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

ANNETTE FITZGERALD, Complainant

C P RAIL SYSTEM, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199602527

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 February 5, 1998
fitzgan.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant contends that she was discriminated against with respect to compensation (real estate and moving benefits) because of her marital status (married), when she and her husband's jobs with the respondent were transferred from Milwaukee, Wisconsin to St. Paul, Minneapolis.

In August 1996, after the complainant and her husband's jobs were transferred to St. Paul, she and her husband (Patrick Fitzgerald) moved to the same location in St. Paul.

During about three months prior to moving to St. Paul with her husband, the complainant and her husband were separated. During this period she paid rent to her brother, with whom she was living, and provided her husband with one-half the monthly mortgage payment on the house from which she had moved. Before this period of separation, the complainant and her husband had lived in a home in Greenfield, Wisconsin. The complainant's husband had purchased the home in 1984 prior to their marriage, but the complainant and her husband both signed documentation, including a warranty deed and title insurance papers, when the Greenfield, Wisconsin property was sold (Aug. 1996). The complainant had moved out only her "valuable belongings" from the home when they separated. She and her husband "ironed out" their differences and moved to St. Paul on the same day, with her husband driving a moving truck while she drove a car.

The respondent offered transferred employes relocating real estate and moving benefits, which included the option of a lump sum payment ($20,000 for home owners/$10,000 for renters), or a transfer allowance of $6,000, plus reimbursement for all actual and reasonable expenses of moving their households, for their families' traveling expenses (including their families' living expenses), and for up to six days of actual wage loss. Language regarding these benefits was set forth in a collective bargaining agreement between the respondent and the Transportation Communications International Union, and included their agreement that it was the intent of the parties that the respondent was only obligated "to pay one real estate benefit and one moving and relocation benefit to the same location per household."

The complainant received a $6,000 transfer benefit. Her husband also received a $6,000 transfer benefit plus moving expenses.

The complainant apparently contends that she was discriminated against on the basis of her marital status because had she and her husband not been married but living together and transferred to St. Paul, she would have received either a lump sum payment of $10,000 or a moving expense (in addition to the moving expense provided to her husband), and/or that if she had not been married to a fellow employe she would have received a payment of $10,000.

However, the evidence shows, as found by the ALJ, that the respondent allowed only one real estate benefit to the same location per household. Regardless of marital status, if two individuals had a property interest in real estate for which the real estate benefit was being requested, the employes were considered one household for the purposes of the respondent's paying a real estate benefit. Because the complainant, as Patrick Fitzgerald's spouse, had a property interest in the home and because she and her husband moved to the same location after their jobs were transferred to St. Paul, the respondent allowed only one moving expense. However, had the complainant chosen to reside at a different location than her husband after their jobs were transferred to St. Paul, she then would have been eligible for a $10,000 lump sum payment.

Accordingly, the commission has affirmed the ALJ's decision finding that the complainant has failed to establish probable cause to believe that she was discriminated against on the basis of marital status.

cc: Ellen G. Sampson
Jeffrey L. Janik

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