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


TAMMY KAYLER, Complainant

STOUGHTON TRAILERS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199600093


This case presents a question regarding the timeliness of the complainant's May 27, 1997 letter request for commission review of an administrative law judge's (ALJ) decision issued on August 23, 1996, as it relates to the complainant's "retaliation claim premised upon respondent's retaliation against the complainant for the assertion of her rights under the Family and Medical Leave Act."

Based on a review of the matter, and for reasons more fully set forth in the memorandum opinion portion of this decision, the Labor and Industry Review Commission hereby issues the following:

DECISION

The complainant's request for commission review is denied.

Dated and mailed: October 27, 1997
kayleta.rpr : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

By letter dated May 27, 1997, the complainant, Tammy Kayler, requests commission review of that portion of a decision issued by ALJ Allen Lawent on August 23, 1996, as it relates to her claim of "retaliation" by the respondent. Attorney William Smoler, Murphy & Desmond, S.C., represents the complainant. The complainant has submitted a number of documents as to the timeliness and substance of this petition, which include ALJ Lawent's August 23, 1996 decision on her claim under the Family and Medical Leave Act (ERD Case No. 199600093), the notice of appeal rights attached to that decision and the respondent, Stoughton Trailer, Inc.'s closing arguments which were recently submitted in ERD Case No. 199600094, now pending before ALJ John Brown.

With respect to the timeliness of the request to file a petition for review Attorney Smoler argues that the notice of appeal rights attached to the August 23, 1996 decision mistakenly stated that the entire matter must be brought to circuit court, thereby misadvising the complainant as to her appeal rights regarding the retaliation claim.

Stoughton Trailer's general counsel, James Hammis, opposes the complainant's petition for review and has submitted a number of documents to support the respondent's position that LIRC should bar the petition.

In order to facilitate an understanding of the parties' contentions, a review of the procedural and substantive history of ERD Case Nos. 199600093 and 199600094 is necessary.

On January 16, 1996, Kayler filed two separate complaints with the Equal Rights Division, one the division designated as ERD Case No. 199600093 and the other the division designated as ERD Case No. 199600094, against Stoughton Trailers. ERD Case No. 199600093 was given to the allegations listed on the Family and Medical Leave Complaint form and ERD Case No. 199600094 was given to the allegations listed on the Fair Employment discrimination complaint form.

In the complaint designated as ERD Case No. 199600093 (hereinafter FMLA complaint), Kayler alleged that she had been charged with occurrences under the employer's absenteeism policy for a medical leave she had taken for a sinus infection and reaction to medication and for time that she was off for her son's illness, that on January 5, 1996, she was permanently laid off, that the employer used the occurrences as part of the decision for whom to lay off and that she believed that using FMLA absences as a way to distinguish between employes (for layoff) violated the FMLA and "retaliates for using FMLA rights."

In ERD Case No. 199600094 (hereinafter the FEA complaint) Kayler listed "Retaliation" as the basis for this complaint. Kayler alleged that she was permanently laid off on January 5, 1996, and that she believed that using FMLA absences as a way to distinguish between employes (for layoff) violates the FMLA and "retaliates for using FMLA rights," that the employer has used the occurrences as part of the decision of who gets laid off. On May 13, 1996, Kayler amended her FEA complaint by adding a claim of sex discrimination with respect to her layoff and modifying her retaliation claim. In her modified retaliation claim Kayler asserted that:

"...I believe that I was chosen for lay off because I shortly before informed my employer that I was filing a Family and Medical Leave Act complaint for their failure to delete absences from their absenteeism policy that were caused by leaves which qualified under the Family and Medical Leave Act. Thus, I believe (sic) employer retaliated against me for asserting my rights."

On February 19, 1996, the division issued an initial determination finding probable cause in the FMLA case. Probable cause was found to believe that Stoughton Trailers violated the FMLA by: A) interfering with, restraining or denying the exercise of a right provided under Wis. Stat. ?.10; B) failing to post notices of employe rights under that Act; and C) discharging an individual for opposing a practice prohibited under this section. A notice of hearing setting forth the same issues on which probable cause had been found was subsequently issued. A hearing took place over the course of two days, March 19, 1996 and June 5, 1996.

