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

AMY K BODOH, Complainant

US PAPER CONVERTERS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9432221, EEOC Case No. 26G901558

By order dated January 14, 1994, Administrative Law Judge Gary L. Olstad of the Equal Rights Division of the Department of Industry, Labor and Human Relations (the department) found that the respondent (US Paper) discriminated against the complainant by denying her training and by terminating her employment on August 28, 1990, all in violation of the Wisconsin fair employment laws. As a result, ALJ Olstad ordered a make whole remedy. Neither party appealed ALJ Olstad’s January 14, 1994 order. However, the parties were unable to agree on the amount of damages due.

Subsequently, a hearing on the issue of the amount of damages due was held before ALJ Olstad. He issued his decision in that matter on December 28, 1994. 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT

1. US Paper unlawfully discriminated against the complainant when it denied her training and when it terminated her employment by laying her off from her job as a trimmer operator at US Paper on August 28, 1990. At the time of her termination, the complainant made $6.75 per hour, and her fringe benefits included group health insurance.

2. Following her separation from US Paper on August 28, 1990, the complainant found work paying $4.25 per hour at Valley Burger King restaurant Kaukauna. She began working at Valley Burger King on or about September 2 or 3, 1990. She earned $126 before quitting at some point before September 24, 1990.

3. The complainant interviewed for a job at Hillshire Farms on September 5, 1990. She was hired and started work on the sausage line on September 24, earning $7 per hour.

4. During the course of her employment at Hillshire Farms, the complainant was absent from work on three occasions. The complainant first missed worked on Friday, October 12, 1990, to prepare for her father’s wedding. She had told Hillshire Farms in advance about this absence at the time she was hired.

5. The complainant’s second absence was on October 23, 1990. She missed work on this day to visit her father-in-law in the hospital. He had suffered a heart attack, and his medical care providers summoned the family because his condition was serious. The complainant called Hillshire Farms to let it know she would not be in that day.

6. The third absence occurred on October 31, 1990. The complainant was six months pregnant at the time, and missed work for medical reasons related to her condition. Again, the complainant called Hillshire Farms to tell them she would not be coming to work that day because she was not well.

7. Based on these absences, Hillshire Farms fired the complainant on November 14. Specifically, Hillshire Farms discharged the complainant because her attendance record was considered unsatisfactory for a new worker on probation. The complainant offered to provide an excuse from her doctor for the last absence, but was told it would make no difference.

8. The complainant had been hired by Hillshire Farms to fill-in for other workers on a temporary basis. However, had the complainant not been fired, she would have been kept on as a permanent employe, even though the complainant herself understood the job was only seasonal. She earned a total of $1,572.78 during her employment at Hillshire Farms.

9. In late 1990 and throughout 1991, following her discharge from Hillshire Farms, the complainant went to the local job service office to find work weekly, checked help wanted ads in the local daily newspaper and a free weekly paper, and submitted applications.

10. The complainant delivered her baby on or about February 1, 1991. As a result of the birth, she incurred bills of $480.80 and $1,128 from St. Elizabeth Hospital in Appleton, Wisconsin. These amounts are still outstanding. She submitted these bills to US Paper’s group health insurer for payment, but they were denied as an uncovered preexisting condition.

11. Following the birth of her child on or about February 1, 1991, the complainant took three weeks off her job search.

12. In August 1991, the complaint obtained a job paying $4.25 per hour at a Hardee’s restaurant, operated by Norox, Inc. She earned $537.63 from this employment.

13. The complaint left her job at Hardee’s in the fall of 1991, to start work at a Christmas tree lot. Instead, she obtained a job at American Toy doing light assembly work. She began working at American Toy in October 1991, but was eventually laid off in December 1991. The complainant was paid $4.25 per hour, and earned a total of $1,713.72. Of that, $1,534.25 was paid in 1991 while $179.47 was paid in 1992.

14. The complainant resumed submitting applications for employment and checking with the job service office, without luck. She, her husband and their children moved to Florida in July 1992. While in Florida, she looked for work with the local job service agency and continued to submit job applications to potential employers.

