ESTHER LEE PETERSON, Complainant
TCAT CORPORATION, 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, TCAT Corporation (hereinafter "respondent"), operates the Lone Stop Shell gas station and convenience store in Lone Rock, Wisconsin. John and Cheri Crook, who are husband and wife, are the owners of the respondent.
2. The complainant, Esther Lee Peterson (hereinafter "complainant") was hired by the respondent in late December of 2011 to work as a clerk, at an hourly rate of $8.00. The complainant worked full-time, usually from 2:00 p.m. until 10:00 p.m., but sometimes came in at 5:00 p.m. She averaged about 31 hours a week.
3. During the complainant's employment the respondent had an employee handbook which contained the following policy regarding drive-offs: (1)
Clerks, according to state law (103.455) (2) you can be liable for drive offs and will be held accountable. A written payroll deduction must be filled out and attached to the police report, which you must call the police immediately if there is a drive off.
4. Under the statute cited in the respondent's work rule, an employer is only permitted to make deductions from an employee's pay for faulty workmanship, loss, theft or damage, if the employee has provided written authorization for the employer to make such deduction. The complainant did not provide the respondent with written authorization to make deductions from her paycheck for drive-offs or for any other reason.
5. During the complainant's shift on January 9, 2012, a customer drove off without paying for gas totaling $30.01. The complainant immediately contacted the police and reported the drive-off. She also wrote a note that she attached to the cash register reporting the drive-off to the respondent.
6. When the complainant received her paycheck on Saturday, January 21, 2012, she saw that the respondent had deducted $87.37 for the pay period January 1 through January 14, 2012, with the notation "Drive." The $87.37 represented the $30.01 drive-off that occurred while the complainant was on duty on January 9, plus another $57.37 drive-off that took place while the complainant was not working but which the respondent mistakenly believed occurred on her shift.
7. Upon receiving the paycheck with the $87.37 deduction the complainant became very upset. She and Craig Theiring, a store manager, attempted to contact John and Cheri Crook at their home, on their cell phones, and at Ms. Crook's brother's home. The complainant and Mr. Theiring left messages for the Crooks to call the complainant back in order to discuss a concern involving her paycheck.
8. When the complainant's shift ended on Saturday night, at which point she had not yet received a call back from the respondent, the complainant left the following note:
Cheri
Exactly why did you take $87.37 out of my check. I had a $30 drive off. I will be talking to the D.A. on Monday about this since you will not answer my calls.
Esther
9. That night the complainant left town to attend a family function in Michigan with her boyfriend. During her trip she turned off her cell phone because she did not want to be subject to roaming charges.
10. Ms. Crook came into the workplace on Sunday and saw the complainant's note. She attempted to telephone the complainant and left her a message stating, essentially, "In regard to your note, please give me a call." However, because the complainant had turned off her cell phone, she did not receive the message.
11. The complainant returned from her trip to Michigan on Monday, but was not scheduled to work that day. She was scheduled to work each day from Tuesday, January 24, through Saturday, January 28, and five days during the following week.
12. On Monday the respondent removed the complainant from the schedule for the rest of the pay period and asked another worker, Tammy Wallin, to cover some of the complainant's hours. In a message to Ms. Wallin, Ms. Crook stated that the complainant had left a note saying something about going to the D.A.
13. On Monday night the complainant learned for the first time, through a Facebook message from Ms. Wallin, that Ms. Crook had attempted to contact her over the weekend. Ms. Wallin also told the complainant that she had been asked to cover her shifts on Wednesday and Thursday because the respondent had received a note from the complainant stating she was going to the D.A. Ms. Wallin speculated that maybe the respondent thought the complainant had quit. She also told the complainant that Ms. Crook told her she threw the schedule in the trash. By the end of the conversation the complainant believed it was possible that the respondent had terminated her employment.
14. The complainant attempted to call Ms. Crook at Lone Stop Shell, but she was not in. The complainant asked the employee who answered the telephone at Lone Stop Shell for Ms. Crook's cell phone number, but he would not provide it.
