Marten Transport, Ltd. v. Department of Industry, Labor & Human Relations

Ltd., Petitioner-Respondent- Transport, Marten Appellant-Petitioner, Cross

v. Department Industry, & Labor Human Rela Court),

tions, Respondent-(In Trial Industry Commission, Respondent- Review Labor & Respondent,

Respondent-Cross Liebrandt, Respondent-Appellant-Cross Connie

Respondent. † Supreme Court 22, 25, May argument June 1993. Decided No. 92-0244. Oral 1993. 391.)

(Also reported in 501 N.W.2d July filed 1993. for reconsideration Motion † petitioner-respondent-cross appellant-peti- For the Cynthia by Axelrod, tioner there were briefs Jon P. A. Huggett, DeWitt, Porter, Curtes and Schumacher & Morgan, argument by S.C., Madison and oral Mr. Axelrod. respondent-appellant-cross respondent-

For respondent Terry by Stepha- Moore, there was a brief L. Hart, Herrick, Duchemin, nie L. Finn and Danielson & Guettinger, by argument S.C., Eau Claire and oral Mr. Moore. Stevens,

Amicus curiae brief was Patrick K. filed Madison Wisconsin & Manufacturers Commerce. published

DAY, J. This is a review of decision of appeals1 affirming part reversing the court of part judgment County, the circuit court for Buffalo Wing, Judge. presents Honorable Robert This case employee issue an of whether who was discriminated against Employment in violation of Fair the Wisconsin (WFEA)2 pay Act is entitled to back and reinstatement voluntarily quitting job being actually after a without 1 DILHR, Transport, Marten Ltd. v. 147, 171 Wis. 2d 491 (Ct. 1992). App. 96 N.W.2d 2 111.31-111.395, See Secs. Stats. employer.

constructively discharged by We hold that voluntary resignation of terminates the accrual a employer's obligation pay3 to reinstate. We appeals. of therefore reverse the court dispute. Marten Trans- The facts are not relevant (Marten), port, motor carrier head- an interstate Ltd. quartered Mondovi, Wisconsin, Ms. Connie hired perform March, clerical work 1986. Liebrandt to 1986, October, to the dis- Marten transferred Liebrandt dispatch patch department, as a where Liebrandt served per dispatch clerk, earned $5.00 As Liebrandt clerk. forty per approximately hours week. hour and worked during part restructuring departmental As of a dispatch posi- Fall Marten eliminated all clerk of dispatcher positions. While tions and created assistant dispatch merely dispatchers and were not clerks assisted dispatch- place dispatchers, assistant trained to act dispatcher and, ers to handle the duties of are trained required, actually dispatchers. The act as assistant when dispatchers per paid week.

are $300.00 $350.00 interviewing advertising candidates, After for and positions. dispatcher the assistant Marten filled dispatcher posi- apply Liebrandt did not assistant tion but that she would have had she been aware claims openings. her Marten informed Liebrandt that being position if and that she wished she was eliminated department would be transferred to another within the pay. company same refused the at the rate Marten resignation. submitted a transfer and complaint Shortly quitting, Liebrandt filed a after Employment Opportunity Equal with the United States Equal Rights Commission and the Division of the Wis- Industry, Department Labor and Rela- consin Human from the time still able collect back up resignation. until the time of her of the discrimination (DILHR). complaint alleged tions sex and marital status discrimination and stated that Liebrandt was resign willing accept if "forced to not demotion." Judge Gary DILHR Administrative Law L. Olstad hearing conducted cluding issued written decision con- (1) against that: Marten discriminated WFEA; Liebrandt of because her sex of against violation (2) Marten did not discriminate Liebrandt (3) status; because her marital and Marten did not constructively discharge Liebrandt when it offered to department. transfer her to another The Administrative Judge pay4 reinstatement, Law awarded Liebrandt back attorneys reinstatement, until fees and costs. Marten petitioned Industry the Labor and Review Commission (LIRC) for review and issued LIRC an order and memo- opinion affirming randum the decision of the Adminis- Judge. trative Law petitioned then

