TAWANA M WATKINS, Complainant

V & J EMPLOYMENT SERVICES INC, 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 conclusion in that decision as its own.

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

Dated and mailed January 18, 2006
watkita . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Tawana Watkins began work for the respondent, V & J Employment Services, d/b/a Burger King, beginning in about Mid-May of 2003. Watkins was apparently about six months pregnant when hired but her pregnancy was not noticeable and she did not disclose her pregnancy at the time of hire. Watkins' expected delivery date was August 28, 2003. After learning of Watkins' pregnancy the respondent informed Watkins that if there were any work duties that she was unable to perform she should provide a written statement from her doctor. Watkins never provided the respondent a statement listing duties she could not perform.

Watkins alleges that the respondent discriminated against her on the basis of pregnancy, childbirth, maternity leave or related medical condition in violation of the WFEA with respect to her terms and conditions of employment and termination of employment.

Specifically, Watkins alleges that beginning in June she was scheduled for fewer hours of work, that in August she was taken off the work schedule for a period of time and that she was sent home from work on August 21, 2003, her last day of work. The evidence fails to provide reason to believe that the respondent discriminated against Watkins in violation of the Act. The evidence indicates that the respondent scheduled Watkins for fewer hours of work and took her off the work schedule for about a two-week period because she did not move quickly enough to meet the respondent's standards for providing service. Another pregnant employee whom the respondent believed to be further along in her pregnancy than Watkins, who did meet the respondent's standards for speed of service, did not have her hours reduced and was kept on the work schedule. Also, while Watkins asserts that she was sent home on August 21 when she requested assistance in getting ice for the drive-through, the respondent's assistant manager asserts that Watkins was sent home because Watkins wanted to sit down when she was needed to prep and stock her area. In any event, Watkins' employment was not terminated on August 21. Watkins discussed the incident with the respondent's store manager later on August 21 and then began her maternity leave. Pregnant employees are permitted to return to work following a maternity leave at the respondent. Watkins could have returned to work for the respondent following her maternity leave but chose not to do so. The respondent's assistant manager had previously taken a maternity leave and returned to work.

cc: Ms. Bernadine Cosey

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uploaded 2006/01/24