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

WENDY MEDINA-BORCHARDT, Complainant

TONY ROMA'S, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9402298, EEOC Case No. 26G941587

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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:

1. Paragraph 4 of the ORDER is deleted and the following paragraph is substituted therefor:

"Tony Roma's shall pay Medina-Borchardt's reasonable costs and attorney's fees in the amount of $4,166.61 by delivering a check in that amount payable to Medina-Borchardt and her attorney, Mr. Molinaro, to Mr. Molinaro."

2. Paragraph 5 of the ORDER is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, Tony Roma's shall submit a compliance report detailing the specific action taken to comply with the commission's order. 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: February 26, 1997
medinwe.rmd : 125 : 9

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant, a female, alleges that she was discharged by the respondent because she was pregnant. Based upon a review of the record and consultation with the ALJ regarding his assessment of the credibility and demeanor of the witnesses, the commission concludes that the complainant would not have been discharged but for her pregnancy.

During its credibility conference with the ALJ, the ALJ stated that he did not find the testimony of Larry McCusker to be credible based upon his demeanor as a witness. The commission has held that where the parties' versions of the facts conflict, unless the commission finds a compelling reason in the testimony or elsewhere in the record, the commission will defer to the ALJ who had the opportunity to view the witnesses' demeanor and make a credibility determination. Roberge v. School Dist. of Stanley-Boyd, (LIRC, 2/5/92).

There are a number of factors which lend support to the ALJ's finding of discrimination. For example, the complainant testified that after telling Leeann Heikkinen, her trainer, that she was pregnant, on her next scheduled work day she had a conversation with McCusker who was quite agitated that she had not informed him of her pregnancy and stated "that time and investment would be spent on a new employe, and that (she) would not be there very long..." McCusker never denied having made this statement.

Additionally, after her discussion with McCusker, the complainant ended up missing her next scheduled day of work because her doctor's appointment ran late, worked her scheduled shift on Saturday, and then was discharged when she reported for her next scheduled shift on September 1, 1993. The complainant's discharge came prior to the end of what was generally a 10-day training period for trainee-servers.

Further, the complainant testified that no reason was given for her discharge, although she asked for a reason several times.

Also, while the respondent maintains that the complainant was discharged because she frequently failed to clock in for work 5 minutes prior to the start of her shift, because she was not catching on to the Tony Roma system and because she was behind in her training, there was no evidence that the respondent had ever warned or expressed any concern to the complainant about clocking in, about her work performance or being behind in training. The complainant testified that during her interview prior to hire, McCusker himself had agreed to allow her some flexibility in clocking in because of her baby sitter situation. Leeann Heikkinen testified that the complainant "could have been average if (the respondent) would have extended the training period."

McCusker's expressed concern about spending time and money training a new employe that would not remain employed long when he learned of the complainant's pregnancy, together with the complainant's sudden discharge after it became known that she was pregnant, especially when she had never been advised of any problems in her employment, raises the inference that the complainant would not have been discharged but for her pregnancy.

The respondent has argued on appeal that the complainant did not establish a prima facie case of discrimination based on pregnancy because she did not demonstrate that she was performing the job to the level of Tony Roma's legitimate job performance expectations. However, this argument ignores the fact that the complainant was discharged before the end of her training period, that she had never been apprised of any problems in her employment, and testimony by the respondent's trainer that the complainant could have been average if the respondent would have extended the training period.

The respondent also argues that it produced evidence that it discharged the complainant for legitimate, nondiscriminatory reasons. The respondent asserts that the complainant was frequently late, had not performed well on her tests and was performing inadequately on the floor. However, the ALJ found credible the complainant's testimony that McCusker had agreed to provide her some flexibility with her starting time because she was having baby-sitting problems. With respect to the respondent's assertions regarding the complainant's tests and floor performance, this again ignores the fact that the complainant was discharged before the end of her training period, that she had never been apprised of any problems in her work performance, and the testimony by the respondent's trainer that the complainant could have been average if the respondent would have extended the training period.

The ALJ awarded attorney's fees and costs totaling $3,183.86. This was based on a submitted request for 22.8 hours of counsel's time at $130 per hour, 2.5 hours for a paralegal's time at $65 per hour, and $57.36 in costs incurred. There apparently was no objection to the fee request by the respondent.

The complainant requests an additional sum of $982.75 (7.5 hours at $130 per hour in fees and $7.75 in costs) for services rendered in connection with the respondent's appeal before the commission. Again, the respondent has made no objection to the fee request. Neither the amount of hours or the hourly rate is unreasonable. The ALJ's decision has been modified to include this additional amount in the award of attorney's fees and costs.

