Anderson v. State of Wis. Labor and Industry Review Com'n
| Decision Date | 01 March 1983 |
| Docket Number | No. 81-1911,81-1911 |
| Citation | 330 N.W.2d 594,111 Wis.2d 245 |
| Parties | , 40 Fair Empl.Prac.Cas. (BNA) 1201 Judy Lynn ANDERSON, Petitioner-Appellant and Cross-Respondent, v. STATE OF WISCONSIN LABOR AND INDUSTRY REVIEW COMMISSION, Respondent and Cross-Appellant. |
| Court | Wisconsin Supreme Court |
Daniel A. Noonan, Milwaukee, argued, for petitioner-appellant and cross-respondent; Ilene L. Dick and Mitchell & Noonan, S.C., Milwaukee, on brief.
David C. Rice, Asst. Atty. Gen., argued, for respondent and cross-appellant; Bronson C. La Follette, Atty. Gen., on brief.
Judy Lynn Anderson filed a complaint with the Department of Industry, Labor and Human Relations (hereinafter the department), alleging that her former employer, Diel Container Corporation (hereinafter Diel), discriminated against her on the basis of sex when it terminated her employment, in violation of Wisconsin's Fair Employment Act. 1 The court of appeals certified Anderson's appeal and Diel's cross-appeal to this court. The question of whether there was unlawful discrimination was resolved against Diel and is not an issue on this appeal. The following three issues are presented: (1) Should the Wisconsin Fair Employment Act be interpreted to allow a valid offer of reinstatement to terminate the accrual of back pay as of the date the offer is rejected; (2) if a valid offer of reinstatement does terminate the accrual of back pay, did Diel's offer to Anderson constitute such an offer; and (3) may an award for back pay be adjusted to reflect its present value or to include interest?
The circuit court of Washington county upheld the Labor and Industry Review Commission's finding that Diel made a valid offer of reinstatement to Anderson and that this offer tolled Diel's liability for back pay. The court disagreed with the commission's determination that the Act did not allow it to award prejudgment interest on back pay awards. It held that an award of interest or an increase to reflect present value is discretionary with the commission, and it therefore ordered the cause remanded to the commission for a determination of the specific amount to be paid by Diel.
We hold that a valid offer of reinstatement by an employer terminates the accrual of back pay, but that the offer in the instant case was not sufficient. We also hold that although the Fair Employment Act does not expressly provide for prejudgment interest on back pay awards, prejudgment interest should be included in such awards, since its inclusion is necessary to carry out the purpose of the Act. Therefore, we reverse and remand to the circuit court, with directions to remand to the commission to determine the amount of the award in accordance with this opinion.
Judy Lynn Anderson began her employment with Diel Container Corporation on November 5, 1973. She was employed for general factory work. Her duties included folding cardboard cartons, press work, taping cartons and sweeping floors. On January 7, 1974, her supervisor told her that she was being laid off because of an economic cutback. However, at the time of the layoff, a position as a "baler" was open, and two men who had slightly less seniority than Anderson were retained to work as balers. According to Anderson, her supervisor told her that she was being laid off because she was the last female hired.
On January 15, 1974, Anderson filed a complaint against Diel with the department, alleging that she was discharged on account of her sex, while male employees with less seniority were retained. On March 24, 1977, the department's hearing examiner issued his findings of fact and conclusions of law, concluding that Anderson had indeed been laid off in favor of two male employees with less seniority, in violation of the Wisconsin Fair Employment Act. The commission adopted the examiner's proposed decision and ordered Diel to reinstate Anderson "forthwith" and to pay her "all back pay less any unemployment compensation or welfare benefits or earnings [of Anderson]."
Diel appealed to the circuit court of Dane county, contending that the examiner did not conduct a fair and impartial hearing and that the commission's decision was not based on substantial evidence. The circuit court affirmed that part of the commission's decision which held that Diel had unlawfully discriminated against Anderson, but agreed with Diel that the commission's order regarding monetary relief was vague and ambiguous. It therefore remanded the case to the commission to determine the specific amount of back pay due, less any unemployment compensation, welfare benefits or earnings received by Anderson.