In his decision dated August 23, 1996, ALJ Lawent dismissed Kayler's complaint in its entirety. ALJ Lawent concluded that by discharging Kayler the respondent did not interfere with, restrain and/or deny the exercise of the complainant's right to take medical and/or family leave and did not otherwise interfere with, restrain and/or deny the exercise of the complainant's right to take medical and/or family leave, that the respondent did not fail to post notices of employe rights as required under the FMLA, and that the complainant's having opposed a practice prohibited under the FMLA was not a factor in the respondent's discharge of the complainant.

ALJ Lawent issued the following pertinent findings of fact and conclusion of law with respect to his conclusion that Kayler had not been discharged for having opposed a prohibited practice:

"14. The Complainant spoke with individuals at Physicians Plus who informed her that the employer's actions (charging Kayler with occurrences under the absenteeism policy) may be in violation of state law. The Complainant contacted the Equal Rights Division and obtained information regarding the state Family and Medical Leave Act (WFMLA). The Complainant then had a discussion on December 29, 1995 with employees in the Respondent's Human Resources area during which she was informed that she needed to have a certification form filled out if she wanted to claim family leave under the law for the time off due to her son's illness. At some point during the December 29, 1995 discussion, the Complainant indicated that she was going to file a family and medical leave law complaint because of the failure to exclude the absences related to her son's illness from her record of occurrences. The discussion with the employees in the Respondent's Human resources area on December 29, 1995 became heated at some point....
...
17. At the time he (Kayler's supervisor Snyder) decided to terminate the Complainant, Snyder was unaware of the December 29, 1995 discussion regarding family and medical leave that the Complainant had with the employees in Respondent's Human Resources area."
...
20. The Complainant's having opposed a practice prohibited under sec. 103.10, Wis. Stats. was not a factor in the Respondent's discharge of the Complainant.

CONCLUSIONS OF LAW
...

5. The Respondent did not, within the meaning of sec. 103.10, Wis. Stats., discharge the Complainant for having opposed a practice prohibited under sec. 103.10, Wis. Stats."

(emphasis added)

Attached to ALJ Lawent's August 23, 1996 decision was a 2-page notice regarding appeal rights. This notice informed the parties that judicial review of the decision could be sought as authorized under ?.52, Wis. Stats., and that a petition for review must be filed in circuit court and a copy served on the division within 30 days after the decision is mailed.

On October 3, 1996, the division notified the parties that the FMLA case had been closed because a timely petition for review had not been received by the division.

On August 27, 1996, four days after ALJ Lawent's FMLA decision, the division issued an initial determination of probable cause in Kayler's FEA complaint. In addition to finding probable cause on the allegation of sex discrimination, this determination found probable cause to believe that Stoughton Trailers violated the FEA by:

"discharging the Complainant because the Complainant attempted, or the Respondent believed the Complainant had attempted or would attempt, to enforce any right under the Wisconsin Family and Medical Leave Act, sec. 103.10, Stats.

discharging the Complainant because the Complainant filed, or the Respondent believed the Complainant had filed or would file, a complaint under the Wisconsin Family and Medical Leave Act, sec. 103.10, Stats."

Apparently, James Hammis viewed the above-quoted findings of probable cause in the FEA case as being identical to the FMLA issues heard as part of ERD Case No. 199600093 and therefore on August 29, 1996, sent a letter requesting reconsideration to the Equal Rights Officer who had issued the probable cause findings in the FEA case (Lynne Piotrowski), with a copy to Attorney Smoler. Piotrowski, of course, had no authority to reconsider her decision and notified Hammis in a letter dated September 3, 1996 that the ALJ assigned to hear the case (John Brown) would have to address his concern.