15. The complainant delivered another child, who was born on October 21, 1992. On this occasion, the expenses associated with the birth were paid by public assistance. The complainant again suspended her job search for 3 weeks.

16. The complainant next found work as a cashier at Walmart Stores in Florida in May 1993. She was paid $5.00 per hour and worked part time, 20 to 25 hours per week. She worked for Walmart Stores until July 1993, and earned a total of $1,217.79. She quit because child care was too expensive. After quitting, she continued to look for work in Florida.

17. The complainant also incurred $871.57 in medical expenses at Manatee Hospital in Tampa, Florida on May 1 and 2, 1993. She paid $15 of those expenses, leaving the amount of $856.57 outstanding as of the date of hearing.

18. Between August 28, 1990 and November 1, 1993, the complainant received unemployment compensation in an undetermined amount not exceeding $1,504, and received public assistance in the form of food stamps in an undetermined amount.

19. The complainant returned to Wisconsin to accept reemployment with US Paper. Her first day back at work was November 1, 1993. She was returned to her old position as “trimmer-operator,” at $7.50 per hour, with insurance benefits. The complainant testified, however, that she actually was assigned work as “helper,” and that she never actually operated a trimming machine when she returned to work. Instead, she helped another trimmer-operator take care of the machine by loading the machine, and plugging, wrapping and banding rolls of paper. The duties of the operator position are more technical and involve operating the machine and the computer program that governs it.

20. The complainant described her situation upon returning to US Paper as being “put down” to a lower position than that of trimmer operator. However, she made $7.50 per hour upon reinstatement in 1993, as compared to $6.75 per hour as a trimmer operator prior to her termination in 1990. The record does not indicate whether she complained to US Paper about her job duties or assignment.

21. The complainant no longer works for US Paper, but the facts of that separation are not at issue here.

CONCLUSIONS OF LAW

1. US Paper did not meet its burden of proving that the complainant failed to exercise reasonable diligence in mitigating her damages from August 28, 1990 to November 1, 1993.

2. On November 1, 1993, US Paper reinstated the complainant to the position of trimmer operator within the terms of ALJ Olstad’s January 14, 1994 order.

3. Between August 28, 1990 and November 1, 1993, the complainant incurred $871.57 medical expenses from Manatee Hospital in Tampa, Florida, which would have been paid by her group health insurance with US Paper had she not been unlawfully terminated.

ORDER

1. US Paper shall pay the complainant the sum she would have earned as an employe from August 28, 1990 to November 1, 1993. The back pay for this period shall be computed on a calendar quarterly basis subject to the following offsets:

a. During the third quarter of 1990, $126 in wages earned at Valley Burger King.

b. During the third quarter of 1990, $280 in wages from Hillshire Farms.

c. During the fourth quarter of 1990, $1,292.78 in wages from Hillshire Farms.

d. During the first quarter of 1991, the equivalent of three weeks of back pay to account for the complainant’s unavailability following the birth of her child on or about February 1, 1991.

e. During the third quarter of 1991, $537.73 in wages from Norox, Inc., d/b/a Hardee’s restaurant.

f. During the fourth quarter of 1991, $1,713.72 in wages from American Toy & Furniture.

g. During the third quarter of 1992, the equivalent of three weeks of back pay to account for the complainant’s unavailability following the birth of her child on October 21, 1992.

h. During the second quarter of 1993, $1,217.79 in wages from Walmart Stores, Inc.

In addition, the amounts of unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or the applicable welfare agency. Further, the amount payable to the complainant after all statutory set-offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.

2. US Paper shall deliver to the complainant a check made jointly to her and Manatee Hospital in Tampa, Florida, in the sum of Eight Hundred fifty-six dollars and seventy-five cents ($856.75) to cover the complainant’s bill for medical expenses dated May 7, 1993, and shall pay the complainant Fifteen dollars ($15) as reimbursement for her partial payment of that bill.

