FAYE EGGER, Complainant
STERLING OPTICAL, Respondent
An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on January 10, 1992. Complainant filed a timely petition for review by the Commission.
Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:
1. Respondent Sterling Optical Division of IPCO Corporation (hereinafter, "Sterling") is a business engaged in the sale at retail of eyeglasses and optometric services. It has retail outlets in a number of locations, including one location in Marshfield, Wisconsin.
2. Complainant Faye Egger (hereinafter, "Egger"), is a married female who was first employed by Sterling as a manager-trainee in November 1986 and was made manager of Sterling's Marshfield store in January 1987. Egger's supervisor was District Manager Mark Yekelchik.
3. In November 1988 Egger became pregnant. On March 16, 1989 ultrasound testing confirmed that she was carrying twins.
4. The usual practice of Sterling is to provide pregnant employes six weeks of paid prepartum leave and six weeks of paid postpartum leave.
5. On March 17, 1989, Egger advised Sterling that her physician had recommended that she stop working within four to six weeks. Egger was thereafter required to submit certain evidence to satisfy Sterling that she would in fact be medically disabled and therefore would be entitled to more paid disability leave than Sterling normally provided in cases of pregnancy. Sterling initially questioned whether the information Egger was providing was adequate to establish her entitlement to the extra period of disability she sought. Egger was in fact allowed to commence her disability leave on April 24, 1989 consistent with what she told Sterling her physician had recommended, and she was paid her full salary for the 13 weeks from April 24, 1989 to July 21, 1989, when her twins were born
6. Following the birth of her children on July 21, 1989 Egger was provided an additional six weeks of postpartum leave at full pay. She was scheduled to return to work on September 1, 1989.
7. In late August 1989 Egger told Sterling that her physician recommended that she have two more weeks of leave, which would allow her to be present at home to breast-feed her children, who were slightly underweight. The physician described this as a recommendation, not as a matter of medical necessity. Sterling granted Egger an additional two weeks of leave on an unpaid basis, with the understanding that she would return to work on September 15, 1989.
8. Also in late August 1989, Egger met for lunch with Sherri Rutmanis, then Manager of Sterling's La Crosse store, who had been temporarily assigned responsibility for management of the Marshfield store in Egger's absence. At this time, Rutmanis informed Egger that a managers' meeting was scheduled to be held in Madison on September 20, 1989. It was anticipated that the meeting would last from 10:00 a.m. to approximately 3:00 or 4:00 p.m. The normal procedure by which Egger had traveled to such meetings in the past, and which she anticipated would be followed in this case, was that she would drive to Tomah, meet the Eau Claire and La Crosse managers, and car pool with them to Madison, returning the same day.
9. At this time Egger was breast-feeding her children and they were also being bottle-fed formula (soy milk formula in the case of one child who was allergic to cow's milk). Egger anticipated that notwithstanding this she would be able to attend the managers' meeting in Madison on September 20, 1989.
10. Egger returned to work as scheduled on September 15; 1989. on that day she learned from Yekelchik that the location of the September 20, 1989 managers' meeting had been changed to Crystal Lake, Illinois. The Commission takes notice, based on the official State of Wisconsin highway map published by the State of Wisconsin Department of Transportation, that Crystal Lake is approximately 100 miles from Madison. Plans for transporting northern Wisconsin's Sterling managers to the meeting (which had involved driving down and back on the same day) had been changed so that the managers would drive down to Madison together on September 19, 1989, stay overnight, drive to Crystal Lake on September 20, 1989, attend the meeting, and then drive home the same day.
11. Egger did not want to travel overnight to attend the September 20, 1989 managers' meeting because she was breast-feeding her children and because her husband would have to care for and feed the children alone overnight during her absence.
12. It was not a matter of medical necessity that Egger avoid overnight absences from her children. Both children took formula from bottles. Egger and her husband had persons who they hired to assist with child care during the daytime hours. Egger's husband would have been able to care for and bottle-feed the children over the night of September 19-20, 1989.
13. In a number of conversations with Yekelchik on September 15 and again on September 19, 1989, Egger asked Yekelchik a number of times whether she was required to go to the meeting and was told that she was, asked if she could be excused from attending the meeting and was told that she could not, and asked what would happen if she did not go and was told that Yekelchik would write up disciplinary action against her.
14. Egger considered the possibility of driving down to the meeting and back herself on September 20, 1989. This would have been possible, but Egger rejected the idea because of the number of hours her children would be without her breast milk, and the number of hours she would have to drive and be awake that day.
