STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


PAULA JEAN MICHNO, Complainant

PIZZA HUT, Respondent A

PIZZA HUT, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199555637
EEOC Case No. 26G960542


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on September 4, 1997. A timely petition for review was filed. The commission received the file from the division on November 4, 1997. Briefs were filed with the commission and briefing was completed with the filing of the Respondent's Reply Brief on February 25, 1998.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. The commission has also consulted with the ALJ concerning his impressions as to the credibility of witnesses.

Based on the applicable law, records and evidence in this case, the commission now makes the following:

FINDINGS OF FACT

1. Respondent B, Pizza Hut (hereinafter "Pizza Hut (Merrill)"), is a restaurant located in Merrill, Wisconsin, which specializes in serving pizza and employs people in various capacities such as waitstaff, food preparers and managers.

2. Prior to October, 1994, Pizza Hut (Merrill) was an independent franchise. In October, 1994, Pizza Hut (Merrill) was acquired by Respondent A, Pizza Hut of Kansas (hereinafter, "Pizza Hut of Kansas") At all times thereafter Respondent A was the corporate owner of Respondent B, as well as of a number of other Pizza Hut stores in Wisconsin.

3. Paula Michno, a female, first worked for Pizza Hut (Merrill) beginning in June, 1991, when it was an independent franchise. When she was first employed there, she worked as a delivery driver; she later worked as waitstaff. She was subsequently promoted to shift manager and then to assistant manager. Michno voluntarily left her employment with Pizza Hut (Merrill) in November, 1993.

4. Pizza Hut (Merrill) rehired Michno in March, 1994.

5. After Michno's re-hire in March, 1994, and after its acquisition by Pizza Hut of Kansas, Pizza Hut (Merrill) was among the restaurants under the responsibility of Patrick Bresnahan, North Central Wisconsin Area Manager for Pizza Hut of Kansas. Bresnahan had responsibility for 16 restaurants in Wisconsin.

6. After Michno's rehire in March, 1994, Bresnahan promoted Michno from waitress to shift manager to assistant manager, and finally to unit (store) manager effective April, 1995.

7. Unit managers are responsible for the day-to-day operation of their restaurants, and Michno's duties as unit manager included hiring staff (except for assistant managers and shift managers), training, scheduling, reporting to the owners, and overseeing the crew and physical facilities, as well as some food preparation. Pizza Hut of Kansas has a policy of requiring its unit managers to work 50 hours per week.

8. Michno's performance as a shift manager and as an assistant manager was considered by Bresnahan to be good. However, after Michno's promotion to unit manager in April, 1995, problems developed in her restaurant. Employe morale was not good, and during the period from April 1995 through August 1995, employe turnover was more than twice what was normal in the business. Michno also had conflicts with her shift manager and her assistant manager, which they complained to Bresnahan about frequently and which necessitated meetings involving all of them. Bresnahan was dissatisfied with Michno's performance because of the problems in her store, and he told her this.

9. On or about June 24, 1995 Michno learned that she was pregnant and due to give birth on or about February 16, 1996. She informed Bresnahan of her pregnancy within two weeks after she learned she was pregnant.

10. Bresnahan had begun to become concerned about the adequacy of Michno's performance as unit manager prior to the time she informed him that she was pregnant.

11. While the conflicts Michno had with one of her managers were essentially resolved in the summer of 1995, problems with her other manager as well as other problems affecting staffing in her restaurant continued. Bresnahan continued to be dissatisfied with Michno's performance because of the problems in her store during the summer of 1995.

12. By the middle of July, 1995, Michno was experiencing frequent vomiting, migraine headaches, weight loss and the inability to sleep. She saw her physician, who on July 19, 1995 gave her a written note which instructed her to work no more than 8 hours per day or 40 hours per week. Michno had been working between 47 and 70 hours per week.

13. Michno presented the note from her doctor to Bresnahan and requested that her schedule be reduced to 40 hours per week. Bresnahan declined to agree to this, and he told Michno that her doctor's excuse didn't mean anything.

14. Between July 19, 1995 and August 23, 1995, Michno attempted to complete her duties as a unit manager in fewer hours than she had been working but she was unable to comply with her doctor's recommendation that she work only 40 hours per week.

