Wis.LIRC ER Decision: Forster - March 22, 1995 - Statute of limitations - not a rule of evidence; Sex discrimination

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

JOANNE T. FORSTER, Complainant

ABBYLAND PROCESSING, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9200973, EEOC Case No. 26G920916

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations 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 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 modifications:

Delete paragraph 2 of the Order and substitute therefor the following:

"2. Abbyland shall pay the sum of Seven thousand two hundred three dollars and 15 cents ($7,203.15) as and for the reasonable attorneys fees and costs of Complainant in this matter. Payment shall be made by way of check made payable jointly to Complainant and her attorney and delivered to Complainant's attorney."

Delete paragraph 3 of the Order and substitute therefor the following:

"3. Respondent shall within 30 days of the expiration of time within which an appeal may be taken herein, submit a compliance report detailing the specific action taken to comply with the commission's order. 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: March 22, 1995
forstjo.rmd : 110 :

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

Introduction -- The issue in this case is whether the Respondent discriminated against the Complainant, because of her sex and her marital status, in regard to what it paid her.

In evaluating complaints of sex discrimination in pay under the Wisconsin Fair Employment Act, the commission has looked both to the analysis which is followed under the federal Equal Pay Act, which establishes a type of strict liability in which there is no need for proof of intent to discriminate, and also to the analysis conventionally followed under anti-discrimination laws such as Title VII of the Civil Rights Act of 1964, under which the ultimate question at all times is whether the respondent intentionally discriminated against the complainant in regard to pay because of sex. See, Sahr v. Tastee Bakery, (LIRC, 1/22/91). Evidence that the respondent has directly expressed a discriminatory motivation in the decision on what to pay a female complainant can support a finding of discrimination under the conventional, intent-based analysis. Id.

Relevance of Evidence Preceding The Statute of Limitations Period -- The Respondent argues that the Administrative Law Judge should not have considered any evidence of anything occurring more than 300 days prior to the filing of the complaint in this matter, in deciding the case. This position is wrong. A statute of limitations is not a rule of evidence.

In addressing an argument that evidence of matters occurring prior to the period covered by an applicable statute of limitation could not be considered in deciding whether acts within the statute of limitations period had been in violation of law, the Oregon Court of Appeals made the following observations:

In Local No. 1414, Internat'l. Machinists v. NLRB, 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed. 2d 832 (1960), the United States Supreme Court, in construing a section of the National Labor Relations Act analogous to ORS 243.672(4), stated the problem as follows:

"[I]n applying rules of evidence as to the admissibility of past events, due regard for the purposes of [the statute] requires that two different kinds of situations be distinguished. The first is one where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices. There, earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose [the statute] ordinarily does not bar such evidentiary use of anterior events. [footnote omitted] The second situation is that where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice. There the use of the earlier unfair labor practice is not merely 'evidentiary,' since it does not simply lay bare a putative current unfair practice. Rather, it serves to cloak with illegality that which was otherwise lawful." 362 U.S. at 416-417, 4 L Ed 2d at 837-38.

This is a case of the first kind; the acts allegedly occurring within the 180-day period, standing alone, constitute an unfair labor practice if done with the requisite intent. Intent may be inferred from the evidence petitioner attempted to offer. Therefore, the statute of limitations aspect of ORS 243.672 (4) is satisfied, and that statute does not act as a rule of evidence to exclude the evidence in question.

Smith v. Employment Division, 38 Ore. App. 241, 589 P.2d 1184, 100 L.R.R.M. 3067 (Court of Appeals of Oregon, 1979).

The same observations may be made about this case, and about the 300-day statute of limitations found in the Wisconsin Fair Employment Act. While the 300-day statute of limitations means that a complainant may not seek a separate remedy for a wrong occurring more than 300 days prior to the filing of the complaint, it does not mean that evidence about that wrong may not be relevant to an allegation that another act, occurring within 300 days of the filing of the complaint, was infected with discriminatory intent. The general rule is that evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. See, sec. 904.01, Stats. In this proceeding, whether or not Harland Schraufnagel ever exhibited a bias concerning Complainant's sex and marital status, and whether he ever considered the Complainant's sex and marital status in deciding what to pay her, was undeniably of consequence to the issue of whether or not the Respondent's practice and policy regarding the level of Complainant's pay was discriminatory. The evidence about the statements he made was thus clearly relevant. The fact that the statements may have been made more than 300 days prior to the filing of the complaint, if it is significant at all, concerns only the weight to be given to the evidence, not the question of whether that evidence was admissible.

Therefore, it was appropriate for the Administrative Law Judge to consider all of the relevant evidence that was presented, irrespective of whether it involved events occurring more than 300 days prior to the filing of the complaint, and the commission has also considered that evidence in its review.

