State of Wisconsin
Labor and Industry Review Commission
|
|
|
|
Fair Employment Decision[1] |
|
|
Complainant |
|
|
|
|
|
|
|
|
Respondent |
Dated and Mailed: |
|
|
|
|
ERD Case No. CR201202492 |
June 4, 2018 |
|
|
|
|
|
|
The decision of the administrative law judge (copy attached) is affirmed, subject to modification. Accordingly, the complainant’s complaint is dismissed.
|
By the Commission: |
|
|
|
|
|
|
Georgia E. Maxwell, Chairperson |
|
|
|
|
|
|
|
|
/s/ |
|
|
Laurie R. McCallum, Commissioner
|
|
|
|
|
|
|
|
|
David B. Falstad, Commissioner |
Procedural Posture
This case is before the commission to consider the complainant’s allegation that the respondent discriminated against him because he filed a wage claim, in violation of the Wisconsin Fair Employment Act. An administrative law judge for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision. The complainant filed a timely petition for commission review.[2]
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted at the hearing. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusions in that decision as its own, except that it makes the following:
1. The following paragraph is inserted after paragraph 19 of the administrative law judge’s FINDINGS OF FACT:
19.1. Kreg Culler, the respondent’s CFO, was responsible for handling the complainant’s wage claim. Tony Dahlberg, the complainant’s supervisor, was not directly involved in the resolution of the complainant’s wage claim, but was aware that the complainant had filed the claim.
2. The following paragraphs are inserted after paragraph 23 of the administrative law judge’s FINDINGS OF FACT:
23.1. At some point between June 1 and June 6, 2012, Ron DeYoung, Dahlberg’s boss (who worked out of the respondent’s corporate office in Angola, Indiana) had a conversation with Dahlberg about discharging the complainant. DeYoung told Dahlberg that he wanted to discharge the complainant because he cashed his paycheck early. Dahlberg also wanted to discharge the complainant because he was dissatisfied with his job performance.
23.2. It is not known whether DeYoung was aware of the complainant’s wage claim.
3. Paragraphs 45 and 46 of the administrative law judge’s FINDINGS OF FACT are deleted and the following substituted therefor:
45. In August of 2012, the respondent hired an individual named Travis Arseneau to work as a full-time pesticide applicator at a pay rate of $13 an hour. On September 5, 2012, Arseneau’s truck broke down on his way home from work. Arseneau called the respondent and left a message explaining the situation, but never received a call back. A few weeks later Arseneau, who had not received his last week’s pay from the respondent, sent the respondent a letter containing his gas card and key to the shop.
46. The respondent did not terminate the complainant’s employment because he filed a wage claim with the Equal Rights Division. The respondent terminated the complainant’s employment because it was dissatisfied with his work performance and with the fact that he cashed his paycheck a day early.
4. Paragraphs 47 through 50 of the administrative law judge’s FINDINGS OF FACT are deleted.
Memorandum Opinion
The Wisconsin Fair Employment Act prohibits retaliation against an employee because he or she files a wage claim under Wis. Stat. § 109.03 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).
A prima facie case of retaliation may be established by showing that: (1) the complainant engaged in statutorily protected activity; (2) the complainant suffered an adverse action; and (3) there is a causal connection between his or her protected activity and the adverse action. If the complainant establishes a prima facie case of discrimination, the respondent may rebut the prima facie case by articulating a legitimate, non-discriminatory reason for the adverse action. Should the respondent meet its burden, the complainant then has the burden of proving that the respondent’s proffered reasons are merely a pretext for discriminatory conduct. See, e.g., Sarazin v. W & G Transport, ERD Case No. 199601006 (LIRC March 9, 1999), citing Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989); Roden v. Federal Express, ERD Case No. 8802134 (LIRC June 30, 1993).