Marten circuit court review. portion The circuit court reversed the order requiring pay, stating, clearly "[t]he back cases stand for proposition that an who is not construc- tively discharged employment may from her not receive any pay voluntary resignation. back after the date of her respect, In this [this] court feels that the Commission pay went too far when it awarded Liebrandt after resignation." However, the date of her the circuit court respects, including affirmed LIRC's in all order other award reinstatement. appealed portion

Both LIRC Liebrandt and reversing pay court's circuit decision the back award. cross-appealed portion Marten of the circuit court's computed The back was as the difference between what dispatcher Liebrandt would have as earned an assistant and what employment, she would have earned had she terminated her any earnings. less interim After of reinstatement. the award upholding

decision LIRC, brief, its through attor- appellate its Marten filed office, vol- Attorney General's Wisconsin neys from the pre- appeal and withdrew the brief its untarily dismissed Nonetheless, appeal. its support viously filed portion of the circuit appeals reversed court pay affirmed decision which disallowed court's which allowed judgment circuit portion of the court's reinstatement. for review. petition Marten's accepted

This court of the did not seek review judicial note that Marten We Liebrandt against it had discriminated finding Liebrandt did of the WFEA. We also note that violation finding that Marten did judicial review of the not seek Thus, constructively discharge accept her. we against Liebrandt Marten discriminated findings that constructively dis- of the WFEA but did not violation case, by charge presented her. The sole issue this there- fore, employee who has been discriminated is whether an pay of the WFEA is entitled to back against violation quits employee voluntary if the and reinstatement even actually constructively discharged.5 being without voluntarily quits argues that an who a Marten pay or back unless job is not to reinstatement entitled discharge. agree. We employee proves a constructive question is a of law which presented The issue of the remedies available under involves determination interpre is not LIRC's the WFEA. This court bound Industry v. Labor & Rev. the WFEA. Anderson tation of 245, 253, 330 (1983). Comm., 594 As 111 2d N.W.2d Wis. finding accept was not con Since we that Liebrandt structively discharged, need not define the test for determin we employer constructively discharged ing has an whether an employee. general agency's rule, however, determination is great weight experience, agency's if

entitled to tech- competence specialized knowledge nical aid the agency in its DILHR, determination. See Jicha v. 284, 290-91, Wis. 2d 485 N.W.2d 256 In the present any case, LIRC's decision is not entitled to weight contrary positions LIRC because has taken on presented. the issue In a case decided less than two present case, months after the LIRC did not award the though either back or reinstatement even employer against LIRC found that the discriminated plaintiff in violation the WFEA but did not construc- tively plaintiff. Marquette Waedekin v. University, period LIRC, Thus, March 1991. in a months, two LIRC in decided two cases which proved in discrimination violation of the WFEA but discharge. Although failed to show a constructive LIRC pay present awarded back case, and reinstatement in the LIRC not in did award either Waedekin. Such inconsis-

tency give weight leads us to no to either decision.6 specific provision

The WFEA does not contain employer which addresses the issue of whether an must provide back and allow reinstatement in cases where employee voluntarily quits actually being without or constructively discharged. merely provides The WFEA pertinent part:

If, hearing, after the examiner finds that respondent discrimination, engaged has unfair honesty testing genetic testing, or unfair the exam- iner shall make written findings and order such respondent action will as effectuate purpose with without subchapter, of this support We also note that LIRC withdrew its brief in of its decision this case. Stats, pay. 111.39(4)(c),

back (emphasis Section added). remedy not mention the reinstate- language does

This Furthermore, states that language specifically this ment. when pay, even may refuse to award examiner Additionally, has not Liebrandt is found. discrimination history that the construc- suggesting any legislative cited Thus, an to the WFEA. apply tive and back may to award reinstatement decline examiner purpose decision consistent with the long as the pay as of the WFEA. previously purposes two have identified

