Kelley Co., Inc. v. Marquardt

• Decision Date: 16 December 1992
• Docket Number: No. 91-0445,91-0445
• Citation: 493 N.W.2d 68,172 Wis.2d 234
• Parties: , 61 USLW 2383 KELLEY COMPANY, INC., Petitioner-Respondent-Cross Appellant, v. Elizabeth MARQUARDT, Appellant-Cross Respondent-Petitioner, Department of Industry, Labor and Human Relations, Respondent.
• Court: Wisconsin Supreme Court

Page 68

493 N.W.2d 68

172 Wis.2d 234, 61 USLW 2383

KELLEY COMPANY, INC., Petitioner-Respondent-Cross Appellant, v. Elizabeth MARQUARDT, Appellant-Cross Respondent-Petitioner Department of Industry, Labor and Human Relations, Respondent.

No. 91-0445.

Supreme Court of Wisconsin.

Argued Oct. 6, 1992.

Decided Dec. 16, 1992.

For the appellant-cross respondent-petitioner there were briefs by Michael O. Bohren Milwaukee and oral argument by Michael O. Bohren and Christine H. Ohlis.

For the petitioner-respondent-cross appellant there was a brief by Fred G. Groiss, Carmella A. Huser and Quarles & Brady, Milwaukee and oral argument by Carmella A. Huser.

Amicus Curiae brief was filed Susan Brehm, and Center for Public Representation, Madison for the Center for Public Representation.

WILCOX, Justice.

This is a review under sec. (Rule) 809.62, Stats., of a court of appeals decision, Kelley Company, Inc. v. Marquardt, 166 Wis.2d 45, 479 N.W.2d 185 (Ct.App.1991), affirming an order of the Milwaukee County Circuit Court, Judge Patrick J. Madden, which reversed a decision of the Department of Industry, Labor and Human Relations, Equal Rights Division (DILHR). The hearing examiner concluded that upon return to work from family leave, Marquardt's employer, Kelley Company, Inc., failed to place her in an "equivalent employment position" in violation of the Family and Medical Leave Act (FMLA), sec. 103.10(8)(a)2, Stats. ¹

There are two issues before this court. The first issue is whether Kelley Company violated the FMLA, sec. 103.10(8)(a), Stats., by failing to place Marquardt in an equivalent employment position when she returned from family leave. We conclude that Marquardt's new position was not equivalent to the position she occupied before taking family leave. We reverse the court of appeals on this issue.

The second issue is whether the hearing examiner properly awarded back pay to Marquardt and whether her interim earnings or amounts earnable with reasonable diligence should have reduced the back pay otherwise allowable. We conclude that back pay was properly awarded and that interim earnings and amounts earnable with reasonable diligence should be considered when back pay is awarded under the FMLA. We remand to the hearing examiner for a determination of the proper back pay to be awarded Marquardt consistent with this opinion.

The relevant facts are not disputed. Kelley Company, a manufacturer of material handling devices, hired Marquardt in January 1978 as a billing clerk. Marquardt had a high school education. Marquardt was promoted to Credit and Collection Correspondent in 1979. In 1982, Kelley Company created and placed Marquardt in the position of Supervisor of Credit and Collections. In 1985, Marquardt took direct supervisory control of the credit and collections clerks. In March 1987, Marquardt's position of Supervisor of Credit and Collections was eliminated, and she was redesignated Credit Manager.

When Marquardt became Credit Manager, the position had no job description; however, sometime after she assumed the position, Marquardt and her immediate supervisor, Alan Susedik, compiled a job description for the position. Marquardt's general responsibilities as Credit Manager included: supervising four employees in the Credit and Collection Department; contacting sales representatives; handling complaints; supervising credit rating investigations; evaluating financial risks; handling budgeting for the department; employing a collection agency; and supervising accounts receivable.

The record reflects that Marquardt had communication difficulties with approximately twenty of a total of fifty-five Kelley Company manufacturing sales representatives whom she dealt with regularly as Credit Manager. Marquardt's annual performance evaluations, dating back to 1985, indicate that Marquardt was having difficulty communicating with the sales representatives and listed as a yearly goal improvement in this area. Susedik hired a communications specialist in 1988 to work with Marquardt in an effort to improve her communication and interpersonal skills. The communication training proved unsuccessful in improving Marquardt's performance. Although Marquardt was having communication difficulties, her performance evaluations overall were good and she received high raises.

In March 1988, Marquardt informed Kelley Company that she was pregnant. In October 1988, she took a six-week family leave and two weeks of vacation. Marquardt returned to work on December 12, 1988.

