BRANDON V JACKSON, Complainant
NEW PITTS MORTUARY 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 makes the following:
1. The respondent, New Pitts Mortuary, LLC, (hereinafter "respondent"), operates a funeral home. The respondent is owned by Michelle Redd. The respondent's licensed funeral director is Sherry Holman.
2. The complainant, Brandon Jackson, (hereinafter "complainant"), began interning for the respondent in 2006. However, the respondent was unable to hire him as an apprentice at that time, because it already had an apprentice funeral director, Martin Thomas, and it had to wait for Mr. Thomas to finish his requirements to obtain licensure before it could take on another apprentice under Ms. Holman's license. Therefore, the complainant went to work for a different funeral home, Northwest Funeral Chapel, as an apprentice funeral director.
3. In 2007 the complainant was arrested and charged with two felonies related to theft of a vehicle and identity theft. The charges were dismissed in January of 2008, but were later refiled. After the charges were refiled, the complainant failed to appear for an initial appearance and a bench warrant for his arrest was issued.
4. In July of 2008, Michelle Redd, the respondent's owner, told the complainant that she knew he would not be at Northwest Funeral Chapel long because he belonged at the respondent. Shortly thereafter Northwest Funeral Chapel terminated the complainant's employment.
5. The day the complainant was discharged by Northwest Funeral Chapel, he came and talked to Ms. Redd. Ms. Redd asked the complainant how much pay he required in order to come work for the respondent. The complainant stated he needed $600 a week, and Ms. Redd agreed to that amount. Ms. Redd asked the complainant to develop a marketing plan for the business while he waited for Mr. Thomas to finish his licensure testing. The complainant agreed to do so.
6. The complainant began working for the respondent in September of 2008. He assisted with a variety of aspects of running a funeral home. The complainant was responsible for attending to removals of decedents from their homes and transporting them in a hearse to the funeral home. He purchased supplies to be used in cremations. The complainant would also "work a funeral," which included transporting flowers from the funeral home to the cemetery in his personal vehicle. Sometimes he would lead a prayer or do a reading during funeral services. The complainant worked under the supervision of Ms. Redd and her husband or boyfriend, Nate Luckett, who was the respondent's public relations director.
7. At some point the respondent began renovating its embalming room and wanted the complainant to do some of the construction. However, the complainant had no construction experience. The complainant helped Ms. Redd write the contract for the contractor and the subcontractors who were working on the project, but was not involved in the oversight of that project.
8. The complainant's hours of work were from about 8:30 a.m. until 7:00 p.m. to 9:00 p.m., when the funeral wakes were finished. The complainant did not punch a time clock, but received a set pay of $600 a week. He had no written employment contract with the respondent.
9. Although the complainant was told he would be working as an apprentice funeral director, the respondent never applied for a license for him.
10. In November of 2008, the complainant was apprehended on the bench warrant that had been issued when the criminal charges against him were refiled, and was jailed for approximately two and a half weeks. During that period he maintained daily contact with Ms. Redd, who assured him he would still have a job when he was released.
11. The respondent continued to employ the complainant after he was released from jail. However, after the complainant returned to work the respondent began to fall behind with his pay. At one point Mr. Luckett told him that his paycheck would be coming, but that they were trying to figure out ways to sort out a tax problem. Ms. Redd's father was present during this discussion and explained that Ms. Redd "owed Uncle Sam."
12. On December 27, 2008, the complainant was scheduled to help work a funeral using his own vehicle. The complainant had recently learned that the respondent was charging clients a fee for the use of the vehicle, even though it had not been paying him. The complainant decided he did not want to work the funeral until he received payment for at least a portion of the week's work. The complainant notified Ms. Redd that if he did not get paid he could not continue working and that he would have to file a wage claim with the state. Ms. Redd gave the complainant a check for $600 and told him that was all she could do right then.
13. On January 9, 2009, the complainant again asked Ms. Redd about the back pay he was owed, which by then amounted to $1800. The complainant stated that filing a wage claim was not something he wanted to do, but that he had to see some pay. Ms. Redd told the complainant to "get the hell out of [her] funeral home" and that she never wanted to see him again. Mr. Luckett followed the complainant out to his truck and told him he would "kick [his] ass."
14. Ms. Redd's decision to terminate the employment relationship was motivated by the complainant's threat to file a wage claim.
Based upon the above FINDINGS OF FACT the commission hereby makes the following:
1. That there is no probable cause to believe that the respondent discriminated against the complainant, in violation of the Wisconsin Fair Employment Act, by discharging him based upon arrest or conviction record.
2. That there is probable cause to believe that the respondent discriminated against the complainant, in violation of the Wisconsin Fair Employment Act, by discharging him because it believed he filed or might file a wage claim under Wis. Stat. § 109.03.
Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission hereby issues the following:
The administrative law judge's decision is affirmed, in part, and reversed, in part. The complainant's allegations of discrimination with respect to arrest and conviction record are dismissed. This matter is certified for a hearing on the merits of the complainant's retaliation complaint.
Dated and mailed
October 31, 2012
jacksbr . rrr : 164 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The administrative law judge did not reach the merits of the case because he concluded that the complainant did not show that the respondent was his employer. In arriving at this conclusion, the administrative law judge reasoned that, because the complainant was not licensed as an apprentice funeral director, it would have been illegal for the respondent to employ him, and that the burden was on the complainant to present documentation of the existence of an employment relationship. The commission does not agree with this analysis.
The Wisconsin Fair Employment Act (hereinafter "Act") states, "It is unlawful for any employer, labor organization, licensing agency or person to discriminate against any employee or applicant for employment or licensing." Wis. Stat. � 111.325. While the Act does not contain a definition of the word "employee," except to state that an employee does not include any individual employed by his or her parents, spouse or child, (1) the court of appeals has effectively held that the protections afforded individuals against prohibited discrimination under the Act cover only employees and not independent contractors. Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 289 (Ct. App. 1993), cited in Ingram v. Bridgeman Machine Tooling and Packing Inc., ERD Case No. 200301821 (LIRC June 27, 2005). In Moore, the court adopted a Title VII test articulated in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979), that provides, as follows:
"[D]etermination of whether an individual is an employee or an independent contractor for purposes of [Title VII] involves analysis of the 'economic realities' of the work relationship. Consideration of all of the circumstances surrounding the work relationship is essential, and no one factor is determinative. Nevertheless, the extent of the employer's right to control the 'means and manner' of the worker's performance is the most important factor to review here.
Additional matters of fact that an agency or reviewing court must consider include, among others, (1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the 'employer' or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the 'employer'; (9) whether the worker accumulates retirement benefits; (10) whether the 'employer' pays social security taxes; and (11) the intention of the parties."
Moore, 175 Wis. 2d at 569.
While the administrative law judge based his decision on the complainant's lack of a license, the fact that the complainant was not licensed as an apprentice funeral director does not necessarily mean that he was not an employee of the respondent. The complainant performed services for the respondent for which he was paid $600 a week. Those services included transporting decedents, assisting at funerals, and a variety of other tasks associated with running a funeral home, and were performed under the direction of the respondent's owner. The mere fact that the complainant performed those duties without a license does not make him something other than an employee. (2) While the record does not contain sufficient evidence to permit an analysis of all of the Spirides factors, the evidence presented by the complainant indicates that the respondent had the right to control the means and manner of the complainant's job performance, that he was paid by the week and not by the job, that the services he performed for the respondent were integral to its business, and that it was the intention of the parties that the complainant work for the respondent as an apprentice funeral director, a job which is usually done under the direction of a supervisor. The complainant's unrebutted testimony on these points is sufficient to warrant a conclusion that he was an employee of the respondent, without regard to whether he had a license.
The next question to decide is whether the complainant established probable cause to believe that he was discriminated against in the manner alleged. The complainant's evidence with respect to arrest and conviction record does not warrant such a conclusion. The complainant testified that during the period he was in jail he spoke with the respondent's owner on a daily basis and that she agreed to hold his job open for him. The complainant testified that he returned to the job after he was released from jail, and was discharged over a month later for other reasons. Based on the foregoing, there is no reason to believe that the complainant's arrest or conviction record played any role in his discharge.
However, the evidence does warrant a conclusion that the complainant was discharged because the respondent believed he had filed or might file a wage claim. The complainant testified, without rebuttal, that the respondent owed him several weeks' pay, that on two separate occasions he threatened to file a wage claim, and that on the second occasion the respondent's owner told him to get the hell out of her funeral home and that she never wanted to see him again. That testimony is sufficient to warrant a finding of probable cause with respect to the retaliation issue.
NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor prior to reversing. The commission's reversal is not based upon a different assessment of credibility.
The hearing on the merits is a de novo hearing, and the evidence the complainant presented at the probable cause hearing will not be automatically incorporated into the record. Consequently, at the remand hearing the complainant should be prepared to present testimony showing that he is an employee, along with any supporting documentary evidence, and the respondent will have an opportunity to present evidence in rebuttal.
Although the commission's decision contains a notice of appeal rights, only the no probable cause finding may be appealed at this time. The commission's decision with respect to the retaliation claim is a non-final order and is therefore not appealable.
Attorney Paul Bucher
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(1)( Back ) Wis. Stat. � 111.32(5).
(2)( Back ) The respondent's original contention that the complainant was not an employee did not rest on his lack of a license, but was premised on an assertion that he was an independent contractor hired to assist with a construction project.