KAREN BLAHNIK, Complainant
IBEW LOCAL 158, Respondent
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 conclusions in that decision as its own, except that it makes the following modification:
The following sentence is added to paragraph 2 of the CONCLUSIONS OF LAW:
"However, even if Blahnik could be considered a member of the protected class because she had recently been pregnant and/or on a maternity leave, the evidence presented fails to give rise to an inference of unlawful discrimination." (1)
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed January 13, 2006
blahnka . rmd : 125 : 9
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The respondent argues that the issue of constructive discharge was not appropriately before the ALJ because this issue was "not an issue noticed for hearing." The respondent argues that its fundamental right to due process required that it be apprised of the issues to be raised at the hearing.
In LeConte v. Health Enterprises of Wisconsin, Inc. (LIRC, 05/27/04), noting that the issue noticed for hearing was "termination of employment because of age and sex," the employer had also asserted that the issue of constructive discharge could not be decided. The commission rejected that assertion, however, stating that a constructive discharge constituted a form of termination of employment. (p. 3 n.1). On appeal the court affirmed the commission. The court agreed that any quasi-judicial administrative action must afford parties the due process right to notice of charges. However, the court found that the employer's due process notice rights were not violated because the employer was on notice that termination was an issue in the case, and that when termination is raised as an issue in the complaint, constructive discharge need not be pled as a separate cause of action. Health Enterprises Wisconsin v. LeConte, Dane Co. Cir. Ct. 05/17/95.
The respondent argues that assuming, arguendo, that the constructive discharge issue was appropriately before the ALJ, the evidence submitted by Blahnik was insufficient as a matter of law to result in a finding of constructive discharge, and that Blahnik has failed to make a prima facie case for pregnancy, maternity leave or discrimination based on disability, including but not limited to failing to establish constructive discharge.
The respondent argues that there was no constructive discharge because: (1) Blahnik voluntarily quit; and (2) Blahnik's working conditions were not so unreasonable as to establish a constructive discharge.
The record supports the ALJ's determination that the respondent terminated Blahnik's employment (i.e., she had not voluntarily quit). The ALJ determined as follows:
If Ms. Blahnik is to be believed, Mr. Neuens told her that unless he fired her, Ms. Schmidt was going to file a grievance against him; since he was going to have to fire her anyway; and, since she now wanted to get fired because she thought IBEW thought she was too dumb to even open the mail, an agreement for her to end her employment solved both their problems and she could draw unemployment compensation in the bargain. An ultimatum, resign or be fired, is not a constructive discharge; it is a termination of employment.
(Italics emphasis added).
The record also supports the ALJ's determination that if Blahnik was pleading in the alternative -- if she was not terminated then she was constructively discharged -- her argument also fails.
To find a constructive discharge it must be established that, due to a discriminatory reason, working conditions are rendered so difficult or unpleasant that a reasonable person would feel compelled to resign. Cole v. Northland College (LIRC, 03/19/01), citing Waedekin v. Marquette University (LIRC, 03/05/91); Bourque v. Powell Electrical Mfg. Co., 617 F.2d 61 (5th Cir. 1980); Jorgenson v. Ferrellgas, Inc. (LIRC, 01/10/92).
The ALJ determined that a constructive discharge claim fails, however, first because Blahnik offers no evidence that the treatment she complains about, all her work being taken away, is connected to her pregnancy. The evidence shows, as determined by the ALJ, the following:
[Blahnik's] only attempt at doing so is her testimony, repeatedly, that immediately upon reaching the tenth week of pregnancy Ms. Schmidt began treating her badly. The tenth week is critical because that is when, due to her history, Ms. Blahnik has established, in her words, a successful pregnancy....To reach the same conclusion as Ms. Blahnik, however, is to believe that her pregnancy presented no concerns to Ms. Schmidt or anyone else at IBEW until they realized, after week ten, that Ms. Blahnik was going to carry the child to term and that realization made it necessary to drive Ms. Blahnik from her job. Moreover, one must reach that conclusion without one whit of evidence that anyone involved had any feelings, one way or the other, about Ms. Blahnik's pregnancy.
(ALJ decis., p. 6).
Second, the ALJ determined that a constructive discharge claim fails because the evidence did not "add up to working conditions so difficult or unpleasant that a reasonable person would feel compelled to resign." Again, the evidence shows, as determined by the ALJ, the following:
Ms. Blahnik's primary complaint is that most of her duties were taken away. On cross examination it was revealed that those duties amounted to, at most, several hours per month. Ms. Blahnik also complained that Ms. Schmidt invaded her medical privacy by attempting to change her appointment. Certainly it was inappropriate for Ms. Schmidt to contact Ms. Blahnik's doctor's office. Ms. Blahnik neglected to mention, however, that Ms. Schmidt took that action after twice asking Ms. Blahnik, the first time almost a month prior to the scheduled appointment, if she could move her appointment because she was needed in the office that day.
