In May 2012, the plaintiff, Kevin Roberts, was hired by the defendant, Stevens Construction, to work as a project superintendent for a construction project in Michigan. On July 29, 2012, Roberts suffered a work-related injury and received workplace restrictions and was unable to continue working on the Michigan project. While he received medical treatment for his injuries, Robert remained employed by the defendant. On August 20, 2012, Roberts' treating physician stated that Roberts was able to "return to regular duty." That same day, Roberts reported to Stevens Construction and informed the HR manager that his restriction had been lifted. However, the defendant informed Roberts that "things hadn't gone as well as [he] had hoped" and Roberts' employment was terminated. In a letter dated August 20, 2012 from Stevens Construction, Roberts' termination was confirmed stating that his "performance at the Michigan project was not what [Vine, the president of Stevens Construction] had hoped for/expected and [Roberts'] position with Stevens Construction was terminated."
Roberts filed a claim under WIS. STAT. section 102.35(3) with the Wisconsin Department of Workforce Development ("DWD"), claiming Stevens Construction had unreasonably refused to rehire him following his injury. Following a hearing before an administrative law judge, it was determined that Stevens Construction had not unreasonably refused to rehire Roberts, with the ALJ finding that Roberts' employment had been terminated because of his performance and also because Stevens Construction did not have any ongoing work available for Roberts when his employment was terminated. Roberts petitioned the Labor and Industry Review Commission ("LIRC") who affirmed the ALJ and then sought review by the circuit court, who affirmed LIRC's decision, which prompted appeal to the Wisconsin Court of Appeals who upheld all of the lower decisions.
Court of Appeals Finds Stevens Construction Did Not Unreasonably Refuse to Rehire Roberts
Whether an employer has unreasonably refused to rehire an employee under WIS. STAT. section 102.35(3) presents a mixed question of fact and law. Wisconsin courts employ a burden-shifting approach
when an employee brings a Wis. Stat. § 102.35(3) claim for
unreasonable refusal to rehire. Under this approach, the employee must first make a prima facie case of an unreasonable
failure to rehire. It is undisputed that as part of the prima
facie case, the employee must show that: (1) the claimant was
an employee of the employer from which he or she seeks
benefits;15 (2) the claimant was injured in the scope of
employment; and (3) subsequent to the injury, the employer
refused to rehire the employee. If an employee makes their prima facie case, the burden shifts to the employer to show a reasonable cause of the employer's refusal to rehire the employee.
LIRC determined that Roberts made a prima facie case showing that Stevens Construction unreasonably refused to rehire him, so the Court of Appeals focused on whether Stevens Construction satisfied its burden of showing a reasonable cause for its refusal to rehire Roberts.
Roberts essentially argued that even though the project was coming to an end, other employees besides him were laid off or not retired was not based on credible and substantial evidence and was instead based "on nothing more than conjecture and speculation." Roberts argued that the evidence showed that other superintendents and employees who had been working on the Michigan project were either moved to one of the limited number of available superintendent jobs or were allowed to utilize their paid time off days (PTO). Roberts also argued that Stevens Construction did not meet its burden because they did not show that not only was there a lack of superintendent work for him to perform, but they did not show that there was also non-superintendent work his could have performed within his limitations at the time he was terminated. The Court of Appeals disagreed.
Stevens Construction showed that at the time Roberts' employment was terminated, the Michigan project was nearing completion and that employees working on that project were being taken off it. Besides the Michigan project, they had 6 other ongoing projects in August 2012, but there were not available positions for Roberts at those projects. The one comparable superintendent Roberts relied upon, was allowed to use PTO when he was terminated, which allowed him to remain employed, but Roberts had not shown that he had any PTO to use in the same manner. Thus, Stevens Construction did not unreasonably refuse to rehire Roberts and his claim was dismissed.
The case is Kevin Roberts v. Stevens Construction Corporation, Docket: 2015AP002441.