BESSIE GORDON, Complainant


ERD Case No. 8551631, EEOC Case No. 055853110

An Administrative Law Judge (AL J) for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on May 29, 1987. The Complainant filed a timely petition for review of the ALJ's decision by the Commission. Both parties subsequently submitted written arguments to the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The decision of the Administrative Law Judge (copy attached) is modified as follows:

1. Paragraph 11 of the FINDINGS GS OF FACT is deleted and the following paragraph substituted therefor:

"11. There was a period, before Miriam Hammond became Assistant Vice President of Human Resources, when the person who was filling in in that position changed the respondent's policies to provide that suspension from work without pay would be used in attendance cases. However, this had not been the policy prior to that time, and when Hammond assumed the position of Vice President of Human Resources in March 1985, she returned, in February 1985, to the practice of not suspending employes from work without pay in cases in which they were being disciplined for attendance problems."

2. In paragraph 12 of the FINDINGS Or FACT, the seventh, eighth and ninth sentences are deleted and the following sentences substituted therefor:

"Thereafter, Complainant was absent during the end of October, but still she was not discharged. On November 5, 1984, the Complainant was disciplined for taking an unauthorized break in an unauthorized area. Because this was not an attendance related violation, it did not result in her termination; however, the Complainant was given a final warning which advised her that any further violation of any hospital policy would result in her termination. When more tardiness and absences continued, the Complainant was finally discharged in late December 1984.

3. In paragraph 15 of the FINDINGS OF FACT, the last sentence is deleted and the following sentence substituted therefor:

"However, in view of the fact that the Complainant was twice given clear warnings that she was at a final step of the Respondent's disciplinary procedure and that, notwithstanding these warnings, her tardiness and absenteeism continued, the fact that another white employe was given an actual suspension from work is not probative of a discriminatory motive."

4. In paragraph 19 of the FINDINGS OF FACT, the word "Respondent," appearing first in that sentence, is deleted and the word "Complainant" is substituted therefor.

The above modifications have been made to make the decision better conform with the evidence of record.

As modified, the decision of the Administrative Law Judge is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed April 26, 1988

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


The Complainant argues that the Administrative Law Judge erroneously found that the Respondent applied its discipline for attendance violations in a uniform manner and according to its procedures. Specifically, the Complainant asserts that the Respondent's disciplinary policy required that she be suspended without pay prior to discharge, whereas she was "suspended from further absences," a suspension which allowed her to continue to report for work with pay. However, a suspension, whether "from further absences" or from work without pay, constituted a final warning prior to discharge for attendance violations, and the Complainant was made aware of this fact. The Complainant was suspended from further absences on September 11, 1984, after having received a verbal and two written warnings for absenteeism and tardiness since June 6, 1983. At that time she was expressly warned that any further absenteeism would result in immediate termination. Thereafter, she had an occurrence of absenteeism in October, but she was not discharged. She was subsequently tardy on November 22nd, and absent again twice in December before her discharge on December 27, 1984. The Complainant fully received all the progressive disciplinary steps that the disciplinary system provided.

The Complainant alleges that Christine Johnson, a white female, was treated more favorably because Johnson was suspended from work without pay in late January 1985, when she reached the final warning stage for violation of the attendance policy. However, the Commission finds that the suspension from work without pay that Johnson received, compared to the suspension without loss of pay or time from work that Complainant received, hardly denotes more favorable treatment. In any case, both suspensions constituted a final warning in the disciplinary process for attendance violations. The Complainant further complains that her suspension from further absences was indefinite while Johnson's suspension notice provided that she was not to be absent more than two occurrences within 90 days, thus allowing her some absences within that period. However, the Complainant and Johnson did not have similar attendance records. The Complainant had a long history of attendance problems. For instance, the Complainant had been at the final stage in the disciplinary process for attendance violations more than once. Her attendance records show that she had previously been issued a final warning for attendance violations in 1982. Secondly, focusing solely on the years 1983 and 1984, the Complainant's attendance record shows that she had occurrences of absenteeism and/or tardiness in every month of 1983 except September, and in every month of 1984 except March and May. In contrast, Johnson had not previously received a final warning due to violation of the attendance policy. Also, Johnson had at least four months of no absenteeism or tardiness both in 1983 and 1984, and she had fewer occurrences of absenteeism and tardiness than Complainant in each of those years. Additionally, the Complainant argues that Johnson was merely threatened with the "next step of hospital disciplinary policy," while the Complainant was threatened with termination. However, although it was not expressly stated in Johnson's final warning notice, termination was the next step in the disciplinary process and the Complainant has failed to persuade the Commission that the Respondent would not have enforced that next step if the circumstances warranted her termination.