(ALJ decis., pp. 6-7).
Whether the ALJ properly dismissed Blahnik's complaint after the close of her evidence
The respondent argues that Blahnik has failed to make a prima facie case of pregnancy discrimination or discrimination based on a disability and, therefore, the ALJ's decision and order to dismiss all substantive allegations should be sustained.
Blahnik argues that the commission should find on the record, as a matter of law, that she was discriminated against on the basis of her pregnancy in her terms and conditions of employment and in her termination. (2) Blahnik argues, alternatively, that the commission should find that she has stated a prima facie case and the matter should be remanded for full hearing.
The parties have presented a variety of different elements of proof said to be necessary to establish a prima facie case of pregnancy discrimination. The respondent has asserted that the complainant must establish that: (1) she is a member of a protected class; (2) an adverse action was taken against her; and (3) others not members in the protected class were treated more favorably. The respondent has also asserted that the complainant must establish that: (1) she was pregnant; (2) she was capable of doing the job; and (3) she was discharged from the job. [Citing Martin v. Mars Cheese Castle (LIRC, 07/02/91)]
Blahnik appears to assert that a prima facie case was established because: (1) she was performing her job as required; (2) that criticism of her began after her tenth week of pregnancy; and (3) there is no evidence of any reason other than this protected status to explain her bad treatment and subsequent termination.
What this seems to point to is what the United States Supreme Court stated in McDonnell Douglas Corp. v. Green, 411 U.S. 792. There, after stating that the elements of a prima facie case in a race discrimination case alleging a refusal to rehire were that the plaintiff must show: (1) that he belongs to a racial minority; (2) that he applied for and was qualified for a job for which the employer was seeking applicants; (3) that, despite his qualification, he was rejected; and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications, the Court stated the following:
"The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from [the plaintiff] is not necessarily applicable in every respect in differing factual situations."
(Id., at 802, n.13).
In any case, with respect to Blahnik's termination of employment, the respondent argues that Blahnik failed to establish a prima facie case of discrimination because at the time of her separation she was no longer a member of a protected class since she was neither pregnant nor suffering from gestational diabetes, the temporary nature of which also precluded it from rising to the level of a disability.
Blahnik cites the case of Piraino v. International Orientation Resources, Inc., 84 F.3d 270 (7thth Cir. 1996), in opposition to the respondent's argument that she was no longer a member of a protected class. In Piraino, the plaintiff alleged that upon learning of her pregnancy the defendant set out to find a way to dismiss her and succeeded by crafting its leave of absence policy to disqualify her by implementing its policy to accomplish her discharge, or both. The defendant argued that the plaintiff had no pregnancy discrimination claim because by the time the events in question occurred, she was no longer pregnant. The court rejected the defendant's theory, stating that this is "not a case in which the claim relates only to an employer's refusal to hire (or reinstate) a mother with a young child, without a hint of any role that the pregnancy played in the decision." Id. at 274. Blahnik argues that so, too, her evidence has more than a "hint" that her pregnancy played a role in her termination. Blahnik argues that as the case stands, the evidence is unrebutted that the only basis for Schmidt's hostility towards her was her pregnancy.
The respondent argues that Blahnik's citing of Piraino as support of her argument that discrimination can occur in certain situations even after a person is no longer in a protected class, is misplaced. The respondent argues that in Piraino, the alleged wrongful conduct that caused the termination-the creation of a policy that required one year of service to qualify for leaves of absence-occurred during the time that she was pregnant. The respondent argues that in this case, there is no evidence of a policy created during the time Blahnik was a member of a protected class that would have led to her termination after she was no longer a member of a protected class. Further, the respondent argues that assuming, arguendo, that the Piraino case has some application to her case she ignores other holdings from that case. Apparently the respondent states that Piraino cites the case of Ilhardt v. Sara Lee Corp., 118 F.3d 1151 (7th Cir. 1997) for the proposition that it was established law that "timing alone is insufficient", and that Blahnik must still show some connection between her pregnancy and the adverse action taken against her.
With respect to its latter arguments, the respondent is apparently referring to the case of Troupe v. The May Dept. Stores Co., 20 F.3d 734 (7th Cir. 1994), cited in the Piraino case. The commission's review of Piraino does not show any cite to the Ilhardt case, but it does cite the Troupe case. In Troupe, another case involving a claim of unlawful discrimination because of pregnancy, the court did state that timing, standing alone, was not sufficient for the court to draw the inference that the employer's motivation to terminate Troupe's employment was because of her pregnancy. 20 F.3d at 737-738. In Troupe, the court also indicated that a plaintiff must show some connection between her pregnancy and the adverse action when it stated, "The plaintiff has made no effort to show that if all the pertinent facts as they are except for the fact of her pregnancy, she would not have been fired. So in the end she has no evidence from which a rational trier of fact could infer that she was a victim of pregnancy discrimination." 20 F.3d at 738.