"We 1) make victims Act: to the individual Employment Fair 2) 'whole'; discourage discrimi- of discrimination v. employment area." Watkins natory practices 753, 763, LIRC, 117 2d 345 N.W.2d 482 Wis. Likewise, Supreme United Court has identi- States VII of the Civil goals fied similar of Title federal two 2000e, ("Title VII"). Act, seq. sec. et Rights U.S.C. prophylactic: VII is primary objective of Title "[A] remove equal employment opportunity achieve operated to favor white male the barriers that have equally impor- . . . An employees employees. other over persons is for purpose tant of the Act 'to make whole employment dis- injuries suffered on account of unlawful States, Teamsters v. United 431 U.S. crimination." (1977). 364

Considering that the WFEA and Title VII serve purposes, appropriate it to identical is consider federal discussing discharge the constructive doctrine. decisions example, For in this court considered federal decisions LIRC, in v. 111 interpreting the WFEA Anderson Wis. 2d 254. that are bound acknowledge at We we if disregard federal and must such decisions decisions they Legislature's enacting our in conflict with intent

1020 the WFEA. Although Title VII and the WFEA are not identical, the differences are not keep sufficient us considering from the vast amount of federal law discuss- ing discharge constructive doctrine.

The United Appeals States Court of for the Seventh Circuit applied the discharge constructive doctrine in Regal Co., (7th Brooms v. 1989). Tube F.2d Cir. Brooms, In plaintiff the court held that a who has been discriminated in against violation of Title VII can collect pay only back if plaintiff "can demonstrate that the discharged her, defendant him actually either or con- structively." Id. at 423. The court's in decision Brooms makes clear that the constructive discharge doctrine applied would have claim if Liebrandt's the claim was in pursuant federal court VII Title rather than state court. Appeals United States Court of for the Seventh in

Circuit accord with other federal circuit courts which applied the have constructive doctrine. of appeals The court noted that "the federal courts have law, strongly stated that under federal short of abuse amounting to a discharge, employees constructive com- plaining rights of civil workplace abuses must ” remain their remedy. situation in order to obtain a Marten, 171 Wis. 2d at 154. Appeals

The United Court States District applied Columbia Circuit Marsh, Clark v. 665 F.2d Clark, the federal plaintiff district court held that proved discrimination violation of Title VII and awarded even though reinstatement plaintiff shortly retired promo- after she was denied a appeal, tion. On argued defendant was not entitled to reinstatement and backpay for the period subsequent to the date her retirement. The

1021 of district stated, portion this the sustain court "[t]o was, fact, in award, agree still that Clark we must court's Id. constructively discharged." at 1173. the First Appeals Court of for

The United States discharge doctrine the constructive applied Circuit (1977). Santiago, Garcia 562 F.2d Alicea Rosado v. Rosado, employee, refused government a plaintiff, In the transfer that grounds a transfer on accept protected the First speech by punishment for constituted that, be it found Amendment. The court stated "[s]hould a not amount constructive Alicea's transfer did damages entitled to recover he would not be discharge, duty job he to remain on the wages lost had a for as Bayamon from regular pay his until relief collecting process." Id. at 120. legal afforded Assignment was The court reasoned: is, effect, discharge, transfer a [u]nless out; right simply to walk .. .. Were has no so, encouraged public employee would be

this not every grievance; and up judge set himself as the of periods of public taxpayer up paying would end adjudicated. being grievance idleness while the was Id. 119. at Third Appeals for the

