Wis.LIRC ER Decision: Pampuch - March 7, 1994 - Retaliation - discrimination because of opposition to discrimination or filing complaint - scope of protection afforded by the WFEA - retaliation related to other statutes; Settlement

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DEBRA R. PAMPUCH, Complainant

vs.

BALLY'S VIC TANNY HEALTH AND RACQUETBALL CLUB, Respondent

FAIR EMPLOYMENT DECISION
Claim No. 9350083, 9253152

This matter arose out of complaints filed with the Equal Rights Division by Debra R. Pampuch against Bally's Vic Tanny Health and Racquetball Clubs. The complaints alleged both discrimination because of sex in violation of sec. 111.35, Stats., and retaliatory discharge which was asserted to have been in violation of sec. 111.32(2m), Stats.

Following investigation and the issuance of initial determinations, the matter was certified to hearing. On June 16, 1993, an administrative law judge for the Equal Rights Division issued Findings of Fact, Conclusions of Law, an "Arbitration Award", and an Order which dismissed certain allegations of the complaints.

The Equal Rights Division thereupon notified the parties that the decision and order of the administrative law judge could be appealed to court. Pampuch commenced an action for judicial review in the Circuit Court for Racine County.

This matter is now before the commission as a result of an Order of the Court, the Honorable Dennis J. Barry presiding, which concluded that the decision of the parties and the administrative law judge to permit arbitration in the case was void, and which "remanded [the matter] to the commission for its decision consistent with the provisions of the Wisconsin Fair Employment Act".

Based on its review of the record and the file in this matter, the commission now makes the following:

ORDER

This matter is remanded to the Equal Rights Division for further proceedings on Debra R. Pampuch's claims of sex discrimination in employment.

The commission has no jurisdiction to consider Pampuch's retaliation claim because that claim is cognizable only under the Employes' Right To Know Law, sec. 101.58-101.595, Stats. This Order is not intended to have any effect on that claim.

Dated and mailed March 7, 1994
110

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The only hearing held so far in this matter was restricted to the issue presented by the respondent's motion to dismiss. That issue was whether, by executing an agreement settling a complaint she filed with the federal Occupational Safety and Health Administration ("OSHA"), the complainant waived her right to pursue the sex discrimination and retaliation claims she had brought to the Equal Rights Division. The administrative law judge resolved that issue by concluding that the OSHA settlement waived the sex discrimination claim in part and the "retaliation" claim in its entirety. The circuit court did not reach the waiver issue, but voided the administrative law judge's order because it had been issued as an "arbitration award". Presumably the intent of the court's remand mandate was that the commission would decide the issue of the effect of the OSHA settlement on the sex discrimination and retaliation claims.

The commission has decided the question of whether the OSHA settlement waived complainant's right to pursue her sex discrimination claim, and the reasons for its decision on that issue are set forth below in a subsequent portion of this Memorandum Opinion. However, it has not decided the question of whether the retaliation claim is barred. On the allegations she has made, Pampuch's only retaliation claim is one under the Employes' Right To Know Law, sec. 101.58-101.595, Stats., and the commission has no statutory role in the enforcement of that law. Therefore it has no authority to decide if the claim is barred.

Retaliation -- The Fair Employment Act, which is subchapter II of Chapter 111, Stats., has provided for many years that it is unlawful to discharge or otherwise discriminate against an individual because the individual has opposed any discriminatory practice "under this subchapter", or because the individual has made a complaint, testified or assisted in any proceeding "under this subchapter". This provision is now found in sec. 111.322(3), Stats. Because of the "under this subchapter" language, it has consistently been interpreted to apply only to opposition which is actually premised on a belief that certain conduct was contrary to the Fair Employment Act, or to the filing of a complaint, testifying, or otherwise assisting in a proceeding under the Fair Employment Act.