The respondent also argues that Blahnik has failed to establish a prima facie case of discrimination because Schmidt, whose actions she asserts were taken against her based on her pregnancy, was a co-worker and not a statutory supervisor. The respondent argues that under the factors cited in Crear v. LIRC, 114 Wis. 2d 537, 541-542, 339 N.W.2d 350 (1983), the respondent does not believe that Schmidt is a supervisor (Authority to effectively recommend the hiring, promotion, transfer, discipline or discharge of employees; authority to direct and assign the work force; the number of employees supervised and the number of other persons exercising greater, similar or lesser authority over the same employees; the level of pay; whether the supervisor is primarily supervising an activity or is primarily supervising employees; whether the supervisor is a working supervisor or whether he/she spends a substantial majority of his/her time supervising employees; and the amount of independent judgment and discretion exercised in the supervision of employees).
Blahnik argues that the respondent must not be allowed to "pull an 'end around,' by 'arguing' issues not relevant to its motion at all, such as whether or not Schmidt was her supervisor and whether or not she [Blahnik] 'was a member of the protected class' on April 24." (Italics emphasis in original.)
Blahnik argues that the following facts show she established a prima facie case: that she was pregnant, had delivered a child, and she performed her job acceptably "prior to the tenth week of her pregnancy." That thereafter, her job duties were taken away, life in the office became hostile and stressful, that she was told to turn in her keys the day she left for maternity leave; that she was wrongly terminated while on maternity leave; that when she got her job back hostility towards her was so bad she confronted her boss, Jim Neuens. He told her that she would be terminated if she did not resign. He told her that she did not deserve to be fired, but that she was going to be let go anyway. (Italics emphasis in original.)
Blahnik argues that her evidence is the only evidence the ALJ permitted, and must be regarded as unrebutted. Yet, the ALJ dismissed as "absent" her abundant evidence "that any of the players in this matter harbored any animus toward Blahnik because of her pregnancy."
Blahnik argues that the record is full of evidence of ongoing hostility from the tenth week of her pregnancy until her termination. Yet, the ALJ concluded as a "fact," that "neither Blahnik's pregnancy nor her maternity leave were factors in the ending of her employment." [finding of fact 21] Blahnik asks how could the ALJ decide that, given that her evidence is exactly the opposite?
The commission believes that Blahnik's evidence fails to establish a prima facie case of discrimination because her evidence fails to raise an inference of unlawful discrimination.
In Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981), the United States Supreme Court stated:
"...the prima facie case 'raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.' Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee...."
(Italics emphasis added.)
The commission does not believe that the evidence provides a sufficient basis to infer that Blahnik's pregnancy, or her maternity leave, was the cause for her treatment and termination of employment.
It goes without question that Blahnik was a member of a protected class during the actual time of her pregnancy. However, as the ALJ states at page 6 of his Memorandum Opinion, Blahnik's only attempt at offering evidence that her treatment during this time period was connected to her pregnancy [and thus that there is an inference of pregnancy discrimination in her terms and conditions of employment] was "her testimony, repeatedly, that immediately upon reaching the tenth week of pregnancy Ms. Schmidt began treating her badly. The tenth week is critical because that is when, due to her history, Ms. Blahnik has established, in her words, a successful pregnancy. Clearly, the ten week threshold was a tense time for both Ms. Blahnik and her husband and it must have been agonizing for both of them until they felt they were actually going to have this baby. To reach the same conclusion as Ms. Blahnik, however, is to believe that her pregnancy presented no concerns to Ms. Schmidt or anyone else at IBEW until they realized, after week ten, that Ms. Blahnik was going to carry the child to term and that realization made it necessary to drive Ms. Blahnik from her job. Moreover, one must reach that conclusion without one whit of evidence that anyone involved had any feelings, one way or the other, about Ms. Blahnik's pregnancy."
