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

DOROTY L (GRANT) ACHILLI, Complainant

WENDY DENECKE, Complainant

MARY C SHEPHERD, Complainant

SIENNA CREST ASSISTED LIVING INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case Nos. 200300152, 200300154, 200300155


An administrative law judge (ALJ) 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 ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:

In the last sentence of the first numbered paragraph of the FINDINGS OF FACT section, the year "2000" is changed to "2001."

In the first sentence of numbered paragraph 55. of the FINDINGS OF FACT section, the words "from the 'corporate office'" are deleted.

In the second sentence of numbered paragraph 70. of the FINDINGS OF FACT section, the word "medical" is changed to "medication."

Numbered paragraphs 81., 82., 83., 84., and 85. of the FINDINGS OF FACT section are deleted.

The CONCLUSIONS OF LAW section is deleted and the following substituted:

1. The Respondent is an employer within the meaning of the Wisconsin Fair Employment Act, and is a covered entity (person, community-based residential facility, or health care facility or provider) within the meaning of Wis. Stat. § § 146.997, 50.07, and 46.90.

2. The Complainants were employees of the Respondent within the meaning of the Wisconsin Fair Employment Act, and covered individuals or employees of the Respondent within the meaning of Wis. Stat. § § 146.997, 50.07, and 46.90.

3. The Complainants sustained their burdens to prove that the Respondent discriminated against them by taking disciplinary action or discharging them because they, in good faith, reported or were believed to have reported, information under Wis. Stat. § 146.997.

4. The Complainants sustained their burdens to prove that the Respondent discriminated/retaliated against them, within the meaning of Wis. Stat. § § 50.07(1)(e) or (em), because they contacted or provided information to any state official, including any representative of the office of the long-term care ombudsman.

5. The Complainants sustained their burdens to prove that the Respondent discharged or otherwise discriminated/retaliated against them, within the meaning of Wis. Stat. § 46.09(4)(b), because they made a good faith report of abuse, material abuse, or neglect.

In numbered paragraph 1. of the ORDER, the words "or any of its employees" are deleted.

The following changes are made in numbered paragraph 2. of the ORDER:

$79, 913.35 is changed to $64,500.00

$722.15 is changed to $727.15

$80,635.50 is changed to $65,227.15

Numbered paragraph 3. of the ORDER is deleted and the following substituted:

3. The Respondent shall offer the Complainants reinstatement to positions substantially equivalent to the positions each held prior to their discharges, with all seniority and benefits, including sick leave and vacation credits, to which each would have been entitled had she been employed continuously from the date of discharge until the date of reinstatement. These offers shall be tendered by the Respondent or an authorized agent and shall allow the Complainants a reasonable time to respond.

In numbered paragraph 4. of the ORDER, reference to "August 19, 2004" is changed to "such time as the Complainant resumes employment with the Respondent or would resume such employment but for her refusal of a valid offer of a substantially equivalent position."

In numbered paragraph 5. of the ORDER, reference to "August 19, 2004" is changed to "such time as the Complainant resumes employment with the Respondent or would resume such employment but for her refusal of a valid offer of a substantially equivalent position."

In numbered paragraph 6. of the ORDER, reference to "August 19, 2004" is changed to "such time as the Complainant resumes employment with the Respondent or would resume such employment but for her refusal of a valid offer of a substantially equivalent position."

Numbered paragraph 7. of the ORDER is deleted.

Numbered paragraph 8. of the ORDER is deleted.

Numbered paragraph 9. of the ORDER is deleted, and the following substituted:

9. Within 30 days of the date on which this order becomes final, either by virtue of expiration of time within which an appeal may be taken herein or by final denial of or refusal to hear any such appeal, Respondent shall submit a compliance report detailing the specific action it has 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. Stats. § 111.395, 103.005(11) and (12).

The final three paragraphs of the Damages section of the MEMORANDUM DECISION are deleted.

The Motion Alleging Frivolous Claims section of the MEMORANDUM DECISION is deleted.

The final three paragraphs of the Attorneys Fees and Costs section of the MEMORANDUM DECISION are deleted.