Pursuant to the circuit court's order, the department held hearings in August Healy's deposition was taken on October 24, 1979. His testimony regarding his report indicated that he had no independent recollection of offering the baler position to Anderson, nor could he remember whether the offer was authorized and unconditional. Diel did not offer any independent evidence regarding the nature of the offer or whether it was unconditional or authorized. 3
and October, 1979, to determine the specific back pay due Anderson. The testimony of an economist (as an expert witness) and Howard Healy, a former investigator with the department, was taken. For the first time in the action, the question of whether Diel had made an offer of reinstatement[111 Wis.2d 250] to Anderson was addressed. 2 Healy's investigation report of August 9, 1974, was admitted into evidence. The report indicated that a position as a baler was available at the time Anderson was laid off. Anderson had alleged in her complaint that she offered to take the baler position, but that Diel denied her request for the job. According to Healy's report, Diel continued to take the position that a woman could not handle the job because the work was too heavy. Healy concluded from his investigation that a woman could perform the baling work. Healy also noted in his report that on March 27, 1974, Diel, "through the investigator [Healy], offered Complainant [Anderson] the baler job. She refused because she was employed elsewhere."
In his decision of April 15, 1980, the hearing examiner made several findings of fact, including the findings that "[Diel] did not unconditionally offer [Anderson] reinstatement on or about March 27, 1974 so as to stop back pay from accruing" and that "[Anderson], to September 30, 1979, has suffered a loss [of] $30,928.68 as a result of [Diel's] discrimination." This figure represented Anderson's lost wages increased to present value, 4 less the amounts she earned from other employment. 5 Accordingly, the examiner ordered Diel to pay Anderson $30,928.68 for lost wages and earnings through September 30, 1979, and further ordered that the back pay continue to accrue until the order became final by the exhaustion of all appeals or until Diel, in good faith, offered Anderson unconditional reinstatement to a position equivalent in pay to that which she originally held.
Diel petitioned the commission for review of the examiner's decision and order. The commission's decision of December 19, 1980, reversed the examiner's findings on two important questions. First, the commission Anderson filed a petition for judicial review with the circuit court of Washington county. The court first held that the issue of whether a valid offer of reinstatement had been made by Diel was properly before the commission. The circuit court next determined that there was substantial evidence to support the commission's finding that Anderson rejected a valid offer of reinstatement on March 27, 1974. Finally, the court disagreed with the commission's conclusion that it had no authority to award prejudgment interest. The court held that prejudgment interest is a legal and equitable principle that can be applied by the commission to add to awards to employees in cases such as this one and that under federal law, the decision whether to award prejudgment interest is within the discretion of the commission. Therefore, the court concluded that the question of prejudgment interest must be remanded to the commission for determination of the specific amount to be paid by the employer.
found that Diel made a valid offer to reinstate Anderson as a baler on March 27, 1974. The commission emphasized that although the investigator had no independent recollection of any offer of reinstatement, he testified he was certain that everything he wrote in the report was true. The commission reasoned that it could not be held that Diel's offer was not unconditional when Anderson summarily rejected the job because she was employed elsewhere and no longer wanted to work for Diel. Therefore, it concluded that Anderson's rejection of the job offer terminated Diel's liability for back pay on March 27, 1974. Second, the commission determined that the Fair Employment Act did not provide for "prejudgment interest" on back pay awards. Accordingly, the commission limited Anderson's recovery to back pay from the date of the layoff through March 26, 1974, at a rate of $2.25 per hour, plus overtime pay based on the average weekly overtime hours then worked by all general laborers, together with the dollar equivalent she would have received as fringe benefits.
Anderson appealed from that part of the judgment affirming the commission's back pay award. The commission cross-appealed from that part of the judgment reversing the commission's denial of prejudgment interest and remanding the case to the commission to determine the specific amount to be paid by Diel. This court accepted the certification from the court of appeals.
The first issue presented is whether the Wisconsin Fair Employment Act should be interpreted to allow a valid offer of reinstatement to terminate an employer's back pay obligation as of the date the offer is rejected. The commission concluded that...
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