Blahnik presented no evidence that anyone had made any negative comments regarding her pregnancy. Blahnik presented no evidence that anyone harbored a discriminatory animus toward her because of her pregnancy. In fact, throughout her pregnancy, except for the single instance in September 2001 when Blahnik had scheduled a doctor's appointment on October 2, 2001, a date when Blahnik was needed in the office to assist with the respondent's apprenticeship program, Blahnik had absolutely no difficulty in obtaining time off for doctor and other appointments related to her pregnancy. Morever, while Blahnik asserts that "life in the office became hostile and stressful" to her after her tenth week of pregnancy, to the extent that it may have, the evidence presented in Blahnik's case-in-chief strongly indicates that this was attributable not to Blahnik's pregnancy, but to the events in September of 2001, when Blahnik refused Schmidt's request that she reschedule her October 2 doctor's appointment, a date Blahnik was needed in the office because of the respondent's apprenticeship program, and then complained to their (Blahnik's and Schmidt's) union business manager because Schmidt had called her doctor's office in an effort to determine if another date was available for Blahnik's doctor's appointment. In fact, Schmidt resigned from her position as OPEIU's union steward, a position she had held for some seventeen years, as a consequence of Blahnik's complaint to their union's business manager. It was these events that triggered the source of all the difficulties that Blahnik subsequently encountered with Schmidt. Indeed, Blahnik herself testified that after the incident in September, "She [Schmidt] no longer spoke to me. It's like I had the plague or something, if you talk to me you're going to die." T. 80. There was no evidence that Schmidt had any objection to Blahnik attending doctor's appointments for her pregnancy. The evidence indicates that Schmidt's only request was that Blahnik not schedule appointments on a date that conflicted with the respondent's apprenticeship program. The evidence thus strongly suggests that if Schmidt harbored any animus towards Blahnik, it was not because of Blahnik's pregnancy, but because of what occurred in September 2001 when Blahnik refused to reschedule a doctor's appointment scheduled for a date Blahnik was needed in the office to assist with the respondent's apprenticeship program, and then complained to their union's business manager that she (Schmidt) had contacted her doctor's office. Given the absence of any evidence that Blahnik had encountered any difficulty getting time off for scheduled doctor and other appointments related to her pregnancy save for the October 2 appointment that conflicted with the respondent's apprenticeship program, together with the lack of any evidence that Schmidt had any feelings one way or the other about Blahnik's pregnancy, it is difficult to infer that Schmidt harbored any animus toward Blahnik because of her pregnancy.
In the complainant's brief to the commission she argues, "He [Neuens] required Blahnik to turn in her keys when she left for maternity leave, even though she had always planned to return." The commission believes that this argument also fails to establish an inference of unlawful discrimination. First of all, according to the evidence, this was done by Schmidt, not Neuens. Complainant's Exhibit 6, p. 4, shows that Schmidt had left the following message for Blahnik:
"Please turn in all keys on Monday, 2.4.02. Also list any codes you may have used to lock computer files Thanks"
Second, while Blahnik testified that she did not understand why this was done and that she had always planned to return to work, this occurred in conjunction with her last day of work when she was to begin her six week maternity leave and thus was not something that would be viewed as unexpected. Moreover, if anything sinister could be attached to this action by Schmidt, the evidence indicates that it was the result of the incidents in September 2001 when Blahnik refused to reschedule a doctor's appointment on a date that Blahnik was needed in the office because of the respondent's apprenticeship program, and then complained to their union's business manager that Schmidt had called her doctor's office. T. 80, 83, Complainant's Exhibit 5.
Blahnik also argues, "He [Neuens] wrongfully terminated her during her pregnancy leave, causing her to file a grievance to get her job back." The evidence shows that Blahnik had been approved for a six-week maternity leave that began February 5, 2001, that Blahnik's doctor was to induce labor on February 5 and that Blahnik was therefore expected to return to work on March 19, 2002. However, the attempt to induce labor on February 5 was unsuccessful and Blahnik did not give birth to her child until February 12. On February 12 Blahnik's physician indicated on the top portion of an insurance disability form that the February 5 induction had been unsuccessful, that delivery occurred on February 12 and listed a return to work date of March 27, 2001. Blahnik's husband took this form to the respondent to complete the bottom portion of the form on February 13. However, the bottom portion of this form which was completed and signed by Neuens, states that the respondent's records showed that Blahnik was first unable to work on February 5, 2002, and had a return to work date of March 19, 2002. Neuens' March 20, 2002 termination letter to Blahnik, states, "Please be advised that you are being released from employment for failure to return on the assigned date of March 19, 2002, and failure to communicate reasons by phone or otherwise why you did not report." Complainant's Exhibit 14, p. 4. In a letter dated April 2, 2002 regarding the settlement of Blahnik's grievance Neuens stated, "After further investigation of Karen's return to work date on her disability form it was noted as March 27th."
Even if one were to assume that Neuens' termination of Blahnik's employment for failure to return to work on March 19 was not the true reason for Blahnik's release, the record fails to suggest reason to believe that Neuens' termination of her employment had been motivated by an unlawful discriminatory animus against Blahnik. There was no evidence that Neuens harbored any discriminatory animus towards Blahnik because of her pregnancy or maternity leave. Blahnik had never encountered any problem in getting time off from work for her doctor's appointments during the numerous times that she had advised him of such appointments. Also, in December 2001, after Blahnik learned that she had diabetes she advised Neuens, who told her to do whatever she needed to do to take care of that. What the record does indicate, however, is that if the above was not the true reason for Neuens' action that the most convincing reason for Neuens' action was that it was a means to put an end to the problems that had developed in the office. Indeed, on April 24, 2002, just three short weeks after Blahnik had been reinstated following her maternity leave Blahnik learned that Neuens was going to discharge her. Blahnik herself testified as follows as to her understanding as to why she was going to be discharged:
My understanding is that with the culmination of everything, and the hostilities in the office, that I needed to go. I - - things weren't getting done, um, Lori [Schmidt] was going to file charges against him, or a grievance, I should say, through the Union, against Jim Neuens, and basically had no choice but to fire me. I was out one way or another.
