaint was a factor that motivated Moore to report his concerns about Mattocks to the Village president or to the labor committee of the Village board, and neither complaint was a factor that motivated the committee to decide to discharge Mattocks, or that motivated the board to approve the decision.
14. Mattocks did not suffer from an impairment that made achievement unusually difficult or limited his capacity to work, did not have a record of such an impairment, and was not perceived by anyone in management at the Village as having such an impairment.
15. The Village did not terminate Mattocks's employment because of any health condition he had.
16. The Village did not terminate Mattocks's employment because he had made a complaint under the WFEA, or because he filed a complaint, or the Village believed he had filed or would file a complaint, under the Wisconsin Wage Payment Act, Wis. Stat. § 109.09.
Based on the above Findings of Fact the Commission makes the following:
2. The respondent did not discharge or otherwise discriminate against the complainant because of disability, within the meaning of the WFEA.
3. The respondent did not violate the WFEA by discharging or otherwise discriminating against the complainant because he had filed a complaint under the WFEA.
4. The respondent did not violate the WFEA by discharging or otherwise discriminating against the complainant because he had filed, or because the respondent believed he had filed or would file, a complaint under the Wisconsin Wage Payment Collection Act, Wis. Stat. § 109.09.
Based on the above Findings of Fact and Conclusions of Law, the commission makes the following:
Dated and mailed
September 4, 2014
mattoje_rrr . doc : 107 : 794 134.3
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The respondent, which had not filed its own petition contesting the ALJ's conclusion that it was liable for retaliation, nevertheless submitted a brief not only replying to the complainant's argument about remedy, but also arguing that the ALJ erred by finding that the two ERD complaints formed any part of the respondent's motivation for terminating the complainant, and asking that the conclusion of liability (and the cease and desist remedy) be reversed.
The first question to be addressed by the commission is whether to consider the respondent's argument on the issue of liability, since the respondent did not raise it through a timely filed petition for review.
The commission has the authority to consider the issue raised by the respondent, even though it was not raised in a timely petition for review. In Krenz v. Lauer's Food Market, ERD Case No. 8802475 (LIRC Sep. 27, 1990), the commission explained its rationale for having the authority to consider all matters, not simply those which form the basis for the petition:
...the Statutes contain no requirement that a petition for review specify the particular parts of a decision that are objected to, and they provide that if "a timely petition" is filed, the Commission may either affirm, reverse or modify the findings or order "in whole or in part. Sec. 111.39(5)(b), Stats. Since the Commission's review jurisdiction is not limited to specific issues mentioned in a petition, it follows that when any party has filed a petition for review, whether or not it is directed only to specific parts of the findings and order, the Commission's jurisdiction extends to all issues presented in the case.
In Krenz, the commission proceeded to address procedural flaws that it discovered in the way the ALJ conducted the hearing, regardless of whether they were raised in a petition.
The commission has also held, however, that it generally is inclined not to exercise its plenary review authority in order to consider issues that were not the subject of a petition for review. Dude v. Thompson, ERD Case No. 8951523 (LIRC Nov. 16, 1990). In Dude, a case brought under the state Open Housing Law, the ALJ found that liability for discrimination existed, but denied that the complainant proved that he was entitled to any financial remedy. The complainant alone petitioned for review. The commission considered only the question of financial remedy, and did not take up any argument by the respondent contesting liability.
In Neuman v. Hawk of Wisconsin, Inc., ERD Case No. 9130945 (LIRC Mar. 12, 1993), the ALJ made specific rulings awarding back pay and attorney's fees to the complainant. The respondent petitioned for review only with respect to the attorney's fees issue. The complainant did not file a petition for review, but subsequently asked the commission to review the ALJ's back pay award. The commission declined to do so, citing Dude, and noting that the back pay award was neither expressly nor implicitly raised by the respondent's petition for review.
In Crosby v. Intertractor America Corporation, ERD Case No. 8851622 (LIRC May 21, 1993), the ALJ found the respondent liable for discrimination in conditions of employment and termination of employment, but it reduced the attorney's fees requested by the complainant's attorney. The respondent petitioned for review of the liability issues. The complainant did not petition for review. The attorney for the complainant, however, argued on her own behalf for a review of the attorney's fees issue. The commission declined to review the issue of attorney's fees, citing Dude. It appeared, however, that a major factor in the commission's decision not to review the issue of attorney's fees was the peculiar fact in that case that the complainant's attorney was acting on her own, and not as a representative of the complainant.