The complainant engaged in statutorily protected activity when he filed a wage and hour claim with the Equal Rights Division on April 9, 2012. He then suffered an adverse employment action when he was discharged two months later, on June 6, 2012. The question to decide is whether there is a causal connection between the complainant’s wage claim and the discharge and, if so, whether the respondent met its burden of presenting a non-discriminatory reason for the discharge that was not shown to be a pretext for discrimination.
The commission will find discrimination where a discharge is directly preceded by conduct that evidences discriminatory animus related to an individual’s protected conduct or the belief that he or she may engage in such conduct. For example, in Klatt v. Hallie Chiropractic, ERD Case No. CR200404041 (LIRC Aug. 28, 2006), the commission found discrimination where the evidence indicated that the employer was visibly upset upon receiving notice of the employee’s daughter’s wage complaint and then discharged the employee-complainant the very same day. Similarly, in White v. Gilman Care Center LLC, ERD Case No. CR2010036 (LIRC July 21, 2014), an employer representative became agitated at a meeting upon learning the employee had contacted the Equal Rights Division about his wages and indicated she could not believe he had done that. Within two days of that meeting the employee-complainant was notified he no longer had a job. Again, the commission found discrimination.
The record in this case contains no direct evidence of discriminatory animus based upon the fact that the complainant filed a wage claim. Although Dahlberg testified that he knew about the complainant’s wage claim, he never made any comment about it to the complainant, nor was it shown that anyone else from the respondent did so. The record is devoid of any evidence suggesting that Dahlberg or other managers for the respondent were upset about the wage claim or that they were inclined to discriminate against the complainant as a result.
Of course, evidence of discriminatory animus is often difficult to obtain, and a showing of discriminatory animus is not strictly required in order for the complainant to prevail. Indeed, the commission has consistently held that a causal connection between protected activity and an adverse employment action may be inferred based on the proximity in time between the protected action and the alleged retaliation. Potts v. Magna Publications, ERD Case No. 199701821 (LIRC Feb. 27, 2001). Here, however, that evidence is also missing. The complainant filed his wage claim on April 9, 2012, and the matter was settled when the respondent issued him a check on April 30, 2012. However, the complainant was reinstated to his seasonal job shortly thereafter (in mid-May), and was given a $1 per hour pay increase. The fact that Dahlberg, who knew about the wage claim, hired the complainant with a pay raise shortly after the claim was settled tends to cut against a conclusion that Dahlberg was inclined to discriminate against the complainant based upon his having filed the claim. Further, as indicated above, Dahlberg never made any comment to the complainant about his wage claim, and up until the point of his discharge, the complainant worked for the respondent without any type of adverse treatment.
At the hearing the complainant maintained that the respondent discharged him only a few weeks into the 2012 season, after untruthfully and erroneously telling him that it had no more work available, and contended that this was evidence of discrimination. It is certainly true that, if the complainant’s testimony is accepted (and the commission agrees with the administrative law judge that the complainant’s testimony was credible in this regard), the respondent was dishonest with him as to why he was being dismissed. However, while such dishonesty could be evidence that the employer was attempting to disguise a discriminatory motive, in this case it appears to be in keeping with a general pattern of less than open communications on the part of this employer with its employees,[3] and not indicative of discriminatory intent.
The respondent has provided reasons for terminating the complainant’s employment that differ from the one it gave the complainant on his last day of work and that constitute credible, nondiscriminatory reasons for its actions.[4] First, the respondent maintained that the complainant was discharged for cashing his paycheck early. The evidence established that the respondent had a practice of distributing paychecks on Thursday, with the expectation that they would not be cashed until Friday afternoon. The respondent had a policy in its employee handbook addressing the question of how to treat paychecks that were cashed early, and both Dahlberg and Tim Mayek, a long-term employee of the respondent’s, testified that the matter was discussed many times in the work place. Under the circumstances, it is clear that the respondent placed a high level of importance on the timing of the cashing of its payroll checks, and the commission finds it believable that it would choose to discharge an employee over that issue.