Blahnik testified that Schmidt had threatened to file a grievance against Neuens unless she (Schmidt) could be her direct supervisor and have everything come through her. (3) T 144. Again, what the evidence indicates is that the problems that had developed in the office all stem back to the incident in mid-September 2001 when Blahnik refused Schmidt's request that she reschedule a doctor's appointment on a date when she was needed in the office because of the respondent's apprenticeship program, and then complained to their union's business manager that Schmidt had called her doctor's office. As previously noted, Blahnik herself testified that after the incident in September, "She [Schmidt] no longer spoke to me. It's like I had the plague or something, if you talk to me you're going to die." T. 80. Blahnik had never had any difficulty with Schmidt prior to that time. There was no evidence that Schmidt or Neuens harbored any animus against Blahnik because of her pregnancy. The evidence simply fails to provide reason to believe that Blahnik was unlawfully discriminated against in her terms and conditions of employment or termination because of her pregnancy or maternity leave.
With respect to the termination issue, the ALJ concluded that Blahnik failed to establish a prima facie case of discrimination because she could not show she was a member of a protected class at the time of her termination. In his memorandum opinion at page 7, the ALJ explained why he concluded Blahnik was not a member of the protected class. Specifically, he indicates that Blahnik was no longer pregnant at the time of the termination of her employment, that pregnancy is a transitory condition. Further, the ALJ went one step further and stated that it was certainly possible for someone like Blahnik to suffer discrimination based upon pregnancy after the birth of her child. However, there was an absence of evidence that any of the players in this matter harbored any animus toward her because of her pregnancy.
The commission believes that Blahnik still could be considered a member of a protected class because she had recently been pregnant and/or on a maternity leave, and therefore the commission has modified paragraph 2 of the ALJ's conclusions of law. Nevertheless, the commission agrees with the ALJ that there was an absence of evidence that any of the players in this matter harbored any animus toward Blahnik because of her pregnancy or maternity leave, and as a result, the commission concludes the evidence presented fails to give rise to an inference of unlawful discrimination.
The dissent asserts the following as reason for concluding that it can be inferred that the respondent unlawfully discriminated against Blahnik in her terms and conditions of employment and ultimate discharge: That Blahnik refused to consider an alternate date for her doctor's appointment because she was very concerned about her pregnancy for which she had had two previous miscarriages at about her then current stage of pregnancy, a fact well known to Schmidt; that after Blahnik refused to reschedule this appointment Schmidt became hostile toward Blahnik and that this hostility continued unabated throughout and beyond Blahnik's pregnancy; and that the logical inference to be drawn from "such facts" is that Schmidt's animus towards Blahnik and Blahnik's ultimate discharge occurred because of Blahnik's insistence upon receiving her prenatal care. The record, however, is not in accord with the facts and inference asserted by the dissent. First of all, Blahnik's reason for refusing to consider an alternate date for her doctor's appointment was that she wanted to be able to go to the appointment with her husband. Blahnik testified as follows as to why she refused to consider an alternate date for her doctor's appointment: "I wrote her [Schmidt] a memo, and I basically told her I couldn't do it. With Scott's schedule and my schedule and with the appointment times they did have available, I couldn't do it." T. 83. Scott Blahnik testified that he went to all of the doctor's appointments. T. 51. Second, the evidence was that Blahnik learned that she was pregnant on June 17, 2001, and that she had had previous miscarriages about the "tenth week" of her prior pregnancies. Thus, the critical tenth week, the time that Blahnik was greatly concerned about her pregnancy, would have been at the latest about August 26, 2001. The appointment Schmidt was asking Blahnik to reschedule, however, was an appointment that Blahnik had scheduled for October 2, 2001, which would have been more than 15 weeks into her pregnancy. Finally, the dissent seems to have drawn an inference that Schmidt was attempting to prevent Blahnik from receiving her prenatal care. Nothing in the record supports this inference, however. Indeed, what the evidence shows is that Schmidt contacted Blahnik's doctor's office to determine if there were other dates available for Blahnik's appointment. Schmidt understood from this contact with the doctor's office that there were appointment times available for Blahnik the very next day, October 3, 2001, and therefore merely requested Blahnik to reschedule her appointment scheduled for Tuesday, October 2, 2001. There is no evidence that Schmidt did not want Blahnik to receive her prenatal care. The evidence shows that Schmidt simply wanted Blahnik to avoid scheduling her doctor's appointments on the first Tuesday and third Monday of each month when IBEW conducted an apprenticeship program because Blahnik was needed in the office on those dates.
