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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 800-831.6     

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800 REMEDIES;  ATTORNEY'S FEES, COSTS;  FRIVOLOUS CLAIMS, DEFENSES

810 Burden of proof re: remedies  

In deciding what remedies are appropriate, uncertainties should be resolved against the discriminating employer.  Lacking any reason to believe that the Complainant in this case would not have been offered a permanent store clerk position with the Respondent, and resolving any doubts on that question in her favor, the Labor and Industry Review Commission concluded that 'make whole' relief for the Complainant had to include back pay extending beyond the date on which her temporary assignment would have ended.  Nunn v. Dollar General (LIRC, 03/14/08).

The goal in fashioning a remedy in a case under the Wisconsin Fair Employment Act is to recreate the conditions and relationships that would have existed had the unlawful discrimination not occurred, i.e., to determine how to make the employee "whole." Powell v. SBC Ameritech (LIRC, 04/21/03).

In deciding what remedy is appropriate, uncertainties are resolved against the discriminating employer. Where the Respondent was clearly in the best position to establish what, if any, jobs were available at its facility, it was not reasonable to penalize the Complainant for the Respondent’s failure to present evidence on this point. Fields v. Cardinal TG Co. (LIRC, 02/16/01).

Where discrimination has been found and a remedial order relating to earnings the Complainant would have received but for the Respondent's discriminatory action has been made, the Respondent has the burden of proving that the Complainant's earnings would have differed from that of comparable employes. Uncertainties in that regard are to be resolved against the Respondent. Hill v. F. W. Woolworth (LIRC, 08/15/89).

The Respondent has the burden of showing that the Complainant did not make reasonable efforts to mitigate her damages, thereby cutting off the back pay period. Compton v. Great Wall Restaurant (LIRC, 07/20/89).

The Personnel Commission is not constrained to consider only those remedies requested by a Complainant. Ingram v. UW-M (Wis. Personnel Comm., 06/14/89).

Upon a finding that the Complainant was not promoted in part because of race, the Respondent has the burden of proving that relief should be limited because the Complainant would not have been promoted even in the absence of discrimination due to work performance problems. Jones v. Dy-Dee Wash (LIRC, 11/04/88).

Where discrimination had been found and the Commission was structuring a remedial order relating to the amount of overtime earnings a Complainant would have received but for a Respondent's discriminatory action, the employer had the burden of proving that the employe's overtime earnings would have differed from that of comparable employes. American Motors Corp. v. LIRC (Dane Co. Cir. Ct., 09/24/86).

Where a finding had been made that the Respondent discriminated against the Complainant in the hiring process, the Respondent had the burden of proving by clear and convincing evidence that the Complainant would not have been hired even in the absence of the unlawful discrimination. In determining this issue, uncertainties are resolved against the Respondent. Where the Respondent's evidence that the Complainant would not have been hired in any event was speculative, it was concluded that the Respondent had not met its burden. Silvers v. Metro. School Dist. (LIRC, 07/25/86).

While an employe has a duty to seek other employment in mitigation of damages, the employer has the burden of proof to establish that alternative employment was an available reality. Where there was evidence only that employment was available in the Complainant's field, but there was no comparison of pay, location, or other circum-stances for the available positions, it was held that the employer failed to establish the existence of available alternative employment. UW Whitewater v. LIRC (Ct. App., Dist. IV, unpublished decision, 11/25/85).

An award of back pay should follow a finding of discrimination, unless the Respondent proves, by clear and convincing evidence, that the applicant would have been rejected for the position had there been no discrimination. Silvers v. LIRC (Madison Metro. School Dist.) (Dane Co. Cir. Ct., 01/13/84).

Once an individual has proven discrimination, the burden shifts to the employer to show that, even absent the discrimination, the individual would not have received the promotion sought. Williams v. County of Milw. (LIRC, 04/15/81).

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820 Remedies For Discrimination; Right to liability finding when no remediable harm

The fact that an employer later remedies its own discriminatory act goes to the question of damages, not to the question of liability. In this case, the Complainant received a poor performance evaluation and was denied a pay increase in retaliation for having filed a sexual harassment complaint. The fact that she subsequently received the raise that was due her does not alter the conclusion that she was the victim of illegal discrimination. Muenzenberger v. County of Monroe (LIRC, 8/13/98).

Where a Complainant established that the employer did not do an individual case-by-case evaluation to determine whether his handicap affected his ability to undertake the job-related responsibilities, the Complainant was still not entitled to any monetary remedy because the Respondent later established that the Complainant's handicap posed a reasonable possibility of danger to himself or to others if he were allowed to work as a firefighter. However, the Respondent was ordered to cease and desist from failing to evaluate the Complainant if he again applied for employment with the Respondent. Leach v. Town of Pleasant Prairie Fire Dept. (LIRC, 04/23/91).

Upon a finding that the Complainant was not promoted in part because of race, the Respondent has the burden of proving that relief should be limited because the Complainant would not have been promoted even in the absence of discrimination due to work performance problems. Jones v. Dy-Dee Wash (LIRC, 11/04/88).

