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

LEOPOLDO ALARCON, Complainant

AVENUE BAR, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR201000846

An administrative law judge (ALJ) for the Equal Rights Division (ERD) 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 conclusion in that decision as its own, except that it makes the following modifications:

1. Delete the phrase "was hired" in the first sentence of FINDING OF FACT #1.

2. Replace the second to last sentence in FINDING OF FACT #9 with the following:

Alarcon told Campion that $402 was not all of his vacation pay.

DECISION

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

Dated and mailed December 28, 2012
alarcle : 120 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

In briefs filed in support of his petition for commission review, the complainant argues that he was discharged in violation of Wis. Stat. 111.322(2m)(a) (1)  because he was "attempting to enforce his rights" to be paid vacation pay owed to him under Wis. Stat. § 109.03 (wage claims) by complaining to management that he had not been paid the full amount of vacation pay he was due.  He concedes that the commission rejected that kind of argument in Pampuch v. Bally's Vic Tanny Health and Racquetball Club, ERD Claim No. 9350083 (LIRC March 7, 1994), specifically concluding that the statutory term "attempts to enforce any right" was "intended to refer solely to formal attempts to enforce a right by resort to the governmental agency charged with enforcement of that right."

That interpretation has been cited and followed by the commission in numerous subsequent cases. See, e.g., Jackson v. Quality Carriers, ERD Case No. 200500720 (LIRC Dec. 23, 2009) (wage deductions); Swanson v. County of Chippewa, ERD Case No. CR200304106 (LIRC May 11, 2007) (Wisconsin Family and Medical Leave Act); Grulke v. Q & E Construction, ERD Case No. 200302581 (LIRC Aug. 10, 2006) (overtime pay); Schulz v. Arms Corporation, ERD Case No. 200303024 (LIRC June 14, 2005) (employment of minors); Smith v. Carpet Warehouse & Design Center Inc., ERD Case No. 200301761 (LIRC April 13, 2005) (prevailing wage rate); Domini v. Jason Schultz Trucking Inc., ERD Case No. CR200201825 (LIRC Feb. 24, 2005) (prevailing wage rate); Hephner v. Rohde Brothers Inc., ERD Case No. 200200512 (LIRC June 30, 2004) (prevailing wage rate and wage rate on state work); Korn v. Divine Savior Healthcare, ERD Case No. CR200103098 (LIRC Jan. 16, 2004) (Health Care Worker Protection Act); Kayler v. Stoughton Trailers, ERD Case No. 199600093 (LIRC Oct. 27, 1997) (Wisconsin Family and Medical Leave Act); Corey v. Multiple Listing Service, ERD Case No. 9354461 (LIRC July 21, 1995) (Personnel Records Law); and Werth v. TMS Carriers, ERD Case No. 9252002 (LIRC Feb. 9, 1995) (vacation pay).

Nevertheless, the complainant argues that the commission's long-standing interpretation of the statutory provision is incorrect, and urges the commission to overrule Pampuch and its progeny. The commission is not persuaded by the complainant's arguments, and declines to do so.

Since Pampuch was decided in 1994, the Wisconsin legislature has made multiple amendments and corrections to Wis. Stat. § 111.322(2m), but has not changed the original language in § 111.322(2m)(a) that is at issue in this case, i.e., "files a complaint or attempts to enforce any right."  In addition, in 1999, the legislature created the Health Care Worker Protection Act (HCWPA), Wis. Stat. 146.997, with a separate avenue of enforcement for rights under that act in 111.322(2m)(a) and (b), without changing the language in those provisions (2).  Further, in 2009, the legislature added another subparagraph, (bm), to 111.322(2m) that utilizes essentially the same language, i.e., "files a complaint or attempts to enforce a right," under § § 49.197(6)(d) and 49.84(4)(d), relating to fraud investigations in various state assistance programs.

If the Wisconsin legislature believed that the commission's construction of the term "enforce any right" in the statute was incorrect, it has had numerous opportunities to amend or modify that wording, but it has not done so.  Accordingly, it may be presumed to have acquiesced in the commission's interpretation of the statute.  In Milwaukee Fire Fighters Association v. City of Milwaukee, 50 Wis. 2d 9, 14, 183 N.W.2d 18 (1971), the Wisconsin Supreme Court approved the city's interpretation of one of its ordinances, noting that the statutory provision had been amended eight times since its adoption without change in the specific terminology at issue and stating that the Court has "consistently held that practical administrative construction of an ordinance over a long period of time is entitled to great weight." Again, in Layton School of Art & Design v. WERC, 82 Wis. 2d 324, 340 & n.12, 262 N.W.2d 218 (1978), the Wisconsin Supreme Court approved WERC's long-standing and consistent interpretation of the phrase "to commit any crime or misdemeanor," noting that the "contemporaneous construction and official interpretation given a statute by those responsible for its administration may be used in ascertaining legislative intent," and that by failing to amend the statute, the legislature may be presumed to have acquiesced in the WERC's interpretation of the statute. The rationale found in these two cases is equally applicable to the commission's interpretation of the statutory provision at issue.