Finally, with respect to the respondent's assertion that Schmidt was not a supervisor, even assuming for purposes of argument that Schmidt was a supervisor, for the reasons stated above, the evidence submitted by Blahnik fails to provide an inference from which it can be concluded that she was the victim of unlawful discrimination in her terms and conditions of employment and termination on the basis of her pregnancy or maternity leave.
For all of the above-stated reasons, the commission believes that the ALJ was correct in his dismissal of the complainant's complaint after the close of her case.
JAMES T. FLYNN, Chairman, (dissenting):
I am compelled to dissent from the majority opinion. I find that by virtue of her uncontested testimony, the complainant has established a prima facie case of discrimination because of her pregnancy in violation of § 111.36(c) Wis. Stat.
One proves a prima facie case by showing that a discharge, or other adverse employment action, occurred under circumstances which give rise to an inference of unlawful discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). Historically, the commission has followed this basic principle in analyzing the prima facie case without any strict adherence to a formulaic methodology. For example, the prima facie case methodology set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) was never intended to be mechanized or ritualistic but rather merely a sensible way to evaluate the evidence in light of common experience. Gentilli v. Badger Coaches (LIRC,07/12/90), aff'd sub nom. Gentilli v. LIRC, (Dane Co. Cir. Ct. 01/15/91). It is also true that the commission has suggested that a prima facie case of pregnancy discrimination is established when the complainant shows that: (1) she was pregnant, (2) she was capable of doing the job, and (3) she was discharged. Martin v. Mars Cheese Castle (LIRC, 07/02/91), citing Matthes v. Schoeneck Containers (LIRC, 03/11/88). However, the commission has never determined that the only way to establish a prima facie case of discrimination because of pregnancy is by proof of pregnancy at the time of the alleged adverse employment action. Yet that is what the respondent asks us to do.
Respondent posits that the prohibition of the statute is limited in duration; that in order for the statute to apply a complainant must be able to point to an adverse employment act occurring within the time period of the pregnancy itself. Such an argument misunderstands both the language and the purpose of the statute. The Wisconsin Fair Employment Act defines discrimination because of sex to include, without limitation:
"Discriminating against any woman on the basis of pregnancy, childbirth, maternity leave or related medical condition 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." § 111.36(c) Wis. Stat.
The protection of this statute is not fixed in time. If it were so intended it would have been an easy matter to have included qualifiers such as during pregnancy, at the time of childbirth, or while on maternity leave, for example. However, the legislature did not do so. To argue that the protection of the statute exists only during pregnancy, childbirth or maternity leave gives it an absurd construction. What the statute intends to protect against is discrimination because of pregnancy, hence the use of the words "on the basis of" in the statute. A woman whose pregnancy was an inconvenience to her employer and who was discharged by her employer because of her pregnancy, but not until the pregnancy had terminated must still be considered to enjoy the protection of the statute. The complainant is such a person.
Respondent further infers that the federal courts have interpreted the federal Pregnancy Discrimination Act, 42 U.S.C. Sec. 2000e(k), in a manner that supports a time-limited protection of the federal Act. Yet respondent fails to cite any federal court decision that denies the protection of the federal Act to a woman who suffers from an adverse employment action after but because of her pregnancy. There are none. Nor are there any Wisconsin decisions interpreting the provisions of the Wisconsin Fair Employment Act in such a manner.
There is no precise recipe for a prima facie case. One need only to show by inference that they were the victim of unlawful discrimination. Indeed, in the Matthes (Id.) case, which served as the underpinning for the Martin decision, the commission reasoned that "one way" of making a prima facie case where an employee is discharged because of pregnancy is to show the very three elements set forth by the respondent in its brief. Yet we recognized that this is just one way of doing so. In both Matthes and Martin the complainant was indeed pregnant at the time of her discharge. But that fact does not engraft upon the law a requirement that all complainants be pregnant at the time they suffer the effect of discrimination. No, in the instant case we ask the question - do the facts as established by the complainant raise the inference that the respondent discriminated against her in violation of § 111.36(c), Wis. Stat.? I find that the facts established in complainant's case and as further discussed below are sufficient to raise such an inference.
Complainant's undisputed testimony shows that her supervisor, Lori Schmidt, asked complainant to reschedule her prenatal medical appointment because it conflicted with the employer's plans for that day. Schmidt became upset with complainant when she refused to reschedule this appointment. Schmidt went so far as to call complainant's doctor to determine if other appointment dates were available to the complainant. Complainant was understandably upset with this brazen attempt to coerce her into changing her prenatal appointment. Complainant refused to consider an alternate appointment date because she was very concerned about her pregnancy for she had had previous miscarriages at about her then current stage of pregnancy. This fact was well known to Schmidt.
