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

TERRY WERTH, Complainant

TMS CARRIERS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9252002

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on March 11, 1994. Respondent filed a timely petition for review by the commission and both parties submitted written arguments.

Based upon a review of the record in its entirety, and having consulted with the Administrative Law Judge concerning his impressions as to the credibility of the witnesses, the Labor and Industry Review Commission makes the following:

FINDINGS OF FACT

1. The respondent, TMS Carriers ("TMS"), is an employer operating a trucking operation involved in interstate trucking and based in Saukville, Wisconsin.

2. The complainant, Terry Werth, was employed by RMS Services Corp., Inc.("RMS"), a corporation owned by Robert Mendillo.

3. RMS owned six trucks, and these trucks were leased to TMS and driven for TMS by RMS' drivers, including Werth. The trucks ran out of TMS' terminal, were dispatched by TMS' dispatcher, and were serviced by TMS' service department. Werth's paycheck came from and was signed by Mendillo, but Werth picked up his check at the TMS shop. TMS and RMS had an agreement whereby, in exchange for a credit worth 3% of the lease charges TMS owed to RMS, TMS would work up RMS' payroll for the RMS drivers.

4. Werth suffered a work-related injury to his shoulder in April 1991. He was off work through mid-November 1991.

5. The vacation pay system which was in effect for the RMS drivers working for TMS did not pay wages during any actual "vacation," but instead paid a lump sum (based on a percentage of annual gross wages) twice a year, in the regular paychecks. Because Werth had been off work on worker's compensation in July, 1991 when a vacation pay check was due, he did not receive a paycheck with his vacation pay at that time.

6. After he returned to work in November, 1991 Werth asked a representative of TMS (Respondent's Safety Director, Clifford Warwick) about his vacation pay. His question had to do with the fact that he wanted his vacation pay when he returned to work. Warwick told Werth either that he would not receive it at all, or that Warwick would have to check to see whether or not he would receive it. In either event, Werth was dissatisfied with the answer he received from Warwick concerning his vacation pay entitlement, and he made his dissatisfaction known to Warwick. Warwick subsequently informed the owner of TMS, Teunissen, that Werth had raised a complaint with him about his entitlement to vacation pay.

7. Werth asserts that within a week of his conversation with Warwick concerning his vacation pay, he telephoned the Wisconsin Equal Rights Division, inquired about his rights as far as vacation pay was concerned, spoke to an Administrative Law Judge, was asked if the rest of the employes got paid and answered yes, and was told by the Administrative Law Judge that if one got paid they all get paid and that they could not discriminate. The commission does not find these assertions sufficiently credible to persuade it of their truth by a preponderance of the evidence. The commission finds as a matter of fact only that around this time, Werth may have contacted some agency of the State of Wisconsin and asked a question concerning his vacation pay.

8. Werth did not ever tell Warwick, Teunissen or Mendillo that he had contacted any agency of the State of Wisconsin concerning his question about his vacation pay.

9. Werth asserts that he discussed his telephone call concerning his vacation pay with other employes. The commission does not find this assertion sufficiently definite to allow it to make any finding by a preponderance of the evidence that Werth told these other employes anything specific about the call, including either who he made it to or what was said.

10. In December, 1991, Mendillo and TMS entered into an agreement whereby Mendillo sold all of his trucks outright to TMS. TMS notified all of the drivers who had been employed by RMS and driving its trucks, that they would be required to apply for hire as employes of TMS.

11. On December 26, 1991, Warwick met with Werth and told him that TMS had decided that it would not employ him.

12. Werth asserts that after Warwick told him that TMS would not continue to employ him, Werth asked him why, Warwick responded by asking him what he had done when Warwick informed him that he would not get his vacation pay, Werth responded by saying that he had called the State of Wisconsin, and Warwick then stated that Teunissen had heard that and was not pleased with it and because of that he would be terminated. The commission does not find these assertions sufficiently credible to persuade it of their truth by a preponderance of the evidence. The commission finds as a matter of fact only that after Warwick told him that TMS would not continue to employ him, Werth made some kind of statement about having "called the State of Wisconsin" or having gone to report his vacation.

13. No agent of TMS Carriers, Inc. made any decision concerning Terry Werth's employment based on any belief that Werth had filed a complaint, attempted to enforce any right under, or testified or assisted in any action or proceeding held to enforce a right under any of the statutes enumerated in sec. 111.322(2m), Stats.

