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

SANDY SCHULTZ, Complainant

GET INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200404250, EEOC Case No. 26GA500159


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 conclusions in that decision as its own, except that it makes the following modifications:

In the second sentence of numbered paragraph 9. of the FINDINGS OF FACT section, the word "until" is deleted.

Numbered paragraph 2. of the CONCLUSIONS OF LAW section is modified to read as follows:

Schultz is a member of a protected class within the meaning of the Wisconsin Fair Employment Act due to her pregnancy.

The MEMORANDUM OPINION section is deleted.

DECISION

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

Dated and mailed December 8, 2006
schulsa . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The commission first notes that the issue in this matter is that of discrimination on the basis of pregnancy or related medical conditions, within the meaning of Wis. Stat. § 111.36(1)(c), not disability discrimination within the meaning of Wis. Stat. § 111.34.

In her charge of discrimination, which she filed with the assistance of counsel, the complainant checked only the pregnancy discrimination box on the form, and not the disability discrimination box or any other box. Only the issue of pregnancy discrimination was investigated by ERD and noticed for hearing.

As a result, the parties' focus in their arguments on the issue of disability discrimination is inapt.

Wisconsin Statutes § 111.36(1)(c) states as follows, as relevant here:

111.36 Sex, sexual orientation; exceptions and special cases.

(1) Employment discrimination because of sex includes, but is not limited to, any of the following actions by any employer,...:

(c) Discriminating against any woman on the basis of pregnancy, childbirth, maternity leave or related medical conditions by engaging in any of the actions prohibited under s. 111.322 , including, but not limited to, actions concerning fringe benefit programs covering illnesses and disability.

The complainant first alleges that she was discriminated against on the basis of her pregnancy and related medical conditions in regard to the terms and conditions of her employment. Although she fails to specifically identify such terms and conditions, it will be presumed, given the evidence and arguments here, that the complainant is alleging in this regard that the respondent discriminated against her when she was not offered a sedentary position after her feet and ankles became swollen and painful due to her pregnancy.

However, the record does not show that complainant's treating physician imposed any work restrictions other than the 20-hour maximum which the respondent honored, that the complainant ever advised the respondent that she was experiencing swollen and painful feet and ankles, or that she ever requested assignment to different duties or a different position. In addition, the record does not show that there was a sedentary position to which the complainant could have been assigned. Finally, the record does not show that it was the respondent's policy or practice to accommodate other employees with temporary medical conditions or restrictions by assigning them to other duties or positions. See, Slife v. Mt. Morris Mutual Insurance Co., ERD Case No. CR200300282 (LIRC Nov. 3, 2005)(proper question in disparate treatment case is whether respondent accommodated other employees with temporary medical restrictions not related to pregnancy by physically modifying their work environments or by allowing them to temporarily trade duties with other employees); Egger v. Sterling Optical, ERD Case No. 9001260 (LIRC March 26, 1992)(what is required is that pregnancy-related conditions be treated the same as other types of health conditions).

The complainant failed to sustain her burden to show probable cause to believe that she was discriminated against on the basis of pregnancy or related medical conditions in regard to the terms and conditions of her employment.

The complainant also alleges that she was discriminated against on the basis of pregnancy and related medical conditions when she was terminated.

The record shows that the complainant's termination was reasonably justified given the continuing quality and quantity deficiencies in her work performance. The worker who trained the complainant credibly testified that seventeen satisfactorily completed pants per hour was a reasonable standard, but that the complainant consistently failed to meet this standard and, in fact, at times completed only four pants per hour. This worker also credibly testified that the complainant failed to follow the proper blower/ironing procedure, resisted training, and produced an unacceptable number of pants which required re-pressing. The complainant failed to demonstrate that other workers with similar performance deficiencies were retained by the respondent.

The complainant was also terminated because of her attendance record. The record does not show that workers with attendance records comparable to the complainant's were retained by the respondent. In addition, although the complainant testified that certain of her absences resulted from her pregnancy, she failed to specify which absences these were. Moreover, although the complainant testified that her only non-routine medical appointments were two four-hour appointments related to gestational diabetes testing, she failed to explain her record of two four-hour absences, one five-hour absence, and four all-day absences to attend medical appointments. As a result, the complainant failed to show that she was treated less favorably in regard to her attendance record than other similarly situated non-pregnant employees, or that her unsatisfactory attendance record was a direct consequence of her pregnancy, i.e., that all or most of her medical appointments were related to her pregnancy, or that those that were related required her to miss as many hours of work as she did.

The commission also notes that the respondent successfully employed at least eight other pregnant workers during the five years of its existence; these workers, including some holding positions similar to the complainant's, met relevant performance expectations; and, as it did with the complainant, the respondent effected those work restrictions for these employees, including a reduction in hours, which were medically documented. This history, coupled with the fact that more than one-third of the respondent's work force consisted of part-time workers, belies complainant's contention that she was terminated because the respondent objected to her reduction to part-time hours as a consequence of her pregnancy and related medical conditions.

The complainant has failed to sustain her burden to show probable cause to believe that she was discriminated against on the basis of pregnancy or related medical conditions when she was terminated.

The respondent, in its brief, requests that sanctions be imposed upon the complainant for filing a frivolous charge of discrimination. The commission presumes that this request has been brought pursuant to Wis. Stat. 227.483.  (1)   Assuming for purposes of argument that Wis. Stat. § 227.483, which authorizes a hearing examiner to award a successful party costs and reasonable attorney's fees directly attributable to responding to a frivolous "petition" or claim, also authorizes the commission to do so, the respondent has not shown that the complainant commenced or continued a frivolous claim. See, Miller v. Menard, Inc., ERD Case No. CR200403853 (LIRC Aug. 31, 2006). The complainant's claim, although not meritorious, had an arguably reasonable basis in law and fact.

cc:
Attorney Thomas S. Burke
Attorney David J. Eckert



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Footnotes:

(1)( Back ) Wis. Stat. 227.483 provides in relevant part as follows:

Costs upon frivolous claims. (1) If a hearing examiner finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by a party is frivolous, the hearing examiner shall award the successful party the costs and reasonable attorney fees that are directly attributable to responding to the frivolous petition, claim, or defense...

(3) To find a petition for a hearing or a claim or defense to be frivolous under sub. (1), the hearing examiner must find at least one of the following:

(a) That the petition, claim, or defense was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.

(b) That the party or the party's attorney knew, or should have known, that the petition, claim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.

 


uploaded 2006/12/15