ERIKA KOENIGSAECKER, Complainant
CITY OF MADISON, Respondent
AFFIRMATIVE ACTION DEPARTMENT
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 to more accurately and completely reflect the evidence of record and the commission's decision rationale:
1. The following is added as the seventh sentence in Finding of Fact 2.:
The complainant did not get along with her supervisor in that department, who regarded her transfer as an unsuccessful accommodation placement.
2. The last sentence of Finding of Fact 7. is modified to read as follows:
Mack thought that this was a good idea, and decided that Koenigsaecker could leave work at noon and return to work by 1:00 p.m.
3. The following sentence is added to Finding of Fact 7.:
The complainant attended these AA meetings five days a week until the latter part of 1999, when, even though she attended AA meetings only a few days a week, she continued to take the extended 12:00-1:00 lunch break.
4. The last sentence of Finding of Fact 11. is modified to read as follows:
Mack replied that Koenigsaecker had a "history in the office."
5. Finding of Fact 14. is renumbered "15."
6. The following new Finding of Fact 14. is added:
Koenigsaecker admits that, in February of 2000, she lied to Mack about signing her name to a document. Koenigsaecker was issued a letter of instruction as a result.
7. Findings of Fact 15. and 16. in the ALJ's decision are combined and are numbered "16." The following sentence is added to this new Finding of Fact 16.:
Winters apparently learned that it was a City of Madison policy not to permit employees to extend a lunch break by adding a morning or afternoon break to the lunch period. Winters was also aware at this time that Koenigsaecker was no longer attending daily AA meetings on her lunch break but was still taking an hour lunch period from 12:00-1:00. Winters, as a result, informed Koenigsaecker that she would begin taking her lunch break at 11:15 or 11:30, and that it would be limited to 45 minutes.
8. The two sentences following the quotation from the July 11 memo in Finding of Fact 17. are deleted.
9. The Findings of Fact after 17. were numbered incorrectly. They are renumbered as follows:
Finding of Fact 12. becomes 18.
Finding of Fact 13. becomes 19.
Finding of Fact 14. becomes 20.
Finding of Fact 15. becomes 21.
Finding of Fact 16. becomes 22.
Finding of Fact 17. becomes 23.
Finding of Fact 18. becomes 24.
Finding of Fact 19. becomes 25.
Finding of Fact 20. becomes 26.
Finding of Fact 21. becomes 27.
Finding of Fact 22. becomes 28.
Finding of Fact 23. becomes 29.
Finding of Fact 24. becomes 30.
Finding of Fact 25. becomes 31.
Finding of Fact 26. becomes 32.
Finding of Fact 27. becomes 33.
Finding of Fact 28. becomes 34.
A new Finding of Fact 35 is added (see below).
Finding of Fact 29 becomes 36.
10. The seventh and eighth sentences of new Finding of Fact 23. are modified to read as follows:
Winters came out of her cubicle and crossed the hallway into Mack's office. Koenigsaecker followed Winters and stood in the doorway of Mack's office.
11. New Finding of Fact 24. is modified to read as follows:
The City ultimately suspended Koenigsaecker for 3 days for "potential workplace violence" stemming from the incident between her and Winters on September 15, 2000.
12. The second sentence of new Finding of Fact 27 is modified to read as follows:
Winters informed her that her next paycheck would be less than usual because she had taken more vacation than she had earned.
13. New Finding of Fact 29 is modified to read as follows:
Koenigsaecker received a memo from Mack on January 4, 2001, informing her that a predetermination hearing was scheduled for the next day so that Koenigsaecker could respond to the following allegations:
1) On payroll #1 (January 1999) you failed to enter 38.55 hours that should have been deducted from your vacation account.
2) You submitted a leave adjustment sheet to central payroll, which you were not authorized to process. You then faxed a copy of the adjustment form to me at my home with your supervisor's initials appearing as if she authorized it.
3) Payroll #19 indicates you received straight pay; however, your supervisor indicates on 9/6/00 you left early indicating you had a rash. And, on 9/7/00 you left early at 2:30 p.m. yet it was not deducted (your original timesheet has been removed from the records and a calendar has also been removed from Kia's files as well.)