15. Egger considered driving to Madison on September 19, 1989 with her children and husband, staying in a motel there, traveling to the conference on the 20th with them, taking a motel room in Crystal Lake for the day (for her husband and children) and returning home that night. This would have been possible, but Egger rejected the idea because of the amount of sleep it would allow her to get and the fact that her husband would not have the assistance of the persons they employed to help with child care in their home.
16. Egger considered traveling to the conference by flying between the Central Wisconsin Airport and Chicago and driving between Chicago and Crystal Lake. This would have been possible, and it was considered by Egger to be an acceptable method for allowing her to attend the conference. She rejected this method, however, when Yekelchik indicated that Sterling would not pay for her airfare.
17. Egger gave Yekelchik her resignation on September 19, 1989, effective October 3, 1989. She did not attend the managers' meeting.
18. At the time she tendered her resignation, Egger knew that Sterling had a progressive discipline policy which called for the imposition of a verbal warning (with a written record thereof) for a first offense, a written warning for a second offense, and termination only upon a third offense, with a further proviso that if a verbal warning was issued and there was no further infraction within six months the warning would be removed from the person's work record. Egger had been specifically told by Yekelchik on at least three separate occasions that if she did not go to the managers' meeting he would take disciplinary action by writing her up. She wrote in her resignation letter that she was resigning because she did not want her "work record," which she described as exemplary in the almost three years as Manager in which she had no "disciplinary actions" taken against her, ruined by Yekelchik's threatened "disciplinary action." It is inferred from these facts that when she tendered her resignation, Egger understood that if she did not attend the managers' meeting she would receive some form of disciplinary warning, and that she resigned rather than either (1) attend the meeting, or (2) have a disciplinary warning on her employment record with Sterling.
19. At the time Egger resigned, other managers employed by Sterling had received written reprimands for missing meetings. Also at that time, five of nine Sterling stores in Wisconsin were managed by women, two of whom were married. Following her resignation, Egger was replaced by a female, who subsequently married.
20. The fact that Egger was married played no part in the decision by Sterling that she would not be excused from attendance at the managers' meeting in Crystal Lake, Illinois on September 20, 1989. All managers, whether single, married, divorced, or widowed, were required to attend
21. The fact that Egger was female played no part in the decision by Sterling that she would not be excused from attendance at the managers' meeting in Crystal Lake, Illinois on September 20, 1989. All managers, whether male or female, were required to attend.
Based on the Findings of Fact made above, the Commission makes the following:
1. Respondent Sterling Optical Division of IPCO Corporation is an employer within the meaning of the Wisconsin Fair Employment Act.
2. The requirement that Egger attend the managers' meeting in Crystal Lake, Illinois on September 20, 1989 was not a condition of employment that was so intolerable that a reasonable person in Egger's position would have felt compelled to resign because of it.
3. There is no probable cause to believe that Respondent discriminated against Complainant Faye Egger because of sex, pregnancy, or marital status, in violation of the Wisconsin Fair Employment Act, with respect to its refusal to excuse her from attendance at a managers' meeting on September 20, 1989 or in any other respect deemed alleged by the complaint in this matter, including constructive discharge.
Based on the Findings of Fact and Conclusions of Law made above, the Commission makes the following:
That the complaint in this matter be dismissed.
Dated and mailed March 26, 1992.
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ James R. Meier, Commissioner
Complainant believes that she should have been relieved of the obligation to attend the managers' meeting because of her personal circumstances. The question before the commission is not whether this would have been an appropriate thing for Sterling to. have done, but whether there is probable cause to believe that Sterling refused to do so because of Complainant's sex or marital status.
There is simply no evidence of sex or marital status discrimination here. All managers, male and female, married and unmarried, were expected to attend the managers' meetings. The only evidence concerning a manager being allowed to miss a managers' meeting without being disciplined is that Sherry Rutmanis was not disciplined for missing a managers' meeting when she attended the funeral of a sister-in-law out of state. Rutmanis, however, is a married female, like Complainant.
Since the requirement that Egger attend the meeting and the refusal to relieve her from that requirement were not shown to have been differential treatment based on sex or marital status, the only other basis on which discrimination could even arguably be found is pregnancy.
Egger introduced much evidence about her dealings with Sterling concerning disability leave during her pregnancy. Sterling's actions in this regard were not directly alleged in the complaint to have been a separate violation of the Act for which Egger sought a remedy, and any such allegations would in any event have been untimely if they had been so made, so the Commission does not consider Egger's evidence in this light. Rather, it has considered that evidence for any relevance it may have to the question of whether there was impermissible pregnancy-related bias in the matter of the required managers' meeting in the fall of 1989.