DECISION

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

Dated and mailed July 18, 2008
grantdo . rmd : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

Merits

The commission agrees with the administrative law judge (ALJ) the record establishes that, after reporting to Sienna Crest management their concerns relating to the care and treatment of residents, the complainants were terminated for actions for which certain other workers were not even disciplined; and, unlike other workers who were not shown to have made such reports, were not accorded an opportunity to explain their actions to management before being terminated, and were not provided warning, consistent with Sienna Crest's written progressive discipline policy, that their actions were unacceptable and could lead to discipline or discharge.  
 

HCWPA notice

Wisconsin Statutes § 146.997, the Health Care Worker Protection Act (HCWPA), states as follows, as relevant here:

(4) Enforcement.

(a) Any employee of a health care facility or health care provider who is subjected to disciplinary action, or who is threatened with disciplinary action, in violation of sub. (3) may file a complaint with the department [of workforce development] under s. 106.54 (6). If the department finds that a violation of sub. (3) has been committed, the department may take such action under s. 111.39 as will effectuate the purpose of this section.

(c) Section 111.322 (2m) applies to a disciplinary action arising in connection with any proceeding under par. (a).

(5) Civil penalty. Any health care facility or health care provider and any employee of a health care facility or health care provider who takes disciplinary action against, or who threatens to take disciplinary action against, any person in violation of sub. (3) may be required to forfeit not more than $1,000 for a first violation, not more than $5,000 for a violation committed within 12 months of a previous violation and not more than $10,000 for a violation committed within 12 months of 2 or more previous violations. The 12-month period shall be measured by using the dates of the violations that resulted in convictions.

(6) Posting of notice. Each health care facility and health care provider shall post, in one or more conspicuous places where notices to employees are customarily posted, a notice in a form approved by the department setting forth employees' rights under this section. Any health care facility or health care provider that violates this subsection shall forfeit not more than $100 for each offense.

Sienna Crest argues that Wis. Stat. § 146.997(6) does not invest authority for imposing the forfeiture for its violation in the administrative tribunal, i.e., the Equal Rights Division (ERD), adjudicating a related retaliation charge brought pursuant to Wis. Stat. § 146.997(4), but instead apparently contemplates a separate administrative or judicial proceeding.

Wisconsin Statutes § 106.54(6), which delineates the authority of ERD in regard to the Health Care Worker Protection Act, states as follows:

(6) The division [of equal rights] shall receive complaints under s. 146.997(4)(a) of disciplinary action taken in violation of s. 146.997(3) and shall process the complaints in the same manner that employment discrimination complaints are processed under s. 111.39.

This provision does not reference or imply any authority of ERD to receive or process complaints under Wis. Stat. § § 146.997(5) or (6).

In addition, Wis. Stat. § 146.997(4) provides that the remedies to be awarded for violation of Wis. Stat. § 146.997(3) are those available under Wis. Stat. § 111.39, the remedial provision of the Wisconsin Fair Employment Act (WFEA). These do not include fines or forfeitures to be paid to the state or any other governmental entity, but instead remedies to be awarded to the victims of discrimination/retaliation in an effort to make them whole.

Finally, administrative agencies such as ERD and the commission (LIRC) have only that authority specifically granted by, or reasonably implied from, the statutes. Wisconsin Statutes § 146.997 does not state that the authority for the enforcement of Wis. Stat. § § 146.997(5) or (6) resides with ERD/LIRC, and the investment of such authority in ERD/LIRC is not reasonably implied from this statutory provision's structure or language.  
  

Remedy

Back pay/reinstatement

The general rule is that liability for back pay will continue to accrue after a retaliatory discharge until the date the respondent makes a valid offer of reinstatement, or the date the complainant ceases making a reasonable effort to mitigate her damages. Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983).

Here, all three complainants requested reinstatement as part of their charges of retaliation, and neither the file in this matter nor the record indicates that any of them has withdrawn this request.

It appears to be undisputed that Sienna Crest has not extended an offer of reinstatement to any of the complainants since their dates of discharge.

Since Sienna Crest operates several other facilities in Wisconsin, the fact that they no longer operate the facility in which the complainants were employed does not serve as a bar to an offer of reinstatement. Buehler v. Schlueter Investment Co., ERD Case No. 8550559 (LIRC June 5, 1987); Cintron et al. v. Phil Wrobbel Service Corp., ERD Case Nos. 9351463, etc. (LIRC April 29, 1996); Sult v. Jerry's Enterprises, Inc., ERD Case No. CR200402634 (LIRC Feb. 8, 2008).

