Wisconsin Court Affirms Arbitration Award of Reinstatement

In a very interesting decision by the Wisconsin Court of Appeals last week, the Court upheld an arbitration award against the large household goods store Menard’s for employment discrimination against, wait for it, its own in-house lawyer.  As reported in the Milwaukee Journal Sentinel,

Menard Inc. must reinstate a woman it fired as vice president and general counsel over a pay dispute, 3rd District judges for the state Court of Appeals said in a decision released Tuesday.

Dawn M. Sands filed a lawsuit in Eau Claire County citing the Equal Pay Act, Title VII of the Civil Rights Act and the Wisconsin Fair Employment Act. She claimed gender-based pay discrimination, asserting that similarly situated male employees were paid more.

A three-person arbitration panel found in her favor and awarded compensatory and punitive damages. The panel also ordered Menard to reinstate Sands with a specific salary and bonus. Menard balked and asked the appellate court to overturn an order by Eau Claire Circuit Judge Paul J. Lenz that had upheld the arbitration panel.

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Stealthy or Shifty Tort Change

Much media has been given to the so-called “stimulus package” recently passed and signed into law without members of Congress or the President knowing fully what was contained in the over 1500 pages.  Evidently, no one read the whole bill before taking the decisive action.

A similar approach seems to be occurring here in Wisconsin.  Buried in the governor’s budget bill (A 75 2009-2010 Legislature), at pages 1588 and 1605, are significant modifications of state tort law that have as much to do with the state budget as chewing gum has to do with nuclear fusion.

Section 3223 of the bill contains a provision requiring the court to explain to a jury “the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.”  Translation: “If you find the plaintiff more negligent than that rich old defendant, the plaintiff and his or her lawyer won’t recover a dime!”  Aren’t juries supposed to be finders of fact and not charity institutions?

Section 3271 of the bill changes the Wisconsin comparative negligence rule in two significant respects. 

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Reinstatement of a Wrongfully Discharged Lawyer?

 

Earlier this week, the Wisconsin Court of Appeals issued an interesting decision involving remedies for the discharge of in-house counsel in violation of the Equal Pay, Act, Title VII of the Civil Rights Act of 1964, and the Wisconsin Fair Employment Act. Sands v. Menard, Inc., involved a claim by a lawyer terminated from her position as vice president and executive general counsel of the Wisconsin-based building supplies company. The lawyer had claimed that she was the victim of gender-based pay discrimination. The matter was submitted to arbitration, and Menard was determined to have violated the lawyer’s rights in underpaying her and retaliating for her complaint.

The arbitration panel awarded the lawyer compensatory and punitive damages and also ordered reinstatement, a remedy that neither party sought. In upholding the reinstatement order, the court provided the following analysis:

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