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

MIKE RAMOS, Complainant

STOUGHTON TRAILERS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199503384, EEOC Case No. 26G952032


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 makes the following:

FINDINGS OF FACT

1. On March 1, 2000, Stoughton Trailers mailed Mike Ramos a cover letter by certified mail, from its attorney at the time, Brenda S. Kasper, along with a letter to Ramos dated February 29, 2000, from Kathryn Schieldt, Stoughton Trailers' Human Resources Director. Ramos received the letters on March 9, 2000.

2. Schieldt's letter to Ramos stated as follows:

"Stoughton Trailers, Inc. hereby extends this offer of employment for second shift supervisor in our Brodhead facility. This offer of employment is made pursuant to the terms of the LIRC order dated September 11, 1998, as modified by LIRC on March 26, 1999. The position offered is for a paint supervisor for the second shift at Stoughton's Brodhead, Wisconsin facility. You will be required to work first shift and will be transferred to second shift when the facility commences production activities, anticipated to be in mid June, 2000.

You are to report to work at 8:00 A.M. on March 14, 2000, to the Human Resources Department at Stoughton's Plant #6 facility in Stoughton, Wisconsin. You are to report to Ms. Schieldt, Human Resources Director. Failure for you to report on March 14, 2000, shall be construed as your rejection of this offer.

If you have any questions pertaining to anything contained herein, please feel free to contact me."

3. The following day, March 10, 2000, Ramos telephoned Schieldt and requested until April 1, 2000, to decide whether to accept Stoughton Trailers' offer of reemployment. Schieldt told him that he could have until March 20, 2000, at 8:00 a.m.

4. Ramos wrote a letter dated March 17, 2000, to James Pflasterer of the Labor and Industry Review Commission that he copied to Attorney Kasper. In the letter, Ramos stated that the offer of reemployment was unacceptable. Ramos listed his reasons for rejecting the offer including his assertion that "the offer is not in accordance with the Commission's order because the offer of employment is located in 1) a different plant; 2) a different town; and 3) a different shift."

5. When Ramos last worked for Stoughton Trailers, prior to the termination of his employment, he was a paint supervisor on the first shift in Plant 6 of the Stoughton Trailers' facility located in Stoughton, Wisconsin.

6. Stoughton Trailers' Stoughton facility is 1 1/2 to 2 miles from Ramos' home in Stoughton. When Ramos previously worked at the Stoughton facility, he was able to walk or to ride his bike to work if he wished.

7. Stoughton Trailers' Brodhead facility is located 26 miles from Stoughton.

8. Since Ramos last worked for Stoughton Trailers, Stoughton Trailers has consolidated its paint operations away from Plant 6 in Stoughton, Wisconsin, with the result that fewer paint supervisory positions exist at Plant 6.

9. The second shift paint supervisor position in Brodhead, Wisconsin was the only position Stoughton Trailers had open when it made the offer of reinstatement to Ramos.

10. Stoughton Trailers' Brodhead facility is not an unreasonable distance from Ramos' residence.

11. Stoughton Trailers does not have a seniority policy.

12. Stoughton Trailers' employees are not represented by a labor union.

13. Stoughton Trailers made Ramos an unconditional offer of employment directly through an agent (Schieldt) with authority to hire.

14. Stoughton Trailers provided Ramos with a reasonable amount of time to respond to the offer of reinstatement.

15. Stoughton Trailers' offer of reinstatement made to Ramos was substantially equivalent to the paint supervisor position previously held by him.

16. Under the circumstances presented in this case, Ramos unreasonably refused to accept Stoughton Trailers' reinstatement offer.

Based upon the above FINDINGS OF FACT, the commission makes the following:

CONCLUSIONS OF LAW

1. Stoughton Trailers' March 1, 2000 offer of reinstatement made to Ramos was a valid offer of reinstatement under the Wisconsin Fair Employment Act.

