RANDY SEEMAN, Complainant
UNIVERSAL FOODS CORPORATION, Respondent
An administrative law judge (ALJ) for the Equal Rights Division (ERD) of the Department of Industry, Labor and Human Relations issued a Final Decision and Memorandum Opinion in the above-captioned matter on October 14, 1993, concluding that the respondent had retaliated against the complainant for protected activity under the Wisconsin Fair Employment Act. The respondent subsequently filed a timely petition for commission review of the matter and thereafter both parties submitted written argument to the commission.
Based upon a review of the record, the Labor and Industry Review Commission (LIRC) hereby issues the following:
1. Beginning in February 1981, the complainant commenced a second period of employment with the respondent and worked in a variety of positions at the respondent's Stella Cheese Division in Beloit, Wisconsin.
2. During 1986 and early 1987, the complainant sustained a number of injuries at work which eventually led to surgery and placement on "permanent light duty of 85% of his wages." This light duty classification was established per agreement of the respondent and Teamsters Local 549 which represented the employes.
3. On February 12, 1988, the complainant, who had been working in the grating department, transferred to the cheese cleaning department. Subsequently, in ate February and March 1988, the complainant initiated three grievances against the respondent regarding assignment of overtime work outside the cheese department, his receipt of 85% of the normal job wage rate rather than the full wage rate for his work in the cheese department and failure to be paid at 100% for vacation, holiday and sick leave.
4. After filing the grievances, the complainant filed a complaint with the Equal Rights Division alleging handicap discrimination against the respondent with respect to his compensation and conditions of employment.
5. A hearing was held on the complainant's grievances before an arbitrator on July 21, 1988. On September 19, 1988, the arbitrator issued his award concluding that the only violation of the collective bargaining agreement was that of the respondent denying the complainant overtime after the day shift in his own department. There was no effort by either party to vacate the arbitrator's award.
6. The complainant voluntarily terminated his employment with the respondent on May 20, 1989, after taking a voluntary leave of absence beginning on April 1, 1989.
7. On June 12, 1989, the division issued a notice of hearing scheduling a hearing on the merits of the complainant's complaint of handicap discrimination for August 2, 1989.
8. On July 28, 1989, the respondent filed a complaint with the Wisconsin Employment Relations Commission (WERC) alleging that the complainant was violating s.111.06(2)(c), of the Wisconsin Employment Peace Act (WEPA). (It is an unfair labor practice for an employe to violate the terms of a collective bargaining agreement including an agreement to accept an arbitration award.) The respondent charged that the complainant has refused to abide by the arbitration award; that and r the guise of handicap discrimination Seeman was seeking the same relief from the ERD as was denied by the arbitrator.
9. Following a hearing, an examiner for the WERC issued a decision dismissing the. respondent's complaint. The examiner noted that the case was one of first impression under s.111.06(2)(c), but that rather than refusing to accept the arbitrator's determinations, Seeman was claiming that independent of the collective bargaining agreement the respondent's conduct was violative of his rights under the WFEA handicap discrimination provisions, and that Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) and Krueger v. Wisconsin Department of Transportation, (LIRC, 10/4/82) were supportive of the proposition that final and binding collective bargaining grievance arbitration agreements and employment discrimination complaints were independently maintainable.
10. The WERC examiner denied Seeman's request for attorney's fees and costs, noting that it was a case of first impression under s.111.06(2) (c), Stats., such that he could not conclude that the respondent's complaint was filed wholly without possible legal basis.
11. The WERC examiner's decision as to the unfair labor charge and request for attorney's fees and costs was affirmed on appeals to both the WERC and circuit court.
12. The complainant's handicap discrimination claim before the ERD was dismissed as it was found to be barred by the exclusive remedy provision of the Worker's Compensation Act and this decision was affirmed on appeals to both LIRC and circuit court.
Based upon the above FINDINGS OF FACT, the Labor and Industry Review Commission makes the following:
1. The respondent is an employer within the meaning of the Wisconsin Fair Employment Act.
2. The complainant, a former employe of the respondent, has failed to prove that he was retaliated against for protected activity under the Act in violation of said Act.
Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the Labor and Industry Review Commission issues the following:
The complainant's complaint of retaliation filed herein is dismissed.
Dated and mailed September 22, 1994
125
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ James R. Meier, Commissioner
The dispute in this case concerns the respondent's filing of an unfair labor practice charge before the Wisconsin Employment Relations Commission (WERC) against the complainant, who at the time was no longer, employed by the respondent but was proceeding to a hearing on a complaint of handicap discrimination against the respondent. The complainant asserts that the respondent's "adverse" action constituted unlawful retaliation for protected activity under the Wisconsin Fair Employment Act (WFEA). Citing language from the respondent's complaint filed with the WERC, the timing of the complaint, and language from the commission's decision in Pufahl v. Niebuhr (LIRC, 8/16/91), including decisions cited therein, the ALJ concluded that the respondent's action was in retaliation for the complainant's handicap discrimination complaint. On appeal to the commission, the respondent argues that the complainant's claim of retaliation is outside the scope of the Fair Employment Act, that it did not unlawfully retaliate against the complainant, that the ALJ's decision creates a conflict between s.111.06(2) (c), Stats., and s.111.322(3), Stats., and that her decision constitutes an unconstitutional abridgment of its First Amendment rights.
The WFEA provides that it is an act of employment discrimination "To discharge or `otherwise discriminate' against any `individual' because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified or assisted in any proceeding under this subchapter." Sec. 111.322(3). Similarly, section 704(a) of Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against any job applicant or any employe who makes a charge or assists or participates in an investigation or proceeding conducted pursuant to Title VII. It is appropriate to look to federal court decisions for guidance in applying and interpreting the WFEA. Bucyrus-Erie Co. v.. DILHR, 90 Wis. 2d 408, 421 n. 6, 280 N.W.2d 142 (1979).
A complainant may establish a prima facie case of retaliation by showing that: (1) the complainant engaged in a statutorily protected expression; (2) the complainant suffered an adverse action by the employer; and (3) a causal link exists between the protected expression and the adverse action. Acharya v. Carroll, 152 Wis. 2d 330, 340, 448 N.W.2d 275 (Ct. App. 1989). After noting that the federal courts were divided on the question of whether or not the federal laws providing protection from employment discrimination protect a former employe from an act of retaliation by a former employer, the ALJ apparently concluded that the anti-retaliation provisions of the WFEA extends to former employes, citing language in Pufahl, supra, that "An adverse action may in some circumstances be, subject to the anti-retaliation provisions of the Act even though its relationship to an employment opportunity is only indirect." She concluded that the respondent's July 28, 1989 complaint filed with the WERC was retaliatory based on language in the WERC complaint that "under the guise of handicap discrimination, Mr. Seeman seeks the same relief from the Equal Rights Division as was denied by arbitrator Zeidler," and the fact that the complaint was filed with the WERC five days before the hearing on the complainant's handicap discrimination claim.
At this point, the commission's decision in Pufahl should be examined. There, the complainant, Nancy Pufahl, complained that shortly after filing a complaint of sex discrimination against Local 464, a labor organization, the business manager for Local 464 called the Madison-Community Recreation Office and reported that she was illegally enrolled in the Madison Recreational Softball League because she was not a resident of Madison. The business agent's call resulted in Pufahl's softball team being ejected from the league and forced to default its first place position. Noting that the language of the WFEA focused on individuals' rights to obtain gainful employment and to be free of employment discrimination, the ALJ determined that the phrase otherwise discriminate contained in the retaliation statute had been intended by the legislature to involve only adverse actions which are directly related to an individual's employment. Having decided this, the ALJ concluded that Pufahl's complaint regarding the softball incident did not involve an employment related action and thus failed to state a claim under the WFEA. On appeal, the commission affirmed but noted that it did not agree that the anti-retaliation provisions of the Act only applied to adverse actions taken which were directly related to an individual's employment, stating that an adverse action may in some circumstances be subject to the anti-retaliation provisions of the Act even though its relationship to an employment opportunity is only indirect. In support, the commission cited a number of federal cases such as O'Brien v. Sky Chefs, 28 FEP Cases 1960 (9th Cir. 1982), EEOC v. Virginia-Carolina Veneer Corp., 27 FEP Cases 340 (W.D. Va., 1980) and Atkinson v. Oliver T. Carr Co., 40 FEP Cases 1041 (D. D C 1986). Finally, with respect to the complainant Pufahl, the commission stated:
In this case, the action which the Respondent is alleged to have engaged in because of a retaliatory motive -- contacting the city recreation department to report that Complainant was not a resident of the city in whose softball leagues she was participating -- simply bears no conceivable relationship whatsoever to any employment opportunity, past, present, or future. While the motivation for the action arose in an employment-related context, the action itself had no relationship to employment, and it was therefore not prohibited retaliation.
