Wisconsin Supreme Court says Menard attorney should not get job back in discrimination case

Court says Menard attorney should not get job

MADISON, Wis. — Home improvement chain Menard Inc. does not have to reinstate a female executive who was fired after complaining about her pay, the Wisconsin Supreme Court ruled Wednesday.

On a 4-3 decision the court said the Eau Claire-based company does not have to follow an arbitration panel’s decision ordering Menard to rehire Dawn Sands as its general counsel even though she did not initially seek that remedy.

The court agreed with Menard’s argument that the relationship between Sands and the company was so irretrievably damaged, there is no way she could establish an attorney-client privilege and work there again.

“By accepting reinstatement, Sands would be forced to violate her ethical obligations as an attorney,” Justice Michael Gableman wrote for the majority.

Instead, the court sent the case back to the circuit court to determine how much money she should be paid for what she would have earned in the position instead of being reinstated. The court upheld an award of $1.7 million in back pay and punitive damages to Sands.

Neither Sands’ attorney John Richie nor Menard’s attorney Beth Ermatinger Hanan immediately returned messages seeking comment.

The court’s decision overturns a state appeals court ruling that upheld the arbitration panel’s order reinstating Sands to her position earning at least $175,000 annually after it concluded Sands had been paid less than male employees and she was fired for asserting her rights to equal pay.

Sands was hired in 1999 and had a highly visible role as a spokeswoman for Menard, which was founded in 1962 and has more than 200 stores in the Upper Midwest.

On the day she was let go in 2006, company founder and president John Menard gave her only a few minutes to collect personal belongings from her office, stood behind her with his hand in a fist and ordered her away from her computer, then followed her out of the building, the court opinion said.

He then had her door secured with a chain and padlock until a new lock could be installed, the opinion said.

In her discrimination claim, Sands alleged “Menard family officers” engaged in “mafia-like conduct” and John Menard’s conduct was “so monstrous and reprehensible that it shocks the conscience,” court records said.

Sands argued she was defamed by Menard and was the victim of gender-based discrimination and retaliation for claiming discrimination.

Menard argued on appeal that state law allows clients to choose their attorneys and the arbitrators could only order Sands’ reinstatement if Menard agreed.

Even Sands argued that for her, arguing to go back to the company was “unworkable and undesirable,” court records said. She initially sought two years of additional pay but later said she could work for the company if her safety were assured.

The Supreme Court said the arbitration panel exceeded its powers by ordering Sands’ reinstatement given that putting her back into that job would cause her to violate her own ethical obligations as an attorney because she could not represent the company in good faith given what’s happened to her.

“Trust has been completely broken; nothing good could possibly come from reinstatement,” the court said.

In the dissent, Chief Justice Shirley Abrahamson said the decision sets a bad precedent that undermines the arbitration process and improperly extends the authority of the Supreme Court. Justices Ann Walsh Bradley and Patrick Crooks joined in the dissent.