State of Wisconsin
Labor and Industry Review Commission
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Fair Employment Decision[1] |
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Complainant |
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Respondent |
Dated and Mailed: |
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ERD Case No. CR201501766 |
January 4, 2018 |
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webersu_rsd: 164 |
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The decision of the administrative law judge (copy attached) is affirmed, subject to modifications. Accordingly, the complaint of discrimination is dismissed.
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By the Commission: |
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Georgia E. Maxwell, Chairperson
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Laurie R. McCallum, Commissioner |
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/s/ |
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________________________________________ |
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David B. Falstad, Commissioner |
Procedural Posture
This case is before the commission to consider the complainant’s allegations that the respondent discriminated against her based upon her disability and age, and that it retaliated against her for having filed prior complaints under the Wisconsin Fair Employment Act, Family and Medical Leave Act, Wage and Hour Law, and because she opposed a practice of discrimination in the workplace and testified or assisted with a discrimination complaint filed with the Equal Rights Division. An administrative law judge for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision. A timely petition for commission review was filed by the complainant. The commission has considered the petition and the positions of the parties, and has reviewed the evidence submitted at the hearing.
Findings of Fact and Conclusions of Law
The commission makes the same findings of fact and conclusions of law as stated in the administrative law judge’s decision and incorporates those findings and conclusions by reference into the commission’s decision, subject to the following:
Modifications
1. The third and fourth sentences in paragraph 2 of the administrative law judge’s FINDINGS OF FACT are deleted and the following sentences are substituted therefor:
“From February 12, 2014, through April 2, 2014, the complainant was on paid administrative leave. Beginning on April 3, 2014, the complainant used her accumulated vacation, sabbatical and personal leave. On June 16, 2015, having exhausted her vacation, sabbatical and personal leave, the complainant retired from state service.”
2. Paragraph 22 of the administrative law judge’s FINDINGS OF FACT is deleted and the following paragraph is substituted therefor:
“Pursuant to the terms of the March 2014 Settlement Agreement, the Complainant received six weeks of paid administrative leave beginning on February 12, 2014. Thereafter the complainant remained in pay status using her accrued sabbatical, vacation and personal leave.”
3. In the second sentence of paragraph 26 of the administrative law judge’s FINDINGS OF FACT the term “administrative leave” is deleted and the term “paid leave” is substituted therefor.
The question presented in this case is whether the respondent’s decision not to permit the complainant to retroactively convert reported vacation leave to sick leave was related to her age, disability, or to the fact that she had engaged in protected conduct under the Fair Employment Act. The complainant maintains that the respondent allows other employees to convert their vacation leave to sick leave, but that she was not permitted to do so for discriminatory reasons. The commission has considered the complainant’s arguments, but does not find them persuasive. The evidence presented at the hearing established that the complainant and the respondent entered into a settlement agreement which provided that, effective April 2, 2014, the complainant could use her accumulated sabbatical, vacation, and personal leave until all leave time was expended, at which point she would retire. The respondent’s legal staff interpreted that agreement as preventing the complainant from using accumulated sick leave in order to extend her term of employment.[2] Rather, the respondent concluded that the agreement only permitted the use of the types of leave specified and that, once that leave was exhausted, the complainant’s employment would end. The individual who made the decision that the settlement agreement precluded allowing the complainant to use her sick leave--Sheri Pollock, the respondent’s legal counsel--testified that she did not draft the agreement, but that it would be unusual for a settlement agreement to allow someone to use sick leave as a means of extending their employment status. The commission believes that Ms. Pollock’s interpretation of the agreement was a reasonable one. Further, and more importantly, it was not shown whether or to what extent Ms. Pollock was involved with the complainant’s prior complaints or grievances, and the commission credits her testimony that she was not motivated to discriminate against the complainant based upon her age, disability, or in retaliation for prior protected conduct. While the complainant contends that another individual, Amanda Jorgenson, had referred to her as a “troublemaker” based upon past complaints and grievances, the evidence does not establish that Ms. Jorgenson had any involvement in the denial of the complainant’s request to use sick leave, and both Ms. Jorgenson and Ms. Pollock testified that she did not. Given all the circumstances, the commission sees no basis to conclude that the respondent’s decision to deny the complainant’s request to use sick leave was motivated by discriminatory animus on its part.
