Wis.LIRC ER Decision: Terrill - September 11, 1998 - Disability discrimination - discharge after cancer diagnosis; Remedy - to terminate accrual of back pay obligation, offer of reinstatement must be for same or substantially equivalent position

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

CHERYL TERRILL, Complainant

MARINE CORPS LEAGUE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199603920, EEOC Case No. 26G962089

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:

The sixth paragraph of the administrative law judge's ORDER is deleted and the following two paragraphs are substituted therefor:

"6. That the respondent shall pay to the complainant reasonable attorney fees and costs associated with replying to the respondent's petition for commission review, in the total amount of $656.25. This sum shall be paid by check made payable jointly to Cheryl Terrill and Sandra K. Graf.

"7. 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 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."

DECISION

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

Dated and mailed: September 11, 1998
terrich.rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In the petition for commission review the respondent argues that the complainant was fired for a reason other than handicap. In support of this argument, the respondent points out that, when the complainant talked to Ms. Hills in order to confirm her discharge, no mention was made of her handicap. The respondent maintains that it is, therefore, sheer speculation to conclude that handicap was a determining factor in the complainant's discharge. The respondent also points out that Ms. Hills fired another employe who was not handicapped at the same time she fired the complainant. It maintains that her decision to fire the complainant was incidental to her decision to discharge the other employe, because she considered them a "package deal." Finally, the respondent maintains that, even if it is found that Hills had a discriminatory motive for discharging the complainant, this should be considered a "mixed motive" case, since Hills would have fired her anyway.

The commission has considered the respondent's arguments, but finds them unpersuasive. The evidence in the record established that the complainant notified Ms. Hills she had been diagnosed with breast cancer and that Hills' attitude towards her began to change noticeably at that point. Although, as the respondent points out in its petition, Hills did permit the complainant to miss one day of work for a biopsy and another day due to a lifting restriction in the week following her biopsy, the evidence indicates that Hills grumbled about these absences and about the hardships they created for her. In addition, the evidence demonstrated that Hills made comments indicating that she was tired of hearing about the complainant's cancer and felt that the complainant made too much of her illness. These factors, combined with the fact that Hills had been friendly towards the complainant and had not indicated any dissatisfaction with her performance prior to learning of the complainant's cancer diagnosis, lead the commission to conclude that Hills' decision to discharge the complainant was, indeed, based upon the complainant's handicap.

The commission recognizes that the finding of discrimination in this case is based upon indirect evidence, and that Ms. Hills did not make any reference to the complainant's disability when she discharged her. However, the fact remains that Hills did not present any other legitimate reason for the discharge either at that time or at the hearing. The circumstantial evidence in this case suggests an unlawful motive, and in the absence of any explanation for Ms. Hills' decision to discharge the complainant, the commission sees no reason to presume that she would have been discharged without regard to her handicap or that her discharge was merely incidental to the decision to discharge Ms. Dawald. While Ms. Dawald did testify that Hills regarded herself and the complainant as a "package deal," this alone does not explain the decision to discharge the complainant. Indeed, given the paucity of information in the record regarding Hills' reasons for firing Ms. Dawald, the commission considers it equally likely that Dawald's discharge was incidental to the decision to fire the complainant as the other way round. Certainly the mere fact that a non-handicapped employe was discharged at the same time as the complainant does not mandate a finding that no discrimination occurred, notwithstanding the respondent's contentions to the contrary.

In its brief to the commission the respondent also argues, in a footnote, that the complainant's back pay award should be cut off as of April, 1997, at which point it offered her another job. However, while an offer of reinstatement does terminate the accrual of the employer's back pay obligation, the offer of reinstatement must be for the same position or a substantially equivalent position to that which the complainant previously held. Anderson v. Labor & Industry Rev. Comm., 111 Wis. 2d 245, 256, 330 N.W.2d 594 (1983). Prior to her discharge the complainant worked as a waitress, banquet coordinator and bartender. The offer of reinstatement was to the position of banquet bartender, and was not shown by the respondent to be substantially equivalent to the complainant's former position. Consequently, the respondent has not demonstrated that its back pay obligation should be terminated as of April, 1997. Accordingly, the administrative law judge's order is affirmed.

cc:
Sandra K. Graf
Dennis M. White

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