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

AMY STEVENSON, Complainant

GOOD HUMOR CORPORATION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9403208, EEOC Case No. 26G942008

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 modification:

Paragraph 5 of the Findings of Fact is deleted and the following paragraph substituted therefor:

"5. In July 1993, Steve Hirt assumed the position of head of the Sales and Marketing Department."

DECISION

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

Dated and mailed: February 20, 1997
steveam.rmd : 125 :

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant contends that she was discriminated against with respect to her terms or conditions of employment, and discharged, because she was pregnant. The ALJ concluded that the respondent did not discriminate against the complainant with respect to her terms or conditions of employment or discharge. The commission agrees.

On appeal, the complainant argues that her supervisor, Tammy McIver-Gay, began criticizing her about her work performance, attitude and failure to take on additional responsibilities only after she had advised McIver-Gay of her pregnancy. Citing Glamann v. St. Paul Fire and Marine Insurance Co., 140 Wis. 2d 640, 651, 412 N.W.2d 522 (Ct. App. 1987), the complainant asserts that a prima facie case of discrimination due to pregnancy can be made by presenting evidence that she was performing her job as required, that her employer knew that she was pregnant, and that criticism of her began after she announced her pregnancy. While evidence of this nature may well raise an inference that the adverse treatment under such circumstances is due to pregnancy, the evidence in this case points to the fact that the difficulties the complainant encountered with McIver occurred for reasons other than her pregnancy. The record is clear that the stage was set for these difficulties before the complainant had even announced her pregnancy on July 29, 1993. The event in question was the fact that the complainant wrote to McIver-Gay's supervisor (Steven Hirt) on July 22, 1993, criticizing the "business atmosphere" in the department, requesting to report directly to Hirt because she could not "develop" from McIver-Gay, asserting that McIver-Gay "lacks many professional skills" that she already possessed, and requesting to "come and go as I please." In fact, on August 5, 1993, shortly after the complainant's memo, McIver-Gay sent an e-mail message to Hirt complaining that she had recently developed a concern over her supervisory relationship with the complainant, stating that the complainant had not been communicating with her as her supervisor and asking Hirt for advice. About one month later McIver-Gay met with the complainant and Hirt to discuss several work performance problems, including such matters as the complainant's failure to work 40 hours and the fact that she was constantly "going over" McIver-Gay's head.

The complainant contends, however, that there is also other evidence which indicates unlawful discriminatory motives. For example, the complainant contends that because McIver-Gay mentioned that she was having difficulty working in excess of 40 hours per week to Anthony Roach from the City of Two Rivers, a subsequent employer who was conducting a pre-employment reference check on her, this constitutes evidence that she was discharged because of unlawful discriminatory motives. This contention is not borne out by the record, however. Roach testified at the hearing, and his testimony fails to indicate that the complainant was discharged because of her pregnancy. Roach's testimony indicates nothing more than that McIver-Gay felt that the complainant's pregnancy was making it difficult for her to work in excess of 40 hours per week on a work project that required work in excess of 40 hours. In fact, Roach recalled that McIver- Gay indicated that she was not familiar with the exact circumstances of the complainant's termination and referred him to Mr. Hirt (who discharged the complainant) if he wanted to know the reason for the complainant's termination. Roach attempted to contact Hirt but was unsuccessful.

Next, apparently in an effort to provide some validity to her claim of pregnancy discrimination, the complainant argues that McIver-Gay's sworn affidavit indicates an acknowledgment by McIver-Gay that prior to her discharge the complainant had told McIver-Gay she felt discriminatorily treated on the basis of her pregnancy. The complainant argues that this can be inferred because McIver-Gay's affidavit contains the statement that "Amy Jo is the first woman who has ever told me she felt discriminatorily treated on the basis of her pregnancy by our Company" and because McIver-Gay testified that she did not have any contact with the complainant after the complainant was discharged. This argument fails. The evidence shows, as noted by the respondent, that there is an absence of testimony by the complainant regarding a conversation with McIver-Gay in which she told McIver she felt discriminatorily treated on the basis of pregnancy, and in fact the complainant specifically denies any such conversation. Tr. pp. 67-68, 91-93. McIver-Gay testified that the complainant never gave her any indication she thought she was being discriminated against in any fashion. Given the testimony, it appears that the affidavit was misstated, the intent being that McIver-Gay never heard of any such claim against the respondent prior to this one.