3. US Paper shall pay the complainant’s reasonable attorney fees and costs.

4. Within 30 days of the expiration of the time within an appeal may be taken herein, US Paper shall submit a compliance report detailing the specific action taken to comply with the commission’s Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, WI 53708-8126.

Dated and mailed: November 14, 1995
bodoh.rrr: 101 : 9

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

1. Mitigation.

An employer has the burden of proving that an employe has failed to exercise reasonable diligence to mitigate his wage loss where, as here, the employer is ordered to pay back pay for discharging an employe in violation of the state fair employment laws. Davis v. Braun-Hobar Corp., ERD case no. 8551814 (LIRC, 4/18/90); Miller v. Oak-Dale Hardwood Products, ERD case no. 9200205 (LIRC, 12/13/94). See, also: Anderson v. LIRC, 111 Wis. 2d 245, 255-58 (1983).

In this case, the complainant’s efforts to obtain re-employment, virtually from the day of her illegal discharge, are evident from her taking work almost immediately with Valley Burger King, and at a very low wage. Moreover, the uncontroverted evidence is that the complainant gave Hillshire Farms substantial advance notice of her absence for her father’s wedding; that she “called-in” to inform Hillshire Farms of her other absences for her father-in-law’s heart attack and for her own pregnancy-related condition; and that she offered to provide a medical excuse for this last absence. The record also establishes that Hillshire Farms did not fire her because it doubted the reasons for her absences or considered her notice inadequate, but rather because it simply considered three absences too many.

This record may not be reasonably determined to show that the complainant failed to exercise reasonable diligence in mitigating her damages based on her discharge from Hillshire Farms for three very understandable absences. Nor does the commission accept US Paper’s assertion that her employment history before indicates some sort of pattern of “squandering” employment. Consequently, US Paper’s liability for back pay does not end with her discharge from Hillshire Farms (1) 

Moreover, US Paper failed to prove a lack of reasonable diligence in the complainant’s efforts to find work after her discharge from Hillshire Farms. Specifically, US Paper failed to establish that the complainant was not looking for work when she said she was, nor does the record support that inference. The complainant obtained work at Valley Burger King and Hillshire Farms almost immediately upon her termination from US Paper. The Burger King, American Toy, Hardee’s and Walmart jobs were all relatively-low paying. From this the commission concludes the complainant was willing to work, and not overly demanding about conditions or wage.

Against this, of course, are the facts that the complainant moved to Florida, that she quit a $5 her part-time job because of day care, and that she had delivered two children during the back pay period. However, moving to another state has been held not to end the back pay or reinstatement remedies. Miller v. Oak-Dale Hardwood Products, supra. In addition, the commission finds no lack of diligence when the complainant quit Walmart after concluding she did not making enough after child care. Significantly, the complainant did not refuse the $5 per hour job at Walmart outright, but worked at it for a couple of months. Moreover, she willingly returned to higher paying work on reinstatement by US Paper. Under these circumstances, the separation from Walmart does not show a failure of reasonable diligence, so much as economic reality.

This leaves the effect of the complainant’s pregnancies on her efforts to find work. The complainant testified she only suspended her job search activities for three weeks for each child. US Paper has offered no evidence that the complainant was out of the job market for a longer period. Nor is the commission willing to infer a longer period of separation from the job market in 1991 and 1992, based on the complainant’s refusal of a recall by another employer two weeks before the birth of her first child in 1989. In fact, the complainant resumed work within months after the births ending both the 1991 and 1992 pregnancies. Suspending the complainant’s award during the three-week periods that she did not actively seek work because of her children’s birth is consistent with prior commission precedent in Debra A. Davis v. Braun-Hobar Corporation, supra.