Interestingly, up until that time the complainant and Schmidt had been on cordial terms. However, after complainant refused to change her prenatal appointment Schmidt became hostile toward the complainant. Schmidt's hostility continued unabated throughout and beyond complainant's pregnancy. These undisputed facts establish a linkage between complainant's pregnancy and the acts of intimidation, hostility and ultimate discharge complained of by the complainant.
The logical inference to be drawn from such facts is that Schmidt's animus towards complainant and complainant's ultimate discharge occurred because of complainant's insistence upon receiving her prenatal care. It was this that inconvenienced Lori Schmidt and the respondent. It was this that changed the working dynamic between Schmidt and complainant. It is nigh impossible to separate these acts of intimidation, hostility and discharge from the complainant's pregnancy. Indeed, in the absence of testimony from the respondent, as to respondent's reasons for the conduct complained of by complainant, it is logical to conclude that complainant would still be employed by respondent had she not insisted on attending her prenatal appointment.
Clearly, Schmidt's hostility towards the complainant culminated in complainant's discharge. Business Manager James Neuens was aware of Schmidt's interference in complainant's scheduled prenatal appointment; complainant's refusal to change the appointment; and the subsequent tension between Schmidt and complainant. Neuens ultimately discharged the complainant even though in his words she did not deserve to be fired. Indeed, Neuens had succumbed to a threat from Schmidt that unless the complainant was fired Schmidt would file a grievance against Neuens. In acquiescing to Schmidt's demand Neuens effectively ratified Schmidt's conduct towards the complainant.
Could there have been other reasons for respondent's hostility towards the complainant? Yes! Did the Respondent offer any? No! One may suppose that the complainant was ill-treated and ultimately discharged because Lori Schmidt thought the complainant was uncooperative and not a team player. This might have been a nondiscriminatory reason for respondent's actions that might have been separated from complainant's pregnancy, although not easily. However, no one testified as to the respondent's motivation. We are left only with complainant's unrefuted testimony that her employment relationship went to hell in a hand-basket after she insisted upon receiving her prenatal care according to the needs of her pregnancy. Thus, the questions which best describe the issues involved in this case become: May an employer insist that its interests take precedence over the interest of a woman in her pregnancy? May an employer use tactics of intimidation to attempt to coerce an employee to reschedule a prenatal examination for the employer's convenience? May an employer's actions in doing so be overlooked if the employee does not succumb to these tactics? Section 111.36(c), Wis. Stat., stands for the proposition that it cannot.
The respondent argues that the actions of Lori Schmidt were those of a coworker and not attributable to the employer respondent. They argue that respondent is not liable for Schmidt's alleged actions. However, the hearing record clearly establishes that Lori Schmidt was complainant's supervisor, in fact. Respondent admits as much in the following exhibits:
The respondent argues that Schmidt is not considered to be a supervisor under the National Labor Relations Act or the collective bargaining agreement between the employer and the union. These distinctions if true are nonetheless not relevant here. The protections of the Wisconsin Fair Employment Act are not dependant upon definitions contained in either federal law or collective bargaining agreements. Seeman v. Universal Foods (LIRC, 03/30/92). The employer and union contract could have called Schmidt a duck but that would not make her a duck. No, the employer made Schmidt complainant's supervisor by telling complainant that Schmidt was her supervisor; and further when the respondent discharged the complainant without reason except that Lori Schmidt wanted it so. Not only did Schmidt direct the activities of complainant but Schmidt was able to secure her ultimate discharge from employment. Yes, regardless of Schmidt's work title, she was complainant's de facto supervisor and her actions as such were ratified by Business Manager Neuens when he discharged complainant.
Does it matter if Jim Neuens was not biased against the complainant because of her pregnancy? The simple answer is No - it does not matter because he was the conduit of Lori Schmidt's prejudice. The Seventh Circuit Court of Appeals in Shager v. Upjohn Co., 913 F.2d 398 (1990), recognized that we may impute a discriminatory motive to an unbiased decision maker who is decisively influenced by another who is prejudiced against the complainant. Shager was discharged by a personnel committee that had no knowledge of the prejudice that Shager's supervisor held against him because of his age. The committee adopted the recommendation of the supervisor that Shager be discharged. The employer denied any discriminatory conduct on the part of the committee because the committee did not have any knowledge of the supervisor's unlawful bias. The court reasoned that the company could not hide behind its ignorance of the supervisor's bias. To quote the Shager court, at page 405 of its opinion, "If it acted as the conduit of Lehnst's prejudice -- his cat's paw -- the innocence of the members would not spare the company from liability." Stressing that a reasonable fact finder may infer unlawful discrimination under these circumstances the court reversed the district court's decision granting summary judgment. (4)
In the instant case one may infer much the same about respondent's motivation in the discharge of the complainant. Business Manager, Jim Neuens, either knew of Lori Schmidt's discriminatory bias or didn't care. Either way, Neuens succumbed to Schmidt's insistence that the complainant be discharged. He agreed that complainant did not deserve to be discharged yet he had to let her go in order to satisfy Lori Schmidt, her supervisor.