The complainant also contends that testimony by Mr. Hirt that he spoke with his superior, Mr. Allcox, regarding his intention to discharge the complainant, and that he mentioned she was pregnant during that discussion, indicates that her discharge was caused by an unlawful discriminatory motive. The complainant misconstrues Hirt's testimony. Hirt's testimony indicates that he mentioned the complainant's pregnancy simply because he felt sorry and did not want to discharge her because she was pregnant.

The complainant also argues that the respondent's proffered reasons for her discharge are pretextual. For example, the complainant argues that because Hirt testified that the reasons for her discharge were her failure to complete an assignment in which she was to identify and report the status of the company's top 50 deductions on a weekly basis, and because she became flippant when given an opportunity to explain why it was not completed, while his notes regarding the complainant's termination includes not only those reasons but a further statement that the complainant's work attitude had not improved since a September 21 meeting, that this is indicative that a discriminatory reason more likely motivated the employer's decision, or shows that the employer's proffered explanation is unworthy of credence. This is hardly evidence that the decision to discharge the complainant was motivated by a discriminatory reason. As the notes themselves show, Hirt told the complainant that she was discharged after she stated that no work had been done on the assignment and that Hirt could tell Allcox whatever he wanted to as to why the report was not worked on. The comment about the complainant's attitude appears at the tail end of Hirt's notes and makes up only a very small portion of the notes. It is clear from the notes that it was the issue relating to the job assignment that caused Hirt to discharge the complainant. The fact that there was an additional concern involving the complainant's employment is not evidence that the respondent's decision to discharge her was motivated by a discriminatory reason.

The complainant has also argued that the respondent's proffered reason for her discharge lacked credibility because while the respondent maintained that the complainant's performance was inadequate during all three weeks of the assignment, there is no evidence that Hirt or anyone else complained or expressed any concern before the date of her discharge. This argument by the complainant conveniently ignores Hirt's testimony that it made a difference to him whether any attempt had been made at all to contact the top 50 deductions, and the fact that on November 12, 1993, the complainant had basically stated that she had done nothing on the assignment. Tr. pp. 167-168. Hirt stated that approximately 15 to 25 deductions had been contacted during the first week and approximately 10 more during the second week.

Additionally, in an effort to portray the respondent's proffered reason for her discharge as unworthy of credence, the complainant attempts to make much of the fact that while the assignment had been given to the complainant three weeks before her discharge, no report was produced for the first week, the only top 50 list presented by the respondent addressed dates in November. However, Hirt testified that there was a report for the first week, he just did not know where it was. There is no reason to question this testimony by Hirt. Moreover, the evidence shows that it was the complainant's activities with respect to the report for the third week, not the first week, that led to her discharge. The complainant also argues, for example, that Hirt maintains that the report for the second week of the assignment showed only about 10 more customers had been contacted but this is contradicted by such report on its face, which Hirt acknowledged reflected that more than 10 customers had been contacted. This argument is without merit. Hirt simply indicated that the results of contacts for the first week showed up in the report for the subsequent week. Tr. p. 165. Hirt did not acknowledge that more than 10 contacts had been made during the second week of the assignment. Another argument made by the complainant is that Hirt acknowledged that he did not know whether or not she had contacted the deductions at the time of her discharge. This argument also fails. All Hirt stated was that if the complainant had attempted to contact some of the deductions it was not noted on the report; however, he had reason to believe that the complainant had made no attempt during the third week because she told him that he could use the report from week 2 and, basically, that she did not do anything.

The simple fact of the matter is that there is no reason to believe that Hirt discharged the complainant because she was pregnant. There was no evidence showing that Hirt held any bias against the complainant because she was pregnant. And as much as the complainant would like for one to believe that McIver-Gay was involved in the decision to discharge (because of McIver-Gay's earlier criticisms of the complainant), the evidence simply fails to show that McIver-Gay had anything whatsoever to do with the complainant's discharge.

Finally, the complainant's arguments with respect to alleged "deficiencies" in certain findings of fact made by the ALJ have also been examined, but there is no reason to change any of his findings based on those arguments.

cc: John M. Bruce
Winston A. Ostrow

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