The commission was affirmed on appeal to circuit court. Pufahl v. LIRC, Case no. 91 CV 3592, Dane Co. Cir. Ct. (June 16, 1992) Although the federal courts are not unanimous, a majority of the circuits have interpreted Title VII to include discriminatory acts conducted post-termination against former employes. Baker v. Summit Unlimited, Inc., Case no. 1:93-CV-0357-JOF (D.C.NGa.), 65 FEP Cases 176 (March 31, 1994). The commission concurs that the anti-retaliation provisions of the WFEA extend to former employes. As noted in Rutherford v. American Bank of Commerce, 565 F.2d 1162, 16 FEP Cases 26 (10th Cir. 1977), "former employees, no less than present employees (need) protection from discrimination by employers resentful of the fact that a complaint had been made against them..." (citing Dunlop v. Carriage Carpet Shop, 548 F.2d 139, 22 WH Cases 1481 (6th Cir. 1977).
A critical question presented in Complainant Seeman's claim of retaliation based on the respondent's filing of an unfair labor charge against him is whether such claim is related to an employment relationship and thus within the scope of the WFEA. The ALJ apparently concluded that it was stating: "...the Administrative Law Judge believes that Universal's filing of the WERC complaint against Seeman has the potential to impair his future employment opportunities. In this case Seeman's reputation as an employe could be damaged if a new employer became aware that his former employer had filed a complaint against him with the WERC."
A review of the relevant case law indicates that the complainant's claim of retaliation is not related to an employment relationship and thus fails to come within the scope of the WFEA. In each of the cases relied on by the ALJ to conclude that there was unlawful retaliation there was a significant connection between the alleged adverse action by the employer and the former employe's employment opportunities. For example, in O'Brien, supra, the former employer gave the complainants negative job references and refused to consider them for rehire. In Atkinson, supra, a former employe's claim that the employer attempted to force her to drop her discrimination complaint by fabricating allegations that she made threatening phone calls to the employer was equated to a poor recommendation which could effectively destroy a former employe's chances of future employment. Further, the additional cases cited by the complainant in response to the respondent's brief to the commission to support the decision of the ALJ also indicate the need for a connection between the adverse action and the former employe's employment opportunity. For example, in Rutherford, supra, the court found that the bank's informing a prospective employer that the former employe had brought discrimination charges against it had resulted in a lost employment opportunity for the former employe. In Pantchenko v. C.B. Dolge Co.,Inc., 581 F.2d 1052, 18 FEP Cases 691 (2d Cir. 1978), it was held that the former employe's allegation that the employer refused to provide a reference for her having filed a complaint of discrimination stated a claim under Title VII. Other cases cited by the complainant involve defamation claims against the former employe based on the contents of the former employe's discrimination complaint. They include EEOC v. Virginia-Carolina Veneer Corp., 495 F.Supp. 775,' 27 FEP Cases 340 (W.D. Va. 1980) (defamation action alleging that former employe had defamed employer by making certain written allegations that she had been discriminated against) and Thomas v. Petrulis, 35 FEP Cases 190 (Ill. App. Ct. 1984) (libel action filed against the complainant alleging that discrimination statements were false and made with malicious intent to injure) However, since the employers' actions in these cases would by their very nature attack the truthfulness of the former employe with respect to his or her work relationship with the former employer, they present a definite relationship or connection to a former employe's future employment opportunity. The respondent's filing of the WERC complaint is not the equivalent of filing a defamation action against the complainant. The gist of the WERC claim was that Seeman should not be allowed to proceed on his handicap discrimination claim because the issues decided in that claim were already decided by an arbitrator. The WERC complaint does not have any negative implication