In addition, although the tone and content of the hearing record suggests that some degree of mistrust and antagonism between the complainants and the owners of Sienna Crest may have existed at that time, given the protections of the WFEA and other anti-retaliation statutes, this suggestion alone is an insufficient basis upon which to conclude that reinstatement would not be a viable remedy here. See, e.g., Hutchison v. Amateur Electronic Supply, Inc., 42 F.3d 1037, 66 FEP 1275 (7th Cir. 1994)(friction between employer and employee arising from the litigation process itself is an insufficient reason to deny reinstatement).

Respondent argues that complainant Denecke failed to mitigate her damages by engaging in actions for which she was terminated from Geneva Lake Manor during the back pay accrual period. The ALJ, however, credited Denecke's explanation that the absence for which she was terminated by Geneva Lake Manor resulted from illness. There is no basis in the record for overturning this credibility determination, or the ALJ's conclusion that this circumstance does not establish a failure by Denecke to mitigate her damages.

Respondent also argues that the ALJ's finding that complainant Shepherd received $6,000 in unemployment benefits after her termination by Sienna Crest is not supported by the record. However, Shepherd testified without rebuttal that this is the amount of unemployment insurance benefits she received.

Finally, Sienna Crest argues, at least by implication, that complainants Shepherd and Grant failed to mitigate their damages by actively seeking full-time work during the period of time they were employed part-time at a Veterans Administration facility. However, even though the record does not demonstrate they were diligent in searching for full-time work during this period of time, it also does not show that such full-time work was reasonably available. Since it is the respondent's burden to make this showing, this argument fails. See, Goldsworthy v. Elite Marble Co., ERD Case No. 200205097 (LIRC Oct. 15, 2004).  
 

Front pay

Wisconsin Statutes, § 46.90(4)(b) (elder abuse reporting), states as follows, as relevant here:

...(b)1.a. No person may discharge or otherwise retaliate or discriminate against any person for reporting in good faith under this subsection....

...(2)b. Any employee who is discharged or otherwise discriminated against may file a complaint with the department of workforce development under s. 106.54(5)...

Wisconsin Statutes § 50.07 states as follows, as relevant here:

Prohibited acts. (1) No person may:

...(e) Intentionally retaliate or discriminate against any resident or employee for contacting or providing information to any state official, ...or for initiating, participating in, or testifying in an action for any remedy authorized under this subchapter.

(em) Intentionally retaliate or discriminate against any resident or employee on whose behalf another person contacted or provided information to any state official,... or initiated, participated in or testified in an action for any remedy authorized under this subchapter....

(3) Any employee who is discharged or otherwise retaliated or discriminated against in violation of sub. (1)(e) or (em) may file a complaint with the department of workforce development under s. 106.54(5).

Wisconsin Statutes § 146.997, the Health Care Worker Protection Act, states as follows, as relevant here:

(3) Disciplinary action prohibited. No health care facility...and no employee of a health care facility...may take disciplinary action against, or threaten to take disciplinary action against, any person because the person reported in good faith any information under sub. (2)(a),...or provided in good faith any information under sub. (2)(d) or because the health care facility...believes that the person reported in good faith any information under sub. (2)(a),.. or provided in good faith any information under sub. (2)(d).

(4) Enforcement. (a) Any employee of a health care facility or health care provider who is subjected to disciplinary action, or who is threatened with disciplinary action, in violation of sub. (3) may file a complaint with the department under s. 106.54(6). If the department finds that a violation of sub. (3) has been committed, the department may take such action under s. 111.39 as will effectuate the purpose of this section.

(c) Section 111.322(2m) applies to a disciplinary action arising in connection with any proceeding under par. (a).

As a result, all three invoke the process set forth in Wis. Stat. § 106.54, which states, as relevant here:

106.54 Division of equal rights....

5) The division shall receive complaints of discharge, retaliation or discrimination under s. 16.009 (5) (d), 46.90 (4) (b), 50.07 (3) (b), or 55.043 (1m) (c) and shall process the complaints in the same manner that employment discrimination complaints are processed under s. 111.39.

