DEBRA A JANCIK, Complainant

ADVANTAGE LEARNING SYSTEMS, Respondent

An administrative law judge for the Equal Rights Division of the Department of Workforce Development 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own.

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

Dated and mailed September 16, 2005
jancide . rsd : 164 : 9

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The Wisconsin Fair Employment Act prohibits the termination of employment of an individual because he or she files a wage claim under Wis. Stat. § 109.03 or attempts to enforce any right under that statute, or because the employer believes he or she may do so. See Wis. Stat. § 111.322(2m)(a) and (d). The issue presented in this case is whether the complainant demonstrated that the respondent violated the statute by terminating her employment because it believed she might file a wage claim against it. The commission agrees with the administrative law judge that the complainant has not made such a showing.

In her brief to the commission the complainant argues that she made it clear she had every intention of pursuing a wage claim with the ERD and that the respondent knew it. The complainant contends that, by pointing out that a co-worker had filed a previous wage claim, she was essentially telling the respondent that she knew about the wage claim process and that, if filing a wage claim was the only way to get the company to pay her her commissions, she would do it. She points out that the law does not require an employee to utter any "magic words," and that the employee need not make an explicit threat to file a complaint before coming under the protections of the statute. The commission has considered this argument, but does not find it persuasive.

While it is true that the law does not require any "magic words," and that an employee need not make an explicit threat to file a wage claim, the complainant must nonetheless present some evidence which would warrant a conclusion that the respondent formed the belief she may do so and, further, that it discharged her for that reason. In prior decisions involving this issue, in which the commission has found a violation of the statute in the absence of an explicit threat to file a complaint, the employee has given the employer some indication of his or her intention to file a wage claim, and it has been apparent from the facts that the employer believed the employee intended to take such action. For example, in Travis v. D.C. Nevels Trucking, Inc. (LIRC, Oct. 7, 2002), the commission found discrimination where the employee told the employer's owner that he had spoken with the Department of Transportation and had been advised that he should tell the employer he was not making a prevailing wage, to which the owner responded that the employee was raising her blood pressure, that she never had any problems like this until he came to work for her company, and that he was trying to get the company in trouble with the Department of Transportation. The employee was discharged on the spot. Similarly, in Hickman v. Milwaukee Immediate Care Center (Feb. 16, 2000), the employee told the employer that she felt its manner of paying overtime was illegal and that she had called the Labor Standards Bureau about the overtime issue, to which the employer responded it could not believe the employee had done that, and that her actions were undermining and underhanded. The employee was discharged the following day.

Both Hickman and Travis involve situations in which the employees notified their employers that they had spoken to state authorities about their wage issues, and in which the employers made it clear that they believed the employees were planning on causing problems for them with the state. Here, by contrast, the complainant did not tell the respondent she had been in contact with the ERD or that she intended to do so, nor is there any evidence to suggest that the respondent formed the belief the complainant was planning on filing a wage claim against it. The complainant's comment that another worker had gone to the ERD with regard to a separate wage dispute, while possibly establishing that the complainant was aware that she had recourse to the ERD and could file a wage claim, does not in and of itself warrant a conclusion that the complainant was planning to do so, and without more, is insufficient to have put the respondent on notice of any such intention. While the respondent agreed that the complainant had mentioned a co-worker's wage claim, the record contains nothing to suggest that it interpreted the complainant's comment as a threat to file a wage claim of her own.

Further, even if it could be found that the respondent believed the complainant intended to file a wage claim, thereby placing her in a protected class, in order to prevail in this matter the complainant would also need to establish that the respondent discharged her for that reason. The statute is concerned with the motives of the employer. Hephner v. Rohde Brothers Inc. (LIRC, June 30, 2004). The commission does not believe that this record warrants a conclusion that the complainant's discharge was motivated by a belief that she was going to file a wage claim or otherwise attempt to enforce a right under the statute.

The respondent's customer support director, Jacqueline Wolf, testified that the complainant was discharged because she was part of a faction of employees who were so resistant to changes in the commission structure that they were becoming disruptive and having a negative influence on other workers. Ms. Wolf elaborated that she was concerned there was a hostile work environment, and that there were people who wanted to do a good job but felt intimidated by those who did not. She testified that the complainant was one of the employees who was most resistant to the changes. Ms. Wolf further explained that she observed people congregating in the hallways instead of working, and that the individuals who were fired were those who were standing around talking and not working. Ms. Wolf's testimony on these points was supported by that of other witnesses, who agreed that some people in the sales department were so resistant to the changes that they stopped doing their jobs, and confirmed that the complainant was one of those employees who was deliberately not going to the phones.

Ms. Wolf additionally testified that another employee, Sherry Glenzer, was very vocal in her belief that the new commission structure was unfair and that she was owed commissions for January 4 and 5, and yet was not discharged because, despite her unhappiness about the unpaid commissions, she continued to work. Ms. Wolf stated that, if the complainant had been willing to make a commitment to the job, yet indicated she intended to file a wage claim, she would probably not have been discharged. While the complainant argues that this testimony was self-serving, the administrative law judge found it to be credible, and the commission sees no reason to conclude otherwise. Indeed, Ms. Wolf's testimony on this point was supported by that of a separate witness for the respondent, who indicated that there were several employees with pending pay disputes, and that some of those who were not discharged continued to insist that they were owed money for January 4 and 5. Although six employees were discharged, the record indicates that a total of thirteen employees ultimately filed wage claims. The fact that the respondent retained many people who harbored dissatisfaction with it based upon the back pay issue lends further credence to the respondent's assertion that it discharged the complainant because she was unwilling to work.

In her brief to the commission the complainant also argues that, when warning her that the respondent wanted to hear no more about the unpaid commissions, the respondent intended that prohibition to include any wage claim that she might file to compel payment of the disputed commissions. The complainant contends that she was fired for refusing to agree that the disputed commissions were a dead issue, and suggests that her discharge under these circumstances was because the respondent believed she might file a wage claim. Again, the commission finds this argument unpersuasive. While the respondent made it clear that it did not want to continue discussing the back pay issue and considered that matter closed, it appears that this prohibition was intended to extend to the workplace and was not meant as a threat that employees could not avail themselves of legal remedies. The respondent's witnesses testified that they genuinely believed no back pay was owed and wanted to focus on getting the job done, rather than on issues they considered closed. The commission is satisfied that the respondent's chief concern was getting its employees to return their focus to the job, rather than preventing them from exercising their legal rights, and that the complainant's discharge was based on her unwillingness to turn her attention back to the performance of her job duties.

Under all the facts and circumstances, the commission agrees with the administrative law judge that the complainant failed to establish she was discharged because the respondent believed she might file a wage claim. The dismissal of the complaint is, accordingly, affirmed.

cc:
Attorney Jeffrey P. Sweetland
Attorney Ronald T. Pfeifer

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uploaded 2005/09/20