Evidence of Intentional Discrimination -- Without intending to indicate that it has relied on it solely, the commission wishes to emphasize the significance to its decision in this matter of the overtly discriminatory statements by Respondent's owner. The credible evidence in the record in this matter establishes that on a number of occasions both Complainant's supervisor, sales manager William Hickman, and the Respondent's chief financial officer, William Vanden Heuvel, approached Harland Schraufnagel, the owner of Respondent, about increasing Complainant's pay to bring it more in line with the pay of the other sales representatives, who were male, and that Schraufnagel said:

that "between [the Complainant] and her husband, they made enough money"(T. 25);

"that a `snatch' didn't need to make that much money" (T. 26); (1 )

that she had gotten good results from some accounts that declined after other sales representatives handled them because "she was probably screwing the meat manager"(T.30);

that he was "paying her husband enough and she's a woman and she's compensated properly and she doesn't need any more, any additional compensation"(T. 46);

that the Complainant "was a good heifer or a good cow and she would produce but we don't have to give her any more"(T. 49)

The Respondent has made no serious argument that Schraufnagel did not make these statements. (2 ) It has instead relied on the argument that this (and other) evidence should be disregarded because it may have occurred more than 300 days before the complaint was filed. For the reasons set out above, the commission disagrees.

The commission is persuaded by all of the evidence in the record in this case, that Schraufnagel took Complainant's sex and marital status into account when deciding what to pay her. Indeed, this conclusion is virtually inescapable when statements such as this are made. This is intentional discrimination in compensation.

Remedy -- The Administrative Law Judge ordered that back pay be computed by comparing Complainant's earnings to those of Larry McGuire. This was based on his finding of fact that McGuire, who was hired by Respondent in approximately 1988, was put in charge of selling specialty meats and had "substantially equivalent duties and responsibilities" to the Complainant. Respondent argues that McGuire performed managerial duties, but this argument is hardly developed at all. Based on its review of the record, the commission concludes that the most persuasive evidence supports the Administrative Law Judge's conclusion about the comparability of Mr. McGuire. Complainant testified that she believed that her responsibilities and what she was doing for the company was comparable to McGuire's. In addition, William Hickman, a sales manager for Respondent, testified that Complainant performed duties comparable to those which an area manager would have performed, and that she was handling training and some supervisory duties in addition to sales duties. William Vanden Heuvel, Respondent's chief financial officer, testified when asked if Complainant's position was comparable to McGuire's, that Complainant's was "a little bit higher", that both had primary responsibilities of generating sales and production for the sausage kitchen, and that Complainant should have had a salary higher than McGuire's. The commission credits this testimony.

When (as here) there has been a finding that an employer intentionally discriminated against an employe and the question presented is what remedy would make the employe whole,

[d]ifficulty in calculating the precise amount of back pay should not defeat the right itself. Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 260, 7 F.E.P. Cases 1115 (5th Cir. 1974), cert. den., 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74, 18 F.E.P. Cases 1430 (1979). In computing back pay, unrealistic exactitude is not required, and uncertainties in determining what an employe would have earned but for discrimination should be resolved against the employer. Id. at 260-61; Silvers v. Madison Metropolitan School District (LIRC, July 25, 1986).

Sahr v. Tastee Bakery (LIRC, January 22, 1991). The commission therefore affirms the Administrative Law Judge's resolution of the issue of remedy.

Attorneys Fees -- The Administrative Law Judge issued a decision which ordered the Respondent to pay "reasonable" attorney's fees and costs. After the Administrative Law Judge's decision was issued on April 29, 1994, Respondent filed its petition for commission review on May 16, 1994. On May 18, 1994, Complainant filed her "Bill of Costs", which was, in effect, her petition for attorney's fees. The cover letter accompanying it shows that a copy was sent to Respondent's counsel. However, this fee request was never responded to in any way by Respondent, either in its briefs to the commission or otherwise. Specifically, Respondent made no objection, in its briefs to the commission, that either the number of hours for which compensation is sought, or the hourly rate, were excessive. Considering all of the circumstances here, the commission finds that the amount sought by complainant is fair and reasonable, and it orders payment in that amount.

cc:
ATTORNEY CHRISTINE R. H. OLSON
ATTORNEY JEFFREY T. JONES

Appealed to Circuit Court. Affirmed January 25, 1996. Appealed to Court of Appeals; affirmed, Abbyland Processing v. LIRC and Forster, 206 Wis. 2d 309, 557 N.W.2d 419 (Ct. App. 1996).

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Footnotes:

(1)( Back ) "`snatch' \ n . . . 7a: vagina - usu. considered vulgar b: sexual intercourse - usu. considered vulgar." Webster's Third New Intl. Dictionary, Unabridged (1976).

(2)( Back ) It did make one such argument, but it simply can not be taken seriously. Respondent argued in its Brief, that "Furthermore, Mr. Hickman never testified, as the Administrative Law Judge found in Finding of Fact No. 7, that Mr. Schraufnagel made the comment that the "`snatch' didn't need to make that much". The record is devoid of any such testimony." (emphasis in original) Of course, the record is by no means "devoid" of such testimony. It is found at page 26 of the transcript, at lines 4-6. The commission can only assume that Respondent's counsel inadvertently overlooked this portion of the record.