(6) The division shall receive complaints under s. 146.997(4)(a) of disciplinary action taken in violation of s. 146.997(3) and shall process the complaints in the same manner that employment discrimination complaints are processed under s. 111.39.

Wisconsin Statutes § 111.39(4)(c) states as follows, as relevant here:

(c) If, after hearing, the examiner finds that the respondent has engaged in discrimination,...the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of this subchapter, with or without back pay. ...If the examiner finds a respondent violated s. 111.322 (2m), the examiner shall award compensation in lieu of reinstatement if requested by all parties and may award compensation in lieu of reinstatement if requested by any party. Compensation in lieu of reinstatement for a violation of s. 111.322 (2m) may not be less than 500 times nor more than 1,000 times the hourly wage of the person discriminated against when the violation occurred. Back pay liability may not accrue from a date more than 2 years prior to the filing of a complaint with the department. Interim earnings or amounts earnable with reasonable diligence by the person discriminated against ...shall operate to reduce back pay otherwise allowable. Amounts received by the person discriminated against ...as unemployment benefits or welfare payments shall not reduce the back pay otherwise allowable, but shall be withheld from the person discriminated against ... and immediately paid to the unemployment reserve fund or, in the case of a welfare payment, to the welfare agency making the payment.

Given that 111.322(2m) does not include within its ambit the prohibitions against retaliation at issue, the remedies available here are those set forth in the general remedial language of Wis. Stat.  111.39(4)(c). (1)

The only commission decision directly addressing the front pay issue, other than in the context of Wis. Stat. § 111.322(2m), is Miller v. Oak-Dale Hardwood Products, Inc, ERD Case No. 9200205 (LIRC Dec. 13, 1994). In this decision, the commission, analyzing the language of Wis. Stat. § 111.39(4)(c), stated as follows:

As a matter of statutory interpretation, the fact that the legislature expressly permitted the department to award front pay in certain situations involving retaliation indicates that it knew about front pay, that it knew how to draft legislation permitting front pay awards, and that it specifically chose to limit such awards to situations in which retaliation has occurred. If the legislature had intended front pay to be available in all cases, front pay would have been mentioned along with back pay as a permissible remedy in all instances in which discrimination is found. Consequently, the commission concludes that the legislature did not intend to permit front pay awards in cases other than those involving retaliation and that it, therefore, lacks the authority to consider an award of front pay in this instance.

On appeal, the circuit court in Pierce County disagreed with the commission's holding as to the front pay issue, reasoning as follows:

The court believes that the rule of statutory construction cited by the Commission in support of a narrow construction of the remedies available to it in a case such as the one before this court runs contrary to the expressed legislative intent that the act be liberally construed to effect the remedial purposes of the act. As pointed out in Miller's brief, an employer could offer reinstatement the day after the employee quits and the employee would either have to return to the hostile environment or give up any remedy for the employer's violation of the statutory prohibitions against sexual harassment.

Oak-Dale Hardwood Products, Inc., and Miller v. LIRC, Case Nos. 95-CV-5, 95-CV-6 (Wis. Cir. Ct. Pierce Co., Feb. 16, 1996). (2)

However, the commission continues to believe that Wis. Stat. § 111.39(4)(c) does not authorize the award of front pay in cases other than those implicating Wis. Stat. § 111.322(2m).

Most significantly, application of the statutory construction principle of expressio unius est exclusio alterius (if a statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded) to Wis. Stat. § 111.39(4)(c) compels the conclusion that the mention of front pay only for Wis. Stat. § 111.322(2m) retaliation cases means that it is not available in other cases.

In addition, an administrative agency has only those powers which are expressly conferred or which are fairly implied from the four corners of the statute under which it operates, any reasonable doubt as to the existence of an implied power should be resolved against the exercise of such authority, and liberal construction does not give a court or administrative agency the right to expand the terms of the legislation. State v. ILHR Department, 77 Wis. 2d 126, 252 N.W.2d 353 (1977); American Motors v. ILHR Dept., 101 Wis. 2d 337, 305 N.W.2d 62 (1981). Relying upon these general precepts, because the WFEA does not expressly authorize an award of front pay other than in those cases arising under Wis. Stat. § 111.322(2m), and because there exists reasonable doubt whether such authority may be fairly implied, the commission concludes that the authority to award front pay is not granted under the general remedial provisions of Wis. Stat. § 111.39(4)(c).

