Watertown Public Library v. Labor & Industry Review Com'n

• Citation: 407 N.W.2d 566,139 Wis.2d 856
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. WATERTOWN PUBLIC LIBRARY, Petitioner-Appellant, v. LABOR & INDUSTRY REVIEW COMMISSION, Respondent. 86-0884.
• Decision Date: 02 April 1987
• Court: Wisconsin Court of Appeals

Page 566

407 N.W.2d 566

139 Wis.2d 856

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

WATERTOWN PUBLIC LIBRARY, Petitioner-Appellant, v. LABOR & INDUSTRY REVIEW COMMISSION, Respondent.

86-0884.

Court of Appeals of Wisconsin.

April 2, 1987.

Circuit Court, Jefferson County

Affirmed

Appeal from a judgment of the circuit court for Jefferson county: Harold H. Eberhardt, Judge.

Before DYKMAN, J., EICH, J., and SUNDBY, J.

EICH, Judge.

The Watertown Public Library appeals from a judgment confirming a ruling of the Labor and Industry Review Commission that the library discriminated against an employee on the basis of sex in violation of the Wisconsin Fair Employment Act (WFEA), secs. 111.31 to .37 (1979-80). ¹ The issues are (1) whether the commission's decision was inconsistent with prior agency practice or otherwise subject to reversal for failure to explain its departure from an earlier determination in the case (2) whether the commission's conclusions of law are supported by its findings of fact and (3) whether the findings are supported by substantial evidence. We resolve all issues in favor of the commission and affirm.

On July 14, 1980, Dionne Kelm was hired by the Watertown library to work in its children's room. Approximately two weeks later Kelm informed Mary Powers, the library director, that she was pregnant and that her projected birthdate was March 1, 1981. ² Powers testified that she was 'shocked and disappointed' when Kelm told her she did not intend to return to work after the birth, because she (Powers) had wanted Kelm to be a long-term employee. Kelm specifically denied telling Powers she did not intend to return to work.

Powers testified that on August 12, 1980, she asked Kelm to resign because the library needed a permanent employee in the children's room. Kelm testified that Powers asked her to resign 'because of the fact that I was pregnant.' The two continued to meet from time to time over the next week or so, and at one point Powers told Kelm that she was not being fired because she was pregnant but because: (1) she had been 'deceitful' in failing to reveal her pregnancy at the time she accepted the job; (2) she had 'falsified' her application by failing to list as a former employer a hospital where she had spent two weeks in a training program; and (3) these matters gave rise to questions concerning Kelm's morals, ethics and loyalty.

At Powers' request, Kelm resigned 'under protest' on August 22, 1980, and she eventually filed a sex discrimination complaint with the Department of Labor, Industry and Human Relations. The hearing examiner ruled that Kelm's pregnancy was a significant factor in her termination and that, as a result, she had been discriminated against by reason of her sex. On appeal, the commission reversed the examiner's decision, concluding that prior employee turnover problems, not Kelm's pregnancy, caused the library to seek her resignation. Kelm sought judicial review and the circuit court reversed, ruling that the commission had failed to explain its reasons for overturning the examiner's decision. The case was remanded to the commission for further proceedings.

The commission, after reviewing the record and consulting with the hearing examiner, modified and adopted the examiner's decision that the library had unlawfully discriminated against Kelm. On review, the circuit court affirmed and the library appeals. Other facts will be discussed below.

I. FAILURE TO EXPLAIN

Section 227.57(8), Stats., provides in part that '[t]he court shall reverse or remand the case to the agency if it finds that the agency's exercise of discretion . . . is inconsistent with . . . a prior agency practice, if deviation therefrom is not explained to the satisfaction of the court by the agency . . ..' We agree that '[a]gencies are not free to shift between decisions without a rational basis.' Public Serv. Corp. v. Public Serv. Comm., 109 Wis.2d 256, 263, 325 N.W.2d 867, 870 (1982). But it does not follow that an agency cannot reverse its position in the same case--especially where, as here, the reasons for the second decision are amply set forth in the findings and the accompanying memorandum decision. Reversal of a single decision under such circumstances cannot be considered a departure from a prior 'agency practice.' See Eau Claire Co. v. Dept. of Nat. Resources, 119 Wis.2d 62, 64, 349 N.W.2d 723, 725 (Ct.App. 1984) (deviation from a single prior decision, where that decision was made shortly after the agency began administering the particular statute, and where it had notified constituents of a change in policy, held not to violate the forerunner of sec. 227.57(8)).