Where an employer's refusal to hire a job applicant was discriminatory, the applicant was entitled to a finding of discrimination.  However, no further relief was awarded because the Complainant made  misrepresentations on his application form which would have rendered him subject to dismissal at any time. Broeske v. American Can (LIRC, 02/16/79).

A female applicant who was rejected on the employer's assumption that women could not perform the job was entitled to a finding of discrimination, but not placement in the job or back pay where she was actually unqualified for the position. Wehrwein v. Atlas Forgings (DILHR, 04/25/77); also, Boettcher v. Doyle (LIRC, 05/19/77).

A security guard who was unlawfully transferred on the basis of race was entitled only to a finding of discrimination where there was no evidence that the employe's subsequent transfer and voluntary termination were on account of his race. Waldo v. Milwaukee Metro Security (DILHR, 04/08/76).

An employe was entitled to a determination as to whether or not her employer and union had discriminated against her even though she had been transferred to the job she sought. Watkins v. DILHR, 69 Wis. 2d 782, 233 N.W.2d 360 (1975).

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830 Remedies For Discrimination; Remedies which may be provided

831 Back pay

831.1 Entitlement to back pay, generally

A prevailing Complainant is presumed to be entitled to back pay, and a discriminating employer has the burden of proving otherwise through clear and convincing evidence.  In this case the employer alleged but failed to prove that the complainant had a history of absenteeism or that there was some reason to believe she would not have continued to work the same number of hours had her employment continued.  Olson v. Whatever Bar (LIRC, 3/12/13).

The Administrative Law Judge issued a decision concluding that the Complainant was not entitled to back pay because he had not established the amount of his damages at hearing. However, the parties had stipulated to the Complainant’s hourly wage, unemployment insurance benefits, and interim earnings at the start of the hearing. Given the stipulation made by the parties at the start of the hearing, together with the fact that the Complainant was proceeding pro se, the Administrative Law Judge had an obligation to raise the issue of back pay before concluding the hearing. While the stipulation of the parties was inadequate to determine the actual extent of the Complainant’s damages, the Complainant should not have been denied any back pay at all. The case was remanded to the Equal Rights Division for further fact-finding and a decision on the issue of back pay. Erwin v. Don & Cary’s Nokomis Inn (LIRC, 09/28/07).

Where an employee is terminated in part because of an impermissible motivating factor and in part because of other motivating factors, and where the termination would not have occurred in the absence of the impermissible motivating factor, the Department has the discretion to award some or all of the following remedies: a cease and desist order, reinstatement, attorney's fees, back pay and interest. Stoughton Trailers v. LIRC, 2006 WI App 157, 295 Wis. 2d 750, 721 N.W.2d 102;  aff'd. Stoughton Trailers v. LIRC & Geen, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477.

The mixed motive test is applied in cases where an employer has made an employment decision in part due to a prohibited discriminatory reason and in part due to a legitimate business reason. An employer who has made such an employment decision is liable under the Wisconsin Fair Employment Act, but the remedy may be modified depending upon whether the termination would have taken place in the absence of the impermissible motivating factor. If the employer would have made the same employment decision in the absence of the impermissible discriminatory reason, the Complainant should be awarded only a cease and desist order and attorney’s fees. If, however, the employment decision would not have been made in the absence of the prohibited discriminatory reason, the Complainant can be awarded all of the remedies ordinarily allowed, such as back pay, reinstatement and attorney’s fees. Holman v. Empire Bucket and Mfg. (LIRC, 08/15/03).

In "mixed motive" cases, where an employer has made an employment decision in part due to a prohibited discriminatory reason and in part due to a legitimate business reason, the employer is liable under the Act. However, the remedy may be modified depending upon whether the employment action would have taken place in the absence of the impermissible motivating factor. If the employer would have made the same employment decision in the absence of the impermissible discriminatory reason, then the Complainant should be awarded only a cease and desist order and attorney’s fees. If, however, the employment decision would not have been made in the absence of the prohibited discriminatory reason, the Complainant can be awarded all of the remedies ordinarily allowed, such as back pay, reinstatement and attorney’s fees. Miles v. Regency Janitorial Service (LIRC, 09/26/02).

Although an employer cannot escape liability if a Complainant has been discriminated against "in part" on a prohibited basis, evidence that legitimate reasons also contributed to the employer's decision can be considered in fashining an appropriate remedy. In this case, although the Complainant's marital status was a factor in the Respondent's decision not to hire him, the Respondent would not have hired the Complainant for the position even if his marital status had not been a factor considered in its selection. Accordingly, the Complainant's remedy is limited to a finding of discrimination, an order that the Respondent cease and desist from unlawfully discriminating against the Complainant because of his marital status, and an award of attorney's fees. Larson v. Tomah Police Dept. (LIRC, 07/20/94).