with respect to Seeman's activity at the workplace or his integrity as a human being. Beckham v. Grand Affair, 44 FEP Cases 1861 (W.D. N.C. 1987), also fails to provide the complainant support. There, the complainant, who had charged her former employer with sex discrimination and then subsequently alleged that the employer had retaliated against her by, among other things, having her arrested for criminal trespass, was found to have been personally damaged by such arrest and prosecution for criminal trespass. Unlike Beckham, there is no proof that Seeman was personally damaged by the respondent's WERC complaint. Further, while it has been held that a .complainant need not show that the employer's actions resulted in harm in order to prevail on a claim of retaliation (as asserted by the complainant, citing Ninabuck v. Consolidated Freightways & David Matthews, (LIRC, 1/3/92) and Pederson v. LIRC, (Dane Co. Cir. Ct. 1978)), in both Ninabuck and Pederson, a potential harm existed that would have affected those complainants' employment opportunities. In Ninabuck the harm involved timely notice of a required physical so that the complainant could return to work for the employer. In Pederson the harm involved the complainant's honesty and possible future employment opportunity with a local realtor.
In the instant case, without any discussion as to how the WERC complaint related to or was connected to an employment relationship, the ALJ simply states that she "believes that Universal's filing of the WERC complaint against Seeman has the potential to impair his future employment opportunities. In this case, Seeman's reputation as an employe could be damaged if a new employer became aware that his former employer had filed a complaint against him with the WERC." But how would the respondent's action damage Seeman's reputation or impair his future employment opportunities when the WERC complaint neither challenges his integrity as a human being nor has any negative implication with respect to his workplace activity? The commission is not persuaded that the respondent's action would (or did) ,: impair his reputation or future employment opportunities.
Even if the respondent's action in filing the WERC complaint were found to be related or connected to an employment opportunity, however, under the circumstances presented in this case, the commission would have considerable difficulty in concluding that the preponderance of the evidence shows that the respondent's conduct constituted retaliation against the complainant for engaging in statutorily protected activity. For sure, an inference could be drawn that the respondent's action was discriminatory based on the timing of the WERC complaint. However, there is little else to support a finding of retaliation. (2) Moreover, there are at least two factors which appear to make a finding of retaliation very questionable.' First, as a party to the collective bargaining agreement under which the complainant pursued his grievances against the respondent, the respondent had a right under s.111.06(2) (c), Stats., to pursue what it perceived to be an unfair labor practice on the part of the complainant. Secondly, and perhaps more importantly, the WERC examiner that held the hearing on the respondent's complaint noted that the case was one of first impression under s.111.06(2)(c), and he denied the complainant's request for attorney's fees for that reason and because he could not conclude that the complaint had been filed wholly without legal basis. The examiner's decision was affirmed by the WERC and in circuit court.
In view of the commission's above determinations with respect to the complainant's failure to show that his claim of retaliation comes within the scope of the WFEA, and alternatively, that the preponderance of the evidence establishes that the respondent had retaliated against the complainant, the commission does not reach the issues involving the alleged conflict between s.111.06(2)(c), Stats., and s.111.322(3), Stats., and whether the ALJ's decision had constituted an abridgment of the respondent's First Amendment rights.
NOTE: The commission's reversal of the administrative law judge's decision is made as a matter of law as the case was tried on the basis of stipulated facts and exhibits and thus presented no credibility questions.
cc:
Naomi E. Eisman
John H. Zawadsky
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