During the summer of 1988, Susedik decided to reorganize the Finance Division and redefine Marquardt's responsibilities. Susedik did not consult Marquardt regarding the reorganization. He informed Marquardt of the changes upon her return from family leave in December 1988. The actual departmental reorganization occurred during Marquardt's family leave.

As part of the reorganization, Marquardt's position as Credit Manager was eliminated and divided to create two positions. Marquardt's new position did not involve interaction with sales representatives. Marquardt's new position involved supervising one employee, a billing clerk, instead of the four employees she supervised prior to her leave. Marquardt was now responsible for processing invoices, invoice auditing, applying cash receipts to accounts receivable, and special projects assigned by Susedik. Marquardt's new responsibilities included approximately twenty-five percent clerical work. ² Marquardt's new job had the same pay, same benefits, and the same office as her prior position. Marquardt still held a managerial position which reported directly to Susedik. Marquardt's new position did not have a job title or job description. Susedik explained that the purpose of the reorganization was to use Marquardt's strengths and talents and to eliminate her problem of customer contact.

Kathy Bartkowski, who worked under Marquardt prior to her leave, was assigned the other position created when the Credit Manager position was eliminated. Bartkowski became the Credit Supervisor and two of the employees who worked under Marquardt now reported directly to Bartkowski. Bartkowski handled contacts with the sales representatives and was given no authority over Marquardt.

In December 1988 when Marquardt returned to work, she discovered that several chairs were missing from her office and that her telephone had been unplugged. Susedik was not in the office when Marquardt returned, but he left her a note welcoming her back and giving her instructions on certain projects. The following day, Susedik took Marquardt to a welcome back luncheon where he discussed her new job duties. After Susedik explained Marquardt's new job duties and responsibilities, she asked him if she should start looking for a job. Susedik said "no" and told Marquardt that she was needed at the Kelley Company. When Susedik and Marquardt returned to the office, Susedik gave Marquardt permission to take the rest of the day off. Marquardt tendered her resignation the next day. Susedik made no attempt to talk Marquardt out of leaving Kelley Company.

On January 13, 1989, Marquardt filed a complaint with DILHR, alleging that Kelley Company violated the FMLA by failing to give her an equivalent employment position upon her return from family leave. On March 23, 1990, a hearing examiner representing DILHR found that Kelley Company had violated the FMLA by failing to place Marquardt in an equivalent employment position after return from family leave. The hearing examiner ordered Kelley Company to reinstate Marquardt to the position she held prior to her discharge or to a substantially similar position. The hearing examiner ordered Kelley Company to pay Marquardt back pay in an amount equal to the sum she would have earned as an employee from the date of Kelley Company's failure to place her in an equivalent employment position until Marquardt was reinstated or declined to accept reinstatement in an equivalent position. Interest was calculated at 12 percent. Any unemployment compensation or welfare benefits received by Marquardt during the relevant period were to be withheld by Kelley Company and paid back to the appropriate agency. Kelley Company was also ordered to pay Marquardt's attorney fees in the amount of $3,785.20.

The circuit court reversed, reasoning that there was no substantial evidence in the record supporting the conclusion that Kelley Company violated the FMLA by failing to place Marquardt in an equivalent position after her return from family leave. The court of appeals affirmed. ³ We granted Marquardt's petition for review.

The issues presented in this case are questions of law which require this court to interpret the FMLA. When reviewing questions of law, we are not bound by an administrative agency's conclusions. ⁴ This court has applied three levels of deference to conclusions of law and statutory interpretation in agency decisions. Jicha v. DILHR, 169 Wis.2d 284, 290, 485 N.W.2d 256 (1992); Sauk County v. WERC, 165 Wis.2d 406, 413, 477 N.W.2d 267 (1991). First, if the administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute, the agency determination is entitled to "great weight." Jicha, 169 Wis.2d at 290-91, 485 N.W.2d 256; Sauk County, 165 Wis.2d at 413, 477 N.W.2d 267. The second level of review is a mid-level standard that provides if the agency decision is "very nearly" one of first impression it is entitled to "due weight" or "great bearing." Jicha, 169 Wis.2d at 291, 485 N.W.2d 256; Sauk County, 165 Wis.2d at 413-14, 477 N.W.2d 267. The third level of review is de novo and is applied when the case is clearly one of first impression for the agency and the agency lacks special expertise or experience in determining the question presented. Jicha, 169 Wis.2d at 291, 485 N.W.2d 256; Sauk County, 165 Wis.2d at 414, 477 N.W.2d 267....