Where an employe proved that an employer has violated the Act by basing an employment decision at least in part on an impermissible motivation, it is appropriate to give the employe a formal finding to that effect and to order payment of appropriate reasonable attorney's fees. It may also be appropriate to provide further relief. However, if in such a case it is demonstrated by a preponderance of the evidence that the same employment action would have been decided on by the employer based on its legitimate motivating factors even in the absence of the impermissible motivating factor, no further remedy is appropriate. Baumgartner v. Tolibia Holdings (LIRC, 03/30/93), aff'd., Fond du Lac Co. Cir. Ct., 10/11/93.

An employe who was discriminated against in violation of the Wisconsin Fair Employment Act is not entitled to back pay and reinstatement after voluntarily quitting a job without being actually or constructively discharged by the employer. A voluntary resignation terminates the accrual of back pay and the employer's obligation to reinstate. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).

The Complainant's entitlement to back pay was extinguished by her failure to accept an unconditional offer of reemployment communicated directly to her by the Respondent. An offer of reemployment does not need to be accompanied by an offer to make the Complainant whole for all financial losses in order to be "unconditional." It may leave the question of back pay and similar remedies entirely uncovered. All that is necessary is that it offer employment, unconditioned on any requirement that the employe abandon her right to pursue further remedies. Frostman-Messier v. Nancy Lee Employment Agency (LIRC, 02/22/91).

Where Complainant would have been ranked second on the eligibility list for a position but was moved to third place when a lower rated black candidate was moved to first place in an affirmative action effort found to have violated the law, no remedy was provided the Complainant. His contention that he lost future promotional opportunities was too speculative to serve as the basis for awarding a higher pay range or back pay. Holmes v. DILHR (Wis. Personnel Comm., 04/15/87).

An award of back pay should follow a finding of discrimination, unless the Respondent proves, by clear and convincing evidence, that the applicant would have been rejected for the position had there been no discrimination. Silvers v. LIRC (Madison Metro. School Dist.) (Dane Co. Cir. Ct., 01/13/84).

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831.2 Back pay; Computation of amount, generally

Back pay does not terminate when the decision becomes final, but when the Complainant resumes employment with the Respondent, or would resume such employment but for his refusal of a valid offer of reinstatement to a substantially equivalent position. Smith v. RWS Trucking (LIRC, 11/18/09).

The general rule is that liability for back pay will continue to accrue after a retaliatory discharge until the date that the Respondent makes a valid offer of reinstatement, or the date the Complainant ceases making a reasonable effort to mitigate her damages.  Achilli v. Sienna Crest Assisted Living (LIRC, 07/18/08).

The accrual of back pay ceased when the Complainant stated at hearing that he was not seeking reinstatement.  Metzger v. UGD Automotive (LIRC, 2/28/08).

The normal assumption is that the Complainant’s salary would remain the same had he not been discharged. The Complainant has the burden of establishing that his earnings would have increased had he remained employed by the Respondent. Kaczynski v. WSR Corp. (LIRC, 10/29/97).

The quarterly method of computing back pay entitlement is the most equitable way of dealing with the twin problems of accounting for offsetting earnings and determining interest owing on a liability which has accrued over a period of time. The quarterly method requires that each calendar quarter of the back pay period be looked at separately. For each such quarter there needs to be a determination of the dollar amount the Complainant would have earned from employment with the employer in that quarter but for the discrimination, and a determination of what the Complainant did earn from other employment (or received from unemployment compensation or welfare benefits) during that quarter. The difference between these amounts is the back pay due for that quarter. Interest is also due on that amount from the last day of that quarter until the day of payment. The total award in any given case is the sum of all such amounts for all calendar quarters in the back pay period. Holbrook v. Coffee Systems (LIRC, 04/10/92).

Where a Complainant was earning at least $350 a week and was able to do so only by virtue of working overtime, the Respondent was not entitled to reduce its back pay liability by figuring an hourly wage for the Complainant and multiplying by forty. The Complainant's opportunity to work those overtime hours and to thus earn the amount he did was one of the advantages of the job which the Respondent's discriminatory actions deprived him of. In a quarterly back pay system, hourly wage is irrelevant; the question is how much the Complainant would have earned in a quarter. Holbrook v. Coffee Systems (LIRC, 04/10/92).

In calculating back pay, the normal expectation would be that a Complainant's earnings would have stayed the same had he not been discharged. The Respondent has the burden of proof to show that the Complainant's earnings would have gone down and the Complainant has the burden of proof to show that his earnings would have gone up. Holbrook v. Coffee Systems (LIRC, 04/10/92).

The Administrative Law Judge properly calculated the amount of back pay where he used the actual earning experiences of employes who held the Complainant's former position. The actual earning history of successor employes in the Complainant's former position included amounts earned by these employes when they were transferred to the first shift during times when the second shift was shut down. Given the Complainant's work experience and layoff history, it was reasonable to assume that the Complainant would have had the same opportunity to work on the first shift as her successors. Olson v. Phillips Plating (LIRC, 02/11/92).

Difficulty in calculating the precise amount of back pay should not defeat the right to a back pay award. In determining the amount of back pay, unrealistic exactitude is not required and uncertainties in determining what an employe would have earned but for the discrimination should be resolved against the employer. Sahr v. Tastee Bakery (LIRC, 01/22/91).