The respondent also indicated that the complainant was discharged because of poor work performance. While the evidence on this point is somewhat thin, there is reason to believe that the respondent was genuinely dissatisfied with the complainant’s performance, and the commission is not convinced that this explanation was a pretext for discrimination. The evidence indicates that the complainant was, in fact, producing less than the $900 a day goal set by the respondent and, although one can argue about how fair it is to evaluate an employee based upon two weeks’ performance, the complainant was demonstrably the lowest producer in the office during that time. Further, while the complainant disputes the veracity of this point, there was at least a perception in the office that he was causing more rework than other employees. Dahlberg testified that he was getting a lot of service calls on the complainant’s jobs, and Mayek confirmed that Dahlberg told him this was the case. Mayek also testified that Dahlberg told him he had given the complainant the easiest route because he was slow. It is clear from Dahlberg and Mayek’s testimony, as well as from the written separation notice, that Dahlberg was dissatisfied with the complainant’s job performance and that his assessment of the complainant’s performance deficiencies played a role in the discharge.
The complainant’s petition for commission review focuses on two errors by the administrative law judge. First, the complainant contends that the administrative law judge disregarded evidence that DeYoung was aware of the complainant’s wage claim. Second, the complainant argues that, in finding no discrimination, the administrative law judge erred in concluding that DeYoung was solely responsible for the decision to terminate the complainant’s employment. With respect to the former, it is not clear from this record whether or not DeYoung knew about the complainant’s wage claim. DeYoung no longer worked for the respondent at the time of the hearing and did not testify at the hearing. None of the other witnesses could be sure of the extent of his knowledge of the wage claim, although Dahlberg speculated that he did know about it. Consequently, while the commission does not find support in the record for the administrative law judge’s finding that DeYoung was unaware of the wage claim, it also sees no basis to affirmatively conclude that he was. The commission, however, agrees with the complainant that DeYoung was not the sole decision-maker in this matter. The evidence establishes that Dahlberg --who was admittedly aware of the fact that the complainant had filed a wage claim--played at least some role in the decision to terminate the employment relationship with the complainant. Dahlberg’s testimony was that, although DeYoung told him to fire the complainant because he cashed his paycheck early, there were other circumstances that went into the decision. Dahlberg testified as to his own dissatisfaction with the complainant’s job performance, and agreed that he relied on that as a reason to terminate the complainant’s employment.[5]
That said, for the reasons explained above, the commission is satisfied that Dahlberg and DeYoung had a basis for their decision to discharge the complainant that was nondiscriminatory and unrelated to the fact he had filed a wage claim. Consequently, while the decision has been modified to reflect the fact that it is not known whether DeYoung was aware of the complainant’s wage claim and, further, that Dahlberg was part of the discharge decision, the administrative law judge’s ultimate finding that discrimination was not established is affirmed.
Attorney Brian Formella
[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] In its brief to the commission the respondent states that it has no way of knowing whether the complainant’s petition, which was date stamped April 17, 2017 (the last day on which a timely petition could be filed) was filed within the Equal Right’s Division’s normal business day; the fact that the petition was stamped “received” on April 17, 2017 by the Equal Rights Division indicates that it was.
[3] The evidence shows, for example, that Dahlberg habitually failed to respond to telephone calls and inquiries from employees, did not communicate with employees about performance issues as they arose, and did not follow the rules and procedures contained in the employer’s own handbook with respect to employee evaluations and progressive discipline.
[4] Although the commission agrees with the administrative law judge that the complainant did not prove all the elements of the prima facie case, the commission has consistently held that, once the respondent has articulated a legitimate nondiscriminatory reason for discharge, the question of whether the complainant has established a prima facie case becomes moot. See, Wilks v. St. Joseph’s Rehabilitation Center, ERD Case No. CR201002486 (LIRC Feb. 28, 2013), and cases cited therein.
[5] It is noteworthy that in response to the complainant’s pre-hearing interrogatories--which are part of the hearing record--the respondent indicated that it was Dahlberg who made the decision to discharge the complainant, with input from DeYoung. (See, Ex. C8, p.3).