The United States Court Circuit discussed constructive Co., Systems v. Exxon 747 F.2d 885 Goss Office " stated, Goss, a termination as [classifying the court quit voluntary rather than has a constructive respect scope to the ramifications with significant court then noted that relief." Id. at 887. The ”[t]he appeals question courts of which have addressed recognized appropriateness have [the application to the branch labor discharge doctrine's] v. Brat (citing VII." Id. Pena encompassed Title law (2d 1983); Irving Retreat, tleboro 702 F.2d Cir. Co., 170, 173-74 v. Dubuque Packing (10th 689 F.2d Cir. 1982); Cleland, 806, Nolan v. (9th 686 F.2d 812-15 Cir. 1982); Co., v. 427, Held Oil (6th 684 F.2d 432 Cir. Gulf Marsh, 1982); v. 1168, 1174-76 (D.C. Clark F.2d 665 Cir. 1981); Meyer Co, v. & 369, Brown Root Const. 661 F.2d (5th 1981); 372 University Cir. Welch v. Texas and Its Institute, 531, Marine Science (5th 659 F.2d 533-34 Cir. 1981); Co., Bunny 1250, 1256 Johnson v. Bread 646 F.2d (8th 1981); Hattiesburg Cir. Pittman v. Sepa Municipal District, (5th 1071, 1077 rate 644 1981); School F.2d Cir. Co., Bourque Mfg. 61, v. Powell Electrical 617 F.2d 65 (5th 1980); Cir. Alicea Rosado v. Garcia Santiago, 562 114, (1st 1977); F.2d 119 Cir. Jacobs v. Martin Sweets Co., Inc., 364, denied, (6th Cir), 550 F.2d 369 cert 431 (1977); Thompson U.S. 917 v. Douglas Corp., McDonnell (8th 220, 1977); 552 F.2d 223 Cir. Muller v. United 923, Corp., (10th States Steel Cir.), F.2d cert. denied, 423 U.S. 825

The United of Appeals States Court for the Fifth recently applied Circuit the constructive discharge doc- Jurgens E.E.O.C., trine in (5th v. 903 F.2d 386 Cir. 1990). Jurgens, the district court found that Regional EEOC's San Francisco Litigation Center vio- VII, lated Title the same law which sup- the EEOC is enforce, posed engaging pattern in a of discrimina- against tion white males. Even though claim, on succeeded his Title VII discrimination stated, that, well court "it is settled this circuit order for an wages recover lost beyond the date of his resignation, retirement or evidence must employer constructively establish that the employee." Id. discharged at 389. The court explained that "Title VII legal protection itself accords employees oppose who unlawful discrimination. Moreover, society we policies believe that and the under- if, possible, best served wherever Title VII will be

lying within the context is attacked discrimination unlawful relationships." (quot- Id. at 390 existing employment Co., Mfg. 617 F.2d v. Powell Electric Bourque ing 1980)). (5th Cir. 65-66 Appeals for the Sixth Court United States discharge in the doctrine applied

Circuit 1987). (6th In Cir. Corp., 819 F.2d 630 Avco Yates v. proved Yates, plaintiff who dis- that a court held the of Title VII was not entitled in violation crimination constructively discharged. she was not pay because back at Id. 637. Appeals for Eighth the United States Court in discharge the constructive applied Circuit and, Brinkley Dept., Sewer

Maney v. Mun. Waterworks 1986). (8th Maney, In Cir. the court F.2d 1073 802 in vio- finding court's of discrimination upheld a district Nevertheless, stated, court VII. the lation of Title ”[a]s rule, such as employees are entitled to awards general only they actually if reinstatement were pay employment." Id. constructively discharged from their Civiletti, (1982) See also Dean v. 670 F.2d 99 at 1075. proved plaintiff who discrimination (holding that VII was denied reinstatement because violation of Title prove discharge). a constructive she did not for Ninth Appeals the The United States Court discharge doctrine applied Circuit the constructive Smith, In 744 F.2d Satter- Satterwhite v. " white, stated, quits cannot employee court who [a]n employer constructively dis backpay unless his secure (citing 1381 n.1 Muller v. United charged him." Id. at denied, (10th Cir.), cert Corp., States Steel 509 F.2d 923 (1975)). While Satterwhite did not involve 423 U.S. VII, Muller, under Title case which the court a claim doctrine, discharge applying relied on apply did the constructive doctrine to a Title VII claim. Appeals

