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

FARON J. CRABTREE, Complainant

WILDERNESS HOME SUPPLY, Respondent A

CHET MYERS, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 9501499

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) issued a decision in this matter on August 9, 1996. A timely petition for review was filed. The commission received the file from the division on March 28, 1997.

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, except that it makes the following modification:

Paragraph 5 of the ORDER is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, WHS and Meyers shall file a compliance report detailing the specific actions they have taken to achieve compliance with the commission's order, including all computations used to arrive at a determination of the amount of back pay to be tendered, as well as a report on the offer of reinstatement. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708."

DECISION

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

Dated and mailed: May 9, 1997
crabtfa.rmd : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

On March 27, 1995, the complainant, Faron Crabtree, filed a wage claim under sec. 109.09, Stats., with the Equal Rights Division's Labor Standards Bureau. The complainant alleged that his employer, the Wilderness Home Supply (WHS), refused to pay overtime wages for hours worked over 40 in a week. WHS is engaged in the business of residential and commercial construction. WHS is owned and operated by Chet Meyers. The complainant performed services including carpentry, general labor and driving truck for WHS. Meyers received notice of the complainant's wage claim on Thursday, March 30, 1995. Meyers discharged the complainant on Monday, April 3, 1995.

In a complaint filed with the division on April 7, 1995, the complainant alleged that WHS and Meyers discriminated against him in violation of the Wisconsin Fair Employment Act (sec. 111.322(2m)) by terminating his employment in retaliation for filing a wage claim under sec. 109.09, Stats. The division issued an initial determination finding probable cause to believe that the complainant had been discharged because he filed a claim under sec. 109.09, Stats.

A hearing on the merits of the complainant's complaint of discrimination was held on November 2, 1995. The ALJ subsequently issued a decision on August 9, 1996, finding that the complainant had been discharged in retaliation for filing a wage claim for overtime pay, and ordering the respondents to cease and desist from discriminating against the complainant and to provide him make-whole relief. The respondents have filed a petition for commission review of the ALJ's decision.

As noted above, Meyers received notice of Crabtree's wage claim on Thursday, March 30, 1995, and discharged Crabtree 4 days later on Monday, April 3, 1995. Meyers testified that on April 3, 1995, he told Crabtree that he was terminated because he was "padding his hours and dawdling on the job." Meyers apparently equates dawdling on the job with engaging in a work slowdown.

In concluding that the respondents had violated the Act, the ALJ determined that Meyers decided to terminate Crabtree's employment on March 31, 1995, and that Crabtree's wage claim was a motivating factor in Meyers' decision. The respondents argue on appeal that this finding is erroneous. The respondents assert that the ALJ became confused about the dates which allowed him to conclude that the respondents knew about the overtime complaint before the complainant was discharged. The respondents assert that both Meyers and Ruth Lacrosse, the bookkeeper and office manager, gave uncontroverted testimony that the decision to discharge the complainant occurred on Thursday, March 30, 1995, prior to the respondents' receipt of the complainant's wage claim for nonpayment of overtime wages.

The summary of proceedings does show testimony by Meyers and Lacrosse that: 1) Meyers had a discussion with Lacrosse Thursday morning, March 30, 1995, about letting the complainant go; 2) that the decision was made to let the complainant go that morning and that Meyers asked Lacrosse to come in on Saturday to make out the complainant's paycheck; and 3) that notice of the complainant's wage claim was not received until Thursday afternoon.

The commission's review of this matter included consultation with the ALJ regarding his decision. The ALJ stated that although he could not specifically identify anything in the demeanor of Meyers or Lacrosse which had led him to believe that they were not truthful, taking everything into account he could not believe that things had occurred as they asserted and believed that the decision to discharge had been made on Friday, March 31, 1995. The commission agrees.

For instance, together, the testimony of Meyers and Lacrosse was that Meyers never let anyone go without giving them a paycheck, and that Lacrosse did not normally work on Saturdays unless Meyers needed something special done. But if the decision was made to discharge the complainant on Thursday morning, March 30, 1995, why was it necessary that Lacrosse come in to work on Saturday, April 1, to prepare the complainant's check for Monday, April 3? Why couldn't the check have been made out on Thursday or Friday? Why did Meyers wait until Monday, April 3, before notifying Crabtree that he was discharged?