The Complainant further argues that the Respondent did not apply its progressive disciplinary policy uniformly, citing the attendance records of Vera Kitterman and Jessie White as evidence. As Complainant states, the attendance policy provided that before there is a violation of the attendance formula, but when an employe is getting close to a violation, there is counseling, which is not counted as one of the formal steps. However, once a violation occurs, the progressive disciplinary steps begin as follows: Oral warning, written warning, final warning and termination. The Complainant argues that if Respondent's disciplinary policy was as it claimed, Kitterman should have been issued a final warning for a 30-day violation occurring during the period from August 12 through September 7, 1983, following her step two written warning in April 1983. Complainant then argues that Kitterman's next independent 30-day attendance violation for the period from December 1983 into January 1984, should have taken her to step four -- termination, but did not. The Complainant is in error. Pursuant to Respondent's practice of repeating a disciplinary step if no violation occurs for six months, Kitterman's April 1983 warning should have only been issued as a step one oral warning. Thus, the warning Kitterman did not receive following a 30-day violation occurring during the period from August 12 to September 7, 1983, would have constituted her step two written warning, and the second independent 30-day violation occurring during the period from December 23 into January 1984, would have only constituted grounds for a final warning. (1)   Kitterman did not violate the 30-day or six-month attendance formula during the remainder of 1954.

According to the Complainant, Jessie White, a black male, also received more favorable treatment with respect to discipline for attendance violations. Specifically, Complainant notes that the Respondent should have disciplined White for a 30-day attendance violation for May 18, June 8 and June 16, 1983 absences and tardiness, and a second independent 30-day violation for absenteeism and tardiness occurring from September 26 through October 20, 1983. The Complainant argues that Respondent thus overlooked one of White's violations, giving him one step of discipline when it should have given two. However, what the evidence actually reveals is that the Complainant herself should have also received additional discipline for violating the attendance policy, and that she too benefitted from the employer's failure to impose discipline. For example, had the Respondent followed up its February 26, 1982 verbal warning to Complainant with a written warning (second step) for a 30-day attendance violation for the period from March 5 through March 30, 1982, a final warning (third step) for a subsequent independent 30-day attendance violation for the period from July 22 through August 18, 1982, and yet still another 30-day attendance violation for the period from December 8, 1982 through January 6, 1983, this should have resulted in her discharge, but it did not. Instead, the Respondent overlooked an attendance violation incurred by the Complainant which would otherwise have resulted in her discharge. The Complainant cannot rightfully argue that others received more favorable treatment than she, under the Respondent's progressive disciplinary system.

The Complainant also claims that her December 27, 1984 discharge was motivated by retaliation, because of her March, 1983 testimony given in a matter involving a complaint of discrimination filed against the Respondent by Willie Kirkland. Specifically, the Complainant claims that there was retaliatory motivation as evidenced by Respondent's statement that it was "forced" to discharge her, despite the fact that her termination came at the end of a year when her record of absenteeism and tardiness had been relatively good in comparison to prior years. With respect to use of the word "forced," the Complainant attempts to argue that the Respondent had shown flexibility before when it "granted the white Christine Johnson a traditional three day suspension" (apparently in contrast to issuing a disciplinary suspension from work), and could have exercised the same flexibility by not discharging the Complainant due to her improved attendance.