In this case, back pay is ordered based on an average of the earnings of three comparably situated employes. Woolridge v. Chicago Northwestern Transp. Co. (LIRC, 08/22/86).

The Personnel Commission adopts the method of computing back pay and interest thereon on a calendar quarterly basis, that being the standard practice used by the National Labor Relations Board and a practice followed by the Equal Rights Division. Under this method, earnings in one quarter can offset only back pay due within the same calendar quarter, and may not reduce back pay for other quarters. Hollinger v. UW Milwaukee (Wis. Personnel Comm., 07/11/86).

A statement in the remedial order that back pay should be computed on a "calendar quarter basis" means that earnings from other employment will only offset the back pay otherwise payable to the Complainant in the same calendar quarter during which the interim earnings were received. Sheriff v. Bishops Car Wash (LIRC, 02/04/86).

While working for the employer by whom she was subsequently terminated and against whom she subsequently prevailed in the discrimination claim, the Complainant was also drawing unemployment compensation benefits based on previous employment with a prior employer. In determining the amount of back pay due the Complainant, the Commission elected to look not at the evidence the Complainant gave at the hearing as to what she earned working for the employer, but rather as to the declarations she made to the Unemployment Compensation Division, during the period of her employment, concerning the wages she was earning. Schaeffer v. Alexander's Restaurant and Lounge (LIRC, 11/13/85).

An employe was laid off temporarily, recalled, and then laid off permanently. The first layoff was found discriminatory. Noting that the unemployment benefits the employe received during the second layoff were less than they would have been had he not been laid off the first time (because he had fewer benefit credit weeks), the Commission approved an order that, to remedy the first, discriminatory layoff, the employer pay the employe the difference. Heisel v. Manufacturers Box Co. (LIRC, 10/04/84) ; also, Vicherman v. Neuendorf Trans. (LIRC, 06/08/81), aff'd. sub nom. Neuendorf Trans. v. LIRC (Dane Co. Cir. Ct., 05/07/82).

Lost overtime wages are a proper component of a back pay award. Toonen v. Brown County  (LIRC, 10/15/82), aff'd. sub nom. Brown County v. LIRC (Brown Co. Cir. Ct., 11/14/83).

Back pay may be calculated by averaging the earnings of the employer's other workers performing the same job. Poeschl v. Mercury Marine (LIRC, 04/01/81).

Back pay may not be denied simply because it cannot be exactly calculated or is difficult to calculate. Buyatt v. C. W. Transport (LIRC, 07/25/77).

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831.3 Back pay; Offsets from back pay

The payment the Complainant received from a business he owned did not constitute "interim earnings" within the meaning of the statute. Therefore, those earnings were not deducted from the back pay award. The amount the Complainant earned was a fixed sum that he had drawn from his outside business throughout the course of his employment with the Respondent, and this income had continued following his discharge. Smith v. Wisconsin Bell (LIRC, 04/19/12).

In a case brought under the Employees' Right to Know Law, secs. 101.58-101.599, Stats., the Department exceeded its authority when it ordered that the Complainant recoup all back pay without deducting the unemployment benefits he had received.  The effect of this order was to overcompensate the Complainant.  Door Co. Highway Dept. v. DILHR, 137 Wis. 2d 280, 404 N.W.2d 548 (Ct. App. 1987).

Back pay was not cut off as of the date the Complainant, who had been terminated by the Respondent, received a raise at a subsequent job with another employer (in May of 1987) since the Complainant's earnings per calendar quarter were still less than they would have been had he continued at the Respondent. The question is not hourly rate, but earnings. However, back pay liability was terminated at the end of calendar year 1988 because the Complainant's quarterly earnings after that time were consistently higher than what he would have earned had he continued working for the Respondent and the new job was comparable in terms of career path considerations. Holbrook v. Coffee Systems (LIRC, 04/10/92).

A uniform charge which a subsequent employer deducted from the Complainant's wages served to reduce the amount of interim earnings which offset back pay. The uniform charge was subtracted from the interim earnings on a quarterly basis and not as a lump sum. Holbrook v. Coffee Systems (LIRC, 04/10/92).

The back pay award was reduced where the Respondent sustained its burden of proving that from the time the Complainant was discharged until the time her baby was born she did not actively seek employment and, thus, failed to reasonably mitigate her wage loss. Davis v. Braun-Hobar Corp. (LIRC, 04/18/90).

An employer may deduct from back pay amounts it can show would not have been earned because of the Complainant's predictable history of absenteeism. Szczerbiak v. Forest Labs (LIRC, 07/06/83).

LIRC does not have authority to reduce a back pay award by the amount of sick leave benefits received, especially where the employer did not pay those benefits. Roessler v. LIRC (Chicago & N.W. R.R.) (Eau Claire Co. Cir. Ct., 09/08/82).