An employer is required to grant disability benefits for disability arising from pregnancy to the same extent as for other disabilities. Ray-O-Vac v. DILHR, 70 Wis. 2d 91.9, 236 N.W.2d 209 (1975). The Commission does not believe that Sterling's insistence on adequate evidence that Egger's twin gestation actually rendered her disabled shows hostility to the idea of equal treatment of pregnancy-related disability. There was no evidence that Sterling granted disability leave for other conditions without satisfactory evidence that there was in fact a disability. It is not so commonly accepted that a twin gestation is automatically "high risk" or disabling, that an inference of hostility to pregnancy may be drawn from an employer's desire for proof that disability exists before it pays out extra disability benefits. That Sterling in fact granted 13 weeks of paid prepartum disability leave, consistent with what Egger's physician recommended (as well as six weeks of paid postpartum leave and two additional unpaid weeks), suggests that Sterling had no bias towards pregnancy disability. Egger proved that she resented Sterling's insistence on proof that her pregnancy was unusually disabling, but she did not prove that Sterling's insistence was unreasonable or biased.
Egger evidently believes that complying with Sterling's requirement that she attend the managers' meeting on September 20, 1989 would have led to negative health consequences for her children. She may be taking the position that because the children were newly born and because she was breast-feeding them, she had a "pregnancy-related" inability to attend the meeting, and that Sterling should have accommodated this inability by excusing her from attendance, or that Sterling would have been precluded from taking any negative action against her for failing to attend since her failure was due to a "pregnancy-related" disability. Assuming only for the sake of discussion that the term "pregnancy, childbirth, maternity leave or related medical conditions" in sec. 111.36 (1) (c), Stats. encompasses medical conditions of newborn infants (1) such that an absence from work of the mother necessitated by her role in caring for the infants is a disability which the employer must treat equally with other disabilities, the commission does not accept the validity of this position, for two reasons. First, employers are not prohibited from applying negative consequences to an inability to perform job functions caused by pregnancy-related disability. What is required is simply that pregnancy-related disability be treated the same as other types of disability. Rathke and Lane v. Uniroyal (LIRC, April 26, 1988). Second, Complainant did not demonstrate that it was necessary for her to miss the meeting. The children were taking formula from bottles, the Eggers had hired care helpers during the day, and Egger's husband could have cared for and bottle-fed the children in Egger's absence. Either driving down and back in one day, or driving down and staying overnight, were options that, while they would have imposed certain burdens on Egger and her husband, would have worked. Egger could also have paid her own airfare to fly to the meeting, as a much less financially drastic alternative to quitting her job altogether. Egger simply did not prove that it was medically necessary for her to avoid overnight travel away from her children. See, Wallace v. Pyro Mining Co., F.2d , (6th Cir. 1991), 1991 U.S. App. LEXIS 30157, affirming per curiam a district court grant of summary judgment to defendant where a plaintiff was fired for refusing to return to work nine weeks postpartum based on concerns for her breast-feeding child's health, the Appeals Court noting that she had failed to produce evidence that the breast-feeding was a medical necessity.
Complainant contended that there was bias against her as the mother of twins, that her supervisor Yekelchik was waiting for an opportunity to fire her based on an incident of her being unable to meet her job responsibilities because of her children, and that Sherri Rutmanis told another employe that the first time Egger wanted time off because of her children she would be terminated. The Commission is not persuaded by these contentions. As noted, the extension to Complainant of extra weeks of disability leave, both pre and postpartum, does not suggest hostility. Egger's resentment at having to prove something (the medical justification for the extensive leave) which she had obviously accepted based on her physician's advice, does not prove bias on the part of Sterling. Yekelchik may well have had a volatile personality, but if anything, his apparent proclivity for making impulsive threats to fire people, with no corresponding indication that he had in fact done so, suggests that he was "more bark than bite." The comments he allegedly made concerning a friend's wife who quit her job after having twins and about the cost of child care in New York, do no persuade the Commission that he had a bias against working mothers. Finally, the testimony of Complainant's witness about the alleged statement by Rutmanis was simply not credible in view of her inability to recall what Rutmanis actually said, and in view of Rutmanis's direct denial.
NOTE: The Commission had no disagreement with the material findings of the Administrative Law Judge, and it has set forth its own findings and conclusions merely in order to describe more fully the reasons it had for arriving at the same result.
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(1)( Back ) See, holding contrary to this assumption, Flemming v. Ayers and Associates, _ F.2d __ (6th Cir. 1991), 57 EPD para. 41,205. The Commission also notes that it was apparently the Legislature's purpose to address issues involving necessary absences from work to care for a child with a health problem, under the Family Medical Leave Act, sec. 103.10, Stats., and that this suggests that such absences were viewed as not being addressed by the Fair Employment Act.