The complainant argues vociferously for a different interpretation of the agreement than that reached by the respondent. The complainant states that the settlement agreement did not specify that sick leave cannot be used, and points out that she was permitted to use paid holidays, although this was not mentioned in the agreement. The complainant also argues that the respondent did not have the authority under Wisconsin law to deny her the use of sick leave. The commission does not find these arguments compelling. As stated above, the commission believes that the respondent’s interpretation of the agreement as including only the types of leave specified was a reasonable one. Although the complainant did receive paid legal holidays that were not referenced in the agreement, the respondent explained that paid holidays are automatically filled in in the time keeping system when an employee is in pay status at the time of the holiday, and that it played no role in affirmatively permitting the complainant to receive paid legal holidays. Thus, the fact that the complainant received paid holidays does not contradict the respondent’s testimony that it interpreted the agreement as applying only to the types of leave specified. Finally, while the complainant maintains that state law precludes the denial of sick leave, making such a determination would go beyond the commission’s role in this matter, which is limited to deciding whether the respondent engaged in actions that violated the Fair Employment Act.[3] Even if the complainant could establish that the respondent acted outside of its authority in denying her the use of sick leave, its actions would not constitute a violation of the Fair Employment Act absent some reason to believe that it acted with discriminatory intent.[4]
In her petition for review the complainant also argues that the administrative law judge unfairly limited the evidence she could present at the hearing. The complainant maintains that the administrative law judge did not allow her to play pertinent segments of the tape of the grievance hearing or the tapes of her conversations with Gidget Williams. She further states that the administrative law judge did not allow her to present all of her witnesses or exhibits. The complainant requests a new hearing so that she can present additional evidence, most specifically the recording of a conversation with Ms. Williams, which she maintains is needed to rebut false evidence presented by that witness. However, the commission has reviewed the entire hearing record, and sees no reason to believe that the complainant was afforded anything less than a full and fair opportunity to present her evidence. This was a two-day hearing, during which the complainant presented more than 50 exhibits, along with the testimony of approximately 8 witnesses. The complainant has not explained in her petition what additional exhibits or witness testimony she was prevented from introducing at the hearing or why she considers such evidence significant, and the record does not indicate that there was any relevant testimony or documentary evidence that the complainant was prepared to submit at the hearing but which the administrative law judge refused to accept.
With regard to the tape recordings that the complainant sought to present, the record reveals that the complainant did not bring the recording of the grievance proceeding with her to the hearing and that, while she would have been able to play a recording of her conversation with Gidget Williams on her computer, she failed to bring a copy in a format that could be marked and included in the record. Although the complainant maintains that she was unaware Ms. Williams was going to offer false testimony at the hearing and was therefore unprepared to present her rebuttal evidence, this assertion is insufficient to justify a new hearing in this matter. Further, the complainant has not clearly explained what aspect of Ms. Williams’ testimony she believes was false, what the recording of the conversation would establish, or how it would be relevant to the outcome of her case. In her brief the complainant asserts that Ms. Williams originally told her that she could use any type of leave she wanted, even though she had been on sabbatical leave for some time--if that is the evidence the complainant wishes to submit, it would have no effect on the decision in this case. The fact that Ms. Williams may have given the complainant incorrect information, prior to receiving directions from the respondent’s legal counsel, is not proof of discrimination.
In her petition the complainant also argues that the administrative law judge’s decision contains a number of findings of fact that are erroneous, misleading or incomplete. For example, the complainant maintains that she was only on administrative leave until April 2, 2014, and that, thereafter, she was using her accumulated paid leave. The commission has modified the administrative law judge’s decision to more accurately set forth the nature of the leave the complainant used beginning in February of 2014 until the time she retired in June of 2015. However, the commission believes that the findings made by the administrative law judge are otherwise accurate and supported by the record and that they provide a sufficient basis to support a conclusion that no probable cause was established.
The commission has considered the remaining arguments raised by the complainant in her petition, but finds them similarly unpersuasive. The evidence adduced at the hearing established that the denial of the complainant’s request to retroactively convert her vacation leave to sick leave was based upon the respondent’s interpretation of the settlement agreement as prohibiting her from doing so, and that this decision was not related to the complainant’s protected status. Accordingly, the dismissal of the complaint is affirmed.
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[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.
Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.
[2] It should be noted that the complainant did not lose any of her accrued sick leave and, in fact, was able to restore to her sick leave balance 500 hours of sick leave that she had used during the last three years of her employment. Pursuant to Wis. Stat. §§ 40.05(4)(b) and 40.95, upon retirement the complainant was able to convert her accumulated sick leave to pay for health insurance premiums.
[3] In her memorandum opinion the administrative law judge stated that the Equal Rights Division has no authority to decide how the settlement agreement should be interpreted. However, while the Division and commission have no authority to adjudicate a contract dispute, they may decide whether the respondent’s interpretation of the agreement was a reasonable one for purposes of determining whether the respondent presented a legitimate, nondiscriminatory reason for its actions.
[4] A sincere, if mistaken, belief that it was interpreting the agreement correctly provides the respondent with a defense to a charge of discrimination. See, Williams v. Medical College of Wisconsin, ERD Case No. CR200800850 (LIRC Oct. 10, 2011).