LIRC did not abuse its discretion in refusing to reduce the applicant's interim earnings to reflect a 40 hour work week where the applicant worked 50 hours per week. While some federal cases argue that earnings are "supplemental" where the employe could have earned them and still worked at the position which he was discriminatorily denied, LIRC could reasonably conclude that the Act requires it to deduct all actual earnings from lost wages. Neuendorf Transp. v. LIRC (Vicherman) (Dane Co. Cir. Ct., 05/07/82).

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831.4 Back pay; Events limiting back pay liability

An Administrative Law Judge's award of reinstatement and back pay up to the time of reinstatement was improper where the Complainant expressly stated at the hearing that she was only asking that she be awarded back pay up to the time of the hearing. Given the Complainant's waiver of reinstatement, the Complainant was only entitled to be awarded back pay up to the time of the hearing. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

Where a Complainant was not actually discharged by an employer, the remedies of reinstatement and back pay can only be awarded if the Complainant establishes that the Complainant was constructively discharged. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).

A decision by a Circuit Court that the Complainant was "not willing to work," so as to be unavailable for work within the meaning of the Unemployment Compensation Act, is equivalent to a determination that the Complainant failed to exercise reasonable diligence to obtain other employment. That finding precludes an award of back pay for the time that the Complainant was not willing to work. Frostman-Messier v. Nancy Lee Employment Agency (LIRC, 02/22/91).

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831.41 Events limiting back pay liability; Unconditional offer of reinstatement

A valid offer of reinstatement terminates the accrual of the employer’s backpay obligation. The offer of reinstatement must be for the same position or a substantially equivalent position. "Substantially equivalent" employment means employment that affords virtually identical promotional opportunities, compensation, job responsibilities, working conditions and status. Ramos v. Stoughton Trailers (LIRC, 08/16/01).

The Respondent’s offer to reinstate the Complainant to a second shift supervisor position (as opposed to the first shift position the Complainant had previously held) tolled the Respondent’s backpay liability. There was no evidence to establish that the working conditions on the second shift were worse on the day shift. The Respondent’s practice has been to transfer supervisors to different shifts and plants. The Complainant had been transferred to another plant before. There was a good chance, due to changes in the Respondent’s operations, that had the Complainant’s employment not been terminated he would have been assigned to a different plant location anyway. A travel distance of twenty-six miles to work does not appear to be an unreasonable distance for the Complainant to travel to work. The Complainant’s position is not a unique position. Finally, requiring the Respondent to reinstate the Complainant to his former position would likely have required the displacement of another employee at that location. Ramos v. Stoughton Trailers (LIRC, 08/16/01).

The Respondent's offer to reinstate the Complainant did not end the accrual of the Complainant's back pay period where the offer of reinstatement was made with the condition that the Complainant withdraw her complaint. Cintron v. Phil Wrobbel Service Corp. (LIRC, 04/29/96).

A Respondent's liability for back pay terminates at the point a Complainant waives an offer of reinstatement. The Complainant in this case had been constructively discharged by the Respondent when she quit after being subjected to unlawful sexual harassment. The Complainant testified at hearing that she did not want reinstatement and that she could not go back to work for the Respondent. The Complainant's testimony amounted to an unequivocal waiver of reinstatement and the Respondent's liability for back pay ended as of that date. Miller v. Oak-Dale Hardwood Products (LIRC, 12/13/94).

In order to toll the accrual of back pay, an offer of reinstatement must be for the same position, or a position which is substantially equivalent to the position that the employe held prior to the alleged discriminatory act. In a Wisconsin Family and Medical Leave Act case, Kelley Co. v. Marquardt, the Wisconsin Supreme Court stated that comparability in salary is only one factor to be considered in determining whether a new position was substantially equivalent to the employe's previous position, and that comparability in status is another important factor. In this case, the Respondent made a valid offer of reinstatement to the Complainant when it offered him a punch press operator position, which was not substantially different from the position of large press set-up person that the Complainant had worked in prior to his discharge. Because the positions were substantially equivalent, the Complainant's failure to accept the offer of reinstatement constituted a failure to mitigate his damages. The Respondent's reinstatement offer tolled the accrual of back pay as of the date of the Complainant's refusal to accept the position. Woltman v. Atlas Metal Parts Co. (LIRC, 01/07/94).

The Family and Medical Leave Act does not state that constructive discharge is a requirement for reinstatement or back pay. The fact that an employe voluntarily quit her employment with an employer is an appropriate factor for the Department to consider in determining whether the employe mitigated her damages. Not all voluntary terminations constitute a lack of reasonable diligence. On remand the Department must determine whether the employe acted reasonably in quitting after her return from family leave. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 493 N.W.2d 68 (1992).

The Complainant's entitlement to back pay was extinguished by her failure to accept an unconditional offer of reemployment communicated directly to her by the Respondent. An offer of reemployment does not need to be accompanied by an offer to make the Complainant whole for all financial losses in order to be "unconditional." It may leave the question of back pay and similar remedies entirely uncovered. All that is necessary is that it offer employment, unconditioned on any requirement that the employe abandon her right to pursue further remedies. Frostman-Messier v. Nancy Lee Employment Agency (LIRC, 02/22/91).