The Commission finds that the Complainant was discharged because of her absenteeism and tardiness, not because she had testified in behalf of Willie Kirkland. The Commission has already discussed the matter of Ms. Johnson receiving a suspension from work without pay and need not repeat that here. It has also discussed Respondent's leniency toward the Complainant and this is certainly evidence of equal flexibility toward her. While the Complainant's attendance may have improved somewhat over prior years, she still continued to violate the attendance policy. The evidence simply does not show that her discharge was retaliatory. At the time the Complainant testified at the Kirkland hearing in March 1983 she was already at the final warning stage for absenteeism and tardiness. (2)    After Complainant gave her testimony, her absenteeism and tardiness continued and on June 6, 1983 she was given only a verbal warning (first step discipline), although she had last been at the final warning stage of the disciplinary process. Even assuming the Complainant is correct and that Respondent erroneously counted what was allegedly an excused absence (spending the evening with a sick friend on May 17, 1983) to justify the June 6, 1983 attendance violation warning, the fact that the Complainant was already at the final warning step still meant that the next actual violation should have resulted in discharge, or at least a repeating of the previous disciplinary step (step three) if no violation had occurred within six months of the previous violation. (3)    It is undisputed that the Complainant incurred a 30-day attendance violation for the period from July 14, 1983 through August 8, 1983. Thus, assuming this was the next actual violation, when the Complainant incurred this violation (which was after an administrative law judge's probable cause decision in the Kirkland matter) the Respondent should have repeated Complainant's warning as a final warning. Instead, the Respondent only cited this attendance violation as a step two written warning. Subsequently, the Respondent overlooked what would have otherwise constituted the step four, termination stage, when the Complainant incurred a 30-day attendance violation during the period from December 12, 1933 through January 6, 1934. Instead, the Respondent issued Complainant a six-month attendance violation on April 11, 1984. The Respondent again cited this violation as a step two written warning. Finally, when the Complainant incurred still another 30-day violation for the period from August 23 through September 10, 1984, the Respondent then gave her a final warning (suspension from further absenteeism), stating that "(a)ny absenteeism will result in immediate termination." However, even after that date the Complainant incurred one incidence of tardiness and three occurrences of absenteeism before she was finally discharged.

Had there been any inkling by Respondent to retaliate against the Complainant because of her testimony in the Kirkland matter, the Respondent could have seized the opportunity to get rid of her in early January 1984. The fact that the Respondent did not discharge her in early January 1984, and the fact that her eventual discharge did not come until twenty one months later in December 1984, strongly suggests that the Respondent indeed was not motivated by retaliatory animus. Additionally, the fact that another black female employe, Annie Caldwell, had also testified on behalf of Kirkland, but was not disciplined or adversely affected because of her testimony in that matter, provides further reason for concluding that the Respondent did not discharge the Complainant in retaliation for her March, 1983 testimony at the Kirkland hearing.

Finally, the Commission agrees with the ALJ's determination that the Respondent's decision to discharge the Complainant did not constitute unlawful discrimination on the basis of handicap. The Commission need not expound on this issue any further in view of the ALJ's well reasoned discussion of this matter in his Memorandum Opinion.

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(1)( Back ) In any case, as more fully discussed below, the Respondent also overlooked the Complainant's attendance violations.

(2)( Back ) The Complainant should have been discharged previously on January 6, 1983, after a 30-day attendance violation, when she was already at the third step of the disciplinary process. In essence, the Respondent overlooked that violation, maintaining the Complainant at the final warning stage.

(3)( Back ) The Complainant has "renewed" her motion to admit and consider Exhibit 16 in its entirety because of an alleged Respondent admission against interest regarding the disputed May 17, 1983 absence of Complainant. However, the Commission hereby denies that motion because the Commission would not have reached a different result even if that exhibit would have in fact been received in its entirety.


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