2. Ramos' rejection of Stoughton Trailers' valid offer of reinstatement tolled Stoughton Trailers' back pay liability.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission issues the following:

ORDER

1. That Stoughton Trailers make Ramos whole for all losses in pay and benefits (including a bonus calculated at the appropriate percentage of his 1993 salary and a promised raise of $1,500.00 for 1994) that he has suffered because of Stoughton Trailers' unlawful conduct by offering him the sum that he would have earned as an employee from October 24, 1994, until March 20, 2000, when time expired for him to accept Stoughton Trailers' valid offer of reinstatement. The back pay ordered shall be computed on a calendar-quarterly basis with offsets for interim earnings during each calendar quarter. Any unemployment compensation or welfare benefits received by Ramos during the back pay period shall not reduce the amount of pay otherwise allowable, but shall be withheld by Stoughton Trailers and paid to the Unemployment Reserve Fund or to the applicable welfare agency. (Reimbursement for unemployment insurance should be in the form of a check made payable to the Department of Workforce Development- Unemployment Insurance Division, noting Ramos' name and social security number.)

2. That the amount payable to Ramos after all statutory set-offs shall be increased by interest at the rate of 12 percent simple. Interest shall be computed based on the net amount of the back pay due for each calendar quarter. The interest shall be computed by calendar quarter from the last day of each calendar quarter to the date of payment. The back pay, plus interest, due Ramos shall be paid by check made payable to Mike Ramos. Pending any and all appeals from this Order, the total back pay due will be the total of all such amounts.

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

Dated and mailed August 16, 2001
ramosmi . rrr : 125 : 9  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

BACKGROUND

Mike Ramos commenced employment with Stoughton Trailers in February 1985. Apparently, a relatively short time thereafter he became a paint supervisor. Ramos was employed at Plant 3 when he became a supervisor. He was later moved to Plant 6. Plant 6 is located in Stoughton, Wisconsin. Ramos worked on the first shift at Plant 6. When Ramos attempted to return to work from a non- work related injury on October 24, 1994, the respondent notified him that his employment had been terminated.

Ramos filed a complaint of discrimination against the respondent, and the respondent was found to have discriminated against Ramos in violation of the Fair Employment Act by failing to recall him to work and terminating his employment because of a perceived disability. Included in the make-whole relief ordered was a requirement that the respondent "...offer Ramos in writing its next available full-time paint supervisor position."

The determination that the respondent had violated the Act was affirmed by the circuit court. After the respondent filed an appeal with the court of appeals correspondence from the parties indicated that a dispute had arisen between the parties regarding a March 1, 2000 offer of reemployment the respondent had made to Ramos. The job offer was for a position as a second-shift paint supervisor at the respondent's Brodhead, Wisconsin, facility. Ramos ultimately refused to accept the job offer. The respondent contended that Ramos had declined a valid offer of reemployment and thus was no longer eligible for reinstatement or back pay after the date he declined the offer of reemployment. Ramos contended that the job offer was not a valid offer of reemployment.

The parties were advised that the commission had no authority to act on this dispute because the case was pending before the court of appeals. They were also advised that even if the commission had any authority to act in the matter their dispute presented a number of factual issues that would require a hearing before an administrative law judge. The parties were further advised, however, that if the respondent was agreeable to a voluntary dismissal of its appeal before the court of appeals, the matter could be remanded to the Equal Rights Division for a hearing and determination on the factual issues presented in connection with the offer of reemployment. The respondent then filed for and obtained a voluntary dismissal of its appeal before the court of appeals and the commission subsequently remanded the case to the Equal Rights Division. The commission's remand order noted that it may be advisable that the remand hearing be held by ALJ Deborah Cohn in view of Ramos' assertion that an offer of reemployment in a different plant, town and shift was not contemplated by ALJ Cohn's remedial order.

At the remand hearing Ramos gave the following reasons for not accepting the respondent's offer of reinstatement:

"I worked first shift days, Plant 6 in Stoughton, and they offered me a second shift in a different town. And I have other commitments that, well, there's, there's other things that I do on the other shift. I just, it, it's unacceptable. I, I've worked first, I've worked second. I'm, you know, I've got other commitments that I do on what would be a second shift..I have a girlfriend that wouldn't accept it. I mean that's you know. I don't, I don't feel like I should have to give up my, my other employment; just as well as when I was working at Stoughton Trailers, I always had other jobs. I don't think I should have to drive 50 miles a day roundtrip when the job is right here.."