However, in 1989 the legislature created sec. 111.322(2m), Stats., in the Fair Employment Act, which made it an act of employment discrimination, prohibited by the Fair Employment Act, to discharge or otherwise discriminate against an individual because the individual had engaged in certain conduct relating to laws other than the Fair Employment Act. (1 )

Although secs. 111.322(2m) and 111.322(3) are both concerned in a general sense with the topic of retaliation, the language of subsection (2m) does not parallel the language of subsection (3). The differences between those subsections are critical to this case. Those differences have to do with the kinds of protected activity to which the statutes extend.

Section 111.322(3) recognizes two different kinds of protected activity. It prohibits discrimination against an individual either

"because he or she has opposed any discriminatory practice under this subchapter"

"because he or she has made a complaint, testified or assisted in any proceeding under this subchapter".

This statutory recognition of two different kinds of protected activity is consistent with longstanding interpretations of such prohibitions. The term "opposition" has been used to describe informal "self-help" activities in opposition to a practice of an employer without actual resort to a government agency. By way of contrast, the term "participation" has been used to describe actually going to a government agency and either commencing a proceeding by filing a complaint, or assisting in the investigation of a complaint which has been filed. See, e.g., Notaro v. Kotecki and Radtke, S.C. (LIRC, July 14, 1993).

It is important in every "retaliation" case to determine whether the protected activity is in the nature of opposition or participation, because different legal standards are applicable. Retaliation for resort to the government's own enforcement mechanisms strikes at the very heart of the government's ability to enforce the laws it has made. Therefore, filing a complaint or participating in an agency's investigation and enforcement process is afforded a higher degree of protection: it is protected irrespective of the motives behind it. Opposition, by way of contrast, is not protected if it is not engaged in with a good faith belief on the part of the individual engaging in the opposition that the practice opposed is one that violates the law in question. Notaro, supra.

Unlike sec. 111.322(3), which protects both opposition and participation, the more recently enacted 111.322(2m) recognizes only the participation form of protected activity. It makes it unlawful to discharge or otherwise discriminate against an individual because the individual

"files a complaint or attempts to enforce any right . . . [or] . . . testifies or assists in any action or proceeding held under or to enforce any right"

"under" the referenced statutes (or is believed by the employer to have engaged in any such activity).

The terms "files a complaint" and "testifies or assists in any action or proceeding" are unambiguous. Furthermore, it is clear that such a complaint or action or proceeding must be one under one of the referenced statutes. Thus, for example, Pampuch's complaint to a municipal building inspector was not a complaint under any of the statutes described in sec. 111.322(2m), Stats., since municipal building inspectors have no statutory role in the enforcement of those statutes, and it was therefore not activity protected by that section.

The only other activity which 111.322(2m) protects is attempts to "enforce" a right under one of the referenced statutes. For a number of reasons, the commission has concluded that this term was intended to refer solely to formal attempts to enforce a right by resort to the governmental agency charged with enforcement of that right.

First, the common and approved usage of the term "enforce" implies the resort to civil authority. Thus, according to Webster's Third New International Dictionary, Unabridged (1976), the word enforce "refers to requiring operation, observance, or protection of laws, order, contracts and agreements by authority, often that of a whole government or of its executive or legal branches" (emphasis added).

Second, the statutes referenced in 111.322(2m) all use substantially the following language:

"Section 111.322(2m) applies to discharge or other discriminatory acts arising in connection with any proceeding [under this section]".(emphasis supplied)

A "proceeding" does not exist unless there has been some kind of resort to the agency.

Third, a number of the statutes referenced in 111.322(2m) themselves contain separate provisions which prohibit retaliation but which relate exclusively to opposition. Particularly relevant to this case is the provision in the Employes' Right To Know law, sec. 101.595(2), Stats.:

(2) Retaliation Prohibited (a) No employer or agricultural employer may discharge or otherwise discipline or discriminate against any employe because the employe has exercised any rights under ss. 101.58 to 101.599.

(b) Section 111.322(2m) applies to discharge and discrimination arising in connection with any proceeding under ss. 101.58 to 101.599.