4) On December 26, 2000 your Supervisor advised you that you would not be receiving vacation pay as requested due to the fact that your vacation balance was negative. You responded by slamming the phone down, and began throwing papers around and yelled out, "That fucking bitch."
At the predetermination meeting on January 5, 2001, Koenigsaecker felt that, in regard to the removal of original time sheets and a calendar, Mack was accusing her of actions of which Koenigsaecker had no knowledge. Koenigsaecker went out after work on January 5 with her coworkers to celebrate a coworker's last day of work in the Affirmative Action Department. Eventually, Koenigsaecker started drinking alcohol. That night while driving home, Koenigsaecker was arrested for operating under the influence of alcohol. After spending the night in jail, Koenigsaecker attempted suicide. Ultimately, she was hospitalized for 10 days and then spent 3 weeks in inpatient treatment for alcoholism.
14. New Finding of Fact 34. is modified to read as follows:
In July of 2001, Koenigsaecker was transferred to the Civic Center Ticket Office Box Office Cashier position with the City. Koenigsaecker did not get along with her supervisor at the ticket office so requested a transfer. The City granted her request, and as of the date of hearing, Koenigsaecker was working in the clerical pool in the City Comptroller's Office.
15. New Finding of Fact 35 is added and reads as follows:
Many employees in the Affirmative Action Department, black and white, disabled and non-disabled, believed that they were not treated fairly by Mack, and that one of the responsibilities Mack had assigned to Winters was to spy on them, or to set them up to fail, in an effort to discredit and, ultimately, terminate them. During Koenigsaecker's tenure in the department, two black employees were terminated by Mack.
16. The Memorandum Opinion section of the ALJ's decision is deleted.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed March 11, 2005
koenier . rmd : 115 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The administrative law judge (ALJ) concluded that Koenigsaecker's complaint was untimely filed as to her disability accommodation allegation, as well as to the incidents of alleged race and disability discrimination which occurred prior to December 24, 2000, i.e., outside the actionable 300-day filing period set forth in Wis. Stat. § 111.39(1). The commission agrees.
Koenigsaecker argues that a continuing violation theory should apply to render these allegations timely.
The U. S. Supreme Court's decision in AMTRAK v. Morgan, 536 U.S.101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), (1) clarified the state of the law regarding the continuing violation doctrine's application in equal rights cases. In this decision, the Supreme Court identifies two classes of employment actions, i.e., discrete acts, and harassing acts underlying hostile work environment claims, and holds that discrete acts are generally not subject to application of the continuing violation doctrine but harassing acts generally are. In its decision, the Court identified the following as examples of discrete acts: termination, failure to promote, denial of transfer, refusal to hire, denial of training, written counselings, award of compensation. The Court addressed the EEOC's and certain circuits' prior application of the continuing violation doctrine to serial or systemic violations and concluded that, "There is simply no indication [in the relevant language of Title VII] that the term 'practice' converts related discrete acts into a single unlawful practice for the purpose of timely filing. . . . We have repeatedly interpreted the term 'practice' to apply to a discrete act or single 'occurrence' even when it has a connection to other acts."
The modification to Koenigsaecker's lunch schedule in July/August of 2000, as well as the discipline and other acts of alleged discrimination which occurred prior to December 24, 2000, were discrete personnel actions not susceptible to application of the continuing violation doctrine. They were not, as Koenigsaecker argues, acts of harassment or policies of general application, but instead concrete and separable decisions rendered by management in regard to Koenigsaecker's employment.
See, Lau v. LATEC Credit Union, ERD Case No. CR200103183 (LIRC Feb. 7, 2003).
As concluded above, the only timely allegations of differential treatment relate to Koenigsaecker's 2001 discipline based upon time accounting discrepancies and the incident of December 26, 2000.
The City of Madison does not dispute that Koenigsaecker is an individual with a disability within the meaning of the WFEA, so the issue before the commission is whether the respondent discriminated against her on this basis, or on the basis of race.