The United States Court Tenth applied Circuit the constructive doctrine in (10th 1986). Corp., Derr v. Oil 796 F.2d 340 Cir. Gulf plaintiff proved Derr, district court found that the discrimination violation of Title VII and awarded pay. Although reinstatement and back court upheld finding of discrimination, stated, the court agree "[w]e with Gulf that the remedies of back reinstatement are not available to Ms. Derr unless she constructively discharged." was Id. at 342. See also Irving Dubuque Packing (10th Co., v. 689 F.2d 170 Cir. 1982) (holding that is not entitled to rein- discharge). statement absent a constructive survey The above of the federal circuits illustrates support the enormous amount of for the constructive discharge doctrine.7 Such a rule is both con- sound and adopt sistent the WFEA. with We therefore rule employee voluntarily quits position an who a must show a constructive to recover back rein- statement under the WFEA. policies underlying the WFEA will be best possible, if,

served wherever unlawful discrimination is existing employment attacked within the context the Stats, relationship. U1.39(4)(b), provides that, Section upon finding probable cause to believe that unlawful dis- may occurred, crimination has DILHR to "endeavor discussing In regarding law pay liability, leading the a stated, case, treatise in promotion this area of the law a the "[i]n period liability if voluntarily quits will end the his employment with the discharge." defendant absent a constructive Grossman, Employment Schlei and Law 1240-41 Discrimination conference, per- or practice conciliation eliminate the if it only is hearing a formal DILHR conducts suasion." by con- eliminating the discrimination unsuccessful language This demon- persuasion. or ference conciliation that, possi- Legislature intended where the strates dispute quickly and ble, the parties the would terminate litigious or adversarial efficiently entering before proceedings. employer has not treated

In where the cases it to a con- a manner that amounts employee in such way an efficient to resolve discharge, structive most continuing employ- through is a employment dispute employment relationship, relationship. Within the ment continuing can a employee employer engage Furthermore, dispute. regarding dialogue experience and will not employee gain will continue technological terms fall behind co-workers company. changes other the field advances or cases, such a In the discrimination will take some discharge. a constructive such form that it amounts to forfeiting cases, employee resign is free to without Thus, pay. and back the con- right to reinstatement pro- is enough flexible structive employment resolution of the quick mote a and efficient against dispute protecting employee while discrimi- discharge. a nation that amounts to Stats, 111.322(3), Furthermore, pro- expressly sec. who employer discharging employee from hibits an Thus, an employee files the WFEA. complaint a under if files com- keep job even entitled cases, of merit. In such plaint which is devoid employee employer dispute must resolve the with an employment relationship of the even within the context great irreparable bogus damage if the claim causes company's reputation. that, Fairness in mandates employer's cases where the conduct in does not result discharge, employee attempt constructive to resolve dispute existing employ- within the context relationship walking job. ment rather than off the Kelly Co., This court's decision in Inc. v. Mar- (1992) quardt, 172 Wis. 2d 493 N.W.2d 68 does not preclude application discharge the constructive Kelly, in WFEA In doctrine cases. this court held that a prerequisite constructive was not a rein- Family or back statement under the Wisconsin (FMLA). Leave court, Medical ever, Act Id. at 255. This how- "[t]he did state that fact that an volunta- rily quit employment employer his or her with an is an appropriate department factor for the in consider determining employee mitigated whether the his or her damages." Id. interpreted

At the time this court the FMLA in Kelly, equivalent no there was federal law to Wisconsin's very WFEA, however, FMLA. The is similar to Title agree earlier, VII. As stated we with the con- rationale applying in tained the federal cases the constructive dis- charge doctrine to claims under Title VII. We therefore adopt cases involving the WFEA. argues inquiry