On September 4, 1996, 12 days after ALJ Lawent's FMLA decision, the division issued a notice of hearing on Kayler's FEA complaint, scheduling a hearing for November 27, 1996. The notice stated that a hearing would be held to determine whether the respondent violated the Fair Employment Law, ?.31- 111.395, Stats., by:

"terminating the employment of the Complainant because of sex, discharging the Complainant because the Complainant attempted, or the Respondent believed the Complainant had attemted (sic) or would attempt, to enforce any right under tyhe (sic) Wisconsin Family and Medical Leave Act, sec. 103.10, Stats. and discharging the Complainant because the Complainant filed, or the Respondent believed the Cojplainant (sic) had filed or would file, a complaint under the Wisconsin Family and Medical Leave Act, sec. 103.10, Stats.,"

(emphasis added)

In a letter to ALJ Brown dated September 17, 1996, Attorney Smoler stated that he understood that ALJ Brown was considering the questions raised in Hammis' August 29, 1996 letter to the division investigator and then commented that:

"To the extent that Mr. Hammis was intending to raise the question of whether our next hearing relates to the Wisconsin Family and Medical Leave Act, I agree that it does not. The remaining issue should relate to the sex discrimination claim."

In a letter dated September 25, 1996, included with the respondent's answer to the complaint, Attorney Hammis commented:

"Attorney representing the Complainant appreciatively forwarded correspondence dated September 17, 1996, identifying that for purposes of the scheduled hearing on November 27, 1996, said hearing does not relate to the Wisconsin Family Medical Leave Act, it only relates to the remaining issues identified within the Amended Complaint and relates to a sex discrimination claim. We appreciate the professional courtesy extended by Attorney Smoler in clarifying such issue...."

On October 31, 1996, the division issued an amended notice of hearing for the November 27, 1996 hearing stating that a hearing would be held to determine whether the respondent, as alleged in the attached complaint, violated the Wisconsin Fair Employment Law, 111.31-111.395, Stats., by:

"terminating the employment of the Complainant because of sex."

Subsequently, Attorney Hammis apparently sent a letter to ALJ Brown on November 6, 1996, indicating a desire to file a motion to dismiss Kayler's FEA case. His basis for this motion apparently was because the "close similarities and conclusions" that had been issued in the prior decision by ALJ Lawent would apply to Kayler's FEA sex discrimination case. Attorney Hammis states that ALJ Brown, Attorney Smoler and he participated in a telephone conference on November 11, 1996, regarding a continuance of the scheduled November hearing because of various conflicts. According to Attorney Hammis, during this conference, ALJ Brown also specifically inquired of Attorney Smoler whether or not appeal was to be or had been taken on ALJ Lawent's decision and that Smoler clearly and emphatically stated to ALJ Brown that the decision of the complainant was not to appeal Lawent's decision. Further, Attorney Hammis states that no issue was raised by Attorney Smoler relative to an alleged error in the notice of appeal rights that was attached to ALJ Lawent's decision.

On December 3, 1996, Attorney Hammis filed a motion to dismiss Kayler's FEA complaint on grounds of claim preclusion (res judicata) and issue preclusion (collateral estoppel). The ALJ and the parties discussed the merits of the motion in a December 12, 1996 telephone conference. In a decision dated that same day, ALJ Brown issued a non-final order finding that all the requirements for claim preclusion had not been satisfied (specifically, because there was not an identity of causes of action because ALJ Lawent had no authority to hear the sex discrimination claim as there had been no investigation by the division and no probable cause determination), and finding that it would be improper to apply issue preclusion because there were no findings in ALJ Lawent's decision that precluded a finding in the FEA case that sex discrimination may have been a motive for discharge.

Finally, before discussing the specific contentions of the parties, it is necessary to refer to the statutory provisions of the FMLA and the FEA. Section 103.10(11) of the FMLA lists the following as prohibited acts under that law:

"(a) No person may interfere with, restrain or deny the exercise of any right provided under this section.

(b) No person may discharge or in any other manner discriminate against any individual for opposing a practice prohibited under this section."