Although the City of Madison did not prove all of the allegations for which predetermination hearings were held in 2001, (2) Koenigsaecker did not refute that, on payroll #1 for 2000, she failed to enter 38.55 hours that should have been deducted from her vacation account; submitted a leave adjustment sheet to central payroll which she was not authorized to process, and signed her supervisor's initials on the form; claimed 8 hours for September 6, 2000, but had left work early that day, indicating to her supervisor that she had a rash; and claimed 8 hours for September 7, 2000, but had left work at 2:30 p.m. that day. In addition, Koenigsaecker admits that, on December 26, 2000, she hung up the phone on her supervisor with considerable force, and angrily tossed papers around on her desk. Keeping in mind that Koenigsaecker had recently been suspended for admittedly yelling at her supervisor, failing to heed her directive to return to her desk, and blocking her ability to close an office door, the City of Madison certainly had a legitimate, nondiscriminatory reason for imposing further discipline.
Under the McDonnell Douglas (3) framework, the burden would then shift to Koenigsaecker to show pretext.
In this regard as it relates to the issue of disability discrimination, Koenigsaecker offers statements made by Mack in 1999 to the effect that she was tired of accommodating Koenigsaecker's scheduling requests; and Mack's "removal" of her lunch break accommodation in July/August of 2000.
Not only were Mack's statements a reaction in part to scheduling "accommodations" unrelated to Koenigsaecker's disabilities, and remote in time from the actions at issue here, but the record supports a conclusion that Mack was generally sympathetic and flexible in regard to Koenigsaecker's disabilities, i.e., she reacted kindly when she first learned of Koenigsaecker's alcoholism, she suggested treatment rather than punishment when Koenigsaecker was discovered drinking on the job, and she told Koenigsaecker she thought it was a good idea for her to attend AA meetings over her lunch hour and readily approved the associated schedule change.
Moreover, it should be noted that the record supports a conclusion that Koenigsaecker abused the privilege accorded her in regard to the lunch break accommodation. Although Koenigsaecker attended AA meetings on her lunch break on a daily basis at first, she continued to take hour-long lunch breaks from 12:00-1:00 each day even though she was attending AA meetings a maximum of 2 or 3 times a week. She was aware that the standard lunch break was 45 minutes, and that it was an inconvenience for others to fill in for her to monitor the phones and front desk during the heart of the lunch period. The record supports a conclusion that Mack's modification of the accommodation was more likely motivated by Koenigsaecker's abuse of the privilege she had been accorded than any discriminatory animus.
Finally, in regard to both the allegation of disability discrimination and the allegation of race discrimination, the record supports a conclusion that Mack's harsh and erratic management style, and the widespread personality conflicts and internecine warfare in the Affirmative Action Department, transcended lines of race and disability. Koenigsaecker argues that, although others in the office, black and white, were discriminated against, their treatment was "not like this, not with this intensity, not the same types of accusations and conflicting information." However, the record demonstrates, through the testimony of Jackson and Robinson, that it was common in the department for Mack to provide conflicting instructions to employees, black and white, and to hold them accountable even though her expectations were impossible to meet. Moreover, certain of these black employees were terminated during Koenigsaecker's tenure, certainly a more "intense" consequence than Koenigsaecker's discipline.
The record also supports a conclusion that Koenigsaecker, whose employment history suggests that she did not respond well to supervision, actively contributed, by her intemperate statements and actions, to the problems she experienced with Winters and Mack.
The record does not support a conclusion that pretext has been demonstrated in regard to the allegations of either race or disability discrimination.
Attorney Sally A. Stix
Attorney Steven C. Zach
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(1)( Back ) The commission has looked to federal court decisions in Title VII cases for guidance on continuing violation and other timeliness issues even though, for example, Title VII refers to "practice" while the WFEA refers to "discrimination." See, e.g., Josellis v. Pace Industries, Inc., ERD Case No. CR200100081 (LIRC June 21, 2002); Lau v. LATEC Credit Union, ERD Case No. CR200103183 (LIRC Feb. 7, 2003).
(2)( Back ) Although the City of Madison, in its brief to the commission, contends that the record shows that Koenigsaecker was not disciplined for the April 2000 time accounting discrepancy, and offers exhibit #149 as proof, that exhibit is not part of the hearing record. As a result, the only competent hearing evidence in this regard is the complainant's testimony that this allegation was part of the basis for the imposition of discipline in 2001. The other allegation which the City of Madison did not prove is that Koenigsaecker called Winters a "fucking bitch" during their December 26, 2000, conversation.
(3)( Back ) McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 668 (1973).