(Tr. 12, July 5, 2000 remand hearing). (1)

Following the remand hearing, ALJ Cohn issued a decision concluding that the respondent's offer of reemployment did not constitute a valid offer of reinstatement and did not cut off the respondent's responsibility for any losses in pay and benefits due Ramos.

As part of her order after the remand hearing the ALJ required "That Stoughton Trailers offer Ramos in writing a first shift full-time paint supervisor position at its Stoughton facility."

In her memorandum opinion, the ALJ noted that it was unfortunate she was not more specific in her original decision regarding the location and shift for the paint supervisor position that the respondent was ordered to offer Ramos. The ALJ stated that she was unaware that the respondent had three plant locations; that at the hearing there had only been reference to a "Plant 5 Evansville facility" in passing. The ALJ stated that she assumed the respondent would reinstate Ramos to a paint supervisor position in Stoughton, Wisconsin.

Additionally, the ALJ noted that under the Fair Employment Act Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983), specifies that one of the requirements for a valid offer of reinstatement is that "the offer of reinstatement must be for the same position or a substantially equivalent position." (2)  She further noted that in Bodoh v. U.S. Paper Converters, Inc. (LIRC, 11/14/95), when discussing the sufficiency of the employer's reinstatement of the complainant in that case that the commission had also referenced Kelly Co., Inc. v. Marquardt, 172 Wis. 2d 234, 493 N.W.2d 68 (1992), a case arising under the Wisconsin Family and Medical Leave Law. The ALJ noted that unlike the Fair Employment Act, the Family and Medical Leave Law specifies (if the returning employee's position is not vacant upon return to work) that the employee is to be placed in "an equivalent employment position having equivalent compensation, benefits, working shift, hours of employment and other terms and conditions of employment." The ALJ stated that similarly, she believed that in order to make Ramos whole, it was necessary to consider the shift and geographical assignment in addition to salary, job title, and weekly hours. The ALJ concluded that a second shift paint supervisor position 26 miles from Stoughton simply did not make him whole for the discriminatory treatment experienced at Stoughton Trailers.

Finally, the ALJ also noted that while the respondent presented testimony that the Brodhead second shift paint supervisor position was the only available paint supervisor position at the time the reinstatement offer was made, that the respondent has no seniority policy and was not accountable to any labor union. The ALJ stated that consequently, she was not persuaded that the respondent did not have the ability to make a first shift paint supervisor position at its Stoughton facility available if it chose to do so.

The respondent petitioned for commission review of the ALJ's decision.

DISCUSSION

A complainant is subject to a statutory duty to minimize his or her damages. Wisconsin Statute Section 111.39(4)(c), provides in relevant part that "Interim earnings or amounts earnable with reasonable diligence by the person discriminated against.shall operate to reduce back pay otherwise allowable."

A valid offer of reinstatement terminates the accrual of the employer's back pay obligation. Anderson, 111 Wis. 2d at 254. As noted above, the offer of reinstatement must be "for the same position or a substantially equivalent position." Id. at 256. Whether back pay continues to accrue after an offer of reinstatement has been made depends upon "the circumstances under which the offer was made or rejected, including the terms of the offer and the reasons for refusal." Id. at 255 (quoting Claiborne v. Illinois Cent. R.R., 583 F.2d 143, 153 (5th Cir. 1978)).