15. The complainant reported for work on Tuesday, January 24, 2012, which would have been her next scheduled work day. She had been scheduled to work at 5:00 pm., but came in between 1:30 and 2:00 p.m. to talk to Ms. Crook, who usually remained at the store until 2:00 p.m. When the complainant got to the store Mr. Theiring told her that Ms. Crook had already left for the day. The complainant could hear Ms. Crook's voice in the kitchen area and tried to speak with her, but Mr. Theiring told the complainant she could not enter the kitchen. Mr. Theiring also told the complainant that someone else was scheduled to work her shift that night.
16. The complainant returned to Lone Stop Shell later in the day and obtained a copy of the respondent's revised work schedule covering the week at issue, on which her name was no longer included.
17. The complainant returned to the workplace on Thursday, January 26, 2012, and talked to Ms. Crook. She asked Ms. Crook why she had been removed from the schedule and was told that it was because of the nasty note she left her. The complainant also asked Ms. Crook if she was going to pay her back the $87. Ms. Crook said no. The complainant then asked if she could return to work. Ms. Crook directed her to come in on Saturday and talk to Mr. Crook.
18. The following day, Friday, January 27, 2012, the complainant filed a Labor Standards Complaint with the Equal Rights Division alleging that the respondent made improper deductions from her wages. On the same day the complainant also filed her discrimination complaint that is the subject of this Decision, in which she alleged a retaliatory discharge.
19. The complainant returned to Lone Stop Shell on Saturday, January 28, 2012, and attempted to talk with Mr. Crook, but he stated, "I'm not talking to you," turned around and walked away. The complainant did not return to work for the respondent thereafter.
20. The respondent terminated the complainant's employment on Monday, January 23, 2012, at which time Ms. Crook threw away the existing work schedule and issued a new schedule that did not include the complainant. Ms. Crook did so in response to the complainant's note complaining about the deduction from her wages and threatening to contact the D.A.
21. Following her discharge by the respondent the complainant applied for unemployment insurance benefits. However, she did not have a sufficient number of work hours to qualify.
22. The complainant also searched for other employment. She received a job working weekends at D.J.'s Quick Stop, for $7.50 an hour, which lasted from late May of 2012 until early October of 2012. The complainant earned a total of $2,760.03 from that employment.
23. The complainant worked at Lands' End from September of 2012 through late April of 2013, at a pay rate of $11.00 an hour. She averaged 28 to 30 hours a week from mid-November until January of 2013, but beginning in February her hours were reduced to 20 a week. The complainant earned a total of $4,536.25 at Lands' End in 2012, and a total of $4,672.80 at Lands' End in 2013.
24. 41. On April 29, 2013, the complainant began working full time as a claims specialist for Home Security of America. Her starting hourly rate was $10.64, and she later received a raise to $11.17 an hour.
Based on the foregoing FINDINGS OF FACT, the commission hereby makes the following:
1. That the respondent violated the Wisconsin Fair Employment Act by terminating the complainant's employment because she filed a complaint under Wis. Stat. § 103.455 or attempted to enforce a right under that statute or because the respondent believed she may do so.
2. Based on the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW the commission issues the following:
1. That the respondent shall cease and desist from discriminating against the complainant in violation of the Wisconsin Fair Employment Act.
2. 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 had her employment not been terminated on January 23, 2012, continuing until April 29, 2013, at which point the complainant accepted full-time permanent employment with another employer at a higher pay rate than she would have earned from the respondent had she still been employed. The back pay for the period shall be computed on a calendar quarterly basis with an offset for the complainant's 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 Insurance Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory setoffs 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.
3. That in lieu of reinstatement the respondent shall pay the complainant compensation in the total amount of $6000 (based on an hourly rate of $8.00 multiplied by 750). This payment shall be in addition to the back pay award described in paragraph 2 above, and is ordered pursuant to the complainant's request, as provided for in Wis. Stat. § 111.39(4)(c).
4. That the respondent shall pay the complainant's reasonable attorney's fees and costs associated with this matter, in the total amount of $41,202.05. A check in that amount shall be made payable jointly to the complainant and her attorney, Marilyn Townsend, and delivered to Ms. Townsend.