15. On August 23, 1995, Michno's doctor wrote directly to Bresnahan and informed him in some detail of the health problems Michno was experiencing, specifically mentioning Michno's weight loss. Also at or around this time, Michno proposed to Bresnahan that she take a voluntary demotion to shift manager, a position that was not subject to the expectation of working 50 hours per week. Bresnahan would not agree to this because it was his policy not to demote within a store, and he continued to decline to allow Michno to reduce her hours of work to 40 per week.

16. Bresnahan was unreasonably resistant to Michno's legitimate medical needs to reduce the number of hours she worked. However, Bresnahan's unwillingness to abide by the advice of Michno's doctor that she work fewer hours per week was not the result of any bias against disability resulting from pregnancy as opposed to disability resulting from some other cause.

17. In a significant number of cases which did involve temporary disability connected with pregnancy, Bresnahan was reasonable and cooperative in regards to the needs of the managers involved. In six separate pregnancies of three different restaurant managers under his supervision during the period 1991-1996, Bresnahan repeatedly agreed to allow such adjustments as reducing the managers' hours of work to 40 hours per week, excusing the managers from job-related travel, and granting the managers additional time off beyond that normally required in pregnancy and childbirth, on the basis of recommendations from treating doctors arising from problems including the same kinds of extreme morning sickness difficulties as Michno suffered from. In all of these cases Bresnahan did these things willingly and without pressuring the managers, giving them any difficulty, or expressing any dissatisfaction.

18. In at least one case which involved temporary disability which was not connected to pregnancy, Bresnahan was not cooperative with the needs of the employe involved arising from the disability. On one occasion on which Michno had fallen and hurt her leg, Bresnahan made a comment to her to the effect that "doctor's excuses don't mean anything," just as he did when she advised him of her doctor's recommendation that she work fewer hours because of problems connected with her pregnancy.

19. Bresnahan's refusal to agree to the schedule modifications recommended by Michno's doctor was not motivated by the fact that Michno's temporary disability was pregnancy-related, but by the fact that Bresnahan was dissatisfied with Michno's performance as manager. Bresnahan felt that Michno's poor performance as a manager had created a staffing situation in which the restaurant could not operate successfully if the manager worked fewer hours than the 50 routinely expected of all managers, and for that reason he was unsympathetic to Michno's legitimate medical needs to reduce the number of hours she worked.

20. On Wednesday, August 30, Michno woke up with a migraine headache after having slept very little. She telephoned Bresnahan's voice mail at 5:30 A.M. and left a message to the effect that she would not be in that day and asked him to help or to "try and send somebody up for Julie and Sharon". She called Julie, her opening cook, and Sharon, her opening prep person, and asked them to come into work early; she also suggested that the two of them open the restaurant late that day, at 1:00 P.M. Both told Michno that they could come in when she called them.

21. When Sharon came in to the Merrill store on Wednesday, August 30, she found that there was no one there to start dough, and she was concerned about this and so called Bresnahan, who was at the Schofield store, telling him that Michno was not at the store and there was no one there to open the store. Bresnahan then traveled to the Merrill store, arriving there at about 9:00 A.M. He worked there with the rest of the employes, helping to get them through the busy part of the day, and he then left at about 1:00 P.M.

22. Sometime during the morning of Wednesday, August 30, Michno spoke by telephone with her physician, Dr. Abdeer, and after she described her symptoms to him, he told her that he was taking her off work through September 5.

23. Michno telephoned the Merrill store at around noon on Wednesday, August 30 to find out how things were going, and during the call she spoke directly with Bresnahan. She informed him that on her doctor's orders she would not be able to work until September 5, 1995. Bresnahan asked her if she could come in on September 2 and 3 to help with training and orientation, and she said that she could not.

24. Michno went to the Merrill store during the afternoon of Wednesday, August 30 and did some paperwork but then began to feel worse and went home.

25. On Thursday, August 31, Michno woke up to a message from Bresnahan asking her to come down to the store with her key to the safe because they did not have one, and a message from an employe telling her that no one had come in to work in the kitchen and that if no one came by 10:00 A.M. she would not work. Michno went down to the store, sometime around 10:00 A.M., which was before it opened. While she was there, she showed one employe how to open the safe and instructed him in certain procedures; she also spoke on the telephone to an employe from another store to provide certain figures Bresnahan needed. While she was on the call, Bresnahan called on another line and left a message for her. When she got this message, Michno tried to call Bresnahan at his home 2 times, but got a busy signal each time. Michno then went home, at approximately 10:30 A.M., after telling an employe that if Bresnahan called again they should tell him that she had tried to reach him and would try again later.

