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COURT OF APPEALS
DECISION
DATED AND RELEASED
November 5, 1996
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NOTICE
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats.
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports.
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No. 96-1119
STATE
OF WISCONSIN IN
COURT OF APPEALS
ABBYLAND PROCESSING,
Petitioner-Appellant,
v.
STATE OF WISCONSIN,
LABOR,
INDUSTRY & REVIEW
COMMISSION
and JOANNE T. FORSTER,
Respondents-Respondents.
APPEAL from judgments of
the circuit court for Marathon County:
MICHAEL W. HOOVER, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Abbyland Processing appeals a Labor and
Industry Review Commission decision that Abbyland had discriminated in the
salary paid to Joanne T. Forster based upon her gender and marital status in
violation of Wisconsin Fair Employment Act.
Abbyland contends that LIRC erred by considering evidence of acts that
occurred more than 300 days prior to the filing of the complaint. Further, Abbyland contends that there is
insufficient evidence to support LIRC's findings and that LIRC incorrectly
calculated the damages to which Forster was entitled. Because we conclude that LIRC was privileged to receive evidence
as to Abbyland's state of mind from events that occurred more than 300 days
prior to the filing of the complaint, and that there is sufficient evidence to
support LIRC's determinations both as to discrimination and the amount of
damages, the judgment is affirmed.
Abbyland is in the
business of processing and selling meat products. Joanne Forster worked as a sales representative for Abbyland from
1984 until May 17, 1991, when Abbyland eliminated its direct sales force
and opted to engage in a marketing and distribution program through food
brokers rather than direct sales.
Forster's salary at the time of her termination was $25,500 per
year. Forster's husband was also
employed at Abbyland as a supervisor in the sausage kitchen and was a
vice-president at the time Forster's complaint was filed.
Forster filed a
complaint on March 6, 1992, alleging discrimination based upon gender and marital
status in the salary she was paid while at Abbyland. The equal rights division determined that there was probable
cause to investigate the discrimination complaint for events that occurred
within 300 days of the filing of the complaint. The 300-day calculation permitted a probable cause finding for
events occurring between May 11, 1991, and May 17, 1991, the day Forster's
position was terminated. The equal
rights division determined that because of the statutory requirement
establishing a 300-day statute of limitations, there was no probable cause for
any alleged acts of discrimination that occurred prior to May 11, 1991.
The evidence disclosed
that William Hickman, Forster's immediate supervisor, discussed Forster's
salary with Abbyland's owner. Hickman
indicated that Forster was not being paid comparably to the male sales
representatives and her performance would dictate a substantially higher
salary. Harland Schraufnagel,
Abbyland's president, responded to Hickman with "that snatch" did not
need to make that much, that her husband was earning a sufficient salary so she
did not need additional compensation and that Forster was "a good heifer
or a good cow and she would produce but we don't have to give her any
more." Schraufnagel is alleged to
have told Forster directly that he would not increase her salary because her
husband made enough money. Although the
issue was disputed, William Vanden Heuvel, Abbyland's chief financial officer,
and Hickman both stated that Forster's responsibilities were comparable to or
above those of an employe named Larry McGuire who was paid almost twice as much
as Forster was paid.
LIRC concluded that
Abbyland had discriminated against Forster based upon her gender and marital
status in setting level of compensation.
It determined that as a remedy Forster was entitled to a salary
comparable to McGuire's for a two-year period.
No specific dollar amount was set, and in the event Forster and Abbyland
cannot agree as to the amount of damages, a new hearing on damages will be held
to determine the specific amount of damages Forster suffered as a result of
Abbyland's discrimination.
Abbyland attacks LIRC's
determination on two bases. First,
Abbyland alleges that LIRC erred by considering evidence of Schraufnagel's statements
made more than 300 days before the filing of Forster's complaint. Abbyland contends that because these
incidents occurred outside of the statute of limitations, LIRC erred by
receiving evidence in regard to such statements. The contention that evidence of acts occurring outside of the
statute of limitations is precluded by the statute of limitations raises a
question of law this court reviews under varying degrees of deference depending
upon the agency's experience and specialized knowledge as well as how
consistently the issue has been decided in the agency's previous
determinations. Second, Abbyland
asserts that there is insufficient evidence to support LIRC's finding of
discrimination and damages.
Before examining these
contentions, we must establish the appropriate weight to be given the agency's
determinations. In this case, we
conclude that the agency's determination as to the admissibility of specific
acts of discrimination occurring outside of the statute of limitations to show
the state of mind for acts of discrimination alleged to have occurred within
the statute of limitation is entitled to due weight. See UFE, Inc. v. LIRC, 201 Wis.2d 274, 286-87, 548
N.W.2d 57, 62-63 (1996); See Braatz v. LIRC, 168 Wis.2d
124, 130, 483 N.W.2d 246, 248 (Ct. App. 1992).
We reach this determination because LIRC has been adjudicating cases
under the Wisconsin Fair Employment Act for the entire period of its
existence. Under a due weight standard
of deference, LIRC's conclusion will be affirmed as long as it is reasonable
and no other more reasonable interpretation exists. UFE, 201 Wis.2d at 286-87, 548 N.W.2d at
62-63. Under the proper deference,
LIRC's decision in regard to the admissibility of these acts must be
affirmed.
We could, however, reach
the same result without regard to the level of deference given LIRC's
determination because we independently conclude that evidence of state of mind
or intent for a specific period of time may be relevant to prove the intent or
state of mind of a different period of time that is not unduly remote from the
time of the acts sought to be introduced into evidence. Therefore, we conclude evidence of events
occurring outside of the statute of limitations period may be admitted as proof
of a state of mind for acts during a relevant time, i.e., one within the
statute of limitations period.