Based on the FINDINGS OF FACT made above, the commission now makes the following:

CONCLUSIONS OF LAW

1. TMS Carriers, Inc. is an employer within the meaning of the Wisconsin Fair Employment Act.

2. TMS Carriers, Inc. did not discharge or otherwise discriminate against Terry Werth within the meaning of sec 111.322(2m), Stats.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission now makes the following:

ORDER

That the complaint in this matter be dismissed.

Dated and mailed: February 9, 1995
werthte.rrr : 110 :

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The issue in this case is whether there was a violation of sec. 111.322(2m), Stats. of the Fair Employment Act (FEA), subsection (a) of which provides that it is an act of employment discrimination under the FEA to discharge or otherwise discriminate against any individual because the individual "files a complaint or attempts to enforce any right under" any one of a number of other statutes. Subsection (b) of sec. 111.322(2m) provides that it is an act of employment discrimination to discharge or otherwise discriminate against any individual because the individual "testifies or assists in any action or proceeding held to enforce any right under" those other statutes. Finally, subsection (d) makes it an act of employment discrimination to discharge or otherwise discriminate against an individual because "the individual's employer believes that the individual engaged in or may engage in any activity described in pars. (a) to (c)."

The theory of the complainant is that he was denied continued employment by TMS because it had heard that he had contacted the Equal Rights Division concerning his dissatisfaction at not being paid his vacation pay. The complainant asserts that this contact was an attempt to enforce a right under sec. 109.03, part of the Wage Claims law, which is one of the statutes mentioned by sec. 111.322(2m), Stats.

The Administrative Law Judge agreed, finding that TMS refused to hire or employ Werth because he had "attempted to enforce his rights under" the Wage Claims law within the meaning of sec. 111.322(2m)(a), Stats. both by calling the Equal Rights Division and by "complaining about his vacation pay." ALJ's Finding of Fact 13. Presumably, the "complaining" reference is to Werth's communications with Warwick and/or other employes.

Initially, the commission notes that insofar as the ALJ's decision was premised on the theory that TMS retaliated against complainant because of his complaints within TMS to Warwick and/or other employes of TMS, it was erroneous as a matter of law. In a number of decisions, the commission has held that sec. 111.322(2m), Stats., is different from the other anti- retaliation provision in the Fair Employment Act (sec. 111.322(3), Stats.), in that it does not protect informal "opposition," but only the types of protected activities that have generally been referred to in the retaliation area as "participation". Roncaglione v. Peterson Builders, Inc. (LIRC, August 11, 1993); Pampuch v. Bally's Vic Tanny Health and Racquetball Club (LIRC, March 7, 1994). In Pampuch, the commission explained:

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."

The decision in Pampuch also stated:

For a number of reasons, the commission has concluded that [the] term ["attempts to enforce any right"] was intended to refer solely to formal attempts to enforce a right by resort to the governmental agency charged with enforcement of that right.

In Pampuch the commission also held that what was determinative was whether the employe had "filed a complaint or otherwise attempted to invoke the authority of the Equal Rights Division." Thus, while the filing of a complaint is not absolutely necessary, some sort of attempt to invoke the agency's authority is necessary.

Thus the ALJ's finding that TMS retaliated against Werth because he had complained within TMS about the vacation pay matter, even if accurate as a matter of fact, is irrelevant as a matter of law. The conclusion that there was a violation of sec. 111.322(2m), Stats. must rest on Werth's alleged contact with the Equal Rights Division, or it must fail.

The question of whether Werth engaged in conduct which was an attempt to enforce a right within the meaning of sec. 111.322(2m), Stats. turns first on the factual questions of whether that contact occurred and what its nature was. The commission has concluded that there was no attempt to enforce a right within the meaning of sec. 111.322(2m), Stats. in part because it was not sufficiently persuaded of the accuracy of Werth's factual assertions.

