BRIAN M. TRAVIS, Complainant
D C NEVELS TRUCKING INC, Respondent
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:
1. D.C. Nevels Trucking, Inc. (Nevels Trucking) is a trucking company that operates various types of construction trucks in southeastern Wisconsin. Nevels Trucking is owned by Betty Nevels.
2. Brian Travis (Travis) was hired to work at Nevels Trucking as a truck driver on September 5, 2000. When Travis was hired, James Hutcherson told Travis that he would earn $12.00 per hour. Travis received no employment benefits besides his wages.
3. On Thursday, October 12, 2000, Kathleen M. Reed, an Equal Rights Officer for the Wisconsin Department of Transportation (DOT), stopped Travis while he was working at a construction site on Highway 31 to interview him. Reed's duties included conducting wage interviews and investigating wage complaints. Reed introduced herself to Travis and asked him a series of questions, including what wage rate he was being paid. Travis informed Reed that he was being paid $12.00 per hour and that he did not receive any additional employment benefits. Reed informed Travis that he was supposed to be paid $15.00 per hour because that was the prevailing wage rate on the Highway 31 road construction project. Reed told Travis that he should contact his employer about not getting the proper wage rate. Reed gave Travis her business card and told him to call her if he had any problems.
4. On October 16, 2000, Travis told Hutcherson about his conversation with Reed. Travis asked Hutcherson why the truck drivers were not being paid the prevailing wage rate at Nevels Trucking. Hutcherson told Travis that he had asked Travis to "work with him" when Travis started working at Nevels Trucking. Hutcherson also told Travis that Nevels Trucking could not afford to pay Travis more than $12.00 per hour. Hutcherson said that he would ask Betty Nevels if Travis could be paid more, but Hutcherson said that he could not guarantee that Travis would get paid more.
5. After Travis' conversation with Hutcherson on October 16, Travis left a voice mail message for Reed that stated he had asked for the wages and they were denied. When Reed phoned Travis back she got his answering machine, so she left him a message that she was returning his call and that he should call her back.
6. On October 18, 2000, Travis called Betty Nevels to find out why he was not getting the prevailing wage. Travis asked Betty Nevels if the company paid prevailing wages. Betty Nevels responded "Where did you get that from?" Travis told Betty Nevels that "DOT stopped me on the site and I explained to them that I was only making $12 an hour and they told me that was wrong and that I should come and ask you do you understand what prevailing wages are and why wasn't I making prevailing wages because I should have been." Betty Nevels told Travis that she could not afford to pay him prevailing wages and that he had signed on for $12.00 per hour and that was it. Further, Betty Nevels told Travis that if he could get more money somewhere else, then go ahead. Travis responded that he was not trying to leave, he just wanted what she owed him for prevailing wages on the hours he had worked, and he asked why he could not receive the prevailing wage on those hours. Betty Nevels then told Travis that he was "raising her blood pressure, that she never had any problems like this until he came to work for her company, and that she didn't need him to come to work anymore." Travis asked if he was being fired and Betty Nevels told him "Yes, I don't need you anymore. I don't need these problems in my company. I never had these problems before. I don't need these problems." When asked at the hearing to explain what was being discussed when Betty Nevels mentioned "these problems," Travis testified Betty Nevels told him that he "was trying to get the company in trouble with the Department of Transportation." When Travis again asked if he could be given the money he was owed, Betty Nevels told him that she would look into what he said she owed him and that whatever she thought was right she would give to him. Betty Nevels then hung up the phone.
7. About 5 minutes after ending the telephone conversation with Travis, Betty Nevels called Travis back to ask him which construction sites he had worked on. Travis provided that information. Travis never worked for Nevels Trucking after Betty Nevels discharged him on October 18, 2000.
8. On October 18, 2000, Travis called Reed and told her about his request for the prevailing wages from Betty Nevels and the termination of his employment. Reed mailed a wage complaint form to Travis, which Reed received back on October 25, 2000. Also, one day earlier on October 24, 2000, Travis had filed a complaint with the Equal Rights Division in which he alleged that Betty Nevels had fired him because he had asked to be paid the prevailing wage.
9. On Friday, October 27, 2000, Travis went to pick up his last paycheck from Betty Nevels. Betty Nevels refused to release his last check unless he signed a piece of paper that read as follows: "As of October 27, 2000, D.C. Nevels does not owe me any more money." Travis refused to sign the document unless he could alter the document to state that the status of a particular account still had to be investigated before the issue of payment was completed. Travis altered the document and signed it. Betty Nevels then gave Travis his check.
10. Betty Nevels terminated Travis' employment with Nevels Trucking because she believed that he might attempt to enforce his right to be paid the prevailing wage rate.
Based upon the above FINDINGS OF FACT, the commission makes the following:
1. The respondent, D.C. Nevels Trucking, Inc., is an employer within the meaning of the Wisconsin Fair Employment Act.
2. The complainant, Brian M. Travis, is an individual entitled to the protection against being discharged in violation of Wis. Stat. § 111.322(2m).
3. The respondent violated § 111.322(2m)(d) of the WFEA by terminating the complainant's employment because the respondent believed he might attempt to enforce a right under the Prevailing Wage Act, § 66.0903, Wis. Stat., or the Wage Rate on State Work Act, § 103.49, Wis. Stat.
Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission issues the following:
1. That the respondent cease and desist from discriminating against Brian M. Travis in violation of Wis. Stat. § 111.322(2m).