Liebrandt the relevant properly mitigated damages whether she her when she quit, constructively discharged. not whether she was A argument Jurgens made an identical v. (5th 1990). Jurgens, E.E.O.C., 903 F.2d 386 Cir. rejected argument, stating," court [w]e find no incon- sistency determining pay, entitlement to such back mitigated employee properly by cases, the whether

some damages resignation, and other after his retirement by promotion, involving of whether the cases, denial Jurgens, constructively discharged." employee 903 was mitigation Although on this court focuses the F.2d 389. quits employee position damages and an a when agree- brings FMLA, the our claim under Wisconsin great expressed in number the rationale ment with the discharge apply doc- the constructive cases which federal adopt involving leads Title VII us to the cases trine involving discharge doctrine cases the constructive WFEA. argues the constructive

Liebrandt that apply present because does not case agree present hire. that case involved failure to We apply not doctrine does failure Obviously, if the was never hire cases. company, possibility employed there would be no disagree, discharge, either actual or constructive. We of a present however, with Liebrandt's contention that the failure to hire. case involved a support present In of her contention case hire, a failure to Liebrandt cites two cases from involved City Segundo, v. See Thorne El 802 the Ninth Circuit. 1986); (9th Sangster v. 1131 Cir. United Airlines F.2d (N.D. 1977), Supp Inc., F. 1221 aff'd, Cal. 633 F.2d (9th 1980). Thorne, Cir. the court stated: policy limiting There a valid reason for backpay promotion purposes cases. The awards parties, possi- Title VII are best served when where ble, attack of their discrimination within context relationships. existing employment employee, An logical progression with obstacle in faced development quit career first of a should at the sign Restricting of institutional discrimination. backpay encourages awards to work supervisors existing job with within setting employment relationship in an effort to overcome workplace resistance within the and to eradicate the Thorne, (citations discrimination. 802 F.2d at 1134 omitted). court, however,

The held that the case involved a failure to hire rather than a failure promote and refused to apply the constructive discharge doctrine. Id. This hold- ing was based on the plaintiff, fact that the who was employed by El City the Segundo's police department as clerk-typist, applied a position for a as an officer on City's police the City force. Although the of El Segundo employer was the positions, both position the of clerk- typist position and the of officer were so different plaintiff the "had no 'existing employment relationship' paramilitary within the force.” Id. police structure of the at 1134-35. Thorne, Sangster

Like very involved two different positions within the Sangster, company. same In the defendant would not plaintiff allow the duty return to stewardess, as a but plaintiff offered the non-flight a position as a supervisor. stewardess The district court held that the defendant "cannot insulate itself from nor up set a defense to a claim of unlawful refusal to hire as job, by to one offering applicant job therefor a second which she does not want and which differs mate aspects." Sangster Inc., v. United Airlines rial 438 F. 1221, 1228-29 (N.D. 1977) Supp. added). (emphasis Cal. Sangster Thorne represent minority of cases promote where a failure to within company is char- acterized as a failure to hire. majority The of cases are in Jurgens v. similar to the Fifth Circuit's decision E.E.O.C., (5th Jurgens, 1990). 903 F.2d 386 Cir. plaintiff was an Assistant Regional Attorney at Litigation Center. Regional Francisco San

EEOC's position to abolish decided EEOC When the part reorganization, of a Attorney as Regional Assistant a demo- a choice between plaintiff EEOC offered Attorney or Trial Supervisory position tion to brought an action When early retirement. pro- EEOC that the on the basis discrimination claiming him, male, position to the rather them hispanic moted a the constructive applied court Attorney, Regional characterizing the dis- rather than Id. at 389. present failure to hire. as a crimination Thome Jurgens it is to than analogous to case is more Sangster. constitutes every promotion of a

Technically, denial by definition promotion hire because a failure compensa- in an increase position new with involves a company positions within a authority. two While tion may consti- promote to so much that a failure may differ hire, rare case. this will be the a failure to tute posi- case, failed to show that the Liebrandt has present so different position offered were sought and the tion she to hire rather a failure Marten's action constituted that promote. a failure to than appeals

By the Court. —The decision of the court proceed- for further the cause remanded is reversed and opinion. this consistent with ings (dissenting). BABLITCH, J. Con- A. WILLIAM against her discriminated nie Liebrandt was Transport violated Transport. Marten Marten employer, uncontested. facts are Both of these the law. says majority. Transport!" wins? "Marten

Who penalty for its discrimina- Transport receives no Marten tory practice failing to hire Ms. Liebrandt because she they was a woman: do not have to re-hire Connie dispatcher, they Liebrandt as an assistant do nor have to give pay her the she would have but received for the discrimination.