Finally, was complainant discharged? Based upon the undisputed testimony of the complainant, she was indeed discharged. Respondent argues that complainant could not have been discharged constructively or otherwise because she voluntarily quit her job. In support of its position respondent makes references to the record regarding who initiated the meeting between complainant and the Business Manager; who typed the letter of resignation, who suggested the language for the same, etc. all while failing to note the clear and uncontroverted testimony of complainant as follows:
Q. How did you come to work out - - why did you write that letter?
A. It was either do this letter and be able to collect Unemployment, or be terminated and not collect Unemployment.
Q. Who told you these things?
A. Jim Neuens.
Q. And did you - - was there a conversation on that day?
A. Yes. There was.
Q. Who typed up the letter?
A. I did.
Q. And who signed the letter?
A. Jim Neuens and myself.
Q. And what did you say to Jim Neuens about - - what did you say during that conversation?
A. Our conversation. And I approached him, and I basically said, why don't you just fire me if I'm so dumb I can't open the mail. He told me I didn't deserve to be fired, but I was going to be let go anyway, so it was either do this and collect Unemployment, which is at least something to help pay bills, or nothing. (Tr. page 180 lines 2-24, emphasis added)
Business Manager, Jim Neuens did not testify. We are left only with complainant's statement that Neuens gave her an ultimatum - resign or be fired. This was a discharge.
In conclusion, although complainant's evidence is circumstantial it is nonetheless compelling enough to raise an inference of discrimination because of her pregnancy. Indeed circumstantial evidence is often stronger and more satisfactory than direct evidence in proving discrimination claims. Novick v. ABQC Corp. (LIRC, 02/26/97). I find that to be the case here - especially so in the absence of any testimony from the respondent to explain the discharge of an employee who admittedly did not deserve to be discharged; and whose position was undermined by a supervisor who abruptly became antagonized by the employee's refusal to place her pregnancy in a position secondary to the interests of the employer.
/s/ James T. Flynn, Chairman
Attorney Mark A. Sweet
Attorney Larraine McNamara-McGraw
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(1)( Back ) In the written arguments to the ALJ, counsel for Blahnik indicated that Blahnik was no longer pursuing her claim of disability discrimination, and she reiterates in her written arguments to the commission that "Blahnik has already abandoned any theory of 'disability' discrimination."
(2)( Back ) This would not be appropriate for the commission to do because even assuming the commission decided that the respondent's motion to dismiss at the close of the complainant's case should not have been granted, the respondent retained the option of presenting its rebuttal case at a continued hearing.
(3)( Back ) Interestingly, Blahnik's job description under the collective bargaining agreement between her union (OPEIU) and the respondent union (IBEW) provided as follows:
Keeps records under the supervision of the Secretary-Bookkeeper [i.e., Schmidt]. Prepares statements, vouchers, does posting, but not required to make closing entries or to compile summary statements, or to assume responsibility for the whole set of records or for seeing that the proper reports are made on time. Will operate all office machines necessary to perform her/his descriptive duties. Prepares and maintains minor records and reports. Does general clerical work. Performs such work as: typewrites letters, reports and other matters from rough draft or corrected copy, files and records reports, answers the telephone and does other clerical work of a routine nature.
Respondent's Exhibit 2, p.9.
(4)( Back ) The commission has long recognized that an employer who harbors no discriminatory animus may nonetheless be liable for acting upon the recommendation of third parties who do have such animus. See for example Haecker v. Charter Steel (LIRC, 01/28/03), citing the rationale of Shager v. Upjohn Co. 913 F.2d 398 (1990); Murray v. Waukesha Memorial Hosp. (LIRC, 05/11/01), employer acted out of fear of adverse publicity and adverse response by third parties; Swanson v. State Street Stylists (LIRC, 11/26/97), third party insisted upon dismissal of disabled employee as condition of purchase of interest in employer's operation; Stanton v. Abbyland Processing (LIRC, 05/30/85), aff'd. sub nom. Abbyland Processing v. LIRC (Taylor Co. Cir. Ct., 02/14/86), employer acquiesced to pressure from another employee to fire complainant because she refused the sexual advances of that employee; Waldo v. Milwaukee Metro Security (DILHR, 04/08/76), employer transferred security guard because of complaint of a customer based on employee's race.