The evidence concerning the alleged contact with the Equal Rights Division is uncontradicted in the sense that Werth was the only one to testify about it. The fact that the testimony was uncontradicted does not, however, mean that the commission must accept it. While a tribunal should not disregard uncontradicted testimony as to the existence of some fact or the happening of some event in the absence of something in the case which discredits the testimony or renders it against reasonable probabilities, it is not required to adopt uncontradicted testimony if it is inherently improbable. See, Ashraf v. Ashraf, 134 Wis. 2d 336, 345, 397 N.W.2d 128 (Ct. App. 1986); Holbrook v. Holbrook, 103 Wis. 2d 327, 335, 309 N.W.2d 343, 347 (Ct. App. 1981). Having carefully considered both the record evidence and the comments of the Administrative Law Judge concerning his impressions as to the credibility of the witnesses, the commission is left with the definite conviction that there are inherent improbabilities in Werth's testimony concerning the alleged contact with the ERD. The commission is thus unable to say, that it finds Werth's allegations concerning the contact to have been established by a preponderance of the credible evidence.

Werth testified that when he contacted the ERD he spoke with an Administrative Law Judge. The Administrative Law Judge who presided over the hearing in this matter, Larry Jakubowski, advised the commission that when he gave this testimony, Werth seemed quite definite and certain about it. Nevertheless, according to what he told the commission, even ALJ Jakubowski did not believe Werth's testimony that he spoke to an Administrative Law Judge when he allegedly called the ERD. Therefore, ALJ Jakubowski expressly and intentionally omitted this from his findings of fact. See, ALJ's Finding of Fact 7.

The commission agrees, that it is inherently improbable that Werth spoke to an Administrative Law Judge. During his consultation with the commission in this case, and in the course of explaining his views on the believability of Werth's assertion that he spoke to an Administrative Law Judge, ALJ Jakubowski indicated that the internal operating procedures of the ERD are such that questions from the public about their rights under laws administered by the ERD are rarely referred to Administrative Law Judges, particularly in the case of questions in the wage and hour jurisdiction of the ERD since the Administrative Law Judges do not work in this area. This was consistent with the understanding of the commission, which has long had program responsibility for review of decisions coming out of the ERD.

The commission has considered the possibility that Werth simply misspoke when he identified the person he talked to as an Administrative Law Judge, but it has rejected this possibility, in part due to the indication of ALJ Jakubowski that Werth's testimony in this regard was characterized by a demeanor suggestive of definiteness and certainty. The commission finds it likely that a person who called a state agency and spoke to someone without knowing that person's position, would be more likely to state later merely that they had called and spoken to "someone," or something of that sort. For such a person to instead later declare with certainty and definiteness, that they spoke to "an Administrative Law Judge," does not lend support to their credibility.

The commission also considered Werth's testimony about the alleged contact with the ERD to be inherently improbable, for the additional reason that the nature of the advice he asserts he was given is so simplistic and uninformative, if not in fact plainly incorrect. The advice Werth claims he was given makes no reference to and is virtually meaningless in the context of the Wage Claims law, Ch. 109, Stats. The Wage Claims law says nothing about "discrimination," and the idea that all employes must be given identical benefits is not part of that enactment. Werth's testimony strikes the commission as a layman's speculation as to what an "equal rights" agency might have said. The advice is only connected to employment discrimination issues under the Fair Employment Act on the surface, in the use of the word "discriminate;" no mention is made of the salient characteristic of the rules concerning discrimination, which is that what is prohibited is discrimination based on certain protected characteristics (such as race, sex, age, etc.). The commission considers it inherently improbable that any employe of the ERD giving advice to members of the public would give advice such as this without that further explanation.

ALJ Jakubowski acknowledged that he had noted the vacuous nature of the advice Werth claims he was given, but he stated that he could not discount the possibility that an employe of the ERD might have rendered such advice, noting that his conclusion was perhaps affected by the fact that for some time he had officed next to a labor standards investigator (no longer employed at the ERD) who he had sometimes overheard giving advice to telephone callers. However, ALJ Jakubowski acknowledged on further reflection that he began his employment with the ERD after the point at which Werth's call was made and that he did not know if the investigator he had in mind was working then.

As noted, the commission finds it inherently improbable that Werth was given this advice by the ERD. The commission has considered the alternate explanation, that Werth was given more detailed and accurate advice and simply misunderstood it or garbled it in describing it at hearing, but again the indication that he testified with certainty and definiteness about this supposed call makes this alternate explanation difficult to accept.