Further, Meyers testified that "...we had been monitoring his (Crabtree's) timecards and we knew he had been `padding his timecards' for probably 3 weeks before (April 3, 1995). He would put 8 hours on the timecard when he had only worked 7-1/2 hours." However, the commission finds it strange that the only evidence Meyers provided in support of his claim about the complainant was the complainant's timecard for March 31, which Meyers contends shows the complainant had recorded 2-1/2 hours work when he had not worked. Moreover, the complainant, whom the ALJ found to be believable, denies having padded his timecard on March 31, or at any other time. Crabtree testified that he worked for 2-1/2 hours at the direction of his foreman on March 31. The respondent's foreman who was at the job site at the time in question did not testify at the hearing.

Additionally, Meyers testified that on March 31 he requested that the complainant bring in all the timecards because the complainant and the other employes were being sent home because of inclement weather. The commission finds it strange that Meyers would put the complainant in charge of bringing in the timecards Friday if Meyers had decided to discharge him on Thursday because he was padding his timecards. It also cannot go unnoticed that it was these timecards that Meyers accused the complainant of falsely recording 2-1/2 hours of work on, and the only timecards Meyers offered to support the claim that the complainant was padding his timecard.

Also, the complainant testified that when Meyers discharged him on April 3, 1995, there was no discussion of any reason for his discharge other than that he had filed the wage claim with the division. The complainant testified that Meyers did not tell him he was being fired for padding timecards or because he had been engaged in a work slowdown. The complainant testified they discussed that Meyers had gotten the notice of his wage claim, and that Meyers told him he knew Meyers did not pay overtime and that he knew when he started work there that Meyers did not pay overtime.

Finally, Meyers conceded that the complainant had not been given any written reprimands during his employment and that there were no notations in "the file" on reprimands. And while Meyers contends that the complainant had been orally reprimanded for work slowdowns, the complainant denies being verbally reprimanded about his work performance.

Based upon all of the above, the commission agrees with the ALJ's decision that Meyers decided to terminate Crabtree's employment on March 31, 1995, and that Crabtree's wage claim was a motivating factor in Meyers' decision.

The only other argument advanced on appeal by the respondent is that the period of time in which it took the ALJ to render his decision, nine months (from 11/95 to 8/96), is patently unfair to the respondents insomuch as the respondents are required to make payments to the complainant for the period of time it took for the ALJ to make a decision. The respondents suggest that a four week period would have been a reasonable time to render a decision and that it should be relieved of any payment beyond that period. Assuming for purposes of argument that a 9 month delay constitutes an unreasonable delay (The ALJ first issued a non-final decision finding liability on the part of the respondents on July 5, 1996, with attorney's fees being the only remaining issue to be decided), the court of appeals has spoken on the issue of administrative delay in the case of Chicago & N.W. R.R. v. LIRC, 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979). There, the court held that "The Fair Employment Act contains no mandatory time limits within which hearings must be scheduled or decisions must be filed. Absent a mandatory requirement, administrative delay in issuing a decision is not reversible error." Id. at p. 480. Further, with respect to the respondents' continuing responsibility for back pay while awaiting the ALJ's decision, the court noted that the respondent therein (as is the case with the respondents herein) was only compelled to pay wages it would have paid had it refrained from unlawful discrimination. Continuing, the court stated that the "Appellant lost the services of Mr. Pritzl while the complaint was pending but that loss was voluntarily incurred. It could have terminated that loss and its continuing liability at any time by reinstating Mr. Pritzl. Appellant chose not to do so and it cannot complain that its liability to Mr. Pritzl accrues during litigation. `(I)t has never been the law that a litigant is absolved from liability for that time during which his litigation is pending.'" (citation omitted) Id. at pp. 480-481.

Accordingly, the commission affirms the decision of the ALJ in its entirety.

cc: Attorney Jeffrey T. Jackomino
Attorney Gary S. Cirilli

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