Federated Rural Elec. Ins. Co. v. Kessler
| Decision Date | 20 June 1986 |
| Docket Number | No. 84-552,84-552 |
| Citation | 131 Wis.2d 189,388 N.W.2d 553 |
| Parties | , 40 Empl. Prac. Dec. P 36,350 FEDERATED RURAL ELECTRIC INSURANCE CO., Plaintiff-Respondent-Petitioner, v. William KESSLER, Defendant-Appellant, Madison Equal Opportunities Commission, Defendant and Co-Appellant, City of Madison, Defendant. |
| Court | Wisconsin Supreme Court |
Frank D. Remington, Madison, argued, for plaintiff-respondent-petitioner; Lee, Johnson, Kilkelly & Nichol, S.C., on brief.
Paul R. Soglin, Madison, argued, for defendant-appellant; Heibl, Heibl, Crisafi & Soglin, on brief.
Eunice Gibson, Asst. City Atty., argued, for defendant and co-appellant; Henry A. Gempeler, City Atty., on brief.
The issues in this case are: (1) whether Federated Rural Electric Insurance Company's (Federated) rule prohibiting the romantic association of any employee of one sex with a married employee of the opposite sex impermissibly discriminates on the basis of marital status. The Madison Equal Opportunities Commission concluded that the rule violated Madison's equal opportunities ordinance, and that Federated discharged Kessler "in part" because he violated the rule.
(2) If the employer's rule does impermissibly discriminate on the basis of marital status, then the issue is whether to apply the "in part" test of Muskego-Norway C.S.J.S.D. No. 9 v. W.E.R.B., 35 Wis.2d 540, 151 N.W.2d 617 (1967), to mixed motive discharges not involving anti-union animus. Also see Employment Relations Dept. v. WERC, 122 Wis.2d 132, 361 N.W.2d 660 (1985). Federated urges the court to apply a different test to cases not involving antiunion animus, whereby the employer has an opportunity to prove that the employee would have been fired even without the discriminatory motive.
We conclude that Federated's rule does not discriminate on the basis of marital status, and, therefore, Kessler's termination did not violate the Madison equal opportunities ordinance even if the employer was motivated in part by Kessler's violation of the work rule. This decision is in agreement with the decision of the Dane county circuit court, Judge James C. Boll. Because our resolution of this issue is dispositive, it is unnecessary to determine whether the "in part" test should be applied to alleged employer discrimination which does not involve anti-union animus.
On February 2, 1977, William Kessler filed a complaint with the Madison Equal Opportunities Commission. He alleged that he had been discharged by his employer, Federated, because of his marital status and physical appearance, in violation of sec. 3.23(7)(a), Madison General Ordinances. 1 As required by the ordinance, an employee of the commission investigated the complaint.
The investigator issued an initial determination on March 23, 1978, finding probable cause to believe that the ordinance had been violated. Conciliation was waived and the case was set for hearing.
Before the date set for the hearing, Federated filed a complaint for a declaratory judgment in Dane county circuit court alleging that the Madison equal opportunities ordinance was unconstitutional and requesting that the commission be enjoined from holding the hearing on Kessler's claim.
On March 12, 1979, Judge P. Charles Jones denied the requested relief, but stayed his decision pending appeal to the court of appeals. Federated appealed Judge Jones' decision to the court of appeals and that court on April 27, 1981, affirmed. 308 N.W.2d 419.
The hearing examiner for the commission then held a hearing on the merits of the complaint on November 19, 1981. In the meantime, Federated had filed a petition for review of the court of appeals' decision, which this court granted. On March 26, 1982, this court affirmed the court of appeals' decision, without opinion, by an equally divided court. (Justice Abrahamson took no part.) See 106 Wis.2d 767, 319 N.W.2d 177 (1982).