5. That 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).
Dated and mailed
April 30, 2015
peteres_rrr . doc : 164 :
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The Wisconsin Fair Employment Act prohibits the termination of employment of an individual because he or she files a complaint under Wis. Stat. § 103.455 or attempts to enforce any right under that statute, or because the employer believes he or she may do so. See Wis. Stat. § 111.322(2m)(a) and (d). After hearing the evidence presented by both parties, the administrative law judge concluded that the respondent terminated the complainant's employment because it believed she may file a complaint or attempt to enforce a right under Wis. Stat. § 103.455, in violation of the Fair Employment Act. The commission agrees.
The respondent in this case made an illegal deduction from the complainant's paycheck to cover amounts lost when customers drove off without paying for their gasoline. The complainant wrote the respondent a note advising it that she objected to the deduction and that she was going to contact the D.A. The next day the complainant was permanently removed from the work schedule, and, thus, effectively discharged. The respondent provided a variety of explanations for its actions, including that it considered the complainant to have quit. However, the complainant did not say or do anything that could reasonably be construed as a voluntarily resignation, and the respondent removed her from the schedule within a day of reading the complainant's note, telling both the complainant and one of her co-workers that it was doing so because of the note. Even after the complainant made it clear that she wanted to continue the employment relationship, the respondent would not permit her to return to work. Under all the circumstances, it appears that the respondent decided to terminate the employment relationship based upon the complainant's actions in telling it that she was going to take legal action about the deduction from her wages.
In its petition for commission review the respondent makes essentially three arguments in support of reversal. First, it contends that the complainant was not a credible witness. Second, it contends that it cannot be liable for discrimination because it did not know its actions were illegal. Third, the respondent contends that the complainant was not fired, but voluntarily quit. The commission has considered each of these arguments, but concludes they lack merit.
The respondent's contentions regarding the complainant's credibility rest on minor inconsistencies in her testimony that are easily explained and/or that are simply too trivial to have any effect on the decision. For example, the respondent points out that during her deposition the complainant stated that, after leaving the note for the respondent, she went to Richland Center for a family event, returning on Sunday, while at the hearing she testified that she was in Michigan on the weekend in question and did not return until Monday. The complainant credibly explained that, after giving her deposition, her boyfriend reminded her that they had been in Michigan with his family on the weekend in question and that they went to Richland Center the following weekend to visit her family. Not only is the complainant's explanation for the variation in her testimony a credible one, but the question of where the complainant traveled to and exactly when she returned to town was not shown to be of any significance to the outcome of the case. The respondent also argues that the complainant originally testified at her deposition that she had no record of a conversation between herself and her co-worker, Tammy Wallin, which took place on Monday evening, because she had saved it to her computer, which later crashed. The respondent points out that the complainant then produced the record in question at the hearing, after having denied its existence. At the hearing the complainant explained that she believed she and Ms. Wallin had been texting, and that she had no record of the text to provide, but later discovered that the conversation had taken place during a Facebook "chat," which is automatically saved on Facebook. There is no reason to question the authenticity of the recorded Facebook chat, which Ms. Wallin (who appeared at the hearing on behalf of the respondent) agreed was accurate, and the complainant's mistaken belief that the conversation took place in text messages rather than on Facebook does not lead the commission to doubt that it occurred as described by the complainant and Ms. Wallin. These, along with the other minor inconsistencies raised by the respondent in its brief, do nothing to undermine the overall credibility of the complainant's testimony and do not appear to have any bearing on the relevant facts of this case.