"Although the un- or underemployed claimant need not go into another line of work, accept a demotion, or take a demeaning position, he forfeits his right to backpay if he refuses a job substantially equivalent to the one he was denied." Ford Motor Co. v. EEOC, 458 U.S. 219, 231-232 (1982). Under Title VII case law, "substantially equivalent" employment has been defined as employment that "afford(s) the claimant virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status." Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614, 624 (6th Cir. 1983), cert. denied, 466 U.S. 950 (1984). Also, "(i)t is well settled that a claimant has not failed to make a reasonable effort to mitigate damages where he refused to accept employment that is an unreasonable distance from his residence." Id. at 625-626 (citing cases). The ultimate inquiry in a mitigation of damages question is "whether the plaintiff acted reasonably in attempting to gain other employment or in rejecting proffered employment." Ladson v. Ulltra East Parking Corp., 853 F. Supp. 699 (S.D.N.Y 1994)(quoting Pierce v. F.R. Tripler & Co., 955 F.2d 820, 830 (2d Cir. 1992)(emphasis in original). The respondent bears the burden of proving the affirmative defense of failure to mitigate. Meyer v. United Air Lines, 950 F. Supp. 874, 876 (DC N. Ill. (1997). See also, Graefenhain et al., v. Pabst Brewing Co., 870 F.2d 1198, 1203 (7th Cir. 1969)(The employer bears the burden of proof as to the adequacy of an offer of reinstatement).

At the outset, it should be noted that except for the location and shift of the offer of reemployment, the paint supervisor position was exactly the same as the one Ramos held before. There is no dispute that the position offered provided the same status and promotional opportunities. Also, the parties apparently agreed that Ramos' salary would have been commensurate with that provided in the original order. (Tr. B 7-8)

In its petition for review, the respondent first argues that the ALJ's original order directed it to offer Ramos "its next available full-time paint supervisor position," and that the offer it made to reinstate Ramos was in full compliance with the original order. The respondent argues that the ALJ's order on remand is a significant material change in the order's requirements, made more than two years after her original order. The respondent argues that the ALJ changed the express terms of her original order, and that the respondent is consequently liable for back pay "for the two and one-half year period" (3) when, as it turns out it could not have possibly understood how to comply with the ALJ's order. The respondent argues that this unfairly punishes Stoughton Trailers. Further, the respondent argues that the ALJ's explanation that she was unaware that it had multiple plant locations is unsatisfactory. The respondent argues that the original hearing transcript reveals numerous references to its other facilities, including Plants 3 and 5, that even Ramos himself made reference to these other plants, and he testified that he had transferred from Plant 3 to Plant 6.

In view of the commission's determination that Stoughton Trailers made a valid offer of reinstatement to Ramos on March 1, 2000, however, the commission need not address Stoughton Trailers' argument that the ALJ's remand order constituted a significant material change from the original order that was not justified. (4)

The respondent argues that although the phrase "substantially equivalent" is not defined by the Fair Employment Act, "clearly a substantially equivalent position need not be a perfectly equivalent position." It is the respondent's position that the two differences from the position held by Ramos prior to his termination-that the job offer was for a second shift position and that it was located in Brodhead- were so minor that the respondent's offer of reinstatement was substantially equivalent. Citing Olson v. Phillips Plating (LIRC, 2/11/92, p.14 fn. 9), the respondent argues that the commission "has previously recognized that a position may be considered 'substantially equivalent' to a pre-termination position even though the new position is not on the same shift." Further, the respondent asserts that Ramos' sole objection to employment on the second shift was that it would interfere with his "romantic lifestyle," which should not by itself justify rejection of the reinstatement offer, particularly because Ramos "had previously worked as a paint supervisor on the second shift." The respondent argues that the fact that Ramos was offered reinstatement in Brodhead does not justify his rejection of the offer because Brodhead is within reasonable commuting distance of his home and would not require him to move his home in order to accept this employment.

As noted above, under Title VII "substantially equivalent" employment means employment that affords "virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status." Rasimas, 714 F.2d at 624. (5) (Emphasis added). There can be little dispute that the term "working conditions" encompasses work-shift assignment. Khan v. Cook County, 1996 U.S. Dist. Lexis 10764 (N Ill. 1996)(Transfer to the night shift can be more than a minor change in working conditions).