Violations of subsection (a) are expressly made subject to the remedial procedures of the Employes' Right To Know law itself. See, sec. 101.599(1), Stats. Violations of subsection (b) are just as expressly omitted in 101.599(1); they are by the terms of subsection (b) itself made subject to the Fair Employment Act.

The commission does not believe that it is coincidental or unintentional that the legislature used the term "exercise" in sec. 101.595(2)(a), Stats. to define the type of activity protected under the Employes' Right To Know law, and the term "enforce" in sec. 111.322(2m), Stats. to define a type of activity protected under the Fair Employment Act. Rights are "exercised" by individuals and "enforced" by agencies.

This same pattern is found for issues of retaliation connected with the Family and Medical Leave Act, sec. 103.10, Stats. It provides, in sec. 103.10(11)(b), that no one may discharge or discriminate against an individual for "opposing" a practice prohibited under the Family and Medical Leave Act. It provides separately in 103.10(11)(c) that Section 111.322(2m) applies to discharge or discrimination arising "in connection with any proceeding under" the Family and Medical Leave Act. Finally, the enforcement provisions expressly provide that violations of subsection (11)(b) are remediable under the Family and Medical Leave Act itself, but violations of subsection (11)(c) are just as expressly omitted; see, sec. 103.10(12)(b), Stats. Again, they are expressly left to enforcement under the Fair Employment Act. See, sec. 103.10(11)(c), Stats. It was for this reason that the commission held, in Roncaglione v. Peterson Builders, Inc.(LIRC, August 11, 1993), that allegations of retaliation because an individual sought Family and Medical Leave Act medical leave rights from his employer were not subject to sec. 111.322(2m), Stats. and were therefore not within the commission's jurisdiction. Just as in this case, the problem in Roncaglione was that the conduct which was allegedly the cause of the retaliation was not "participation", but was at most informal "opposition" which did not involve or invoke the authority of the Equal Rights Division. While there may or may not have been a violation of sec. 103.10(11)(b), Stats. in that case, the question was one which the legislature had placed in a procedural scheme that did not involve the commission.

In this case, Pampuch has never alleged that she filed a complaint with or otherwise attempted to invoke the authority of the Equal Rights Division at any time prior to the allegedly retaliatory discharge. There was no "action or proceeding" before the Equal Rights Division at any time prior to the allegedly retaliatory discharge. Pampuch's complaints to the municipal building inspector and to OSHA can not be viewed as attempts to "enforce any right under [the Employes' Right To Know law]" within the meaning of sec. 111.322(2m)(a), Stats., or to have related to a "proceeding under [the Employes' Right To Know law]" within the meaning of sec. 101.595(2)(b), Stats., because neither municipal building inspectors or OSHA have any role in enforcement of that law. Pampuch's complaints were, at most (2 ), an attempt by her to "exercise" rights under the Employes' Right To Know law, within the meaning of sec. 101.595(2)(a), Stats.

It appears that there may have been some belief at the Equal Rights Division that Pampuch's retaliation claim was somehow cognizable simultaneously under both the Employe's Right To Know Law and the Fair Employment Act. The commission considers that this is an untenable construction of the statutes, and not merely for the reasons discussed above. It is untenable because of the significant procedural differences between the two laws. They have differences in terms of statutes of limitations, requirements as to how quickly hearings are held, availability of pre-hearing discovery, and availability of attorney's fees, to mention but a few. These differences rise, in some cases, to the level of absolute incompatibility. The legislature simply could not have intended that the same cause of action would be substantively viable under two separate statutes, when there were such incompatibilities in the procedural provisions it created for those two laws.

Because the only retaliation claim that Pampuch's allegations can be considered to raise is one of retaliation for opposition, which is viable (if at all) solely under the Employes' Right To Know law, the commission is without jurisdiction to address any issue connected with that claim, including the issue of whether that claim was "waived" by Pampuch's execution of the settlement of her post-discharge retaliation complaint filed with OSHA.