2. Medical expenses.

The next issue is the complainant’s claim for out-of-pocket medical expenses. In general, such expenses are paid if they would have been covered had the complainant not been discharged in violation of the fair employment laws. See generally, Woolridge v. Chicago Northwestern Transp. Co., ERD case no. 8432386 (LIRC August 22, 1986); Le Doux v. Wisconsin Book Bindery, ERD case no. 7606408 (LIRC, April 10, 1981); and cases cited in the department’s 1995 Equal Rights Decision Digest, sec. 814.1. benefits.

In this case, the complainant claimed reimbursement based on two itemized bills from St. Elizabeth Hospital in Appleton, and an itemized bill from Manatee Hospital in Tampa, Florida. She also claimed about $3,000 in additional expenses from St. Elizabeth Hospital, but did not submit a bill.

The commission ordered only the bill from Manatee Hospital paid. The complainant did not establish what the $3,000 in additional expenses at St. Elizabeth Hospital was for, so US Paper had little opportunity to defend that claim. Further, the complainant admitted that the itemized bills from St. Elizabeth Hospital were rejected by US Paper’s group health insurer for reasons unrelated to her termination from US Paper.

3. Reinstatement.

The next issue is whether the complainant was actually "reinstated" in November 1993 when she returned to work for US Paper. The guidelines for "reinstatement" are set out in Anderson, supra. The court stated that in order for an offer of reinstatement to end an employer’s back pay liability, it must: (1) be for the same or substantially the same position, (2) be unconditional, (3) give the employe a reasonable chance to respond, and (4) it should come directly from the employer. Anderson, at 111 Wis. 2d 256-57. The court also indicated that employers have the burden of proving an offer meets these guidelines. Id., at 111 Wis. 2d 255. Discussing the issue of reinstatement to the same or a substantially equivalent position, the court emphasized that comparability in salary was not the sole test. Rather, comparability in status may be more important, particularly as it relates to opportunities for promotion or reputation in the profession. Anderson, at 111 Wis. 2d 256. See also Kelley Co. Inc. v. Marquardt, 172 Wis. 2d 234, 250 (1992) (decided under the "closely analogous" state family and medical leave law, sec. 102.35, Stats.)

In this case, there really is no question about elements (2), (3) and (4) being met. Element (1) is in question based on the complainant’s testimony that, upon returning to US Paper, she was assigned helper duties, not operator duties.

However, the commission concludes that the complainant’s reinstatement in November 1993 was sufficient under the standards set out above. First, her pay and formal classification were the equivalent to her old job. Second, the record does not indicate that the complainant ever complained to US Paper about her duties on reinstatement. Nor was the issue even raised in the April 8, 1994 letter from complainant’s attorney setting out his position on back pay following the January 1994 liability order. As there is no evidence that the complainant objected to her duties upon reinstatement or during the three months she worked thereafter, the commission may not conclude the difference in duties made the position inferior or injured her reputation or promotion chances.

cc:
ATTORNEY RICHARD J. CARLSON
AMY K. BODOH

Appealed to Circuit Court. Aff'd. sub nom. U. S. Paper Converters v. LIRC, Outagamie Co. Cir. Ct., 06/14/96. 
Aff'd. by Court of Appeals sub nom. U. S. Paper Converters v. LIRC and Bodoh,  208 Wis. 2d 523, 561 N.W.2d 756 (Ct. App. 1997)

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Footnotes:

(1)( Back ) On this issue, the commission also considered the potential argument, not directly raised by US Paper, that since the complainant was re-employed at a higher wage by Hillshire Farms, the duty to pay back pay ended automatically. In an unpublished decision, the court of appeals wrote:

“We ... conclude that if a person obtains alternate employment with a higher wage in a position which he would have accepted even if he had been employed by the original employer, then the subsequent employment terminates the original employer’s liability for back pay and reinstatement despite the person’s lay off from the subsequent employment.”

University of Wisconsin-Whitewater v. LIRC, court of appeals case no. 84-1571, district IV unpublished decision, dated November 25, 1985.

However, the record contains no testimony about whether the complainant would have quit US Paper to work at Hillshire Farms. If anything, the record suggests the opposite, since the complainant thought the Hillshire Farms job was seasonal.