26. When Michno got home, she lay down for a while, then at around 3:00 P.M. tried calling Bresnahan again and got a busy signal again, and then went to sleep. When Michno woke up, it was evening, and her answering machine was filled with messages from customers who were unhappy with the service they received, the product they received, and the way their complaints were handled in the Merrill restaurant that day. There was also a message from an employe telling Michno that no one had made any preparations for that evening, that there was no dough made, and that all the customers were upset.

27. At this point, on the evening of Thursday, August 31, Michno was aware of the numerous messages from the store describing serious problems, she knew that because of their resignations effective August 30, the store had neither an assistant manager or a shift manager, she knew that no one had been designated to replace them, and she did not have any idea who was in charge of running or staffing the store. However, she made no attempt to call the store, or Bresnahan, or any other store managers. Instead, she disconnected the ringer on her telephone so that she would not hear any incoming calls. In addition, although she knew that the tape on her telephone answering machine was full and that for that reason no further messages could be left on the machine, she did not do anything to correct this.

28. During the period from the afternoon of August 31, 1995 through September 3, 1995, Michno was physically capable of dialing the telephone and thinking and communicating, but she made no attempts to telephone Bresnahan or the store. During that entire period, she also left her telephone ringer unconnected and her answering machine unable to receive messages so that she could not be contacted by anyone connected with the store.

29. Michno went to the Merrill store on September 4, 1995 and discovered that the locks had been changed. The locks had been changed because it was Pizza Hut policy to change the locks whenever there was a change in any management positions, and the shift manager and assistant manager had both left their positions as of August 31, 1995. Michno was let in by another employe.

30. Bresnahan arrived at the Merrill store later on the morning of September 4, 1995. He asked Michno if she had any explanation for having abandoned the restaurant during the previous days, and she said she did not. He repeatedly asked Michno if she felt any remorse for not having contacted anyone concerning the store for the previous three days, but Michno told him that she did not. Bresnahan then informed Michno that she was being suspended.

31. On the following day, September 5, 1995, Bresnahan telephoned Michno and left a message on her answering machine informing her that she was terminated.

32. Bresnahan decided to terminate Michno because he felt that she had abandoned the store by not contacting him or the store and by not responding to messages for more than three days when it was her responsibility as a manager to attempt to make arrangements for the proper functioning of the store even if she was home sick. The fact that Michno was pregnant and that she had a medical condition related to pregnancy was not a factor in Bresnahan's decision to terminate Michno.

Based on the Findings of Fact made above, the commission now makes the following:

CONCLUSIONS OF LAW

1. Respondents Pizza Hut of Kansas and Pizza Hut (Merrill) are employers within the meaning of the Wisconsin Fair Employment Act.

2. At the times material herein, Complainant Paula J. Michno was an employe who suffered from a medical condition related to pregnancy, within the meaning of the Wisconsin Fair Employment Act.

3. Respondents did not discriminate against Complainant on the basis of sex, pregnancy or related medical condition, within the meaning of the Wisconsin Fair Employment Act.

Based on the Findings of Fact and Conclusions of Law made above, the commission now issues the following:

DECISION

The decision of the administrative law judge is reversed. The complaint in this matter is dismissed.

Dated and mailed: August 11, 1998
michnpa.rrr : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case presents the question of whether Patrick Bresnahan, an area manager for Pizza Hut, discriminated against Paula Jean Michno, manager of the Pizza Hut in Merrill, Wisconsin, because of "pregnancy . . related medical condition", which is, under Wis. Stat. 111.36(1)(c), a form of sex discrimination. Specifically, it is alleged that Bresnahan took a negative attitude towards Michno as soon as she told him that she was pregnant, that Bresnahan would not abide by the restrictions which Michno's physician put on her in connection with medical problems she was having due to her pregnancy, and that Bresnahan fired Michno because of her "pregnancy . . . related medical condition."

Based on its review of the record, and after having discussed with the Administrative Law Judge his impressions as to the credibility of the witnesses who testified before him at the hearing, the commission is unpersuaded that what occurred here reflected bias on Bresnahan's part related to Michno's pregnancy.