Another factor which causes the commission to doubt the accuracy of Werth's testimony about the alleged call to the ERD, is the fact that he did nothing in response to the advice he claims to have received. It seems to the commission that if Werth, who had already taken the initiative to approach Warwick and demand his vacation pay, indeed then took the initiative to make a (presumably long-distance) call to the ERD, and was then given advice that under the laws that agency enforced his employer could not deny him his vacation pay, he probably would have followed up in some fashion -- perhaps by requesting the ERD to conduct an investigation, or by asking the ERD to send him materials for initiating a complaint, or at least by returning to his employer and telling it that the ERD had said it had to pay him his vacation pay. However, Werth did none of these things. Indeed, it is fair to say that in the month between his supposed call and the end of his employment, he did virtually nothing reasonably calculated to get his vacation pay. It is as if, having been told by the ERD that he held a full house in his stand-off with his employer, he folded without showing his cards. His conduct being more consistent with never having been given such advice by the ERD, the commission is that much more inclined to believe that he was not.

The commission therefore remained unpersuaded that there was a contact with the ERD as Werth describes it.

Another significant factual question is whether, as Werth claims, Warwick directly told him that Teunissen had heard that he had contacted the state and that he was not being employed for that reason. Werth's theory is evidently that Warwick and Teunissen learned of the call "through the grapevine" after Werth talked to co-workers about it. Warwick denies that he made the statement Werth attributes to him, and he asserts that it was Werth who brought the matter up, in the form of an accusation that the action was because Teunissen knew of this contact.

Relying on the claim that Werth told other employes something about a contact with the state as a basis for finding that Warwick and Teunissen knew of it, requires the commission to speculate that somehow Warwick and/or Teunissen heard of it, directly or indirectly, via these employes. However, Werth gave absolutely no indication of what he told these other employes about the call, he did not present testimony of any such co-workers, and indeed he did not even identify them. The bare assertion that Werth may have "discussed" the telephone call with unnamed co-workers is therefore not considered by the commission to have any significant probative value, in establishing that Warwick or Teunissen knew of the supposed call.

Thus, Werth's case rests on the believability of his disputed claim as to what Warwick said on December 26, 1991. However, the commission's doubt that Warwick or Teunissen heard anything to the effect that Werth had made a call to the Equal Rights Division makes the commission doubt that Warwick would have acknowledged knowing about such a call. The questions about the accuracy of Werth's descriptions of this supposed call also give reason to doubt the accuracy of his description of this final meeting with Warwick. Thus the commission cannot say that it finds a preponderance of the credible evidence to support a finding that Warwick made the statement which Werth claims.

The commission also concludes that, even accepting arguendo that a contact with the Equal Rights Division occurred as Werth described it, such a contact would not have constituted an attempt to enforce a right within the meaning of sec. 111.322(2m), Stats. The question, as was noted in Pampuch, is whether a person "filed a complaint or otherwise attempted to invoke the authority of the Equal Rights Division." Even accepting Werth's version of this call, there was no such attempt. There is no claim that Werth asked the ERD to investigate his employer's compliance with wage and hour regulations, or to assist him in filing a complaint, or to send him materials for filing a complaint; there is no claim that Werth even asked generally about how he might go about filing a complaint. Perhaps most significantly, Werth did not claim that he ever identified himself or his employer in this call, and in the absence of evidence that this information was conveyed, the commission could not so find except on the basis of pure speculation. This was thus hardly an attempt to invoke the authority of the ERD -- in fact, given that it cannot be found that Werth identified himself or his employer, it follows that there would have been no way the ERD could have exercised its authority in response to such a call.

It was for the legislature to determine, when it adopted sec. 111.322(2m) Stats. in 1989, the extent to which it would protect activity relating to the other enactments which that provision mentions. For whatever reason, it chose to extend protection only to active attempts to invoke the authority of the ERD by way of filing a complaint, attempting to enforce a right under those statutes, or testifying or assisting in an action or proceeding to enforce a right under those statutes. It stretches the language used by the legislature much too far, to pretend that it covers anonymous telephonic inquiries which do not even solicit any kind of action by the ERD other than answering a question. Therefore the contact Werth described here would not have been protected even if it had occurred, and the adverse employment action which occurred here would not have violated sec. 111.322(2m) even if it had been motivated by such a contact. Because the commission remained unpersuaded of either of these events to the necessary quantum of proof, and because it holds this view of the law, it has dismissed the complaint.

cc:
ATTY. JOHN FINERTY
ATTY. DARYL LAATSCH

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