AMY PAUL, Complainant


RITA BENIK, Respondent B

ERD Case No. 9102142, EEOC Case No. 26G911480

An Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on October 9, 1992. The Complainant filed a timely petition for review of the matter by the Commission.

Based upon a review of the evidence in its entirety, and for reasons set forth more fully in the Commission's attached Memorandum Opinion, the Labor and Industry Review Commission hereby issues the following:


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

1. In paragraph 3 of the FINDINGS OF FACT, the date "September 15, 1990" is deleted and the date "September 17, 1990" is substituted therefor.

2. Paragraph 3 of the CONCLUSIONS OF LAW is deleted and the following paragraph substituted therefor:

"The Complainant's allegation of discrimination with respect to failure to hire and resulting loss of seniority does not constitute discrimination on the basis of pregnancy, childbirth, maternity leave or related medical conditions."

3. The following paragraph is added as paragraph 4 of the CONCLUSIONS OF LAW:

"4. The Complainant failed to establish that she was otherwise unlawfully discriminated against because of her sex with respect to failure to hire and resulting loss of seniority."

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

Dated and mailed February 4, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


The Complainant became pregnant, gave birth without complications, and then subsequently learned that her child had a medical problem about the same time that she sought employment with the Respondent. She alleges discrimination based upon pregnancy, childbirth, maternity leave or related medical conditions (sec. 111.36 (1)(c), discussed infra) with respect to her failure to be hired prior to October 15, 1990 and the resulting loss of seniority. The Complainant had completed an application for employment with the Respondent on September 26, 1990. She was not hired by Respondent until October 15, 1990. Rita Benik was in charge of hiring.

The Respondent asserted that the Complainant was not called to work right away because Complainant had stated on September 26 that she wanted some time to see to the medical attention of her newborn baby. Complainant denies having stated she did not want to be employed right away due to a medical concern with her child. The ALJ resolved the dispute between the parties in the Respondents' favor and concluded there was no discrimination. Complainant's argument on appeal is essentially that the ALJ's decision should be reversed because the ALJ erred as to credibility in concluding that the Complainant did not want to be employed right away. (1)

The Commission finds that irrespective of the credibility issue, the Complainant's failure to be hired prior to October 15 and her resulting loss of seniority does not constitute sex discrimination under sec. 111.36(1) (c) . Section 111.36(1) (c) prohibits, as a form of sex discrimination, the following

"(c) Discriminating against any woman on the basis of pregnancy, childbirth, maternity leave or related medical conditions by engaging in any of the actions prohibited under s. 111.322, including, but not limited to, actions concerning fringe benefit programs covering illnesses and disability." (emphasis added)

The Complainant does not allege that she herself was pregnant, bearing a child, on maternity leave, or suffering from any related medical condition. Indeed, as previously noted above, the Complainant had already given birth without complication at the time she sought employment with Respondent.

In Fleming v. Ayers, 948 F.2d 993, 57 FEP Cases 330 (6th Cir. 1991), the court held that it was not sex discrimination because of pregnancy to discharge an employe to avoid paying the health care costs of the employe's sick newborn child. (2)   The Pregnancy Discrimination Act of 1978, which amended Title VII to clarify that Title VII's proscription of gender-based employment discrimination included discrimination on the basis of pregnancy, provides that "the terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-oriented purposes, including receipt of benefits . . . as other persons not so affected but similar in their ability or inability to work. . . ."

In Fleming, the court stated:

"The problem with Fleming's argument is that she has not linked. the reason for Ayers' decision -- high medical costs for her child -- to her gender or pregnancy. The fact that her pregnancy ultimately produced her child does not make actions taken with respect to the child actions 'because of or on the basis of her pregnancy."

The court then went on to note that the legislative history of the Pregnancy Discrimination Act showed that that Act was intended to be limited to effects upon the woman who is herself pregnant, bearing a child, or has a related medical condition.

The Wisconsin Fair Employment Act's similarity in language indicates that it is modeled after the Pregnancy Discrimination Act amendments to Title VII. Accordingly, even if the Commission were to assume that the ALJ erred and that Complainant's testimony is more credible, like the Ayers case, the Complainant Paul's claim of discrimination herein fails to link the reason for the alleged discriminatory conduct by Respondent -- failure to hire because Respondent believed she needed time to see to the medical attention of her newborn child -- to her pregnancy, childbirth, maternity leave or related medical conditions.

