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

DAWN MARIE SLANEY-KLEPPER, Complainant

WEAVER SALES OF SAUK CITY INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9303484, EEOC Case No. 26G932334

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 on November 10, 1995. A timely petition for review was filed. The commission received the file from the division on January 8, 1997.

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:

The name, "Karla Kirkland," which appears in the ALJ's decision is deleted and the name "Karla Kelleher" is substituted therefor.

DECISION

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

Dated and mailed: May 21, 1997
slaneda.rmd : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant, a female, began employment with the respondent in 1988 in a data entry position. As the business expanded, the complainant's duties expanded until by 1990 her position was known as the advertising manager. She last worked for the respondent on July 2, 1993. In complaints subsequently filed with the division, the complainant alleged that the respondent discriminated against her on the basis of her sex and pregnancy with respect to payment of health care insurance, vacation pay and sick leave bonus, compensation for her work as the advertising manager and the termination of her employment.

Regarding her compensation as advertising manager, the complainant asserts that the respondent discriminated against her by paying her less than it paid to Dan Breunig, a sales manager, when both performed work that was equal or substantially similar. The complainant did perform a number of duties that were also performed by Breunig. These duties included responsibility for promotional activities, coordination of trips and shows, and organizing, attending and making presentations at meetings. However, the evidence shows that Breunig performed many additional duties that the complainant did not. Breunig had significant customer contact whereas the complainant had very limited customer contact. Breunig's position, unlike the complainant's, included supervisory responsibilities. They entailed direct supervision of several salespersons with respect to outside sales, riding with sales personnel to see how they treated customers, and assisting store managers with yearly reviews of personnel. Breunig was also responsible for organizing spring cleanup days and visiting the stores to spruce them up. Other duties performed by Breunig but not the complainant included pursuing new store locations, establishing pricing and serving as the educational director for the company. The evidence shows, as found by the ALJ, that well over one-half of their functions did not overlap. Breunig's position required substantially more effort and many additional responsibilities than the position held by the complainant. The work performed by the complainant was not equal to that performed by Breunig.

Based on her job title as "advertising manager," the complainant complains that she was discriminated against on the basis of her sex as she was not provided the same company benefits that the respondent provided to store managers, such as a company car, an option to purchase stock and having 100 per cent of her health insurance premiums paid. However, the position of advertising manager was not on the same level as that of store manager. Store managers generally had supervisory responsibilities, were required to learn the entire Weaver system, were responsible for customer service, were responsible for store organization and cleanliness, store security, daily deposits, store inventory, and had a primary goal of increasing sales. Typically, store managers had attended trade school, worked as drivers, performed counter service and then were involved in sales before becoming managers. There were two female store managers in the history of the company (Elaine Hendrickson and Joan Balk) and another female (Sue Johnson Bushnell) was offered the position of store manager but she turned it down. Hendrickson and Balk both had company cars. The respondent paid 100 per cent of the cost of health insurance premiums for store managers who were part owners of their store. Hendrickson was given the option to buy stock in the company. The record fails to establish probable cause to believe the complainant was discriminated against on the basis of her sex.

The complainant also alleges that she was discriminated against on the basis of her sex or pregnancy due to changes the respondent made in its vacation and sick leave benefit plans. In early January 1993, the respondent changed its vacation policy from awarding vacation strictly based on years of service to a new policy under which vacation time accrued in small increments for each day of service, with no accrual for days not worked. Under the new sick leave policy employes received a "bank" of hours to be used for sick leave during the year. At the end of the year hours not used would be paid out to the employe as a bonus. The complainant objected to the change in the vacation policy because it meant she would lose vacation hours while out on maternity leave and when staying home to care for her children. Similarly, she felt that the new sick leave policy was unfair because of the number of hours she took off each year to care for her children. As found by the ALJ, however, the respondent does not limit maternity leave to women only. Males as well as females were entitled to family and medical leave. Similarly, the respondent's sick leave policy does not differentiate between the sexes of employes who took time off to care for sick children. The complainant argues on appeal that the respondent's vacation and sick leave policies had a disparate impact on women. No statistical evidence was adduced to show that the new policies had a substantial adverse impact on female employes compared to male employes, however.

Finally, the complainant has argued that the respondent failed to provide her the benefits she was due while on maternity leave, i.e., continue payment of 70 per cent of the cost of her health insurance premium, and that she was forced out of her job as a result of taking a maternity leave. Again, the record fails to establish probable cause to believe the complainant was discriminated against on the basis of her pregnancy or maternity leave. Through consultation with its attorney, the respondent was advised that there was no requirement to maintain benefits such as health care during the time an employe was out on a family and medical leave, and that continued payment of such benefit to employes while on leave was a company policy issue. The respondent did not have a policy of paying for health care benefits during extended leaves.

The record also fails to establish that the complainant was forced out of her job. The evidence shows that when the complainant initially announced to Mark Weaver on June 14, 1993 that she was having twins, that Weaver misunderstood her intentions about returning to work. Weaver understood the complainant to have stated that she would not be returning to work, and asked the complainant to place an ad in the newspaper for a replacement. Almost immediately, the name of a potential replacement, Karla Kelleher, surfaced through internal sources and arrangements were made to interview this individual. By this time, Weaver learned that the complainant had not intended to formally resign, but wanted to review the feasibility of returning to work after a 12 week leave of absence. During Kelleher's interview with the complainant present, Weaver advised Kelleher that the complainant may return to work, and that if she did Kelleher would be transferred to another position. On July 2, 1993, the date the complainant indicated she wanted to stop working, Weaver went through a "checkout" meeting with the complainant, a meeting that occurs when someone leaves the company. Weaver treated the complainant's leaving as if she was resigning because the complainant had never given him a definite statement that she intended to return to work and because he did not believe that she was entitled to any more than six weeks leave under the Wisconsin Family and Medical Leave Act.

Subsequently, however, after receiving a copy of the complainant's memo to all managers dated July 30, 1993, in which she stressed that she was seeking a 12 week leave and that the new Family Medical Leave Act guaranteed her this much time, Weaver consulted his attorney regarding this matter. Thereafter, in a letter dated August 17, 1993, Weaver informed the complainant that under the new federal Family and Medical Leave Act that became effective August 5, 1993, she was automatically entitled to an additional 12 weeks on August 5, and that it was the respondent's intent to abide by the federal rules. Twelve weeks from August 5, 1993 was October 28, 1993. During this period the complainant did not contact the company in order to report for work, or to extend her leave of absence beyond October 28. Weaver informed the complainant in a letter dated October 29, 1993, that she was considered to have resigned since her leave expired on October 28, 1993, and she had not advised the company of any reason why she could not return to work.

The evidence fails to establish reason to believe that the respondent discriminated against the complainant on the basis of her pregnancy or maternity leave by forcing her out of her job.

cc: Victor M. Arellano
William Smoler

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