2. That the respondent immediately make a written offer of employment to Brian M. Travis as a truck driver. This offer shall entitle Travis to all back pay and other privileges of employment that he would have enjoyed but for his unlawful termination of employment. The respondent shall rehire Travis, unless within 21 days after this matter has become final Travis notifies the respondent in writing that he does not wish to be reemployed, or Travis unreasonably fails to report for work at a time and place that the respondent has reasonably designated in its offer of employment. The respondent's offer of employment shall give Travis reasonable notice of the time and place to report for work.
3. That the respondent shall make Travis whole for all lost wages incurred as a result of its unlawful termination of his employment. The respondent shall pay Travis as back pay the amount that he would have earned from October 18, 2000, through the date on which he either begins employment or notifies the respondent in writing that he does not wish to be reemployed. The back pay shall be computed on a calendar quarterly basis, with deductions on a quarterly basis for interim earnings. Also, any amounts that Travis received as unemployment insurance or welfare payments shall not reduce the back pay otherwise allowable, but shall be withheld from him and immediately paid to the unemployment reserve fund, or in the case of welfare payments, to the welfare agency making the payment. (Reimbursement for unemployment insurance shall be in the form of a check made payable to the Department of workforce Development, Unemployment Insurance Division, and show Travis' social security number and the ERD case number.) Additionally, the amount payable to Travis after all statutory setoffs shall be increased by interest at the rate of 12% per annum, simple interest. The interest shall be computed by calendar quarter, figured from the last day of each quarter to the date payment is made. The sum of the net back pay plus interest owed for all calendar quarters shall constitute the total back pay owed.
4. That the respondent pay reasonable attorney's fees and costs incurred by Brian M. Travis in pursing this matter. This sum shall be paid by check, made payable to Brian M. Travis and his attorney, Cynthia L. Manlove.
5. That within 30 days of the expiration of time within which an appeal may be taken herein, D.C. Nevels Trucking Inc. shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats. § § 111.395, 103.005(11) and (12).
Dated and mailed October 7, 2002
travibr . rrr : 125 : 9
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
Laurie R. McCallum, Commissioner
Wisconsin Statute § 111.322(2m) makes it an act of employment discrimination for an employer to, among other things, discharge or otherwise discriminate against an individual because the individual files a complaint or attempts to enforce a right under § 66.0903 or 103.49, or because the employer believes the individual had filed a complaint or attempted to enforce a right under § 66.0903 or § 103.49 or may file a complaint or attempt to enforce a right under § 66.0903 or § 103.49. Wis. Stats. § § 111.322(2m)(c) and (d). Wis. Stat. § 66.0903 is Wisconsin's Prevailing Wage Act. Wis. Stat. § 103.49 is Wisconsin's Wage Rate on State Work Act.
The commission concludes that the owner of the respondent, Betty Nevels, discharged the complainant because Nevels believed the complainant might attempt to enforce his right to receive the prevailing wage rate for his work. The following reasons lead the commission to this conclusion. First of all, the credible evidence indicates that the respondent was aware that it was required to pay the complainant prevailing wages for the work he performed on the Highway 31 project. For instance, the complainant testified (and the ALJ accepted the complainant's testimony) that when he inquired of James Hutcherson as to why drivers were not being paid the prevailing wage rate, Hutcherson's response was that he (Hutcherson) had asked the complainant to "work with him" when the complainant started working at Nevels trucking, and that Nevels Trucking could not afford to pay the complainant more than $12.00 per hour. Similarly, the ALJ accepted the complainant's testimony that when he told Betty Nevels that he had spoken with Reed from the Department of Transportation and that he should be getting the prevailing wage rate, Betty Nevels likewise responded that she could not afford to pay him the prevailing wage rate. Hutcherson's and Betty Nevels' responses that the respondent could not afford to pay the complainant the prevailing wage strongly suggest that the respondent knew that it was not paying the complainant the prevailing wage. If, in fact, Hutcherson and Betty Nevels had not been aware that the complainant's job was a prevailing wage job it would seem that their response to the complainant's inquiry would have been that they were not aware that his job was a prevailing wage job.
Second, the record also shows that Betty Nevels was familiar with the Department of Transportation's role in the enforcement of the prevailing wage law as she had been previously contacted by the Department of Transportation regarding the respondent's failure to pay prevailing wages and overtime pay.
Third, and most important though, the evidence shows that when the complainant persisted in his inquiry with Betty Nevels as to why he could not be paid the prevailing wage, Betty Nevels told the complainant he "was raising her blood pressure, that she never had any problems like this until he came to work," after which Betty Nevels then told the complainant he was discharged, that she did not need these problems and that the complainant was "trying to get the company in trouble with the Department of Transportation."
The commission concludes that the respondent's awareness that the work performed by the complainant was a prevailing wage job, together with its familiarity of the DOT's role in the enforcement of the prevailing wage law and the fact that the complainant was told he was trying to get the company in trouble with the Department of Transportation when discharged, all support the conclusion that the respondent discharged the complainant because it believed he might attempt to enforce his right to be paid the prevailing wage rate.
NOTE: The commission did not consult the ALJ regarding witness credibility and demeanor. The commission's decision in this matter is not based on an assessment of credibility that differed from that of the ALJ.
Attorney Cynthia L. Manlove
Attorney Barry S. Wagner
Appealed to Circuit Court. Affirmed June 12, 2003.
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