By contrast, the commission notes that the respondent's testimony contains far more, and more meaningful, inconsistencies than that of the complainant. For example, Ms. Crook testified at the hearing that she never used the term "nasty note" and implied that those were words the complainant put in her mouth. However, in her pre-hearing deposition Ms. Crook made repeated reference to the complainant's having left her a nasty note, and initially confirmed this testimony at the hearing before denying having made such statement. Ms. Crook's reaction to the note is relevant to the question of whether she was motivated to discharge the complainant as a result of it, and her actions in changing her testimony at the hearing suggest a lack of credibility on this point. Ms. Crook also offered a variety of contradictory explanations for the employment separation. At the hearing Ms. Crook testified that she assumed the complainant had quit by virtue of her note. However, in her deposition Ms. Crook stated that she took the complainant off the schedule because she did not show up for work on Monday.3(3) Then, at a different point in her deposition, Ms. Crook denied having removed the complainant from the schedule at all. Finally, in the answer to the complaint filed by Ms. Crooks, she suggested that the separation was related to a downturn in business, while in a subsequent amended answer filed by her attorney, it was asserted that the respondent believed the complainant intended to quit and therefore removed her name from the work schedule, that it made a business decision to reduce staff due to a decrease in sales and therefore did not offer reinstatement, and that the complainant failed to follow rules about contacting the police. The many and varied explanations offered by Ms. Crook for the termination of the employment relationship with the complainant cast doubt both on her specific testimony about why the employment relationship ended as well as on the general credibility of her testimony.
The respondent also argues that it cannot be liable for discrimination because there is no evidence that it knew the drive-off deductions were illegal. The commission does not find this argument persuasive. While at the hearing Ms. Crook testified that she was unaware of the statute preventing her from withholding drive-offs from employees' wages without signed authorization, such testimony strains credulity. The respondent was clearly aware of the statute, which it cited in its own handbook, but to which it made only selective reference. It is hard to believe that the respondent would be aware of the existence of the statute allowing it to deduct amounts from employee paychecks, yet conveniently unaware that the law required it to get written authorization before doing so. Further, even if the respondent could credibly argue that it was unaware its conduct in deducting for a drive-off without a written authorization was illegal, and therefore did not presume the complainant intended to file a complaint about illegal wage deduction, the fact remains that the respondent understood the complainant was also complaining about the amount of the monies deducted. The complainant pointed out in her note that the deduction was for an amount in excess of the drive-off for which the complainant was purportedly responsible. The complainant's complaint that she had been overcharged for the drive-off was a separate matter that the respondent should have understood might also be the subject of a wage complaint. Based on all the evidence, the commission is satisfied that the respondent knew it had acted illegally, knew that the complainant believed it had deducted too much, and understood that the complainant had a basis for which to take legal action over her wages and that she was threatening to do so.
Finally, while in its brief to the commission the respondent continues to insist that the complainant quit, the record simply does not support such a finding. In addition to the fact that the respondent told the complainant and her co-worker that the complainant had been removed from the schedule based upon her note about calling the D.A., the evidence clearly shows that the respondent deleted the complainant from the schedule before the complainant missed a work shift, that the complainant nevertheless attempted to report for work as scheduled, but was prevented from doing so and was not permitted to speak with the respondent's owner, and that even after the complainant finally made it clear to the respondent that she wanted to keep her job the respondent was unwilling to put her back on the schedule. Given all the circumstances, the commission agrees with the administrative law judge that the complainant was discharged by the respondent and that her discharge was directly related to conduct that was protected under the Wisconsin Fair Employment Act.
Having concluded that discrimination occurred, the only remaining question is what the proper remedy should be. Neither party has challenged the remedial order issued by the administrative law judge and the commission can see no apparent basis to question the reasonableness of that order, either with respect to the back pay award or the award of attorney's fees. The commission notes that, although its briefing schedule contained express instructions that any request for additional attorney's fees for work performed in connection with the petition for review should be included in the complainant's brief, no request for additional fees was made. The commission therefore concludes that the complainant has waived the right to request additional attorney's fees and will order no additional fees. See, Schmocker v. County of LaCrosse, ERD Case No. CR200002019 (LIRC March 31, 2004); Haas v. Sark, ERD Case No. CR199700130 (LIRC Dec. 29, 1999).
NOTE: The commission has rewritten the administrative law judge's decision to correct minor errors and to more clearly and concisely set forth the factual findings on which the commission's conclusions are based.
cc:
Attorney Marilyn Townsend
Attorney Thomas Kelly
Appealed to Circuit Court.
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