We note, too, that on remand from the circuit court the commission begins with a 'clear slate.' M. & M. Realty Co. v. Industrial Comm., 267 Wis. 52, 61, 64 N.W.2d 413, 417 (1954). In this case the court set aside the commission's order, reinstated the hearing examiner's decision, and remanded the matter to the commission. The commission, as it is empowered to do by sec. 111.36(3m)(b), Stats. (1979-80), elected to modify and affirm the examiner's decision, and we see no violation of sec. 227.57(8), Stats.

II. THE FINDINGS

The library argues that the commission's conclusion that Kelm was discharged because of her pregnancy is not supported by its findings of fact. Specifically, the library points to two findings: (1) that Powers demanded Kelm's resignation because she perceived Kelm to have been deceitful in failing to reveal her pregnancy; and (2) that it was the library's practice to provide its employees with maternity leave. The library argues that the import of these findings is that the commission's ultimate determination of discrimination must be based on Kelm's failure to reveal her pregnancy, rather than the pregnancy itself, and that the conclusion of discrimination just does not follow. We disagree.

While the hearing examiner specifically found that the fact of Kelm's pregnancy, and not her future plans, was a factor in her firing, the commission inexplicably omitted this language from its own findings. We note, however, that the findings of the examiner and those of the commission are consistent, and both concluded that the library discriminated against Kelm by reason of 'sex/pregnancy.' In addition, the commission's findings and conclusions were accompanied by a memorandum opinion in which it explained at length its views on the credibility of the principal witnesses, the weight it was according the various items of evidence, and its conclusion of illegal discrimination. The opinion rejected Powers' explanations that Kelm was fired because of the library's need for 'job continuity' and a long-term employee in the children's room, and noted Powers' own admission that she would not have fired Kelm merely because of her failure to mention her brief employment at the hospital. That left only the fact of Kelm's pregnancy and her failure to disclose it to Powers prior to accepting the written offer of employment as reasons for the firing, and the opinion states that '[Kelm's] pregnancy was a significant, motivating factor in the decision' to fire.

A finding not explicitly made by the commission may be inferred from other findings if there is evidence, or if there are inferences which may be drawn from the evidence, which would support it. Valadzic v. Briggs & Stratton Corp., 92 Wis.2d 583, 591, 286 N.W.2d 540, 543 (1979). As demonstrated below, there is evidence in the record to support a finding that Kelm's pregnancy was a significant factor in the library's decision to demand her resignation. In addition, the commission's written opinion makes that very finding and amply explains the underlying reasons.

On this record, we may infer the missing finding, and we do not believe the other findings cited by the library in any way invalidate or detract from the commission's conclusion of discrimination.

III. SUFFICIENCY OF THE EVIDENCE

The dissent asserts we must, or should, decide the appropriateness of the standard of causation applied by the commission. The commission found that the library discriminated against Kelm because her pregnancy was a 'significant, motivating factor' in the library's decision to require Kelm to resign. The dissent would rule that this was error--that the appropriate standard is one adopted by several federal courts that would require Kelm to establish that 'but for' the library's discriminatory motive, she would not have been fired. Other than a single paragraph in its reply brief, however, the library does not mention the standard or argue that its use was improper. ³ The dissent, considering these few unamplified and unsupported sentences as a challenge to that standard, proceeds through a lengthy analysis to ultimate decision of an 'issue' that we believe was neither raised nor argued by the parties. A similarly sketchy argument was treated with appropriate brevity in Dumas v. State, 90 Wis.2d 518, 523, 280 N.W.2d 310, 313 (Ct.App. 1979), where we stated simply: 'We decline this opportunity to decide an undefined constitutional issue.' ⁴ We do the same here. ⁵ We neither consider nor decide the issue. Rather, we proceed to consider the case in light of the unchallenged standard used by the commission--whether there is sufficient evidence in the record to support the determination that Kelm's pregnancy was a significant, motivating factor in the library's decision to demand her resignation. ⁶

On review, the commissioner's findings are conclusive if supported by substantial evidence in the record, Chicago, M. St. P. & P. RR. Co. v. ILHR Dept., 62 Wis.id 392, 396, 215 N.W.2d 443, 445 (1974). Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Gateway City Transfer Co. v. Public...