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COURT OF APPEALS
DECISION
DATED AND RELEASED
FEBRUARY 4, 1997
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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. 96-2055
STATE
OF WISCONSIN IN
COURT OF APPEALS
U.S. PAPER CONVERTERS,
INC.,
Petitioner-Appellant,
v.
LABOR AND INDUSTRY REVIEW
COMMISSION and AMY K. BODOH,
Respondents-Respondents.
APPEAL from an order of
the circuit court for Outagamie County:
DENNIS C. LUEBKE, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. U.S. Paper Converters, Inc. (USPC), appeals
a circuit court order affirming a Labor and Industry Review Commission decision
finding that USPC failed to establish that Amy Bodoh did not reasonably
mitigate her damages in this employment discrimination case. USPC claims that the circuit court applied
an incorrect standard of review to LIRC's decision. In addition, USPC claims that LIRC misapplied the relevant
statutory provisions to the facts of the case.
We reject these arguments and affirm.
The historical facts as
found by LIRC are undisputed on appeal.
Bodoh was employed by USPC until August 1990 when she was laid off. Bodoh filed a discrimination complaint
claiming her layoff was motivated by her pregnancy. After a hearing, the administrative law judge found that pregnancy
was a factor in her termination, and ordered USPC to reinstate her and to pay
her all wages and benefits she would have earned absent the layoff, less actual
earnings from other employment or amounts earnable with reasonable
diligence. USPC does not appeal this
finding. However, after the parties
could not agree on the amount due Bodoh for lost wages and benefits, a second
hearing was held before the ALJ.
At that hearing, USPC
claimed that Bodoh failed to reasonably mitigate her damages during the period
following her layoff. She had accepted
a position with another employer, Hillshire Farms, but was promptly fired for
excessive absenteeism. Specifically,
USPC claimed Bodoh was terminated for violating Hillshire Farms' rule limiting
absences during an employee's probationary period to two, regardless the
reasons given for subsequent absences.
The record reveals that Bodoh had three absences during her five-week
employment with Hillshire Farms: one to
help her family prepare for her father's wedding, another to see her
father-in-law, who had just suffered a heart attack, and a third due to
illness. USPC argued that Bodoh failed
to mitigate her damages because accruing three absences, in violation of her
employer's rule and causing her termination, was unreasonable.
The ALJ determined that
Bodoh, through her conduct, failed to reasonably mitigate her damages within
the meaning of § 111.39(4)(c), Stats.,
and reduced the amount recoverable from USPC accordingly. LIRC reversed the ALJ, finding that Bodoh
had adequately explained her absences and that each absence was reasonable
under the circumstances. LIRC thus
found that USPC did not meet its burden of proving that Bodoh had failed to
exercise reasonable diligence in mitigating her wage loss. USPC appealed to the circuit court, which
affirmed LIRC's decision. USPC now
appeals to this court.
In a ch. 227, Stats., appeal, we review the agency's
decision and therefore give no deference to the decision of the trial
court. Soo L. R. Co. v.
Commissioner of Transp., 170 Wis.2d 543, 549, 489 N.W.2d 672, 674 (Ct.
App. 1992). In this case, LIRC
determined that USPC failed to meet its burden of proving that Bodoh did not
exercise reasonable diligence in mitigating her damages. Whether a party has met its burden of proof
on an issue is a question of law we review de novo, but in doing so we must
accept LIRC's view of the credibility of the witnesses unless we can say LIRC
was wrong on credibility as a matter of law.
See Seraphine v. Hardiman, 44 Wis.2d 60, 65, 170 N.W.2d
739, 742 (1969). In addition, due to
LIRC's expertise in interpreting the Wisconsin Fair Employment Act, this court
will defer to LIRC's decision in certain circumstances.