(emphasis added)

The term "opposing" has been used to describe informal self-help activities in opposition to a practice of an employer without actual resort to a government agency. Pampuch v. Bally's Vic Tanny Health and Racquetball Club, (LIRC, 3/7/94); Roncaglione v. Peterson Builders, (LIRC, 8/11/93).

Section 103.10(12)(b) of the FMLA provides that an employe who believes his or her employer has violated sub. (11) (a) or (b) may file a complaint with the department. Violations of 103.10(11)(a) or (b) are expressly made subject to the remedial procedures of the FMLA law itself, of which the commission has no jurisdiction. Pampuch; Roncaglione. ALJ decisions in FMLA cases are subject to judicial review. Section ILHR 225.22.

Additionally, sec. 103.10(11)(c) of the FMLA provides that:

"Section 111.322(2m) applies to discharge or other discriminatory acts arising in connection with any proceeding under this section."

A "proceeding" does not exist unless there has been some kind of resort to the governmental agency charged with enforcement of that right. Pampuch.

Section 111.322(2m) makes it unlawful under the FEA to, among other things, discharge or otherwise discriminate against any individual because:

(a) The individual files a complaint or attempts to enforce any right under s. ...103.10...

(b) The individual testifies or assists in any action or proceeding held under or to enforce any right under s. ...103.10...

(c) The individual files a complaint or attempts to enforce a right under ... (various statutes not applicable here)

(d) The individual's employer believes that the individual engaged or may engage in any activity described in pars. (a) to (c)."

Employer retaliation relating to 103.10 (FMLA) of the type listed under 111.322(2m) are appealable to LIRC rather than to circuit court. Roncaglione, supra.

As noted above, the notice of appeal rights attached to ALJ Lawent's August 23, 1996 decision advised the parties that appeal of that decision was to be in circuit court.

Attorney Smoler essentially makes two assertions in support of his claim that the complainant was misadvised of her appeal rights and therefore should be allowed to file a petition for review with LIRC. First, Attorney Smoler has asserted that "At the time of the hearing of the FMLA complaint, the parties agreed that the retaliation complaint should be consolidated as a part of the FMLA case." (emphasis added) He then cites findings of fact 17, 18, 20, and conclusion of law number 5 as support that ALJ Lawent had decided that issue. (finding of fact number 18 was not quoted above because that finding--that by discharging the complainant the respondent had not interfered with, restrained or denied the complainant the exercise of any right prohibited under s.103.10(11)--relates to the merits of the complainant's FMLA claim, clearly a matter over which the commission has no jurisdiction. Secondly, Attorney Smoler argues that it was "only when respondent made arguments regarding res judicata and issue preclusion in the sex discrimination complaint which was recently tried before ALJ Brown that complainant became aware of the discrepancy between the appeal rights in the claims heard by ALJ Lawent. Once it became clear that the retaliation complaint was forever closed by the earlier decision of ALJ Lawent, it also became clear that the notice of appeal rights was incorrect."

For all of the reasons listed below, the commission believes that the complainant's request for commission review of that portion of ALJ Lawent's August 23, 1996 decision as it relates to her claim of "retaliation" by the respondent should be denied.

First of all, the commission has reviewed the transcript for the two-day hearing held in the FMLA case and the transcript fails to show that the parties had "agreed" to consolidate Kayler's FEA complaint of retaliation under 111.322(2m), Stats., as part of her FMLA case. (There was, however, testimony presented about Kayler speaking with employes in the respondent's human relations department on December 29, 1995, regarding whether certain absences fell under the Family and Medical Leave Act, about whether or not Kayler had informed those individuals that she was going to file a complaint with the State of Wisconsin and about whether or not Kayler's supervisor, Roger Snyder, knew about the December 29, 1995 discussion when he made the decision to lay Kayler off work.)