A difficulty presented in this case, however, is that the record contains no evidence as to what differences existed between "working conditions" on first and second shift. In EEOC v. Accurate Mech. Contractors, 863 F. Supp. 828 (DC ED Wis. 1994), where the court had to determine whether the employer's offer of a night- shift position to an individual unlawfully denied a first-shift position tolled the accrual of back pay, the court never even bothered to discuss the obvious difference in the hours of work presented by the two shifts. Instead, the court, focusing on the "working conditions," stated as follows:

Some aspects of the night shift are the same as those of the day shift, and some aspects are even better; for example, Mrs. Johnson would have received a 15% premium for working the night shift. Nevertheless, the plaintiffs presented impressive evidence that the working conditions on the night shift were far worse than those on the day shift. There was credible evidence received to demonstrate that night shift workers are required to do more work with less supervision, and that the night shift is statistically more dangerous than the day shift. Thus, the court concludes that a night shift position would not have been identical to the day shift position which had been illegally denied to Mrs. Johnson. It follows that (the employer's) offer of night shift employment did not toll the accrual of back pay.

(Accurate Mech. Contractors, 863 F. Supp. at 836)(Emphasis added).

The commission also notes that in a case arising under the National Labor Relations Act (NLRA) (6), NLRB, et al. v. Rockwood & Co., et al., 834 F.2d 837 (9th Cir. 1987), where the court had to decide whether an offer to return to work on the graveyard shift made to an economic striker that had been employed for approximately ten years as a "dry feeder" on the day shift was substantially equivalent, the court did not just consider the hours of the work offered but also considered the actual working conditions on the new shift. In that case the court found substantial evidence to support the ALJ's finding that the glue tank cleaning job was not substantially equivalent to the employee's old job. The court stated, "The glue tank cleaning job was more demanding physically, was particularly difficult for (Jose) Acosta because of the hip surgery he had undergone, and was on a more onerous shift." Id. at 841.

The respondent cites the commission's decision in Phillips Plating as support of its position on the substantial equivalency issue. However, the issue of whether a job offer to a different shift than that previously held by a complainant constituted substantially equivalent employment, when that previous shift continued to operate, was not specifically decided by the commission in that case. In Phillips Plating there was evidence that the employer no longer operated the second shift on which the complainant had previously worked. After noting that the employer could not reinstate the complainant to the second shift if it was no longer in operation, the commission stated that the complainant could "be placed in a substantially equivalent position if the second shift has continued not to operate." Phillips Plating (LIRC, 2/11/92, p. 14, fn. 9).

Further, addressing the reasonableness of Ramos' refusal to accept its job offer, the respondent portrays Ramos' refusal to accept its job offer as unreasonable, asserting that his "sole objection to the difference in work shift was his belief that the change would interfere with his `romantic lifestyle.' " However, the record indicates that Ramos' concern was not limited to his "romantic lifestyle," but included the conflict that second-shift work would pose on his "other commitments." Other employment was apparently included among Ramos' other commitments. Ramos asserted that he did not feel he should have to give up his other employment. Ramos testified that he also had other employment when he had worked second shift, but stated that at that time his other employment was "nothing that was of any significance." (Tr. B 23) The record does not disclose what Ramos' other present employment is or how long he has held this other employment.

The commission finds that the matter of Ramos' other employment is problematic. On the one hand, if Ramos' other employment provided a good wage and was employment that he has held for a significant period of time, not wanting to accept employment on a shift that would cause him to lose his other employment hardly seems unreasonable. On the other hand, notwithstanding the fact that the respondent's discriminatory conduct would likely have to be considered the cause of this problem, it also does not seem fair that the respondent, assuming that it has made a good faith offer of reemployment in an attempt to reduce or eliminate its back pay liability (and there is no evidence that the job offer was not a good faith offer), should have to continue to accumulate liability for back pay. (7)