Back pay liability ends at the time the employer's valid offer of reinstatement is rejected. To be valid, the offer must: 1) be for the same or a substantially similar position; 2) be unconditional; 3) afford the Complainant a reasonable time to respond; and 4) be made directly by the employer or agent authorized to hire and fire. A Complainant's rejection of an offer because she was happily working elsewhere does not waive the requirement that the offer be unconditional. Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983).

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831.42 Events limiting back pay liability; Accepting comparable job at same or higher wage

Liability for back pay is not automatically cut off when the Complainant is re-employed at a higher wage.  In this case, the Complainant accepted higher paying work after he had been discharged by the Respondent.  However, the Complainant was not asked whether he would have accepted the job at the second employer even if he had still been employed by the Respondent.  While the Complainant was not eligible for back pay during the time he worked for the second employer (where he earned more than he would have earned from the Respondent), his acceptance of that employment did not completely cut off his potential entitlement to back pay.  Nor did it terminate his right to reinstatement with the Respondent.  Robertson v. Family Dollar Stores (LIRC, 10/14/05)

If a person obtains alternate employment with a higher wage in a position which he would have accepted even if he had been employed by the original employer, then the subsequent employment terminates the original employer's liability for back pay and reinstatement despite the person's layoff from the subsequent employment. Anderson v. U.W.-Whitewater, ERD Case No. 8133525 (LIRC, Feb. 16, 1983)aff'd. sub nom. UW-Whitewater and Anderson v. LIRC, Case No. 83-CV-1351 et al., Dane Co. Cir. Ct., June 4, 1984;   aff'd. sub nom. UW-Whitewater and Anderson v. LIRC, Ct. App., Dist. IV, November 25, 1985 (unpublished decision).

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831.43 Events limiting back pay liability; Quitting or being fired from comparable job

Just because an employee is discharged from a subsequent job does not necessarily establish that he failed to reasonably mitigate his damages arising from a previous act of discrimination. In this case, the Complainant's discharge from his subsequent job did not cut off his entitlement to back pay because the record did not establish that his actions were unreasonable or wrongful. Matousek v. Sears Roebuck & Co. (LIRC 02/17/06); vacated on other grounds & remanded for further proceedings, sub nom. Sears Roebuck and Co. v. LIRC (Milwaukee Co. Cir. Ct., 09/29/06).

It is appropriate to reduce a back pay award by the amount the Complainant would have earned had he exercised reasonable diligence in seeking new employment.  However, quitting a subsequent job is not necessarily an event which completely cuts off the Respondent’s liability for back pay.  Robertson v. Family Dollar Stores (LIRC, 10/14/05)

There is no per se rule that discharge from subsequent employment ends the Respondent’s back pay liability, even when the Complainant’s discharge was for poor performance.  The question is whether the discharge indicated that the Complainant did not act reasonably to mitigate his damages.  In this case, the Complainant was fired for failing to record the correct number of pallets at his subsequent place of employment.  There was nothing in the record to suggest that this anything more than an inadvertent performance error on his part.  Therefore, there was no reason to regard it as a deliberate failure to mitigate his damages.  Robertson v. Family Dollar Stores (LIRC, 10/14/05)

The Complainant did not fail to exercise reasonable diligence in mitigating her damages when she was fired from her subsequent employment for having three absences which, under the circumstances, were understandable absences.   U. S. Paper Converters v. LIRC and Bodoh208 Wis. 2d 523, 561 N.W.2d 756 (Ct. App. 1997)

Not all voluntary quits of subsequent jobs constitute a lack of reasonable diligence in mitigating a wage loss. The burden is on the employer to prove that the Complainant did not have any justifiable reason for quitting. In this case, the Complainant established that the job she took after being discharged by the Respondent was not comparable in terms of working conditions or compensation. Under the circumstances, the Complainant's quitting that job should have no adverse effect on her eligibility for back pay. Crivello v. Target Stores (LIRC, 08/14/96) , aff'd sub nom. Target Stores v. LIRC (Ct. App., Dist. IV, unoublished decision, 1/8/98).

The burden is on the employer to prove that the employe has failed to exercise reasonable diligence in mitigating her wage loss. Not all voluntary quits of subsequent jobs constitute a lack of reasonable diligence in mitigating a wage loss. Davis v. Braun-Hobar Corp. (LIRC, 04/18/90).

A Complainant's quitting a subsequent job three days after she began it did not toll the back pay period where the job required an excessive number of hours and did not include any breaks. State ex rel. Badger Produce v. MEOC (Dane Co. Cir. Ct., 09/02/80).

A part-time grocery store cashier who was discriminatorily discharged due to pregnancy was allowed back pay from the date of discharge to the date she voluntarily quit her cleaning job. Peterke v. Jolly Foods (LIRC, 10/03/78), aff'd. sub nom. Jolly Foods v. LIRC (Dane Co. Cir. Ct., 05/08/79), aff'd., Ct. App., Dist IV, unpublished decision, 05/23/80.