In Nunn v. Dollar General, ERD Case No. CR200402731 (Mar. 14, 2008), both parties challenged only the ALJ's remedial orders, not liability, so the commission's decision to restrict itself to remedy was relatively easy.
On a number of occasions, however, the commission has chosen to follow Krenz instead of Dude. See Forman v. Cardinal Stritch College, ERD Case No. 8650973 (LIRC June 8, 1992); Kanter v. Ariens Company, ERD Case No. 200205229 (LIRC Sep. 23, 2005). The case that speaks most directly to the situation in the case under review is Valentin v. Clear Lake Ambulance Service, ERD Case No. 8902551 (LIRC Feb. 26, 1992). The ALJ in Valentin found that the complainant failed to prove discrimination because of race with respect to denial of pay increases or termination from employment, but found that the respondent discriminated in terms or conditions of employment, by subjecting the complainant to racial harassment. The complainant petitioned for review of the ALJ's conclusion that there was no discrimination in compensation or in termination of employment. The commission reviewed these issues and affirmed the ALJ's decision. The commission also reviewed the ALJ's finding of racial harassment and reversed it, even though that issue was not raised in any petition for review. The commission reasoned as follows:
The Commission is fully cognizant that its decision on the harassment issue in this case creates the unusual result, that the Complainant is worse off for having filed his petition for review than he would have been had he allowed the ALJ's order to become final. In the usual case, this would not occur, because while the Commission has held that a petition for review from any party on any issue has the legal effect of giving it the authority to review the entire matter, Krenz v. Lauer's Food Markets, (LIRC, 9/27/90), it has also held that it will generally not be inclined to exercise that plenary review authority as to particular issues which have not been the subject of a petition for review, Dude v. Thompson, (LIRC, 11/16/90). But for the somewhat unusual circumstances of this case, the commission would therefore not have been inclined to review the harassment issue present in this case, since the Respondent had not sought review of the ALJ's ruling on that issue and the Complainant's petition sought review only on other issues. However, the unusual circumstances of this case were that the Commission found it necessary to review the race harassment issue because of its connection to the issue of discrimination in pay and termination. The ALJ's finding, that the Board did not discriminate against Valentin because of race in denial of pay increases or termination, was in striking contrast to the ALJ's finding that "various members" of the same Board had subjected Valentin to racial harassment "throughout" the time of his employment. In reviewing the case to determine whether the ALJ's finding on the issue of discrimination in pay and termination was in error, as Valentin had requested it to do, the Commission was thus inevitably led to inquire into the validity of the ALJ's finding on the race harassment issue, and in the course of this review it determined that the finding on that issue was not supported. It could not leave that finding of the ALJ intact while affirming the rest of the findings, and it was therefore compelled to exercise its plenary review authority to make the necessary correction in the ALJ's findings.
The case under consideration here is like Valentin. In order to evaluate whether the ALJ properly applied the mixed-motive analysis, the commission must consider how much the two ERD complaints motivated the termination decision. The answer to that question might be "not at all", or at least "not enough to be motivating factors in the discharge", in which case there not only would be no financial remedy, there would also be no liability on the part of the respondent. In other words, like Valentin, the commission is inevitably drawn into the liability question raised by the respondent in argument. In addition, it is worth noting that the complainant's attorney made no objection to the respondent's expansion of the issues before the commission, so, like Nunn, there is no disagreement between the parties as to whether to consider the issue. Also, it is understandable that the respondent in this case may have chosen not to petition for review, since its only loss at the hearing level was to suffer a cease and desist order with no financial remedy attached to it. The commission, therefore, will consider the entire question of the degree to which the complainant's ERD complaints were motivating factors in the discharge, including whether they were factors significant enough to establish liability at all.
The discharge decision was made at a closed session of the Village board's labor committee. One of the committee members, Mike Voltz, testified at the hearing. He stated that the fire chief, Tim Moore, attended the closed session and reported that several firefighters were threatening to leave unless something was done. Voltz's recollection was that the problems raised by Moore had to do with: 1) citations the complainant had issued as a fire inspector; 2) the complainant's poor attendance at mandatory events and emergencies; and 3) his problems getting along with his co-workers. Voltz acknowledged that he became aware of the complainant's various complaints as he filed them, but denied that those complaints were discussed in the closed session, or that they formed any part of the committee's decision.
