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

JENNIFER J. BROWN, Complainant

ALLIED PROCESSORS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199502489, EEOC Case No. 26G951655

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: August 28, 1997
brownje.rsd : 125 :

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant, a female, worked as a spray dryer/bagger for the respondent. The job duties of this position required lifting of 50 pounds. During 1995, the respondent had in effect a written policy which stated that "For work related injuries there is light duty work available." With respect to employes who sustained non-work injuries, the respondent had an unwritten policy of allowing those employes to take unpaid medical leaves of absence during which time their jobs would be held open.

In June 1995 the complainant provided the respondent with a statement from her doctor that she was pregnant and advised to limit lifting to 20 pounds. The complainant's supervisor informed the complainant that because of her work restriction the respondent could not provide light duty work for her, all that could be done was to have her return to work when she obtained a full work release. The supervisor also advised the complainant that she may want to see Mary Poeschel, who performed human resources work, regarding a medical leave because this situation was being considered as a medical leave.

The complainant alleges that she was discriminated against based upon her sex and pregnancy with respect to her terms or conditions of employment and termination of employment.

With respect to her terms or conditions of employment, the complainant argues that two males (Charlie Weber and Michael Sutliff) who sustained injuries outside of work were given "light duty" work. The evidence shows, however, that Weber, who had sustained a laceration to his thumb, was released to return to work with the only work restriction being that he was to keep his thumb clean and dry for 7 days, and that Weber was able to keep his hand clean and dry in his job. Sutliff, a former maintenance worker, had gotten his arm caught in some farm machinery. After he was off work for four or five months but had not been completely released to do maintenance work, he did work on a limited basis, which varied from 5 to 20 hours per week, driving to pick up equipment parts for a period of 3 to 6 weeks. Because of the short duration and very limited basis in which he was used, the circumstances under which Sutliff worked fails to show that the complainant was discriminated against because of her sex or pregnancy. The evidence shows that the complainant's 20-pound lifting restriction began in June 1995, when she learned that she was pregnant, and that she was not released from this work restriction until January 1996, after the birth of her child. As previously noted by the respondent, "We surmise that if the Complainant had been given the opportunity to perform the duties at the very limited times that Mr. Suttliff (sic) had, we would still be in the position of defending this discrimination suit." The respondent's action taken with respect to Weber and Sutliff fails to establish that the complainant was discriminated against because of her sex or pregnancy.

The complainant apparently also argues that because the respondent has placed employes on miscellaneous job assignments which did not require heavy lifting when shutdowns occurred to the dryers, this shows that she was discriminated against. This argument fails. The reassignment of employes to avoid layoffs during dryer shutdowns related to the employer having a lack of work available due to a problem with a dryer or a slow down in customer orders. The cause of the complainant's inability to perform her job had nothing to do with the employer.

The complainant has further asserted as a basis for her claim of sex and pregnancy discrimination with respect to her terms or conditions of employment, that the respondent did not discuss or offer her disability insurance until September 1995, that forms for such benefits were never personally provided to her (only to her attorney after repeated requests in October 1995), and that while there was some evidence that she may have been advised of her right to unpaid medical leave, no application form for such leave was ever provided to her in 1995. These arguments also fail. As for her rights to a medical leave, the complainant's supervisor had specifically advised her to see Mary Poeschel regarding a medical leave in June 1995 when the complainant submitted the doctor's statement about her pregnancy and work restriction. Further, Poeschel testified that when the complainant first called, which may have been in July or August 1995, she called about health insurance. Poeschel also testified that she offered to give the complainant information and the paperwork regarding disability pay at that time but the complainant did not want it. (Additionally, the respondent's counsel disputes the complainant's assertion that disability insurance forms were provided to complainant's counsel only after repeated requests in October 1995. Respondent's counsel asserts that complainant's counsel contacted the respondent directly by telephone on December 13, 1995, and that such forms were provided by correspondence dated December 19, 1995.)

The complainant's employment was not terminated. As the transcript of her telephone answering machine message from her supervisor shows, the complainant was told that she needed to obtain a full work release without any work restrictions from her doctor and then the respondent would have her come back to work. Further, the supervisor's message specifically stated that this situation was being considered like a medical leave.

cc: William C. Stewart, Jr.
Chris A. Gramstrup

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