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


SHELBY TRAINOR, Complainant

WAYNE HANSON, DDS, S.C., Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199703044, EEOC Case No. 26G971747


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. Paragraph 6 of the ORDER is deleted and the following is substituted therefor:

"That within 30 days of the expiration of time within which an appeal may be taken herein, the Respondent shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats., 111.395, 103.005(11) and (12)."

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed April 28, 2000
trainsh.rsd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case concerns the decision made by Respondent Dr. Wayne Hanson, a dentist, to terminate the employment of Complainant Shelby Trainor, a dental assistant.

In mid-February 1997, Hanson learned that both Shelby Trainor and her sister-in-law Erin Trainor, also an employe in his practice, were pregnant, with due dates in the early Autumn. At this time, Hanson was in the process of attempting to sell his practice. He had been having a number of very serious personal problems, and his business had been suffering as a consequence. In mid-June, 1997, Hanson accepted a written Offer To Purchase from another dentist, Dr. Wadzinski. Thereafter, on July 14, 1997, Hanson fired Erin Trainor, and on July 17, he fired Shelby Trainor. The practice ended up being sold to Dr. Wadzinski in late August.

The question presented in this case is whether Hanson fired Shelby Trainor because she was pregnant. (1)

This is not a case in which there is any significant factual dispute as to anything other than the ultimate factual issue of the subjective intent of Dr. Hanson in making his decision. Based on its review of the record, the commission is satisfied that the Findings of Fact made by the Administrative Law Judge are accurate and comprehensive.

The question of the subjective intent of Dr. Hanson is one that must necessarily be decided by way of an inference. The Administrative Law Judge drew the inference that Hanson was concerned that the fact that complainants were pregnant would affect the willingness of Dr. Wadzinski to agree to purchase the practice and that he fired them for that reason - i.e., because they were pregnant. The commission agrees with this inference as to Dr. Hanson's motives. He acknowledged having been "desperate" to sell his practice. While Dr. Wadzinski had signed an offer to purchase the practice in June, it is apparent that the offer to purchase never ripened into a binding contract. There were a number of contingencies in the offer which had to be satisfied within fixed time periods well before mid-July  --  not the least of which was, that the sale had to be closed no later than July 15, 1997 unless another date or place were agreed upon in writing. However, the sale was not in fact closed until late August or September. It is clear that in mid-July, when Dr. Hanson made his decision to fire the Complainant, the prospects for the sale were uncertain and everything was back in negotiations.

Another significant factor in the decision in this case, was the inconsistency in the reasons advanced by Dr. Hanson. He acknowledged that he provided different reasons at different times for discharging Erin Trainor. He explained this by saying that initially he told Trainor that he was discharging her for profitability reasons because he did not want to make her feel bad by telling her that he was discharging her for performance-related reasons. The ALJ did not believe this;  neither did the commission.

A business owner who discharges an employe because of their protected status, violates the law. It does not matter if they have done so in order to attempt to make the business more attractive to an outside party who is interested in investing in it. See, e.g., Swanson v. State Street Stylists (LIRC, 11/26/97) (discharge of employe because of disability after a potential business partner of the employer demanded it as a condition of entering into partnership with the employer, was discriminatory). The commission is persuaded that this is what happened in this case.

cc: Attorney T. Christopher Kelly, Attorney for Complainant


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Footnotes:

(1)( Back ) Erin Trainor's case is addressed in a separate proceeding, ERD Case No. 199703038.