The complainant offered no evidence to rebut the testimony of Voltz, or to otherwise show that the actual decision-makers, the voting members of the Village board, were motivated by reasons other than the three reasons noted above, mentioned by Voltz. The complainant's case for liability then, aside from a proximity of timing between the ERD complaints and the discharge (which will be discussed below), depends on showing that the person who was the board's source of information, fire chief Moore, acting with a discriminatory bias, decisively influenced the board to discharge the complainant. See Shager v. Upjohn Co., 913 N.2d 398 (7th Cir. 1990); Haecker v. Charter Steel, ERD Case No. CR200002629 (LIRC Jan. 28, 2003). (3)
As to whether Moore harbored discriminatory animus, Moore offered testimony that, regarding the complainant's ERD complaint alleging discrimination on the basis of creed, he was a little irritated because it seemed "out there," but he denied that the complaint caused him to decide to get rid of the complainant. According to Moore, his motivation for recommending the discharge of the complainant was the complainant's poor attendance at meetings and fires, and the fact that he did not get along with other firefighters very well and was disruptive at meetings. He suggested that the problems getting along with co-workers had become urgent because three firefighters were threatening to resign if something were not done about the complainant.
The complainant did not rebut Moore's testimony that, despite his irritation, he was not motivated by the ERD discrimination complaint to recommend that the complainant be discharged. There is no other evidence suggesting that Moore harbored discriminatory animus. The complainant's assertion of retaliation depends entirely on proximity in timing.
Based on the exhibits, the respondent would have become aware of the ERD discrimination complaint shortly after November 9, 2010, approximately two months prior to the discharge, and would have become aware of the ERD wage complaint shortly after December 29, 2010, approximately two weeks before the discharge decision.
Closeness in time between the protected action and alleged retaliation does not in itself establish retaliation. Kannenberg v. LIRC, 213 Wis.2d 373, 396, 571 N.W.2d 165 (Ct. App. 1997). It can create a presumption of retaliation that may be rebutted by the respondent's articulation of a legitimate, non-retaliatory reason for its actions. The complainant would then have the burden to establish that the proffered reason for the action was pretextual in order to prevail. Wulf v. New Richmond Police Department, ERD Case No. CR200803766 (LIRC July 22, 2013); Potts v. Magna Publications, ERD Case No. 199701821 (LIRC Feb. 27, 2001). A period of two months between opposition and alleged retaliation easily meets the test of being proximate in time. See Frierson v. Ashea Industrial Systems, ERD Case No. 8752356 (LIRC Apr. 6, 1990) (period of several months considered proximate); Horton v. Hopkins Chemical Company, ERD Case No. 8822828 (LIRC June 8, 1992), aff'd, Dane Co Cir. Ct. April 28, 1993) (period of less than three months considered proximate).
The timing here, then, was proximate enough to raise the rebuttable presumption of retaliation. As noted above, however, the respondent articulated several non-discriminatory reasons for discharging the complainant. The burden of persuasion, then, falls on the complainant to show those asserted reasons to be pretextual. This requires proof that they: 1) had no basis in fact; 2) were insufficient to motivate the adverse employment action; or 3) did not actually motivate the adverse employment action. Sult v. Jerry's Enterprises, ERD Case No. CR200402634 (LIRC Feb. 8, 2008).
The complainant failed to show that the respondent's articulated reasons for discharging him were pretextual. The complainant acknowledged that there was a factual basis to the respondent's assertion that the complainant had a poor relationship with some co-workers. The complainant traced the problem to the OSHA complaint, not the ERD complaints. The commission, on review of the testimony, finds that the complainant stated that even after the filing of his ERD discrimination complaint in October 2010, he was being harassed by co-workers for making the OSHA complaint, and added that the OSHA complaint was the one that "caused the whole problem." The complainant also acknowledged that there were some meetings he did not attend, and that that fact also caused some tension between himself and other firefighters. The evidentiary record, then, supports the conclusion that the respondent's proffered non-discriminatory reasons for discharge had a basis in fact. There is nothing in evidence to suggest that the reasons articulated by the respondent were insufficient to motivate the complainant's discharge. The complainant, then, has failed to carry his burden to show the reasons to be pretextual, and liability has not been proven.
NOTE: The reversal of the ALJ's decision was not based on a difference of opinion regarding the credibility of witnesses, but on a different assessment of the effect of proximity of timing in proving retaliation. Nevertheless, the commission sought the demeanor impressions of the ALJ, and he reported not having any.
cc:
Attorney Jonathan B. Lundeen
Attorney David C. Schoenberger
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