On October 12, 1982, the hearing examiner issued recommended findings of fact, conclusions of law determining that Federated violated the ordinance, and a recommended order for relief. Both parties filed written exceptions to the examiner's findings and conclusions. After a review hearing, the commission on March 10, 1983, modified and affirmed the recommended findings and order.
Federated then commenced this action by filing a complaint seeking certiorari review on April 5, 1983, in Dane county circuit court. The Equal Opportunities Commission filed a return on June 9, 1983. Judge Boll issued a decision and order reversing the decision of the commission and remanding the complaint to the commission for issuance of an order consistent with the court's opinion and ordering the commission to pay to Federated its costs of the action.
The commission filed an appeal and on September 10, 1985, the court of appeals, in an unpublished opinion, reversed the judgment of the trial court and reinstated the commission's decision. 126 Wis.2d 513, 376 N.W.2d 868. Federated subsequently filed a petition for review requesting this court to determine whether the "in part" test should be applied to alleged employer discrimination which does not involve antiunion animus. The court of appeals held that the "in part" test applied to this case arising under Madison's equal opportunities ordinance.
The parties essentially only disagree as to whether the facts support an inference that Federated was motivated to discharge Kessler because he violated the employer's work rule. The historical facts are largely undisputed. In the late summer of 1975, John Bockoven, the president of Federated, contacted an employment agency for help in hiring a new claims manager. Federated is a Madison insurance company which employed about ten people in 1975. The employment agency referred William Kessler as an applicant. Bockoven interviewed Kessler and also had an industrial psychologist, Dr. John Wrage, interview him.
Bockoven hired Kessler in September, 1975. Bockoven believed that Kessler was "happily married" when he was hired. Bockoven told Kessler that "two basic ground rules" applied to his employment. Bockoven expected managers to support his decisions and "we have no fooling around with married people in our office."
Sometime in December, 1975, Bockoven learned that Kessler and his wife had separated. He immediately reminded Kessler that "because he would be single or separated from his wife, all the more reason he followed the rules of not fooling around with any married women in the office."
Around October, 1975, Bockoven's secretary, Nancy Farin, separated from her husband. Bockoven was unaware of Farin's separation until some time later; in fact, Farin and her husband attended an office party together in February, 1976. In January or February, 1976, Bockoven noticed that Kessler had lunched with Farin on two consecutive days. He immediately talked to Kessler about his concern, believing Kessler was violating the ground rule prohibiting relationships between married coemployees. Kessler denied that any relationship existed with Farin. He said that he and Farin were friends, and that "I assure you that I'll cool it immediately."
In March or April, 1976, Bockoven discharged Farin after Farin failed to follow his instructions to prepare an annual report. At that time, Bockoven learned that Farin and her husband had separated.
In the meantime, the relationship between Kessler and Farin continued and became serious around February, 1976. Ultimately, they both became divorced and the two were married sometime in mid-1977 or thereafter.
Bockoven became concerned in August, 1976, that Kessler was setting reserves too low on open files in order to avoid discussing such files with Bockoven. Bockoven required Kessler to discuss files with reserves set above $10,000. The Wisconsin Insurance Commission prohibits setting reserves too low.
Bockoven then consulted Dr. John Hyde, another industrial psychologist, after the perceived problem with the reserves arose. Bockoven discussed with Dr. Hyde a number of complaints he had with Kessler. The purpose of the consultation was to determine whether Kessler could be "salvaged" as an employee of Federated. Dr. Hyde concluded that Bockoven's concerns focused on his lack of trust that Kessler would follow company rules. Bockoven's distrust stemmed from his perception that Kessler artificially set reserves too low; drank alcohol at lunch in violation of a company rule; misrepresented his relationship with Farin; sent out form letters and letters with strikeovers contrary to directions; and wore improper attire to work. Dr. Hyde advised Bockoven that unless he could persuade himself to trust Kessler again, Kessler could not be "salvaged."