We first examine
Abbyland's contention that LIRC erred by considering evidence of discrimination
that occurred outside of the 300 day statute of limitations. Abbyland relies upon United Air Lines
and Galloway,
for its contention that evidence outside of the statutory limit should be
barred. These cases are inapposite and
only address the viability causes of action for acts of discrimination that
occur outside the statutory period.
Neither of these cases addresses the question whether such acts may be evidence
of the state of mind existing for acts committed within the statute of
limitations.
Salary discrimination is
an ongoing matter and can be challenged if the result of the discrimination
occurs both within and outside the statute of limitations. In this case, Forster was entitled to challenge
the salary paid during the relevant period of time, May 11-May 17, 1991, which
is that period within the 300-day statute of limitations. Abbyland does not contest LIRC's ability to
address discrimination occurring within this time period.
As proof that the salary
was influenced by improper considerations of gender and marital status, LIRC
received evidence that during conversations with Forster, Hickman and Vanden
Heuvel, Schraufnagel made a series of gross, derogatory and demeaning
statements regarding her gender and marital status and stated that Forster's
salary was set in consideration of her husband's earnings on a variety of
occasions. While Forster received
periodic salary increases during the time she was employed by Abbyland,
Schraufnagel's acknowledgement of the discriminatory reasons for her salary
level is sufficient evidence of the discriminatory salary paid Forster within
the statute of limitations period. LIRC
did not err in admitting this evidence of Abbyland's intent and state of mind
in regard to the compensation levels available to Forster during the relevant
statutory period.
Abbyland's argument
confuses receiving evidence of discrimination outside the statutory period for
the purpose of claimed discrimination and evidence of Abbyland's state of mind
in setting compensation levels for periods within the statute of
limitations. Schraufnagel's statements
are relevant to whether Forster's level of compensation was set for improper
discriminatory reasons. LIRC did not
err in its consideration of such evidence.
Abbyland next contends
that there is insufficient evidence to support LIRC's findings of
discrimination and the level of damages determined. Claims of insufficiency of the evidence are reviewed under the
substantial evidence test because they involve the agency's determination of
contested facts. See Robertson
Transp. Co. v. PSC, 39 Wis.2d 653, 658, 159 N.W.2d 636, 638
(1968). Substantial evidence is
evidence sufficient to permit a reasonable finder of fact to reach the
conclusion of the agency. Chicago
& N.W.R.R. v. LIRC, 98 Wis.2d 592, 607-08, 297 N.W.2d 819, 825-26
(1980). It need not reflect the
preponderance of the evidence and, indeed, the preponderance of the evidence
may lead to a contrary conclusion. Id. Nonetheless, we are required to affirm the
determination as long as the finding of fact made by the agency could have been
made by a reasonable finder of fact. Barnes v. DNR, 178 Wis.2d 290, 305-06, 506 N.W.2d 155, 162
(Ct. App. 1993). In this case, the agency's determination of Abbyland's state
of mind as to the salary paid during the relevant period is a question of fact
subject to such deferential review. See
Pullman-Standard v. Swint, 456 U.S. 273, 287-90 (1982).
The same standard of
review must be applied to LIRC's determination that Forster's responsibilities
were equal to or more than McGuire's, and she should accordingly have received
a comparable level of compensation.
While Abbyland hotly contests this conclusion, it is reviewed under the
substantial evidence test and must also be affirmed if a reasonable factfinder
could reach the conclusion reached by LIRC.
Barnes, 178 Wis.2d at 305-06, 506 N.W.2d at 162. Further, where the appellant challenges the
sufficiency of the evidence for the agency's ultimate conclusions, we examine
the entire record for substantial evidence to support those
determinations. Kropiwka v. DILHR, 87 Wis.2d 709,
719, 275 N.W.2d 881, 884 (1979).
Because our review is based on a substantial evidence test, we need only
review evidence that would support LIRC's determination. We acknowledge that both factual matters
were contested and Abbyland introduced evidence that would permit contrary
findings of fact to be made by LIRC. If
a reasonable factfinder could have reached the conclusions reached by LIRC,
however, we must affirm such findings. Barnes,
178 Wis.2d at 305-06, 506 N.W.2d at 162.
We conclude that there
is overwhelming evidence of improper discriminatory reasons in setting
Forster's compensation within the statute of limitations period. Schraufnagel's repeated comments that her
husband is earning enough, the demeaning references to Forster based on her
gender and the evidence of her performance, including the fact that she sold
more tonnage than any other sales person is sufficient to support LIRC's
findings. Indeed, LIRC's findings were
made on evidence that was compelling and would withstand an even more strict
standard of review than we are required to use.
Abbyland seeks to
distinguish McGuire's powers and duties from Forster's and contends that one is
a supervisor while the other a mere salesperson, justifying the disparate
salaries paid to these two individuals.
There is other evidence, however, that Forster's responsibilities were
at least equal to if not greater than McGuire.
LIRC chose to accept this evidence, which came not only from Forster but
from two other company officials. A
reasonable factfinder could conclude that Forster's responsibilities were
either equal to or greater than McGuire's and that the salary levels between
the two positions should have, but for discriminatory reasons, been
comparable. We, therefore, conclude
there was sufficient evidence to support the formula for calculating damages adopted
by LIRC.
We note that no specific
number representing Forster's damages was determined and that a further hearing
may be necessary unless the parties are able to stipulate to the salary Forster
would have earned but for the discrimination.
Abbyland does not contest LIRC's ability to apply these damages for the
two-year period prior to the filing of the complaint. Although damages have not been determined, neither party raises
the issue whether this is a final judgment reviewed by the Court of Appeals as
a matter of right. See § 808.03(1),
Stats. Because we construe the appeal as a petition for leave to appeal,
which we grant, we elected to address the case on its merits.
By the Court.—Judgments
affirmed.