Bresnahan's alleged negative response to Michno's pregnancy-- There does appear to have been a change in the relationship between Michno and Bresnahan during the time of the events at issue here; however, the critical question is, what caused this change? While Michno seeks to attribute it to her telling him that she was pregnant, the commission believes that the most likely explanation is the development of dissatisfaction on Bresnahan's part with Michno's performance as a manager.

Michno conceded that Bresnahan was pleasant and congratulated her on learning that she was pregnant. Michno also conceded that morale was not good at her store during the summer of 1995, that her shift manager and her assistant manager had complained to Bresnahan about her management style, and that she and they and Bresnahan had several meetings at which they discussed their complaints. Testimony from other witnesses found credible by the commission, including Bresnahan, left little doubt that there were definite problems at the Merrill store.

On balance, the commission does not feel that Michno's testimony about the change in her personal relationship with Bresnahan is significantly persuasive as evidence of an animus on Bresnahan's part arising from Complainant's pregnancy. This is because the evidence offers an equally plausible explanation for that change in their relationship: that Bresnahan was discovering that Michno, who had been a good assistant manager, was not a good manager, and was the source of continuing problems for him. It certainly seems possible that, particularly where (as here) there were morale problems with employes being unhappy with the manager, Bresnahan might take a more "businesslike" demeanor with the manager so as to be seen by all of the staff as more neutral and thus better able to mediate and resolve the disputes.

Additionally, the commission does not believe that the comments Bresnahan made about the relative importance of family and Pizza Hut, or even the "children are a nuisance" comment (which he denied making), are particularly strong as indications that he was, in his dealing with Michno, discriminating against her because of her pregnancy. Rather, the commission believes that Bresnahan was primarily dissatisfied with Michno because of her performance and because of problems in her store, and that his comments simply reflected a general "business comes first" attitude.

Hours of work issue -- There was no dispute, that during the summer of 1995 Michno began to suffer from medical conditions related to pregnancy which resulted in a definite, medically- justified need for her to reduce her hours of work to no more than 40 per week. There is also no dispute, that Bresnahan was well aware of this. Notwithstanding this, he simply refused to allow Michno to do what her physician was telling her she had to do for the sake of her own health and that of her unborn child.

The commission believes that it was unreasonable for Bresnahan to take this approach. Even accepting that it was true, that it was entirely the fault of Michno and her poor management skills that her store was in such a state of understaffing and low morale that it could not operate successfully if she reduced her hours down to 40 per week, it remained the case that at that point this had become a medical necessity. Furthermore, this medical necessity could not wait for Michno to somehow "turn the store around" by bringing in and training additional staff and adjusting her management style to create higher morale and efficiency.

If this were a case under the Family and Medical Leave Act (FMLA), Wis. Stat. 103.10 (1), or if the commission had some kind of general authority to make judgments about whether employment practices are "unfair", this kind of unreasonable refusal to allow an employe to reduce her hours when medically necessary due to a serious health condition might well have legal consequences in and of itself. However, this is not a case under the FMLA (2); and when reviewing decisions in cases premised on alleged violations of the Wisconsin Fair Employment Act, the commission has only the limited authority, to decide whether the challenged employment practices are unfair in one or more particular ways defined in the statute. Under the Wisconsin Fair Employment Act it is not unlawful per se to treat medical conditions related to pregnancy poorly or callously, as was done here. It is only unlawful to treat medical conditions related to pregnancy differently from medical conditions related to other causes. Lane v. Uniroyal Tire Co. (LIRC, 04/26/88).

It is for this reason, that the commission cannot find any violation of the Wisconsin Fair Employment Act in Bresnahan's refusal to abide by Michno's medical restrictions. First, there is absolutely no evidence in the record of any case in which Bresnahan (or any other agent of Respondents) treated a manager suffering from a temporary medical disability not related to pregnancy in a better fashion than Michno was treated here. Second, as is noted in the commission's findings of fact, (3) there is extensive evidence of numerous occasions on which Bresnahan treated managers suffering from a medical disabilities which were related to pregnancy, in a better fashion than Michno was treated here. Finally, there is evidence that on at least one occasion, Bresnahan expressed a negative attitude towards a temporary medical disability not related to pregnancy. (4)

Bresnahan asserted that he refused to allow Michno to go down to 40 hours because she had been doing such a poor job of managing her store, retaining employes, keeping up employe morale, etc., that the store could not function effectively, even for a temporary period, with her working less than the 50 hours/week normally expected of Pizza Hut store managers. The commission believes that as unreasonable as this was, it was in fact Bresnahan's actual motivation for the way he acted.