Continuing on the question of the reasonableness of Ramos' refusal of the job offer, the respondent has asserted that Ramos had previously worked as a paint supervisor on the second shift. However, as best the commission can tell, this was very early on during Ramos' employment. Nevertheless, what may be most instructive regarding the reasonableness of Ramos' refusal to accept employment on the second shift is the following: 1) the record indicates that it was the respondent's practice to transfer supervisors to different shifts (and plants)(Tr. A 95-96; 122-124); and, more importantly, 2) the record indicates that the respondent has consolidated its painting operations away from Plant 6 in Stoughton, with the result that fewer paint supervisory positions exist at Plant 6. (Tr. A 134-139; 238-240; 251-252)

As a final comment regarding the reasonableness of Ramos' refusal of the reinstatement offer, the commission also notes that it has been unable to locate any case where it has been held that it was reasonable to refuse an offer of reinstatement to a job that was only located a distance of 26 miles away. The court in Rasimas cited several cases where it was found that the travel distance was unreasonable. However, of those cases cited, the one with the least travel distance involved traveling a distance of over 50 miles one way. See NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1314 (D.C. Cir. 1972).

The respondent argues that the ALJ erred by relying on the language of the Wisconsin Family and Medical Leave Law to find that the position it offered Ramos was not substantially equivalent. The respondent argues that the Family and Medical Leave Law specifies that "an equivalent employment position" must have "equivalent compensation, benefits, working shift, hours of employment and other terms and conditions of employment." The respondent agues that common sense tells one that a substantially equivalent position is a position that is somehow less than equivalent; therefore, the fact that the respondent's offer of reinstatement did not meet all of the Wisconsin Family and Medical Leave Law's criteria for an "equivalent employment position" does not mean that it was not a substantially equivalent position.

As noted by the ALJ, Wisconsin's Family and Medical Leave Act (FMLA) differs from the Fair Employment Law. The FMLA provides that when an employee returns from family leave or medical leave his or her employer shall immediately place the employee in an employment position as follows:

"2. If the employment position which the employee held immediately before the family leave or medical leave began is not vacant when the employee returns, in an equivalent employment position having equivalent compensation, benefits, working shift, hours of employment and other terms and conditions of employment."

(Wis. Stat. 103.10(8)(a)2.)

Although in one sense it can probably be said that the case law that has defined "substantially equivalent" in employment discrimination cases seems to adhere pretty closely to the criteria stated in the WFMLA, the commission is reluctant to outright adopt the standard under that statute as the appropriate standard for the WFEA. First, the terms "substantially equivalent" and "equivalent" can not mean the same thing. As noted by the respondent, "common sense tells one that a substantially equivalent position is a position that is somehow less than equivalent." Second, the situation that arises under the WFMLA and the WFEA are entirely different. Under the WFMLA, an employee would be returning from a leave from up to two weeks or six weeks, depending upon whether family or medical leave is taken. Wis. Stats. 103.10(3) and (4). Under the WFEA, it is likely that at least a year (or more, as would have been the case here) will have elapsed before the person unlawfully discriminated against returns to work. Given the greater length of time that will elapse before reinstatement will occur under the WFEA, chances are also likely that greater changes will have occurred in the operation of the employer's business, which could make it less easy to make the person "whole" by restoring him or her to the place where he or she would have been absent the unlawful discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). For these reasons, in this case the commission has not relied on the language of the WFMLA in determining whether or not the offer of reinstatement Stoughton Trailers made to Ramos was substantially equivalent to his previous position.

The respondent further argues that even if the position offered to Ramos was not "perfectly equivalent" to the position he held immediately prior to his termination, it may have been "perfectly equivalent" to the position he would have held but for his termination. The respondent argues that this is so because in the years following his termination and before his termination the respondent was consolidating its paint operations; that painting operations in Plant 6, where Ramos had worked, were eliminated and moved to the other plants, and that the respondent's workers were similarly moved around to other plants. The respondent argues that "Obviously, had Mr. Ramos never been terminated, he most likely would have been reassigned to one of the other plants with other paint supervisors." The respondent argues that clearly the paint supervisor position that it offered Ramos was not the "inferior" kind of employment that might "injuriously affect the employee's future career or reputation in his profession" that was referenced in the Anderson case. Although it cannot be determined with absolute certainty that Ramos ultimately would have been reassigned to some plant other than in Stoughton, the respondent's argument that it was consolidating its paint operations and moving employees to other plants would seem to favor the respondent.