A further question arises, however, as to whether the Respondent otherwise discriminated against the Complainant because of her sex with respect to failure to hire in that Respondent may have believed that because Complainant was a woman she needed to be at home with her child.

The Complainant has argued that there was "direct unrebutted evidence" by her witness (apparently Tammy Kopras) who allegedly testified that "Benik delayed hiring Amy (Complainant) because of Benik's belief that Amy should be home with her baby." What the synopsis actually shows, however, is that Kopras testified to having talked to Benik about Complainant and Benik having stated that "we both knew that she was at home with the baby and wanted some time with the baby." (Summary of Proceeding, p. 5) The Commission finds that the comment Benik related to Kopras merely represented an acknowledgement of Complainant's request for a delay in her hire in order to see to the medical attention of her child, not a belief on the part of Benik that Complainant should be home with her baby, as alleged by Complainant.

Complainant has characterized the testimony given by Benik as completely incredible, asserting that she changed her testimony numerous times. In particular, referencing paragraph 5 of the Findings where the ALJ states that on October 4 Benik had called Complainant to work but Complainant declined, Complainant cites Benik's affidavit (Exhibit #6) which makes no reference to the October 4 phone call and which Benik identified as being correct. Complainant apparently argues that Benik "changed" her testimony at the hearing to include testimony about having made the October 4 call and then asserts that "it is obvious that had she (Benik) made the phone call on October 4 as she now claims, it would have been detailed in her previous affidavit." The Commission cannot agree with the Complainant's assertion about Benik's credibility. First of all, it is not at all clear that Benik's statement does not reference the October 4, 1990 call. Benik began paragraph three of her affidavit commenting that at the time Complainant completed her application for employment Complainant had requested time to see to the medical attention of her newborn baby, and then later in that same paragraph Benik states that work would have been available for Complainant at an earlier date than October 15, 1990, had the Complainant not requested additional time off. Benik testified at the hearing that when Complainant was called about employment on October 4, Complainant said she wanted a little extra time because she was concerned about the baby's health. Secondly, even if it could be concluded that Benik's statement fails to mention the October 4 phone call, the Commission does not believe that this would allow the drawing of the adverse inference complainant seeks to draw since there is no indication that Benik's statement was ever intended to represent a comprehensive statement of the events that had transpired.

There is no doubt that the critical question is one of credibility, as the Complainant and the Respondent's version of the facts are inconsistent. Further, the Commission recognizes that it is seldom easy to resolve a case with two such conflicting versions of the facts. However, because of the inconsistencies in the Complainant's own testimony, and because it is the Complainant's burden to establish unlawful discrimination by a preponderance of the evidence, the Commission cannot conclude that the Complainant has established that the Respondent discriminated against her on the basis of sex with respect to hire and resulting loss of seniority.

NOTE: The commission consulted with the ALJ regarding his assessment of the witnesses' credibility. That discussion failed to disclose any identifiable aspect of any witness's demeanor on the part of the ALJ which would make the testimony of any witness either more or less credible.

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(1)( Back ) For example, the Complainant argues that there was no evidence presented that she was aware of her baby having any physical problems on September 26 and therefore she would not have requested a delay in being hired. However, the testimony of the Complainant herself indicates that at the time she completed the application for employment she, in fact, did know that her baby was having physical problems. Specifically, Complainant testified that: (1) she filled out an application for employment about 12:30 p.m. on September 26, 1990, and had just taken her baby to a doctor (Summary of Proceeding, p. 2); and that (2) on September 26, the doctor had told her, that he wanted to do an ultrasound examination at which time she was aware that her doctor had concerns about her son (Summary of Proceeding, p. 4). Thus, there is reason to believe that on September 26 Complainant could have requested a delay in her being hired. Additionally, the Commission notes that prior to ultimately admitting awareness on September 26 that her child had physical problems, Complainant had initially asserted that she first knew her child had a physical problem on September 28, and then next asserted that she first knew on September 27.

(2)( Back ) The employer's action was found to have violated the Employee Retirement Income and Security Act, however.


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