Because a complaining party quit a comparable job which he had taken after being discriminatorily refused hire as a brakeman, it was reasonable to conclude that he would have also quit the first job and he was therefore not entitled to back pay and retroactive seniority. Soo Line R.R. v. LIRC (Bergeman) (Dane Co. Cir. Ct., 09/07/78).

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831.44 Events limiting back pay liability; Unavailability for work

The concept of make-whole relief does not include reinstating the Complainant into a job that he would have been unable to keep even in the absence of any discrimination by the Respondent. There is no reason to distinguish between an employee who loses his job because of unavailability to work related to criminal conduct and one who loses his job because of unavailability to work due to illness. The relevant point is that, due to circumstances over which the Complainant had no control, the Complainant would have been completely unable to perform any work over a prolonged period of time. Assuming that the Respondent can establish that it would have discharged the Complainant based upon his unavailability for work, the Complainant's right to reinstatement would be cut off at the point when he would have been unavailable to work. (Because the Complainant was completely unable to work, the only accommodation that would have been available for his disability was a leave of absence. The Respondent would not have been required to hold a job open indefinitely by way of reasonable accommodation if there was no foreseeable return to work date.) Knight v. Walmart Stores East (LIRC, 10/11/12).

The Complainant testified that he had not looked for work after the time that he was discharged from the employer who hired him after he was discharged by the Respondent.  He indicated that he was planning to enroll in school on a full-time basis and to help out at a family-run business without pay.  The Complainant was not entitled to back pay from the Respondent while he was a full-time student or where he had otherwise removed himself from the labor market.  Robertson v. Family Dollar Stores (LIRC, 10/14/05).

A Complainant's decision to relocate to another state does not sever her entitlement to a back pay award. In this case, the Respondent did not establish that the Complainant failed to exercise reasonable diligence in seeking employment after she moved out of state. Further, the Respondent did not establish that it ever extended her an offer of reinstatement wither before or after her move. Miller v. Oak-Dale Hardwood Products (LIRC, 12/13/94).

The Respondent's argument that a back pay award should not have extended until the date the Complainant (who was discharged because of pregnancy) delivered because it was not "logical" to believe she would have worked up to her delivery date embodies the same type of preconceptions about the effects of pregnancy on the employe's abilities as was found to have violated the Wisconsin Fair Employment Act. Howard v. The Cloisters (LIRC, 08/24/90).

Where a Complainant stated at the hearing that she had no interest in returning to work for the Respondent and that she had abandoned her search for other work at a definite point in time after her termination by the Respondent, this was sufficient to eliminate the Complainant's right to reinstatement and to cut off her right to back pay as of the point at which she abandoned her search for work. Kelm v. Watertown Public Library (LIRC, 07/19/85).

The discharged employe was awarded back pay until the date he enlisted in the U. S. Army and was therefore no longer available for employment with the employer. Scheidel v. American Council of the Blind (LIRC, 04/06/82).

It was discrimination to discharge a retail counselor in her third month of pregnancy on the unsupported speculation that pregnant employes are frequently ill, and she was awarded back pay from the date of her discharge to the date her doctor indicated she would have had to stop work. Chojnacki v. Rental Directory (DILHR, 01/13/77).

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831.45 Events limiting back pay liability; Showing that job would have ended anyway

The Respondent did not meet its burden of showing that back pay should be cut off without an offer of reinstatement.  There was no evidence in the record to support a finding that the store where the complainant worked would have closed after she was discharged.  Moreover, when an employer operates several facilities in Wisconsin, the fact that it no longer operates the facility in which the complainant was employed does not serve as a bar to an offer of reinstatement.  There is no reason to presume that the complainant would not have been offered a transfer to one of the Respondent's other store or restaurant locations, had she remained employed, nor any reason to believe that the Respondent could not offer the complainant instatement into a job at one of its other stores or restaurants within a reasonable commuting distance from the complainant’s home.  Weaver v. V&J Holding Companies Inc. (LIRC, 12/23/13) (appealed to circuit court).

Back pay was not cut off when the Respondent sold its facility following the Complainant's discharge. Where the Respondent has been found to have retaliated against the Complainant because of prior opposition to allegedly discriminatory practices, it had the burden of proving that it would not have recommended him for hire by its successor. Savage v. Stroh Container (LIRC, 09/20/89)

Where the discharge of a restaurant employe was found to have been discriminatory and back pay was ordered, the owners of the restaurant could not escape liability for back pay owing after the date on which those owners sold their interest in the restaurant, where the evidence suggested that most, if not all, of the former employes were hired by the new owners of the restaurant and continued working there. Discrimination having been established, the burden was on the Respondent to prove that its back pay liability should be reduced. The Respondent here failed to prove that the Complainant would not have continued to receive income from employment at the restaurant even after it sold its interest in it. Buehler v. Schlueter Investment Co. (LIRC, 06/05/87).

A qualified black applicant who was refused hire was entitled to the back pay he would have received from the date of the refusal to the time he would have been laid off. Lewis v. Safeguard Security Servs. (DILHR, 01/26/77); Kostroski v. American Can (DILHR, 04/28/77).