Secondly, it hardly seems reasonable to conclude that the parties had agreed to consolidate Kayler's retaliation complaint under 111.322 (2m) as part of her FMLA case when the ERD had yet to even issue an initial determination on whether or not probable cause existed to believe that Stoughton Trailers had violated 111.322 (2m). An initial determination on whether the respondent had retaliated against the complainant in violation of 111.322 (2m) did not come until August 27, 1996.

Thirdly, in ALJ Lawent's August 23, 1996 decision he states that Kayler's complaint allegation for hearing in that case was whether Stoughton Trailers violated the FMLA by "discharging the Complainant for having opposed a practice prohibited under the WFMLA," and his only conclusion of law that was issued was that the respondent did not, within the meaning of s. 103.10, "discharge the Complainant for having opposed a practice prohibited under sec. 103.10, Wis. Stats." (emphasis added)

This is not to ignore that there were findings of fact made by ALJ Lawent that would appear to pertain to Kayler's 111.322 (2m) complaint of retaliation under the Fair Employment Act. As quoted above, in finding of fact number 14, ALJ Lawent states that during the December 29, 1995 discussion with human resources employes Kayler indicated that she was "going to file a family and medical leave law complaint because of the failure to exclude the absences related to her son's illness from her record of occurrences." Roger Snyder subsequently discharged Kayler on January 5, 1996. As noted above, 111.322 (2m) (d) makes it unlawful to discharge an individual "because the individual's employer believes that the individual engaged in or may engage in any activity described in pars. (a) to (c) (for example, file a complaint or attempt to enforce a right under the FMLA)."

This then brings us to a second question which must be answered. If we are to assume that the complainant believed that she was litigating her 111.322 (2m) retaliation complaint before ALJ Lawent, why did she fail to file an appeal of that issue? Attorney Smoler argued in his May 27, 1997 letter that it was because the department's appeal enclosure had not notified the complainant of her opportunity to have that portion of Lawent's decision reviewed by LIRC and because it was "only when respondent made arguments regarding res judicata and issue preclusion in the sex discrimination complaint which was recently tried before ALJ Brown that complainant became aware of the discrepancy between the appeal rights in the claims heard by ALJ Lawent." (emphasis added)

First of all, for reasons discussed further at page 12 of this memorandum opinion, the commission is not persuaded that the appeal enclosure attached to ALJ Lawent's decision prevented Attorney Smoler from seeking review by the commission.

Secondly, ALJ Lawent's decision and attached notice of appeal rights was issued on August 23, 1996. The respondent had "made arguments" regarding res judicata (claim preclusion) and issue preclusion on December 3, 1996. It was not until his letter of May 27, 1997, that Attorney Smoler sought commission review of that portion of Lawent's decision as it relates to Kayler's claim of "retaliation" by the respondent. This constituted a period of nearly six months before any attempt was made to petition the commission for review of a portion of ALJ Lawent's decision after becoming "aware" of the alleged mistaken notice of appeal rights attached to ALJ Lawent's decision.

Subsequently, after Attorney Hammis' July 28, 1997 arguments that were submitted to the commission, including the argument that it is implausible that Attorney Smoler only became aware of the discrepancy between the appeal rights in the claims heard by ALJ Lawent when the respondent made arguments regarding res judicata and issue preclusion in the sex discrimination claim (because, among other things, Attorney Smoler had received the August 27, 1996 initial determination finding probable cause in the FEA retaliation complaint about the same time of ALJ Lawent's August 23, 1996 decision, because on August 29, 1996, Attorney Hammis had sought reconsideration of the August 27 FEA initial determination of probable cause as it pertained to the claim of retaliation based on ALJ Lawent's August 23, 1996 decision, and because in a letter to ALJ Brown dated September 17, 1996, Attorney Smoler had acknowledged that ALJ Brown was considering Attorney Hammis' request for reconsideration and agreed that the next hearing before ALJ Brown did not relate to the Family and Medical Leave Act), Attorney Smoler asserted that:

"...Although there was discussion of issue preclusion and res judicata, Kayler was not aware until the time of the hearing (the recent hearing on Kayler's claim of sex discrimination apparently held on May 2, 1997, before ALJ Brown) that Stoughton Trailers would posit testimony that was factually, diametrically opposed within the two proceedings. (Smoler had argued in his May 27, 1996, petition for review request that before ALJ Lawent, Snyder and all other witnesses on behalf of the respondent disavowed any other person's involvement in the layoff decision other than Snyder, while in the hearing before ALJ Brown the respondent did a complete about-face and claimed that the layoff decisions were the combined decisions of individuals such as Human Relations Manager Kate Schieldt). It was only after Stoughton Trailers posited this contradictory testimony that Kayler's counsel attempted the research on rights to review the earlier decision and thereby found the mistaken direction by the notice of appeal rights that was provided along with the FMLA decision."

The commission has difficulty with Attorney Smoler's argument. Part of that difficulty is that it appears that Smoler has made inconsistent assertions about when the complainant became aware of the alleged discrepancy between the appeal rights in the claims heard before ALJ Lawent. Specifically, in his May 27, 1997 letter to the commission, Attorney Smoler asserts that the complainant only became aware of the alleged discrepancy between the appeal rights in the claims heard by ALJ Lawent "when respondent made arguments regarding res judicata and issue preclusion in the sex discrimination complaint," whereas in Attorney Smoler's later August 1, 1997 letter, he asserts that "(a)lthough there was discussion of issue preclusion and res judicata," that the complainant became aware of the alleged mistaken direction by the notice of appeal rights that was provided along with the FMLA decision "...only after Stoughton Trailers posited...contradictory testimony..." at the hearing on the sex discrimination case.

There is a considerable difference between the assertion that the complainant became aware of the alleged discrepancy between the appeal rights attached to ALJ Lawent's decision when respondent made the res judicata and issue preclusion argument on December 12, 1996, as opposed to at the May 2, 1997 hearing on her sex discrimination claim.

Perhaps Attorney Smoler was trying to argue that due to the res judicata and issue preclusion arguments by the respondent, when the complainant discovered the alleged change in testimony by the respondent at the May 2, 1997 hearing, it became clear that the complainant was foreclosed from pursuing an appeal of ALJ Lawent's decision based on the principles of res judicata and issue preclusion. If this is Attorney Smoler's argument, however, this contention cannot be sustained since ALJ Brown denied the respondent's motion to dismiss on grounds of res judicata and issue preclusion in December 1996. It is not at all clear to the commission how Attorney Smoler attempts to rely on the res judicata and issue preclusion matter.

As a matter of fact, in view of the division's issuance of the initial determination of probable cause on Kayler's FEA complaint on August 27, 1996, and Attorney Hammis' August 29, 1996 letter seeking reconsideration of the August 27 initial determination because ALJ Lawent had allegedly already decided that retaliation issue, the commission finds it hard to believe that Attorney Smoler had not re-examined the matter at that time to determine what had actually been at issue and decided by ALJ Lawent. It is true that Attorney Smoler asserted in a letter dated September 17, 1996, to ALJ Brown that the next hearing before Brown did not involve the Family and Medical Leave Act and that the remaining issue related to the sex discrimination claim. However, in order to accept this statement as evidence that the complainant did not know what her appeal rights were, the commission would also have to assume that Attorney Smoler was unaware when he undertook to represent the complainant (apparently sometime shortly before the March 19, 1996 hearing date in the FMLA case) that she had filed two complaints before the division in which she had alleged "retaliation" by the respondent, one in which there was an alleged violation of the FMLA and the other alleging a violation of the FEA, and that Attorney Smoler did not understand that the appeal processes involved in these two claims were different.

The commission has considerable difficulty with making such an assumption about Attorney Smoler's state of knowledge about the procedural process in FMLA and FEA cases.

For all of the above stated reasons, the commission has denied the complainant's request for commission review of that portion of ALJ Lawent's decision as it relates to her claim of "retaliation" by the respondent.

cc:
WILLIAM SMOLER
JAMES E. HAMMIS


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