Finally, the respondent argues that the ALJ's remand order is improper to the extent that it would require it to displace present workers or create a new position for Ramos. The respondent argues that the remand order improperly requires it to reinstate Ramos regardless of whether it must layoff or transfer any current employees, citing prior commission decisions and a Seventh Circuit case: Phillips Plating, (LIRC, 2/11/92, p. 14, fn 9)(There is ... no requirement that Complainant displace another worker"); Taylor v. Hampton Shell (LIRC, 6/27/88)(Immediate reinstatement not ordered because it would probably displace a current employee, would likely result in animosities and other problems, and the complainant could still be made whole by continuing back pay until acceptance or refusal of a valid offer of next available position); and EEOC v. Century Broadcasting Corp., 957 F.2d 1446, 1463 (7th Cir. 1992)(reinstatement may not be feasible where it would result in an innocent third party losing a job). The respondent argues that the ALJ improperly dismissed these concerns, noting only that the respondent had no seniority policy and was not accountable to any labor unions. The respondent argues that perhaps even more problematic is the ALJ's complete ignorance of the record evidence that in the years since Ramos' termination, painting operations were consolidated away from the Stoughton facility and into its other plants. The respondent argues that the ALJ would apparently have the respondent reinstate Ramos as a paint supervisor in the Stoughton facility even though there is no production need for this position at this facility, which is clearly nonsensical.

While the commission's determination that Stoughton Trailers made a valid offer of reinstatement to Ramos on March 1, 2000, makes it unnecessary to decide the respondent's final argument, the commission notes the following: There is a statutory basis for displacing (i.e., bumping) an incumbent employee under Title VII. See for example, Lander v. Lujan, 888 F.2d 153, 156 (D.C. Cir. 1989)(Noting that Title VII's remedial provision, 706(g), specifically includes reinstatement as an appropriate judicial remedy, that there is no evidence that Congress intended to exclude bumping from the court's arsenal of available alternatives, and that under precedent of the counterpart sections of the National Labor Relations Act on which 706(g) was expressly modeled, bumping constitutes a clearly authorized and even commonplace remedy)(case citations omitted).

However, as the court also noted in Lander: "The necessity for the bumping remedy only arises with unique, typically higher-level, jobs that have no reasonable substitutes." Id. at 155-156. (Emphasis added). In Hicks v. Dothan City Bd. Of Ed., 814 F. Supp. 1044, 1050 (D C Ala. 1993), after noting that the court has broad, equitable discretion to grant equitable relief appropriate to make the person whole, the court stated:

In exercising this discretion, a district court should be guided by the notion that "bumping can be a problematic remedy in Title VII cases, to the extent that someone other than the wrongdoing employer is made to pay for the employer's violation." Lander, 888 F.2d at 159 (R.B. Ginsburg, J., concurring). Displacement should, therefore, "be used sparingly and only when a careful balancing of the equities indicates that absent `bumping,' plaintiff's relief will be unjustly inadequate (Citing, Walters v. City of Atlanta, 803 F.2d 1135, 1149 (11th Cir. 1986)."

The court in Hicks then went on to state that existing case law revealed a number of factors to consider in determining whether bumping is appropriate. Id. They included the following: 1) effect on the plaintiff of the refusal to displace; 2) culpability of the incumbent; 3) disruption to the incumbent; 4) degree of culpability of the employer; 5) uniqueness of position and availability of comparable positions; 6) the plaintiff's diligence in taking steps to assure that the position remains available should the plaintiff prevail; and 7) undue disruption of the employer's business. Further, the court noted that no one of these factors is necessarily determinative, and, indeed, not all of the factors will always be relevant. Id.

