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

AMY M LUEDKE, Complainant

TORO COMPANY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200304199, EEOC Case No. 26GA400110


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, except that it makes the following modifications:

In the second sentence of the first paragraph, the word "status" is inserted after the word "marital" the first time that word appears.

The language of numbered paragraph 13. in the FINDINGS OF FACT AND CONCLUSIONS OF LAW section is deleted, and the following substituted:

The employee accumulated one attendance point when she was absent on September 17, 2003, to attend a child support hearing. This hearing had been scheduled on June 24, 2003, and the complainant selected the September 17 date from a list the court provided her. When the complainant first requested leave to attend this hearing, on or around August 18, 2003, she was told by her supervisor that the company was "on overtime," and no leaves were being approved. When overtime was discontinued on or around September 5, 2003, the complainant asked again, and was told by her supervisor that, even though overtime was no longer being scheduled, they still had too much work and were too short-handed to grant her request.

The language of numbered paragraph 15. in the FINDINGS OF FACT AND CONCLUSIONS OF LAW section is deleted, and the following substituted:

On January 10, 2003, two of the complainant's coworkers requested permission to take leave from September 15 through 26, 2003, for their wedding and honeymoon. Respondent granted this leave request. The scheduled absence of these two workers on September 17 factored into the respondent's workload/staffing level determination.

In numbered paragraph 3. of the CONCLUSIONS OF LAW section, the word "status" is inserted after the word "marital."

In numbered paragraph 4. of the CONCLUSIONS OF LAW section, the word "status" is inserted after the word "marital."

In the first sentence of the first numbered paragraph of the ORDER section, one of the references to "Atty." is deleted where the word appears consecutively.

The language of the second numbered paragraph of the ORDER section is deleted, and the following substituted:

Within 30 days of the expiration of time within which an appeal may be taken herein, the Respondent shall submit a compliance report which provides details of the specific action it has taken to comply with numbered paragraph 1. of this ORDER. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. Wis. Stat. § § 111.395, 103.005(11) and (12) provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense.

The MEMORANDUM OPINION is deleted and the following substituted:

The complainant contends that she was discriminated against based on her marital status when she was assessed an attendance point for missing work to take her daughter to the dentist, and not allowed to make up this time; and when she was denied a leave of absence and assessed an attendance point in order to attend a September 17 child support court hearing.

The complainant has clearly failed to prove marital status discrimination in regard to the respondent's assessment of an attendance point/denial of request to make up time for the absence she incurred in order to take her daughter to the dentist. The attendance policy, which applied to all employees regardless of their marital status, did not excuse absences to attend family member medical appointments, or allow the time missed to attend them to be made up, and the complainant failed to prove or even allege that the respondent applied this policy differently to single employees than it did to married employees.

The complainant's theory in regard to her absence on September 17 is that, even though her two co-workers were single at the time their requests for leave were granted, the reason for their requests was their upcoming marriage, and the granting of their requests and the denial of hers was therefore based on marital status.

In other words, the complainant is apparently contending that she was treated less favorably not because of her marital status per se, but because her co-workers' requests for leave related to marriage and hers did not.

Even if such an allegation could support a prima facie case of marital status discrimination, the record does not support a conclusion that the reasons offered by the respondent for denying the complainant's requests for leave on September 17 were a pretext for marital status discrimination.(1)

First of all, the complainant and her co-workers were not similarly situated when they presented their requests to the respondent. The co-workers' requests were made before the stricter attendance policy went into effect on February 1, 2003, and the complainant's requests several months after. Moreover, the record does not show that, at the time the co-workers made their requests, other workers had already been granted leave for the September 15-26 time period, as was the case when the complainant made her requests.

In addition, the respondent had discretion under the new attendance policy to deny requests for leave "based on business conditions," and there is no evidence in the record to support a conclusion that the respondent did not properly exercise this discretion based on workload and staffing projections at the times the complainant made her requests to take leave on September 17. The record also does not show that married workers, who presented requests at or around the time that complainant did to take leave during the September 15-26 time period, were granted leave or were otherwise treated differently than she was.

As a result, the complainant failed to sustain her burden to prove marital status discrimination.

The commission notes that the administrative law judge (ALJ) ordered that the respondent pay the complainant's attorney's fees and costs resulting from her motion to compel discovery.

However, nowhere does the ALJ state that he granted the motion, and the respondent waived its right to hearing under Wis. Stat. § 804.(1)(c)1. (2); or that the parties stipulated to the award of attorney's fees. However, since, neither in the course of the hearing nor in its brief to the commission, does the respondent take issue with the award of attorney's fees/costs, although the basis for the ALJ's order in this regard is not apparent, in the absence of objection from the respondent, the commission has adopted the ALJ's order and awarded the fees/costs.

Finally, the complainant, who was represented by counsel throughout these proceedings, included in her charge an allegation of retaliation. For some reason, the department investigator did not address this issue in the initial determination and it was not included within the scope of the issue noticed for hearing. The ALJ noted this in his decision and concluded that the complainant had, as a result, effectively waived the retaliation issue. Although the commission, particularly after the Court of Appeals decision in Racine Unified School District v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991), is reluctant to find that a party has effectively waived an issue, it does so here given the complainant's numerous opportunities to indicate her desire to prosecute the retaliation issue, as well as the fact that, after the ALJ held the issue to have been effectively waived, the complainant, in her petition and accompanying briefs to the commission, did not take issue with the ALJ's holding in this regard.

DECISION

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

Dated and mailed November 21, 2005
luedkam . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Attorney William P. TeWinkle
Lois Mason



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Footnotes:

(1)( Back ) See, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973).

(2)( Back ) This statutory provision, rendered applicable to equal rights administrative proceedings by operation of Wis. Adm. Code § 218.14(3), states as follows:

804.12(1)(c) Award of expenses of motion. 1. If the motion [to compel discovery] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.


uploaded 2005/12/05