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

ANGELA KACZYNSKI, Complainant

WSR CORPORATION
WHITLOCK AUTO SUPPLY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9350108, EEOC Case No. 26G930565

For reasons that are set forth in the attached memorandum opinion regarding the above-captioned matter, the Labor and Industry Review Commission issues the following:

ORDER

This case is remanded to the Equal Rights Division of the Department of Workforce Development for a hearing and determination of the appropriate remedial relief due the complainant, Angela Kaczynski.

Dated and mailed: October 29, 1997
kaczyan.rpr : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission on July 17, 1996, affirmed a generally-worded back pay order contained in a decision in which ALJ John Grandberry found that the respondent unlawfully discriminated against Ms. Kaczynski on the basis of her sex and pregnancy. The finding of discrimination was made after a hearing where no one had appeared on behalf of the respondent. The respondent argued on appeal to the commission that the ALJ's decision should be vacated and remanded because the ALJ had improperly made a decision based solely on the complainant's evidence and because the respondent did not have due notice of the hearing but the commission rejected these arguments. The matter was appealed to the circuit court and the court issued a decision on April 7, 1997, affirming the commission's decision. The court's decision was not appealed and thus became final.

The generally-worded relief ordered in this case stated that the respondent was to make the complainant whole for all losses in pay and benefits (this included health insurance benefits, maternity pay, sick pay and vacation pay based on the finding by the ALJ that the complainant was eligible for these benefits, had complained about not receiving them and that she never did receive them) that she suffered by reason of the respondent's unlawful conduct by paying her the sum she would have earned as an assistant manager but for the unlawful denial of a promotion to assistant manager and the termination of her employment, that this sum, minus an offset for the complainant's interim earnings, was to be computed from the date the complainant's employment was terminated until the date the respondent complies with the order, that amounts received as unemployment insurance or welfare benefits were not to reduce the amount of the award but to be withheld by the respondent and paid to the applicable agency, and that interest at 12% simple, calculated on a quarterly basis, was to be added to the amount payable after all statutory setoffs. The order contained a specific amount that was awarded for attorney's fees.

In circuit court, on the issue of the award, WSR argued that the commission's award of damages was vague, that there was no evidence in the record to determine the amount of back pay Kaczynski was entitled to and that the case should be remanded for a hearing on damages because the ALJ failed to hear evidence on Kaczynski's efforts to mitigate her damages. The Department of Justice argued on behalf of the commission that the award was sufficiently specific because it clearly and correctly identified the formula for calculating Kaczynski's back pay, that there was enough evidence in the record to permit WSR to determine its back pay liability because the only material fact not specified in the order (the rate of pay Kaczynski would have earned had she been promoted to an assistant manager) is known by WSR, and that WSR had the burden of proving Kaczynski's back pay should be reduced due to her failure to mitigate but failed to appear at the hearing and cannot now complain that the back pay order lacks specificity as to mitigation efforts.

Ms. Kaczynski's counsel asserted that WSR's argument on the issue of damages was waived because not raised before the commission, but this was of no import because a hearing would be scheduled so that damages could be determined and paid when this matter finally concludes.

The court found that WSR had waived its right to seek review of the damages order because this issue was not raised before the commission.

Subsequent to the court's decision the parties attempted to negotiate a settlement of Ms. Kaczynski's claim but have had no success.

Both parties have now requested a hearing to determine the exact remedial relief due.

There are a number of reasons which support the parties' request that this matter be remanded to determine what remedial relief is due the complainant. For example, first, as noted by the respondent, the usual practice in discrimination cases is to conduct a hearing on the question of whether a statutory violation occurred and to issue a generally-worded back pay order if a violation is proven, and then to hold a hearing if the parties cannot agree on the amount of the back pay owed. Toonen v. Brown County, (LIRC, 10/15/92). See also, Boynton Cab Co. v. DILHR, (Case no. 157-111, Dane Co. Cir. Ct. 1978) (The department need not make specific findings on the back pay issue, including the exact amount of back pay owing, unless the parties are unable to reach agreement. If the parties are unable to reach agreement on the amount of back pay then a request for such a hearing should be made to the department).

Secondly, the complainant apparently insists that over the course of her employment she would have received a further promotion, from that of assistant manager to store manager, and wants to make a record to establish this. As noted by the respondent, the normal assumption is that the complainant's salary would remain the same and that the complainant has the burden of establishing that her earnings would have increased, citing, Holbrook v. Coffee Systems, Inc., (LIRC, 4/10/92).

Thirdly, the parties also apparently disagree over the extent of alleged back pay liability. The respondent, again citing Holbrook, argues that back pay should be cut off when the complainant earns the same or greater per quarter as she earned with the respondent and which has a comparable career path, but there is no evidence in the record about the complainant's current position, her quarterly earnings, the factors influencing her quarterly earnings, or about any other information necessary to determine the back pay due.

Additionally, the back pay calculation is apparently further complicated with respect to reinstatement of the complainant due to WSR's sale of Whitlock Auto Supply. The complainant argues that if reinstatement is not possible there is an issue of front pay. The respondent has cited the commission's decision in, Miller v. Oak-Dale Hardwood Products, (LIRC, 12/13/94) for the proposition that front pay is not an appropriate remedy in this case, but on appeal the court decided to the contrary (See Miller v. LIRC, Case no. 95-CV-6, Pierce Co. Cir. Ct., Feb. 16, 1996), and thereafter the parties ultimately voluntarily settled the matter. See Miller v. LIRC, Case no. 96-1125-FT, Ct. App. Dist. III, July 10, 1996. In support of her claim for an award of front pay, the complainant has cited a wrongful discharge case, Kempfer v. Automated Finishing, Inc., 211 Wis. 2d 100, N.W.2d (1997)(Front pay is available where reinstatement is not feasible). In Kempfer, the court noted that in those situations where reinstatement is not feasible an award of front pay is still limited by the concepts of forseeability and mitigation. Id. at 120. Assuming it appropriate to award front pay, it will be necessary to determine the extent of front pay, if any, forseeable under the circumstances of the case and what effect the complainant's mitigation will have on the award of front pay. Id. at 121.

Accordingly, this case is remanded to the division for a hearing and determination of the appropriate remedial relief due Ms. Kaczynski.

cc: Matthew Ricci
Thomas H. Riley, Jr.

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