The parties dispute the
proper amount of deference to be accorded the agency's decision. There are three levels of deference this
court may apply to an agency's legal conclusions:
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." The second level of
review provides that if the agency decision is "very nearly" one of
first impression it is entitled to "due weight" or "great
bearing." The lowest level of
review, the de novo standard, is applied where it is clear from the lack
of agency precedent that the case is one of first impression for the agency and
the agency lacks special expertise or experience in determining the question
presented.
Jicha
v. DILHR, 169 Wis.2d 284, 290-91, 485 N.W.2d 256, 258-59 (1992)
(citations omitted). USPC argues that
the issue is one of first impression and requests that we review LIRC's
decision de novo. Bodoh and LIRC
request greater deference.
We
conclude that the decision is to be accorded due weight. The parties both concede that the precise
issue in this case has not been previously addressed by LIRC. However, our supreme court has held that
"[e]ven though an agency may never have interpreted a particular statute
against facts of first impression, because the agency has prior experience in
interpreting the statute, the agency's decision will be accorded due weight or
great bearing." William
Wrigley, Jr. Co. v. DOR, 160 Wis.2d 53, 70-71, 465 N.W.2d 800, 806-07
(1991) (citations omitted), reversed on other grounds, DOR v.
William Wrigley, Jr. Co., 505 U.S. 214 (1992). We conclude that this is such a case.
Under such a standard,
we will affirm the agency's interpretation of a statute if it is reasonable,
even if another conclusion would be equally reasonable. Carrion Corp. v. DOR, 179
Wis.2d 254, 265, 507 N.W.2d 356, 359 (Ct. App. 1993). In this case, LIRC determined that USPC failed to meet its burden
of proving that Bodoh did not exercise reasonable diligence in mitigating her
damages. We conclude that this determination
is reasonable.
The WFEA requires back
pay awards be reduced by "amounts earnable with reasonable
diligence." Section 111.39(4)(c), Stats.
The burden of proving a failure of reasonable mitigation is on the
employer. Anderson v. LIRC,
111 Wis.2d 245, 255, 330 N.W.2d 594, 599 (1983). It is undisputed that Bodoh's three absences caused Hillshire
Farms to terminate her employment. This
fact does not equate as a matter of law, however, with failure to mitigate
damages within the meaning of the WFEA.
LIRC found that Bodoh
was fired solely due to her three absences, one greater than is allowed
probationary employees such as Bodoh.
It also found that Bodoh's first absence was due to her desire to help
prepare for her father's wedding and that Bodoh had notified Hillshire Farms in
advance of this absence. LIRC found
that Bodoh's second absence was due to her father-in-law's heart attack and
that she also notified Hillshire Farms in advance of this absence. Finally, LIRC found that her third absence
was due to her own medical condition.
Again, LIRC found that Bodoh notified Hillshire Farms in advance of the
absence and even offered to provide medical documentation of her
condition. Under these circumstances,
the conclusion that Bodoh acted with reasonable diligence is reasonable.
USPC asserts that in
this case "reasonable diligence" necessarily means "compliance
with the reasonable conditions of the [subsequent] employer." In other words, USPC asserts that it is
unreasonable for Bodoh to knowingly engage in conduct that will jeopardize her
continued employment with Hillshire Farms.
While this might constitute a reasonable view of Bodoh's conduct, it is
not the view taken by LIRC. We decline
to adopt any per se rules regarding what constitutes reasonable diligence
within the meaning of § 111.39(4)(c), Stats. To the contrary, what constitutes reasonable
diligence is to be determined from all of the circumstances of a given
case. This is precisely what LIRC did.
To conclude, LIRC's
finding that USPC failed to establish that Bodoh did not exercise reasonable
diligence in mitigating her damages is reasonable. Therefore, we affirm the circuit court order affirming LIRC's
decision in its entirety. Finally, we
deny Bodoh's motion for costs and fees for frivolous appeal under
§ 809.25(3), Stats. We conclude that USPC presented a good faith
argument extension or modification of precedent interpreting the WFEA.
By the Court.—Order
affirmed.