Shortly after consulting Dr. Hyde, Bockoven began to search for a replacement for Kessler. Bockoven discharged Kessler on December 9, 1976. Kessler then filed a complaint with the Madison Equal Opportunities Commission claiming that Bockoven impermissibly discriminated against him on the basis of physical appearance and marital status.
The commission hearing examiner concluded that Federated did violate Madison's equal opportunities ordinance. The examiner concluded that Federated discharged Kessler, in part, because of his physical appearance and marital status. The commission reviewed the examiner's factual findings, legal conclusions, and remedy, and reversed the legal conclusion that Federated discriminated on the basis of physical appearance. The commission agreed with the examiner that Federated violated the city ordinance by discharging Kessler on the basis of marital status. Kessler has not challenged in this certiorari review the commission's conclusion that Federated did not discriminate on the basis of physical appearance. Thus, the only issue in this case concerns the finding of marital status discrimination.
The examiner found as a matter of fact that Federated "had an unwritten...
To continue reading
Request your trial
-
Watertown Public Library v. Labor & Industry Review Com'n
...for the personnel action.)2 Our decision not only affects administration of the WEFA but local ordinances. See Federated Elec. v. Kessler, 131 Wis.2d 189, 388 N.W.2d 553 (1986) where there was presented for review but not reached, the question of whether to apply the 'in part' test of Muske......
-
Phillips v. Wisconsin Personnel Com'n
...is only where similarly situated persons are treated differently that discrimination is an issue. Federated Rural Elec. Ins. Co. v. Kessler, 131 Wis.2d 189, 211, 388 N.W.2d 553, 561 (1986). Here, the legislature has declared that eligibility for family health insurance coverage is determine......
-
Hoell v. Labor and Industry Review Com'n
...of whether the "in part" test applies in claims arising under the WFEA without deciding it. See Federated Rural Elec. Ins. Co. v. Kessler, 131 Wis.2d 189, 192-93, 388 N.W.2d 553, 554 (1986). However, in cases arising under the municipal and state employment relations laws, the supreme court......
-
State ex rel. Krancki v. City of New Berlin, 92-3074
...of whether the facts in a particular case fulfill a particular legal standard is a question of law. Federated Rural Elec. Ins. v. Kessler, 131 Wis.2d 189, 206, 388 N.W.2d 553, 559 (1986). We review questions of law independently and without deference to the circuit court. Fritsche v. Ford M......
-
Privacy Issues in the Workplace
...co-employees may not discriminate unlawfully on the basis of marital status. See, e.g., Federated Rural Electric Ins. Co. v. Kessler , 131 Wis. 2d 189, 388 N.W.2d 553 (Wis. 1986). 5. Marital Status Employers’ questioning of employees concerning marital status may raise claims of invasion of......
-
Privacy Issues in the Workplace
...co-employees may not discriminate unlawfully on the basis of marital status. See, e.g., Federated Rural Electric Ins. Co. v. Kessler , 131 Wis. 2d 189, 388 N.W.2d 553 (Wis. 1986). 5. Marital Status Employers’ questioning of employees concerning marital status may raise claims of invasion of......
-
Table of cases
...30:7.B.2 Federal Underwriters Exchange v. Pugh , 174 S.W.2d 598 (Tex. 1943), §34:1.B Federated Rural Electric Ins. Co. v. Kessler , 131 Wis. 2d 189, 388 N.W.2d 553 (Wis. 1986), §28:9.F.4 Feldman v. Law Enforcement Associates Corp. , 955 F.Supp.2d 528, 539 (E.D.N.C. 2013), §21:4.B.3 Feldstei......
-
Privacy issues in the workplace
...co-employees may not discriminate unlawfully on the basis of marital status. See, e.g., Federated Rural Electric Ins. Co. v. Kessler , 131 Wis. 2d 189, 388 N.W.2d 553 (Wis. 1986). 5. Marital Status Employers’ questioning of employees concerning marital status may raise claims of invasion of......