Who "The loses? woman who was discriminated says majority. against!" get job She does not any pay get entitled, which she was nor does she compensation job difference in the new between job away which she was and she entitled the old walked from. says majority, reason,

How can this be? The stay job that she refused on after she became the says majority victim discrimination. The the doctrine discharge" applies, and, of "constructive because she was constructively discharged, stay job she had to on the pay reinstatement, or lose all claim to back and notwith- standing subsequent adjudication she that was fact a says majority victim of discrimination. that in order eligible reinstatement, to be for back she must stay workplace at a that had treated her discrimina- tory workplace suing manner, a she was for the discrimi- natory through treatment, while her claim went system. court

I conclude the doctrine of "constructive dis- charge" antiquated concept, in a as case such this is an inequitable patronizing application, its its very I would result. at the least order reinstatement. majority elementary refuses most Because even this principle fairness, I dissent. interpret

We are in case to asked this Wisconsin (WFEA). Employment Nothing WFEA, Fair Act in the compels law, in our nor case the result reached opposite majority. Finding fact, In is true. no Wis- support majority's conclusions, consin law to its con-

1031 opin- agreement with federal court upon its elusion rests VII, which, that unless applying in Title conclude ions constructively discharged employee discharged is an pay or reinstatement. or she not entitled to back he is courts in obligation to follow federal are no We under law, good is and indeed there Wisconsin interpreting interpreting them WFEA. not follow when reason to legis from the explicit directive WFEA contains lature, VII, liberally construe the not Title to present See accomplish purposes. WFEA its provisions of the to 111.31(3), are make victims purposes Stats. These sec. discriminatory discourage whole and of discrimination 111.31(3). See employment See sec. practices area. LIRC, 753, 117 482 also Watkins v. Wis. 2d 345 N.W.2d Comm., (1984); Industry Labor 111 Anderson v. & Rev. 2d N.W.2d Wis. doctrine, applying constructive accomplished. The purposes

neither of these whole; fact, gets nothing. made she Discrimina- is not practices Quite tory employment discouraged. are accomplish opposite, Transport is able to Marten do it refused hire Connie what it set out to when it she a woman: does not have Liebrandt because was her. re-hire

The doctrine is an anti- any concept patronizing ought given not be quated, interpreting our state statute. Just a few weight own ques- ago very months when faced with this same short Family Leave Act tion under the Wisconsin Medical (FMLA), unanimously rejected this court the doctrine concluding: dis- FMLA does not state that a constructive requirement

charge for reinstatement or back is a pay. Kelly Company nothing legisla- cites from the history indicating tive a discharge that prerequisite to is a reinstatement or an award of back pay. only We that prerequisite conclude to an pay order reinstatement and back is that Kelley Co., Inc. v. Mar employer violated FMLA. 255, quardt, 2dWis. 493 N.W.2d 68 (Footnote omitted). FMLA,

Just as WFEA not does state requirement a constructive is a for reinstate- pay. Transport any ment back Nor or does Marten cite legislative history indicating that a constructive dis- charge prerequisite is a to reinstatement award pay majority Yet, back under the WFEA. of this court today analysis abandons its own from its recent decision Marquardt, despite in legislative and concludes that no Wisconsin

indication that the constructive applies, despite liberally the WFEA mandate to provisions whole, its construe to make victims Connie Liebrandt, a discrimination, victim of is to entitled constructively nothing discharged. because was she not language support of the statute does this conclu- legislative history public sion, does nor or WFEA policy. finding

