JAMIE L WITTMER, Complainant

LEITCH INSURANCE AGENCY 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 makes the following:

1. The respondent, Leitch Insurance Agency, Inc. (hereinafter "respondent") is an employer doing business in the State of Wisconsin.

2. The complainant, Jaime Wittmer (hereinafter "complainant"), began working for the respondent in January of 2005 as a Customer Service Representative (CSR). The complainant is female.

3. As a CSR, the complainant's main job duties were to service existing insurance policies, to write new insurance policies for people coming in the door of the respondent's agency or making inquiries on the agency website, to provide customer service and to answer phones. The complainant worked a 40-hour week, generally from 9:00 a.m. until 5:00 p.m. Monday through Friday, and performed all of her job duties out of  the respondent's office.

4. The complainant received a base salary of $29,925 per year. In addition, beginning in January of 2006, the complainant was paid 50% of the first annual gross commission received by the respondent on new life insurance, long-term care, and disability income policies that she wrote. She also received a $15 fee for each new auto or home insurance application she wrote.

4. During the complainant's employment the respondent had two male employees, Mark Kornmann and David Black, whose job title was Producer. Like a CSR, a Producer's job included spending time in the office servicing existing accounts. However, a Producer's main job duty was to generate new business. Producers were expected to make cold calls, knock on doors, network, and engage in other activities designed to generate leads. They worked in the office during standard office hours, but also worked evenings and weekends. The Producers were also responsible for collecting delinquent accounts and could be held responsible for paying the premium on unpaid accounts.

5. Mr. Kornmann was paid a minimum salary of $26,088 a year, which was considered an advance against commissions. In addition, he was paid 75% of the first annual gross commission received on new life insurance and disability insurance policies, as well as on new accounts for property and casualty insurance that he sold. Mr. Kornmann also received 75% of the first policy for substandard auto policies and 40% of all renewed commercial policies. In addition, he received a car allowance for personal use of his vehicle.(1)

6. The respondent has previously employed at least one female Producer, Kathleen Raven.(2)

7. As a CSR, the complainant did not sell commercial insurance or collect delinquent accounts. She did not make cold calls or engage in any efforts to produce leads outside of the office.

8. The complainant's sex was not a factor in any decisions regarding her compensation made by the respondent.

9. The difference in the complainant's and Mr. Kornmann's commission structures related to the fact that the CSR and Producer jobs were different in nature.

Based on the above FINDINGS OF FACT the commission makes the following CONCLUSIONS OF LAW:

1. That the complainant failed to demonstrate the respondent discriminated against her in compensation paid for equal or substantially similar work on the basis of sex, within the meaning of Wis. Stat. § 111.36(1)(a).

Based on the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission issues the following:

That the complainant in this matter is hereby dismissed.

Dated and mailed May 21, 2015

wittmja_rrr . doc : 164 : 5   127.5

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

In her petition for commission review the complainant argues that job titles are not dispositive, and that she was doing the same job as Mark Kornmann. In support of this argument, the complainant details the items listed in the respective job descriptions for CSR and Producer, and maintains that the majority of the listed items are identical, with the only additional item included in the Producer description being "collects delinquent accounts on agency billed policies," a task that the Producers were rarely if ever called upon to perform. The complainant further argues that the "Principal Duties" chart generated by the respondent shows the CSRs spending more time than the Producers generating sales. She concludes that the two jobs had a common core of duties, the most significant of which was performing the CSR tasks, as identified in the job descriptions. Consequently, the complainant maintains that her commission structure should not be lower than Mr. Kornmann's.

The commission has considered these arguments, but does not find them persuasive. While the written job descriptions for the two positions do suggest that the jobs are similar, the testimony of the respondent's witnesses, Messrs. Kornmann, Black and Leitch, indicates that the written job descriptions do not accurately reflect the duties of the jobs. Mr. Kornmann testified that a CSR works only during office hours answering telephone calls, doing paperwork, making changes to policies, and sometimes quoting rates, whereas, while a Producer also performs those duties, the Producer's primary function is to generate new business. Mr. Kornmann disputed the accuracy of the percentages shown on the "Principal Duties" chart and stated that about 75% to 80% of his time was spent on sales. He explained that he works both inside and outside the office, including on evenings and weekends, getting leads, knocking on doors, making cold calls, and networking in order to generate sales. He further pointed out that the job description for Producer specifies, "It is assumed that this [solicitation of new business] will include productive time away from the office," while the job description for CSR does not include any provision for working outside of regular office hours or away from the office. Similarly, David Black, another Producer, testified that the complainant's job was to service accounts and sell business as it came in, while he solicited business as an outside sales agent, not limited to a 9:00 a.m. to 5:00 p.m. work day. Finally, Mr. Leitch, the owner of the business, testified that the complainant's job was to sell policies based on walk-in business, which came from the respondent's reputation as an agency and was not based upon what the complainant herself "brought to the table," while the Producers were often out of the office or on the road generating sales through their connections in the community.

The administrative law judge found the testimony of the respondent's witnesses to be credible, and the commission sees no reason to disagree with this assessment. While at the hearing the complainant insisted she did the same work the Producers were doing, she agreed that she never had to go outside the office to sell insurance or engage in any outside efforts to produce sales. She further testified that she worked from 9:00 a.m. to 5:00 p.m. and was not supposed to work more than 40 hours a week. Although the complainant contended that Mr. Kornmann was in the office as much as she was and that she never knew him to be out selling anything,(3) it was not established that the complainant had any independent knowledge of the outside sales efforts made by Mr. Kornmann, and the commission sees no basis to doubt Mr. Kornmann's description of his own job duties and responsibilities. Moreover, the commission finds credible Mr. Kornmann's explanation that he recently began spending more time in the office servicing referrals that were the benefit of the groundwork he laid over the course of many years of effort spent generating new business.

In order to establish a claim of sex discrimination with respect to compensation, the complainant must prove either that the respondent paid different wages to employees of the opposite sex for substantially equal work, or that the respondent had discriminatory motives in setting her compensation. See, Buran v. Menomonee Falls School Dist., ERD Case No. 199600643 (LIRC March 17, 2000). In this case, the commission is not persuaded that the CSR and Producer jobs were substantially equal, notwithstanding the similarity of the written job descriptions. Because the commission agrees with the administrative law judge that the jobs entailed significant enough differences to explain the differing pay structures, the dismissal of the complaint is affirmed.

NOTE: The commission has rewritten the administrative law judge's decision to more clearly set forth the relevant facts.

cc: Attorney Carol Dittmar
     Attorney Timothy Yanacheck

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(1)( Back ) The record contains no evidence regarding Mr. Black's compensation structure. For purposes of this complaint, the complainant does not compare herself to Mr. Black.

(2)( Back ) The record contains no evidence regarding Ms. Raven's compensation structure.

(3)( Back ) The complainant acknowledged that Mr. Black was frequently out of the office on business. 

uploaded 2015/06/02