In conclusion, considering the law and the available evidence in this case as a whole, the commission has determined that the respondent's March 1, 2000 offer to reinstate Ramos to the second shift paint supervisor position in Brodhead, Wisconsin, tolled the respondent's back pay liability. The following reasons seem to justify this result: There was no evidence to establish that the "working conditions" on the second shift were worse than those on the day shift; the respondent's practice has been to transfer supervisors to different shifts and plants; Ramos has been transferred to another plant before (although it was apparently early during his employment with the respondent); since Ramos was last employed with the respondent the respondent has consolidated its painting operations away from Plant 6 in Stoughton, with the result that there are fewer paint supervisor positions at Plant 6; it appears that there is a good chance, due to the changes in the respondent's painting operations that had Ramos' employment not been terminated he would have been reassigned to a plant location other than at Plant 6 in Stoughton any way; a travel distance of 26 miles to work does not appear to be an unreasonable distance for Ramos to travel to work; a paint supervisor position does not appear to be a "unique" position; and, finally, requiring the respondent to reinstate Ramos at Plant 6 in Stoughton would likely have required the displacement of another employee at that location.

NOTE: Witness credibility was not an issue in the commission's determination that Stoughton Trailers made a valid offer of reinstatement to Ramos on March 1, 2000.

cc: 
Jesus J. Villa
Julie Chitwood


Appealed to Circuit Court.

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Footnotes:

(1)( Back ) Hereinafter, reference to the transcript of the remand hearing will be designated by "Tr." followed by the letter "B" and the page number, and reference to the original hearing transcript of October 3, 1997, will be designated as "Tr." followed by the letter "A" and the page number.

(2)( Back ) The other three requirements are that the offer must be unconditional, a reasonable amount of time must be afforded to respond to the offer of reinstatement and the offer should come directly from the employer or its agent with authority to hire and fire.

(3)( Back ) The respondent is apparently referencing the time period from the ALJ's original order to her remand order. Assuming the March 1, 2000, job offer was a valid offer of reinstatement, the respondent's liability for back pay will run from October 24, 1994, until March 20, 2000, a period of approximately 5 years and 5 months.

(4)( Back ) The commission would note, however, that based on the testimony and evidence presented at the original hearing, the ALJ most likely was unaware that the respondent had multiple plant locations. While there were numerous references to various plant numbers (reference was made to Plants 2, 3, 5 and 6), the only plant number identified by location was the passing reference made to Plant 5 in Evansville. The original hearing record does not even show that Plant 6 was in Stoughton. The parties may have known where the various plants were located but their locations were not made clear on the record. This said, however, the commission also notes that there is one point in the original transcript where Ramos questioned a respondent's witness about the availability of a job opening for him in "Brodhead" or "Evansville" at the time he was notified of the termination of his employment.

(5)( Back ) It is appropriate to look to Title VII for guidance in interpreting the Wisconsin Fair Employment Act since the remedial provision governing Title VII also provides, in relevant part, that "Interim earnings or amounts earnable with reasonable diligence by the person.discriminated against shall operate to reduce the back pay otherwise allowable." Section 706(g) of the Civil Rights Act of 1964, 78 Stat. 261, as amended, 42 U.S.C. 2000e-5(g).

(6)( Back ) In Ford Motor Co., 458 U.S. at 227, fn. 8, the Court stated that "The principles developed under the NLRA generally guide, but do not bind, courts in tailoring remedies under Title VII (citing cases)."

(7)( Back ) Ramos also gave as additional reasons for not accepting the reinstatement offer that there were salary and job security issues and that he had three trips planned. (Tr. B 13) However, Ramos never discussed any of these concerns with the respondent, as he decided that the offer was unacceptable upon reading the letter offering him reinstatement. (Tr. B 18) Further, the fact that Ramos had trips planned does not appear to be a valid reason for refusing the job offer. His concern regarding "salary" issues appears inconsistent with what was apparently agreed upon at the hearing. (Tr. B 7-8) Finally, Ramos' concern about job security involved an assumption on his part that an outlying plant would shut down before the main plant but he conceded that he had no knowledge of that. (Tr. B 24) 

 


uploaded 2001/08/27