I would hold that a of discrimination alone public policy entitles a to redress. No is served majority a conclusion otherwise. The states fol- public lowing policy support position: as of its employees stay should be forced to with their discrimi- natory employers cutting- lose their remedies because employees off and reinstatement to who volun- tarily employment processed leave while their claim is employees encourages stay place employment at the employers give remedy order a chance to the dis- Remedying certainly crimination. discrimination goal. require But laudable should the law a victim entity's changing carry or some someone's the burden malpractice to have Do victims behavior? unlawful by negligent doctors their serviced to be continue improve give or correct to doctor the chance order to being compensated for the doc- or risk her skills his or negligence? assault have of a domestic Do victims tor's give marriage stay the abu- order to in an abusive to change spouse risk his or her behavior sive damages a chance may they Do children be entitled? to which with their need to remain victims of incest are the who they hopes parents will be able in the that abusive not, and no one Of course behavior? cure the abusive point suggest is victims The that otherwise. should ever changing way obligation of in no have should assailants. of their unlawful behavior ignores The constructive degrading, reality ais Discrimination of discrimination. experience debilitating humiliating, for its victims. stay setting Requiring or lose what in that victim to a hypotheticals outrageous they as the to is as are entitled posed above. employees who numbers of that countless

The fear reality they perceive discrimination, but are victims Employers job groundless. not, off the is would walk are nothing rejection of the constructive to fear from a have reject con- If this court were to doctrine. discharge doctrine, be that the result would structive truly against only could are discriminated those who employment rein- receive back and leave their quits employee it is later deter- If an statement. employee occurred, mined that no discrimination quitting pay. job Hence, would be no back a with out of employee, gamble gamble that will an an enormous quite only surely that feel certain those who be taken questiona- Quitting under a has occurred. discrimination may permanent ble discrimination claim result loss of employment.

During hearings the Clarence Thomas before the Judiciary questions Committee, Senate were raised with respect why, if Hill Anita was truthful about the harassing simply to, treatment she testified did she employment. majority ques- leave her The answers today. majority says tion that an has no stay discriminatory employer choice with if but to he remedy or she ensure wants to to which he or she is controversy teaches, entitled. As Anita Hill it is not uncommonly employees held belief that are free to jobs they walk if off their are victims of discrimina- tory might automatically treatment. Finders of fact question veracity claim of a discrimination when the employee stayed employer. cases, has with the In future know, these finders of fact are entitled to and should be employee advised, that under this court's dictates the stay. had no but to choice

I hold if would that discrimination not in did fact person job perceived occur, a who walks off due to any discrimination is not entitled reinstatement or pay. employee I back But would hold if further that an job walks due off the to discrimination which is subse- quently proved, pay and reinstatement should be proved, ordered. Once discrimination has been clearly once it is figment established that discrimination was not employee's imagination, ipso of the a hostile work facto has been An environment established. should environment, not be remain in forced to that an environ- already ment rife with stress and tension due to the discriminatory practice, filing then exacerbated of a lawsuit. pay only just, fair,

Back and is the reinstatement equitable forcefully result in As this case. stated so dissent, should continue its filed "this state recently in a victims of who are the assuring individuals lead 'made whole'... place in the work are discrimination sex evil that must place be the work discrimination the victims individuals who are ... and those eradicated Duello whole ..." should be made such discrimination of Sys- Regents University Wisconsin v. Board 961, 984, tem, 2d 501 N.W.2d 38 Wis. appeals and order back I affirm the court would reinstatement. Chief Justice NATHAN authorized to state that I am join S. Abrahamson this Heffernan and SHIRLEY S. dissent.

Case Details

Case Name: Marten Transport, Ltd. v. Department of Industry, Labor & Human Relations

Court Name: Wisconsin Supreme Court

Date Published: Jun 22, 1993

Citation: 501 N.W.2d 391

Docket Number: 92-0244

Court Abbreviation: Wis.