Finally, to adopt the Pierce County court's reasoning could permit an additional award after the rejection of a valid offer of reinstatement, a result inconsistent with Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983). Moreover, the Pierce County court's reasoning that complainants should not be required to return to their former workplace in order to maximize their remedy presumes that current anti-retaliation laws are inadequate to protect them from further retaliation, a presumption the commission rejects.
 

Attorney fees

The respondent does not take issue in its appeal to the commission with either the number of hours or the hourly rate in the complainants' counsel's fee requests. Consequently, the commission has affirmed the ALJ's award of $59,950 in base fees and $722.15 in costs, and granted the request for an additional $4,550 in base fees and $5 in costs for services rendered after the date of the ALJ's decision.

Respondent, however, does take issue with the ALJ's award of an enhancement to these attorney fees based upon the risk factor present in contingent fee cases.

In Board of Regents v. Wisconsin Personnel Commission, 147 Wis. 2d 406, 433 N.W.2d 273 (Ct. App. 1988), the court of appeals addressed the enhancement/multiplier issue in a contingent fee case within the context of the remedy provision of the whistleblower retaliation statute, i.e., Wis. Stat. § 230.85(3)(a), which states as follows, as relevant here:

In addition, the commission may take any other appropriate action, including but not limited to the following:

...4. Order payment of the employee's reasonable attorney fees...

In determining whether this authority to award reasonable attorney fees permits the use of a fee enhancement/multiplier in a contingent fee case, the court of appeals, drawing a parallel to the WFEA, stated as follows:

By 1984, the term "reasonable attorney fees" had acquired a meaning that did not include the use of multiplier.

As with the Fair Employment Act, secs. 111.31 to 111.395, Stats., the purpose of requiring a losing party to pay the winner's attorney fees is to make whole the "whistleblower" who is retaliated against for his or her action. See, Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984)(reasonable attorney fees necessary in Fair Employment Act to make employee whole). Requiring a payment in excess of 100% of the victim's attorney fees does not make a victim whole-it becomes a windfall for the victim or his or her attorney.

This appears to be a clear indication from the Wisconsin Court of Appeals that, under the WFEA, the use of an enhancement/multiplier in contingent fee cases is inappropriate.

The commission agrees with this analysis and concludes that the use of an enhancer/multiplier is not appropriate here. 
 

Claim of frivolous action

Respondent, at hearing, claimed that the complainants had commenced and continued these actions in bad faith, and solely for the purpose of harassing or maliciously injuring Sienna Crest, in violation of Wis. Stat. § 227.483.

Wisconsin Statutes § 227.483 states as follows, as relevant here:

227.483 Costs upon frivolous claims.

(1) If a hearing examiner finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by a party is frivolous, the hearing examiner shall award the successful party the costs and reasonable attorney fees that are directly attributable to responding to the frivolous petition, claim, or defense.

(2) If the costs and fees awarded under sub. (1) are awarded against the party other than a public agency, those costs may be assessed fully against either the party or the attorney representing the party or may be assessed so that the party and the attorney each pay a portion of the costs and fees.

(3) To find a petition for a hearing or a claim or defense to be frivolous under sub. (1), the hearing examiner must find at least one of the following:

(a) That the petition, claim, or defense was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.

(b) That the party or the party's attorney knew, or should have known, that the petition, claim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.

It seems obvious that, in order to qualify as frivolous under 227.483, the subject petition, claim, or defense must necessarily have been an unsuccessful one. Respondent relies here upon the merits of the complainants' claims, upon which the complainants prevailed both at the investigative and hearing stages. Clearly, these claims, which both the investigator and the ALJ found meritorious, could not be considered frivolous.

 

cc:
Attorney Sandra G. Radtke
Attorney Gregory P. Seibold



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Footnotes:

(1)( Back ) It should be noted that Wis. Stat. 146.997(c) relates to disciplinary action allegedly taken in retaliation for participating in an ERD proceeding to enforce Wis. Stat.   146.997(4)(a), which is not alleged here.

(2)( Back ) Although the circuit court's decision was appealed, this matter was settled before the court of appeals rendered its decision.


uploaded 2008/07/25