Wis.LIRC ER Decision: Corey - July 21, 1995 - Retaliation - discrimination because of opposition to discrimination or filing complaint - retaliation for exercise of a right under the Personnel Records Law

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

NANCY COREY, Complainant

MULTIPLE LISTING SERVICE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9354461

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations 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 ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed July 21, 1995
coreyna.rsd : 164 : 9

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

This case presents the question of whether the complainant's complaint that she was discharged by the respondent in retaliation for having attached written comments to a personnel record, a right which is guaranteed her under section 103.13 of the statutes, the Personnel Records Law, is cognizable under the Wisconsin Fair Employment Act (hereinafter "Fair Employment Act"). Like the administrative law judge, the commission concludes that it is not.

Section 103.13 of the statutes affords employes the right to inspect and make copies of certain personnel records and to attach corrections and comments to personnel records with which they disagree. The specific portion of the statute which covers the complainant's actions in attaching written comments to her personnel record is as follows:

Section 103.13(4) PERSONNEL RECORD CORRECTION. If the employe disagrees with any information contained in the personnel records, a removal or correction of that information may be mutually agreed upon by the employer and the employe. If an agreement cannot be reached, the employe may submit a written statement explaining the employe's position . . . . (emphasis added).

The Personnel Records Law also contains the following:

Section 103.13(7m) EMPLOYMENT DISCRIMINATION. Section 111.322(2m) [of the Fair Employment Act] applies to discharge or other discriminatory acts in connection with any proceeding under this section. (emphasis added).

The portion of the Fair Employment Act referred to above renders it unlawful to discharge or to otherwise discriminate against any 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 any of a variety of statutes unrelated to the Fair Employment Act, including the Personnel Records Law. Section 111.322(2m), Stats. also prohibits discrimination because the individual's employer "believes that the individual engaged or may engage" in any of the enumerated enforcement activities. In interpreting this so-called "omnibus provision" of the Fair Employment Act, the commission has consistently held that section 111.322(2m), Stats. recognizes only the "participation" form of protected activity and that the term "attempts to enforce" a right, as used in the statute, refers to formal attempts to enforce a right by resort to the governmental agency charged with the enforcement of that right. Roncaglione v. Peterson Builders, Inc. (LIRC, August 11, 1993); Pampuch v. Bally's Vic Tanny Health and Racquetball Club (LIRC, March 7, 1994). In arriving at this conclusion the commission considered the fact that the statutes referenced in section 111.322(2m), Stats. specifically indicate that the portion of the Fair Employment Act in question applies only "in connection with any proceeding," and that a "proceeding" does not exist unless there has been some kind of resort to the agency. Id. page 5.

The complainant in this matter argues that her actions in appending a written statement to her personnel record should be considered a "proceeding" and an "attempt to enforce a right," so as to place her claim within section 111.322(2m) of the Fair Employment Act. The complainant contends that the commission's definition of "proceeding," as set forth in Pampuch, is too narrow and that a "proceeding" should include any threatened or pending action, whether informal or formal, which involves state law. (1 ) The commission need not address the merits of the complainant's argument in this respect because, even if the commission were to accept the complainant's proposed definition of the term "proceeding," it would nonetheless be unable to find that any "proceeding" exists in this case. The facts as alleged in the complaint merely indicate that the complainant exercised her right to attach written comments to a personnel record. The complainant did not allege that the respondent attempted to prevent her from attaching the comments, nor did she contend that she instituted or threatened to institute any type of proceeding aimed at enforcing her right to do so, regardless of how that term is defined.