In her brief, Michno in fact effectively concedes the accuracy of the testimony of the three other female managers who were treated with solicitude by Bresnahan during their pregnancies, and she relies on the argument that she was treated differently from these women. Complainant's Brief, pp. 9-10. However, this only serves to undercut Michno's position. All it tends to show, is that the way Michno was treated must have been attributable to something other than the fact that she was pregnant.

Events of August 30 through September 4 leading to Michno's termination -- The commission has largely agreed with the material findings of fact of the Administrative Law Judge as to the events of August 30 through September 4, including his finding that Michno did speak to Bresnahan on Wednesday, August 30 and informed him that on her doctor's orders she would not be able to work until September 5, 1995. However, it does not believe that these facts establish a basis for a conclusion that Bresnahan fired Michno because of her sex, her pregnancy, or her medical condition connected with her pregnancy.

The commission finds completely credible, Bresnahan's assertion that he was motivated by his unhappiness over Michno's abandonment of the store for an extended period. Michno behaved in an unreasonable manner when, with no idea who was in charge of running or staffing the store, and knowing that the store of which she was the manager was having serious problems, was generating numerous dissatisfied customers, and had neither an assistant manager or a shift manager, and numerous messages from the store describing serious problems, she went incommunicado for over three days.

It is entirely reasonable that Bresnahan would find this unacceptable, and for reasons unconnected to the nature of the medical problem which was causing Michno to stay home. Other (pregnant) managers who had to be off work due to medical conditions (related to their pregnancy) had nonetheless maintained some degree of telephone contact and had been of service in answering questions and making arrangements for staffing. Michno would have been capable of telephoning to keep in touch with her staff, to answer their questions, and to try to arrange for adequate coverage of positions in the restaurant. However, she not only failed to even try to do this, but she affirmatively acted to make it difficult for anyone to reach her. When, upon her return to work, she was oblivious to Bresnahan's concerns about her abandonment of the store, it is not surprising that he would arrive at a decision to terminate her.

For the reasons discussed above, the commission believes that Bresnahan's decision to terminate Michno was not a result of any antipathy towards her because of her sex, her pregnancy or her medical condition related to her pregnancy.

NOTE: As noted above, the commission discussed with the Administrative Law Judge his impressions as to the credibility of the witnesses who testified before him. The Administrative Law Judge indicated to the commission that he considered Michno the more credible witness in respect to the factual questions about what precisely happened in the last few days of her employment, including the question of whether she had spoken directly to Bresnahan on August 30. The commission does not necessarily disagree with this particular assessment of credibility. However, the ultimate issues in this case involve drawing inferences from the facts as to the subjective motivation of Patrick Bresnahan in a number of actions he took and decisions he made. The commission does not believe that the facts in this case support an inference that Bresnahan was motivated by an animus based on Michno's sex, her pregnancy, or her medical condition related to her pregnancy, largely because of the evidence of numerous other cases of pregnant managers with temporarily disabling medical conditions which were related to pregnancy in which Bresnahan treated the managers better than he treated Michno, and because of the absence of evidence of other cases of managers with temporarily disabling medical conditions not related to pregnancy in which Bresnahan treated the managers better than he treated Michno.

cc: John B. Rhode, Attorney for Complainant
Virginia L. Erdman, Attorney for Respondents


Appealed to Circuit Court. Affirmed February 23, 1999.

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Footnotes:

(1)( Back ) See, Haas v. DILHR, 166 W (2d) 288, 479 N.W. (2d) 229 (Ct. App. 1991) (as a symptom of pregnancy, morning sickness may be considered a "serious health condition" under the FMLA).

(2)( Back ) The commission in any event has no jurisdiction over FMLA claims; see, Wis. Stat. 103.10(12), Kayler v. Stoughton Trailers (LIRC, October 27, 1997).

(3)( Back ) Finding of Fact 17.

(4)( Back ) Finding of Fact 18.