Next, the complainant argues that, even if he was not terminated for attempting to enforce his right to be paid under § 111.322(2m)(a), he was discharged in violation of § 111.322(2m)(d) because his employer believed that he might file a wage complaint with the ERD.  He asserts that the ALJ erred by requiring that he use specific "magic words" to indicate that he might file a complaint when he complained to his employer about his pay.  However, the complainant is mistaken.  The ALJ in his Memorandum Opinion did not require any "magic words," but stated that there was no evidence presented to support a finding that management at the Avenue Bar believed that the complainant planned to file a complaint or testify or assist in a proceeding to enforce a right to payment of wages. The commission agrees with the ALJ.

The commission has held that such evidence does not have to include any "magic words," but can consist of other circumstantial evidence of an employee's intent to take formal action.  See, e.g., Brockmann v. Abacus Bertz Insurance, ERD Case No. CR200801789 (LIRC May 31, 2012) (during wage dispute, employee wrote letter to employer saying that she believed it was violating state labor laws); Klatt v. Hallie Chiropractic LLC, ERD Case No. CR200404041 (LIRC Aug. 28, 2006) (employee's daughter who also worked for the employer filed a wage claim, and employee had a similar overtime issue with the employer). As noted in Brockmann, citing Jancik v. Advantage Learning Systems, ERD Case No. CR200100941 (Sept. 16, 2005), "the question is whether the employee has given some indication that he or she intends to file a wage claim and whether the record establishes that the employer believed the employee intended to take such action."  In this case, there simply was no evidence of any kind that suggested that the complainant was going to file a wage claim, and his complaints to management about his vacation pay are simply that, an "oppositional" kind of activity by an employee that is not a form of protected activity under Wis. Stat. § 111.322(2m).

Finally, the complainant asserts that it is reasonable to infer that his employer had a retaliatory motive for discharging him, given that he was a trusted employee for 13 years with no evidence of poor performance or misconduct, and was discharged at a time when he was complaining about the failure of the employer to pay him all of his vacation pay. He argues that, since the ALJ did not find that he was insubordinate in his manner of expressing his complaints as the employer had alleged, this asserted reason for his discharge was a pretext. He appears to be arguing that, since the employer had no legitimate reason for terminating him, the employer's reason must have been discriminatory.

The commission disagrees.  There may be situations in which an employee is discharged because his employer is annoyed about his complaints or because the employer is in a bad mood or for no other reason than that the employer no longer wants to employ the employee.  Employees may be discharged for the pettiest or silliest of reasons, but that does not mean that the discharge is discriminatory.  In this case, the ALJ found that the complainant was discharged because of his opposition to the insistence by one of the owners, which turned out to be mistaken, that he had been paid properly. The commission sees no reason in the record to disagree with the ALJ's finding, and such a discharge is not a violation of Wis. Stat. § 111.322(2m).  See also Werth v. TMS Carriers, cited previously (the fact that the employer may have retaliated against the employee because he complained to the employer about his vacation pay is irrelevant as a matter of law within the meaning of § 111.322(2m)).

The commission understands how this result may appear to be unfair to the complainant. However, as noted in a case cited by the complainant in his appellate briefs to the commission, Domini v. Jason Schultz Trucking Inc., cited previously, "the commission is not a court of equity, but instead a legislative creation which lacks the authority to disregard a statutory scheme in order to achieve what it may perceive to be a more equitable result."

cc:
Attorney Mitch
Attorney Steve Zach


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Footnotes:

(1)( Back ) Wis. Stat. 111.322(2m) is referred to as the "omnibus" anti-retaliation provision of the Wisconsin Fair Employment Act (WFEA) because it provides protections for employees against retaliation by employers under a number of statutes other than the WFEA.

(2)( Back ) In addition, the provision in the newly enacted HCWPA, Wis. Stat. 146.997(4)(c), reads: "Section 111.322(2m) applies to a disciplinary action arising in connection with any proceeding under par. (a) or (b)." This is similar language to that used in the other statutes which include an enforcement opportunity through Wis. Stat. 11.322(2m), and as noted in Pampuch, cited above, a "proceeding" in the context of these provisions does not exist unless there has been some kind of resort to an agency.

 


uploaded 2013/01/02