Waiver of the sex discrimination claim -- The question of whether Pampuch can pursue her claim of sex discrimination relates to a formal complaint she filed with OSHA after her discharge, in which she alleged that respondent had discharged her in retaliation for her earlier contacts with the municipal building inspector and with OSHA. This OSHA complaint was eventually settled, and the effect of this settlement agreement is one of the issues in this case.

The commission concludes that the OSHA complaint settlement did not waive complainant's right to complain of sex discrimination, or her right to seek a remedy for that alleged sex discrimination. On the contrary, what it provided was very limited:

Complainant agrees to accept this agreement in full and complete settlement of any and all claims arising out of the filing this complaint against Respondent.(emphasis added)

Looking first (as it must) at the literal language of this written agreement, the commission notes that it did not by its own terms purport to settle any claims arising out of the discharge. It states expressly that it settles only claims arising out of the filing of the complaint with OSHA. Pampuch's claim that the discharge constituted sex discrimination obviously could not "arise out of" her filing of a complaint with OSHA after her discharge.

Even apart from these considerations as to the literal meaning of the agreement, it is also clear that at most the agreement settles only the claims made in the complaint which was filed with OSHA after Pampuch's discharge. It does not provide that it settles all claims arising out of the discharge. Rather, its indication as to what claims are settled conspicuously and specifically refers to "this complaint". Thus, the claims settled are only claims of a violation of OSHA -- not claims of a violation of any other law. Pampuch's complaint to OSHA did not involve allegations of sex discrimination, and the settlement agreement resolving that complaint said nothing whatsoever about waiving rights to pursue claims of or remedies for sex discrimination. The complaint with OSHA obviously could not encompass a claim under the Wisconsin Fair Employment Act, because OSHA has no authority to act on such a claim.

The administrative law judge clearly recognized that this agreement could not and did not waive claims arising under different laws and premised on different factual considerations (i.e., sex as a motivating factor rather than the fact of having contacted OSHA as a motive). However, he evidently reasoned that this kind of express and unambiguous waiver of one specific claim waived all remedies that might be available under such other claims. The commission does not accept the distinction drawn by the administrative law judge. This might be an acceptable analysis if what were involved were the res judicata effect of a previous determination of a tribunal, where a "transactional" approach applies. Such an adjudicated resolution of one claim is treated as barring all claims arising out of the same transaction in order to further the policy of avoiding a multiplicity of suits by unifying all claims in a single proceeding. See, Juneau Square Corporation v. First Wisconsin National Bank, 122 Wis.2d 673, 682, 364 N.W.2d 164 (Ct.App. 1985).However, when parties enter into settlements they are free to structure them as they wish, and if they choose to structure them in a way which waives some claims arising out of a transaction while preserving others, that is their right. They did so here. The settlement had no effect on Pampuch's right to pursue a claim of sex discrimination. Therefore, that claim should be adjudicated by the Equal Rights Division.

cc:
Alan C. Olson
John Patzke

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Footnotes:

(1)( Back ) These other statutes are Secs. 66.293 (prevailing wage), 103.49 (prevailing wage), 103.02 (hours of work), 103.10 (Family Medical Leave Act), 103.13 (Open Personnel Records), 103.28 (minors in street trades), 103.32 (wage claims), 103.455 (deductions for faulty workmanship), 103.50 (prevailing wage), 104.12 (minimum wage), 109.03 (wage claims), 109.07 (plant closing law), 101.58 - 101.595 (Employes' Right To Know law), and 103.64 - 103.82 (employment of minors).

(2)( Back ) The commission, lacking as it is in any authority to determine violations of the Employes' Right To Know law, expresses no opinion on the question of whether Pampuch's complaint was timely under sec. 101.595(2)(a), Stats. or whether there was any violation of that section. Its opinion is limited to the conclusion that Pampuch's conduct was not protected under sec. 111.322(2m), Stats.