The complainant further argues that her "self-help" activities should be considered "enforcement" because section 103.13 of the statutes contains no mechanism for formal agency enforcement, thereby rendering its inclusion in section 111.322(2m) of the Fair Employment Act meaningless. The commission is not persuaded by this argument. As set forth above, while the complainant's activities can be characterized as an exercise of the rights conferred her under section 103.13(4) of the statutes, it is clear that she never filed a complaint, attempted to enforce a right, or participated in any proceeding aimed at enforcing her statutory rights. Thus, the complainant's activities do not fall within the plain language of section 111.322(2m) of the statute. Moreover, the commission disagrees with the complainant's contention that section 111.322(2m), Stats., has no meaning as applied to section 103.13 of the statutes. Section 103.13(8) of the Personnel Records Law specifically provides that an employer who violates the law may be fined not less than $10 nor more than $100 for each violation and, further, that each day of refusal or failure to comply with a duty under the law is a separate violation of the statute. The fact that the Personnel Records Law contains a civil forfeiture provision suggests that an employe can seek enforcement for her employer's failure to abide by the law by instituting a proceeding before the district attorney. Thus, if the complainant in this case had attempted to institute a proceeding before the district attorney or in any other appropriate forum and believed that she was discharged as a result, she undoubtedly would have been able to state a claim for which relief could be granted under the Fair Employment Act.

The complainant additionally points out that the Personnel Records Law contains no provision prohibiting employers from discriminating against those employes who choose to exercise the rights conferred under the law, except in the situation where there has been a "proceeding under this section" and posits that the rights conferred under section 103.13(4), Stats. are rendered entirely meaningless if an employe can be retaliated against with impunity by an employer for having exercised those rights. The complainant asserts that, if the Personnel Records Law is to have any meaning, then her actions in attaching comments to her personnel record must be protected under section 111.322(2m), Stats. and that, under the circumstances, the Fair Employment Act should be liberally construed to extend jurisdiction to her claim. The complainant has indeed identified a paradox in the Personnel Records Law: whereas the majority of statutes referenced in section 111.322(2m) of the Fair Employment Act not only confer rights upon the employe, but also specifically guarantee the employe freedom from discrimination based upon the exercise of those rights, the Personnel Records Law contains no such assurance. However, the mere fact that the complainant lacks redress for her alleged injury under the Personnel Records Law does not necessarily mean that her rights must be cognizable under the Fair Employment Act. To the contrary, the commission lacks authority to deviate from the plain language of the law and is required to apply the Fair Employment Act as it was written by the legislature. Although "liberal construction" permits the commission to give the law the fullest application within proper definitional guidelines that are consistent with the spirit of the legislation, it does not give the commission the authority to expand the very terms of the legislation. See AMC v. ILHR Dept., 101 Wis. 2d 337, 351, 305 N.W.2d 62 (1981). Rather, the complainant's concerns regarding the lack of protection afforded those employes who exercise the rights conferred by the Personnel Records Law are more appropriately addressed to the legislature, which has the authority to draft corrective legislation, should it deem this necessary.

For the reasons set forth above, the commission concludes that it lacks jurisdiction to address the complainant's complaint. Accordingly, the administrative law judge's dismissal of the complaint is affirmed.

cc: Gary M. Williams
Alan H. Deutch

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Footnotes:

(1)( Back ) The administrative law judge's decision also contains a discussion of the commission's definition of the term "proceeding," in which the administrative law judge concludes that the commission "goes astray" in Pampuch by suggesting that an agency action must be filed in order for there to be a "proceeding." The administrative law judge opines that both informal and formal processes in any government forum should be considered "proceedings." (See administrative law judge's decision, page 4.) However, the commission's definition of "proceeding" is not inconsistent with that proposed by the administrative law judge. To begin with, it is clear that the term "agency," as used in Pampuch, did not apply solely to proceedings before an administrative agency, but was a reference to "the governmental agency charged with enforcement" of the particular statute in question. Pampuch, page 5. Thus, the commission agrees that processes in any governmental forum may be considered "proceedings." Further, with respect to the distinction between "formal" and "informal" processes, the commission's use of the term "formal" was merely intended to connote the difference between formal acts of participation, such as the filing of a complaint, and informal "self-help" activities in opposition to a practice of discrimination. See Norton v. City of Kenosha (LIRC, March 16, 1994). Although the commission can think of no example in which an employe could "informally" participate in agency process, the commission's holding in Pampuch was not intended to suggest that "informal" processes could never be considered "proceedings" within the meaning of the law.