CAROL A KLATT, Complainant

HALLIE CHIROPRACTIC LLC, 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, except that it makes the following modifications:

1. Paragraph 13 of the administrative law judge's FINDINGS OF FACT is deleted and the following paragraph is substituted therefor:

"On Friday, August 13, 2004, Dr. Thompson requested a computer printout from the security company for the period of July 30 to August 14."

2. Paragraph 21 of the administrative law judge's FINDINGS OF FACT is deleted and the following paragraph is substituted therefor:

"Dr. Thompson discharged Klatt because she believed Klatt might file a wage claim."

3. Paragraph 5 of the administrative law judge's ORDER is deleted.

4. Paragraph 6 of the administrative law judge's ORDER, as renumbered to paragraph 5, is deleted, and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12)."

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

Dated and mailed August 28, 2006
klattca . rmd : 164 : 9 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In its brief to the commission the respondent argues that the complainant did not make out a prima facie case of retaliation. The respondent notes that no wage claim had been filed by the complainant at the time of the discharge and that the complainant did not testify she told Dr. Thompson she was going to file a wage claim or assist her daughter in her wage claim. This argument fails.

The Wisconsin Fair Employment Act prohibits an employer from discriminating against an employee because the employer believes that the individual engaged or may engage in any activity protected under the statute, including filing a wage complaint. See Wis. Stat. § 111.322(d). In a decision which addresses the circumstances under which an employee may be covered by the statute, the commission stated, in relevant part:

"This statute is concerned with the motives of the employer. It does not require any "magic words" by the employee. The employee is simply required to present sufficient facts and circumstances that establish that an employer has taken unlawful action because it believes he or she might file a complaint or attempt to enforce a right under the referenced statutes. Furthermore, an employee need not make an explicit threat to file a complaint before coming under the protection of the statute . . . ."

Hephner v. Rohde Brothers Inc. (LIRC, Aug. 16, 2005)(emphasis in original).

Thus, the fact that the complainant did not notify the respondent that she intended to file a wage complaint does not affect her ability to state a claim under the statute.

The record established that the complainant's daughter filed a claim for unpaid vacation and overtime, that Dr. Thompson was visibly upset upon receiving notice of that complaint, and that she discharged the complainant the same day. The complainant testified that she, too, had unpaid overtime, and that she believed the respondent thought she was going to file a wage complaint because her daughter had done so. Given the timing of the events, and considering that the respondent knew the complainant was also banking unpaid overtime, one could reasonably draw the inference that the respondent believed the complainant may file a wage complaint and discharged her for that reason.

Next, the respondent argues that, even if the complainant established a prima facie case of discrimination, no retaliation was shown where it offered several legitimate nondiscriminatory reasons for the discharge. Specifically, the respondent maintains that the complainant violated a directive that she start coming in to work at 8:00 a.m., that she reported working nearly two hours she had not worked during the course of her last pay period, and that her attitude was very negative and hostile towards other workers.

However, the commission is not persuaded that the complainant was discharged for any of the performance-related reasons alleged. There is little or no competent evidence in the record to establish that the complainant had a negative or hostile attitude, and nothing to suggest that, assuming she did, this attitude played any role in the respondent's decision to discharge her. Regarding the complainant's reporting for work too early, the record reveals that the complainant had been habitually reporting for work at 6:00 a.m. until early August, when Dr. Thompson told the complainant she wanted her to come in closer to 8:00 a.m. The complainant then began reporting at 7:00 a.m. or later. Although Dr. Thompson was aware that the complainant was still getting to work before 8:00 a.m., she never spoke to the complainant about the matter, and when the complainant asked Dr. Thompson to explain why she was being discharged, nothing was said about the early start times. Under all the circumstances, the commission sees no reason to believe that either of these factors played a role in the discharge.

While the commission does not doubt that the respondent was troubled by the two-hour discrepancy between the complainant's time record and the security printout, it is nonetheless unable to conclude that the complainant would have been discharged for this reason had the respondent not received her daughter's wage claim. Dr. Thompson asked the complainant about her hours on the morning of August 16, but took no action to discharge the complainant or to initiate any sort of discipline. However, after receiving her daughter's complaint later that day, Dr. Thompson discharged the complainant. Dr. Thompson did not explain what transpired between the morning and afternoon that made her decide to terminate the complainant's employment, and the record reveals no reason to believe that the respondent obtained any additional information after the original conversation with the complainant that would have led to a conclusion that discharge was warranted. Although the complainant repeatedly assured Dr. Thompson that the hours reflected on her time sheet were accurate, and although Dr. Thompson was aware that the complainant sometimes performed work outside of the office, the complainant was never given an opportunity to account for the difference. Dr. Thompson had previously been reluctant even to issue a written warning to the complainant, because she did not want to hurt the complainant's feelings, yet did not hesitate to discharge the complainant, with no warning and without giving her an opportunity to explain her actions, shortly after receiving notice of the complainant's daughter's wage claim. These facts lead the commission to conclude that the complainant was not discharged based on the two-hour time discrepancy, but for reasons related to the wage claim.

Finally, in its brief the respondent makes the argument that, if there was any retaliation, it was based on the complainant's daughter's wage claim, which is not an appropriate basis for a retaliation claim under the law. The commission does not find this argument persuasive. While the law may not prohibit retaliation based upon the protected activities of family members, in this case it can be inferred that the complainant's daughter's actions in filing a wage complaint were upsetting to Dr. Thompson, and led her to believe that the complainant, who also had a bank of unpaid overtime, may do the same.

For all the foregoing reasons, the commission believes that the respondent did, in fact, retaliate against the complainant in the manner alleged. The commission has therefore affirmed the administrative law judge's decision, albeit with some minor modifications. The commission has corrected the date on which the respondent is found to have requested the security printout, and at the request of the parties, has deleted that portion of the Order addressing the complainant's unpaid overtime. The commission has also modified paragraph 21 of the administrative law judge's decision which finds that concern the claimant might file a wage claim was one of the factors in the respondent's decision to discharge her. The respondent has not argued that this matter should be treated as a "mixed motive" case, and the administrative law judge's decision when taken as a whole indicates that he did not intend to do so. The commission sees no reason to believe that the complainant would have been discharged in the absence of unlawful retaliation, and it has modified the administrative law judge's decision to more clearly reflect that fact.

cc:
Attorney Carol S. Dittmar
Attorney Jeremy D. Bertsch

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