Wis.LIRC ER Decision: Totten - November 19, 1998 - Disability discrimination - complainant failed to prove that she was discharged; Procedure - recording of hearing, stenographic record

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

ZONETTA K. TOTTEN, Complainant

WEISFLOG'S SHOWROOM GALLERY INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199700541

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.

DECISION

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

Dated and mailed: November 19, 1998
tottezo.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant began working part time for the respondent in 1990. Previously in 1988 she had had a spinal fusion on her lower back. She has received social security disability benefits since 1988. The complainant left the employ of the respondent in April 1995 when she was to have a cervical fusion. During the period from 1990 to 1995 the complainant had performed office work, including accounting functions. After her April 1995 surgery and a period of recuperation, the complainant returned to work for the respondent in March 1996, but, with her agreement, was not paid for her work.

During 1996, the respondent was in the process of opening a new showroom for its construction and remodeling business. One day the complainant informed Ronald Weisflog, part owner of the respondent, that she wanted to get off social security benefits and work full time. Effective as of September 16, 1996, Weisflog hired the complainant to work full time at an annual salary of $20,000. The complainant then worked over the next three weeks performing various duties, including data entry work and helping to set up the showroom. During this period the complainant was experiencing increased pain. After hearing rumors that the complainant might need more surgery, Weisflog met with the complainant and discussed her condition on October 4, 1996.

The complainant contends that the respondent terminated her employment based on disability (1 ) on October 4, 1996, in violation of the Wisconsin Fair Employment Act. While exactly what was stated during the meeting between the complainant and Weisflog on October 4, 1996, is in dispute (the complainant asserts that Weisflog told her that he should not hire her, his attorneys had advised him that she should stay on disability--Weisflog denies making any such statement), the record supports the ALJ's determination that the complainant has failed to prove by a preponderance of the evidence that on October 4, 1996, or any date thereafter, that the respondent terminated the complainant's employment. As discussed at pages 6 and 7 of the ALJ's memorandum opinion:

"...The Complainant's own behavior on and after October 4, 1996 proves that she never considered herself to be terminated from her employment until she decided to file this discrimination complaint in February of 1997....The Complainant's behavior shows that she, perhaps with regret, agreed that a leave of absence would be an appropriate way to deal with her current medical problems....The credible evidence demonstrates that she wanted to return to work in February, and that Weisflog agreed to that. However, neither of them set a specific date for the return. Instead of pursuing her return to work, the Complainant decided that she was going to be stubborn and sit at home and wait for Weisflog to call. Weisflog similarly decided that it was up to the Complainant to tell him when she wanted to start....It is simply not credible to believe that a long term employee-friend of the family, who is suddenly terminated from employment for a blatantly discriminatory reason, would engage in the pattern of conduct followed by the Complainant. She worked the remainder of the day of her termination. She told a co- worker that she was leaving until she got her health in order. She immediately sought medical attention. She went back to the employer and advised him that she was ready to return to work after she completed her medical testing. She negotiated to be sure her salary would not be changed when she started work under a job description that had not existed before. She visited the business for personal and social reasons on dozens of occasions. She participated in employee betting pools. She attended the employee Christmas party and accepted the same gift that was given to all employees of the Respondent. The Complainant's pattern of conduct, in addition to the employment records (a computer generated employe roster dated 01/16/97 shows the complainant's employment status as "inactive") and the credible testimony of Weisflog and several co- workers, clearly and unequivocally leads to the conclusion that the Complainant was never terminated from employment by the Respondent."

On appeal the complainant takes issues with several findings made by the ALJ, and requests that his decision be overturned. The arguments made by the complainant do not support a reversal of the ALJ's decision. For example, the complainant apparently takes issue with the finding in par. 7 that she had told others that she might have surgery prior to October 4, 1996, asserting that she was not to see the doctor until October 17, 1996, and did not know what the doctor would do. The evidence indicates, however, that the complainant had advised others that she was in an awful lot of pain and that her back hurt, that she had a scheduled October 17 doctor's appointment and that she felt that she was going to require surgery.