It was discrimination to terminate a part-time clerical employe pursuant to a policy of discharging employes in their fourth month of pregnancy where the employer could not show that the termination was caused by its computerization of the clerical work; however, her back pay was limited to the date on which her duties were actually phased out. Rech v. Glearson (LIRC, 10/26/77).

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831.46 Events limiting back pay liability; After-acquired evidence

After-acquired evidence of a legitimate basis for an employee's termination cannot shield the employer from liability for its discriminatory conduct. However, it may be used in fashioning the remedy. As a general rule, neither reinstatement nor front pay is an appropriate remedy in such cases, as it would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event upon lawful grounds. The beginning point in the formulation of a remedy should be calculation of back pay from the date of the unlawful discharge to the date the new information was discovered. However, the Respondent must first establish that the wrongdoing was of such severity that the employee would, in fact, have been terminated on those grounds alone if the employer had known of it at the time of the discharge. In this case, the Complainant established that the Respondent discriminated against her on the basis of conviction record when it terminated her employment. However, the Respondent later learned that the Complainant had falsely reported that she had never been convicted of any offense. The Respondent considers falsification of documents in the application process to be cause for immediate discharge. Accordingly, the Complainant was not entitled to reinstatement; however, she was entitled to back pay from the date of her discharge until the date of the hearing. McKnight v. Silver Spring Health and Rehabilitation (LIRC, 02/05/02).

The employer attempted to limit its liability for back pay at a damage hearing by arguing that if it had not unlawfully discharged the Complainant when it did, it would have conducted an investigation of the Complainant's conduct which may have uncovered a legitimate reason for discharging the Complainant. Because the Respondent was not actually in possession of any after-acquired evidence of misconduct, it was appropriate to prohibit the Respondent from presenting testimony about any such investigation and what it might have uncovered. Schneider v. Stoughton Trailers (LIRC, 02/24/95).

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831.5 Back pay; Limitation to two years prior to filing of complaint

Pension benefits are a component of back pay and may, therefore, not be awarded for any period more than two years prior to the filing of a complaint. Davis v. City of Milwaukee (LIRC, 08/23/82).

Back pay cannot be awarded where liability accrued more than two years prior to the filing of the complaint. Bemis Mfg. v. LIRC (Sheboygan Co. Cir. Ct., 02/28/80).

An employe who was discriminated against was not awarded her lost earnings because her disability occurred more than two years prior to the filing of her complaint. DeWitt v. Appleton Papers (LIRC, 06/07/78).

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831.6 Back pay; Respondent's obligation for back pay payment, exceptions and limitations

While it might be satisfying to hold the individual who committed the sexual harassment of the Complainant financially responsible for his actions, the law does not sanction such a result. In this case, that individual was the manager of the business; he acted as an agent, and was not an employer in his own right. Therefore, there was no legal basis for making him financially liable. The employer is liable for any financial remedies ordered as a result of a violation of the law by an individual employed by that employer. (sec. 111.39(4)(c), Stats.). Powell v. Salter (LIRC, 07/11/97).

Sec. 111.39(4)(c), Wis. Stats., states that "[I]f an examiner awards any payment to an employe because of a violation of sec. 111.321 by an individual employed by the employer, under sec. 111.32(6), the employer of that individual is liable for payment." The bill drafting file provides no hint as to the intended purpose of this language. It appears, however, that it is an attempt to hold employers responsible for the discriminatory acts of their agents, and to provide a "deep pocket" so that prevailing Complainants are able to collect back pay awarded to them. Ninham v. Oneida Tribe of Indians of Wis. (LIRC, 06/25/91).

The employer was responsible for paying the Complainant's reasonable attorney's fees and costs because it responded inadequately when it learned of a supervisor's acts of sexual harassment against the Complainant and because the supervisor was acting under color of his authority. Sec. 111.39(4)(c), Stats., provides that the employer should pay, and there is no authority for the proposition that a supervisor who is not an employer may be ordered to make payment to the Complainant. Nelson v. Waybridge Manor, Inc. (LIRC, 04/06/90).

The employer does not have a right to contribution from a union to offset its own liability for violations of the Act. There is no direct case precedent in Wisconsin that requires a union to bear such costs where an individual is adversely affected by a discriminatory practice sanctioned in a collective bargaining agreement. Austin v. Waukesha Jnt. School Dist. #1 (LIRC, 05/27/81).

Because the Wisconsin Constitution protects a county from liability for acts of its sheriff, an employe who was discriminatorily denied reemployment could not be awarded back pay even though the sheriff who was responsible for the denial was not vested by ordinance with authority to make such a decision. Algozino v. Waupaca County Law Enforcement Comm. (LIRC, 03/24/81).

Because the legislative intent is to narrowly construe exemptions from the coverage of the Act, a municipality not named as a party will be considered a party to a complaint which names only an agency created by the municipality, and the municipality may be liable for the back pay obligation of that agency even where the municipality was not added as a party until after the liability of the agency had been determined at a hearing. City of Milwaukee v. LIRC (Kirk) (Dane Co. Cir. Ct., 02/04/79).

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