PAMELA I. ANDERSON, CHAIRMAN (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. Credibility was important in deciding this case so I listened to the hearing tapes after we had talked to the administrative law judge. In the credibility conference, the administrative law judge indicated that McCusker took time to answer his questions. After listening to the tapes, I believe McCusker was very quick to answer any questions.

The majority was concerned that the employer had not given the complainant warnings about coming in late and other problems with her work so that she had an opportunity to correct those shortcomings. While warnings are always a good policy, this was a short training period and the complainant did have some feedback from her test results as well as comments from her trainer and McCusker even if they were not labeled formal warnings. She knew that she had to retake the first test and that she had not met the standard for operation of the cash register. The complainant had worked 8 days at the time of her discharge. She needed to pass at least three more tests and possibly four tests. The employer testified that that they never give more than one test a day to a trainee. On that standard alone, the complainant would not have been qualified to work for the employer. This employer's standards are very high in comparison to other employers in this field. This is the only employer in the restaurant business that I have seen give written tests to trainees.

There are a number of factual disputes. First, did the employer give the complainant permission to report late because she had problems with her baby-sitter? I resolve that against the complainant. The complainant's testimony about this subject is very awkward. She does not actually testify that Larry gave her permission but says that "other arrangements had been made." She also says "I was told in my last interview with Larry before being hired that coming in at the hours would be somewhat difficult for a short amount of time due to baby sitter arrangements." I think she mentioned the topic to Larry but I do not believe that he would have agreed to that arrangement. It is obvious that Larry did not tell her about coming in late in this context unless she mentioned it first. If Larry told her that it would be somewhat difficult that does not necessarily mean that she had permission to come in late. He testified he wouldn't let a manager do that to say nothing of a trainee.

There is a factual dispute as to what Larry told the complainant at the time of discharge. She says he gave no reasons for discharge and she asked finally if it wasn't her pregnancy that caused her discharge. He says he told her "...that she couldn't get here on time, she wasn't comfortable with our service style, and her--she was behind as far as her testing and her activity level went. She should have been virtually finished with her training by the weekend, and she still had a long ways to go. She never even got to test five and six." McCusker also answered "Absolutely not" to the question "Did you terminate Wendy because she was pregnant?"

Shawn Gorski, who was present when Wendy was discharged, testified that Larry told the complainant "Your test scores aren't showing it. Your scripters aren't there, timeliness and a kind of gruff appearance when you come in" as reasons for why she was discharged. Both McCusker and Gorski say that the complainant told them she believed she was fired because of her pregnancy. If the majority position that her discharge was in part because of her pregnancy was true, I believe that the complainant would have at least acknowledged that the employer had some legitimate reasons for discharging her. It was obvious in listening to McCusker testify that he has reasons for what he is doing and he has strong impressions about what works and what doesn't. He did not believe that the complainant was going to improve in the final two days of the training period.

There was a lot of testimony about whether the complainant needed additional assistance during her training period or if she was treated any different than any other trainee. The complainant answered "yes" to the question "So you feel that Tony Roma's made the same effort to train you as they were making to train other trainees at the same time?"

There was a dispute over what McCusker told the complainant the day after he found out she was pregnant. She said that McCusker was agitated and told her that "time and investment would be spent on a new employe and that (she) would not be there very long..." McCusker was never asked if he made that statement. He did say that he was not agitated but he told her that "I wanted her not to be running all over the store telling everybody that she had a high risk pregnancy, which she was doing, because I thought it was detrimental to other co-workers. Secondly, I wanted to tell her that her progress was a bit suspect as far as the way that she was doing, you know, as far as her training went, and thirdly, I wanted to see if there was anything she needed or we could do to accommodate her in order to, you know, make her time with Tony Roma's easier." He testified that he would cut out all gossip and small talk if he could because the employes could have been cleaning salt and pepper shakers or something else that was productive rather than talking.

McCusker also testified that by 8 days of training that 80% of the cost of the training had already been spent. McCusker said that training was not lost when a woman returned from a pregnancy leave.

Other employes that worked for McCusker were accommodated during their pregnancies and there was no testimony by anyone other than the complainant that there was even a hint of discrimination by the employer related to pregnancy.

After reviewing all the evidence, I do not believe that the complainant's pregnancy was in any way responsible for her discharge. I believe she was discharged solely because she was not meeting the employer's standards during her training period. So I would reverse and find no discrimination.

Pamela I. Anderson, Chairman

cc: THOMAS J. MOLINARO
DANIEL J. RUPAR

Appealed to Circuit Court. Affirmed November 13, 1997.

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