In paragraph 12 of the decision, the ALJ makes a finding that on October 4, 1996, after the complainant and Weisflog's meeting, the complainant told Janice Pearson, the kitchen designer for the respondent, that she "was going on a leave of absence and that Weisflog wanted her to get her health in order." The complainant asks why would she do all the strenuous work it took to open the showroom, and then take a full-time job, only to supposedly take a leave of absence because she had pain only 3 weeks later? She asserts that she would not quit one job which the respondent requested, work free for months, call and stop her social security and then agree to take a leave because of increased pain. The complainant's contention is therefore apparently that she had not "voluntarily" agreed to take a leave of absence. This contention also fails. The complainant alleges that her employment was terminated on October 4, 1996. The evidence indicates, as found by the ALJ, that while the complainant really wanted to remain in the full-time position, she nevertheless accepted the leave of absence to get her health in order. The complainant's employment was not terminated, and she was expected to return to work after getting her health in order.

Another assertion by the complainant involves the finding in par. 15 that on several occasions (after October 4, 1996) Weisflog had instructed Carol Zielinski at Monday morning staff meetings to inquire when the complainant would be able to return to work or if she could work part time. The complainant asserts that the ALJ "failed to point out that Ms. Zielinski testified on her behalf and she denied being asked to call the claimant at any time to return to work." However, several other witnesses, including a former employe, whom the ALJ found all to be credible, testified that there were several Monday morning meetings during which the complainant's return to work was discussed, and that Ms. Zielinski was asked to contact the complainant about coming back to work.

Finally, in a letter submitted to the commission subsequent to her petition for review, the complainant expressed concern that the ALJ may not have considered all of the evidence, asserting that on the first day of the hearing "when I myself and all my witnesses testified, along with 2 or 3 of the respondent's witnesses, it was tape recorded and only on tape. On the 2nd day, which was about 1/2 day, there was a court reporter who proceeded to take down all the testimony of that morning." The complainant asserts that she does not understand why there was a court reporter one time and not the other, and that "I am questioning whether he forgot some of the testimony was on tape or whether he just went by his notes and didn't listen to the tapes in preparing his decision."

Wisconsin Administrative Code, section DWD 218.19(1) (2 ) provides, in part as follows:

"A stenographic, electronic or other record of oral proceedings shall be made at all hearings conducted under the act. Any party wishing to have a court reporter present to transcribe the proceedings shall be permitted to do so at their own expense."

The case file shows, consistent with this administrative code provision, that at the time notice of the hearing was mailed to the parties, the parties were provided written notice that, among other things, the Equal Rights Division hearings were recorded on tape recorders, that a party who wanted a transcript of the recorded tapes was responsible for selecting a person to prepare the transcript, that any party wishing to have a court reporter present at the hearing to transcribe the hearing would be permitted to do so at their own expense, and that a party could have the ALJ use the transcript in preparing the decision. The record shows that at the start of the second day of the hearing, counsel for the respondent made it known that he had a transcript prepared of the first day of hearing, which he intended on filing the original with the division, and that he had arranged to have a court reporter present for purposes of recording and preparing a transcript of the testimony on the second day of the hearing, the original of which was to be filed with the division.

The ALJ notes in the introductory paragraphs to his decision that a complete transcript of the proceeding was filed with the division, and that his findings were based on the evidence received at the hearing. The commission has reviewed the record in its entirety, and fully agrees with the ALJ's decision.

cc: John K. Brendel
David E. Jarvis

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Footnotes:

(1)( Back ) The obsolete term "handicap" in the Wisconsin Fair Employment Act has been replaced generally with the term "disability" by recently-enacted remedial legislation. 1997 Wis. Act 112.

(2)( Back ) Chapter DWD 218 previously existed as Chapter ILHR 218. Chapter ILHR 218 was renumbered Chapter DWD 218 under s. 13.93(2m)(b)1., and corrections made under s. 13.93(2m)(b)6. and 7., Stats., Register, November, 1997, No. 503.