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

JACQUELINE BRIMLEY, Applicant

HOUSING AUTHORITY OF MILWAUKEE, Employer

WORKER'S COMPENSATION DECISION
Claim Nos. 93059502, 92061132

An administrative law judge (ALJ) for the Worker's Compensation 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 order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed: May 14, 1998
brimlja.wsd : 175 : 8 ND § 7.32    § 8.28

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant contends in her petition for commission review that the administrative law judge erred in not determining that the employer violated Wis. Stat. § 102.35(3) and unreasonably refused to rehire the applicant. The applicant contends that the employer's rehiring of the applicant following her work injury was merely pro forma, and that the employer transferred the applicant to the third shift in order to force the applicant to terminate her employment. The applicant contends that the employer had no reasonable justification for the transfer of the applicant's shift from the second to the third. Ms. Merchant, one of the applicant's co-workers testified that she was in a meeting with Mr. Wigins and his supervisor, Mr. Johnson, who had supervisory authority over the applicant, prior to the applicant's rehire in January, 1994. Ms. Merchant testified that Mr. Wigins and Mr. Johnson discussed the applicant among other things, and indicated that they wanted to get rid of her by putting her on the third shift because she was accident prone. Ms. Merchant testified that Mr. Wigins and Mr. Johnson were aware that the applicant would have to quit if put on the third shift because of problems with childcare.

However, upon cross-examination Ms. Merchant admitted that she did not know if this conversation took place in 1990, 1991 or 1992, although she could recall the location. Ms. Merchant admitted that she had worked on the first, second and third shifts for the employer as a public safety officer. Mr. Wigins testified that he did meet with Ms. Merchant and Mr. Johnson at approximately the time the applicant came back to work but they did not discuss the applicant. Mr. Wigins testified that he asked for the meeting with Mr. Johnson because Ms. Merchant refused to work with him as a subordinate. Mr. Wigins denied that Mr. Johnson and he discussed the applicant at all or her situation, and that he had never been instructed by Mr. Johnson to get rid of the applicant because she was accident prone, and that he did not have the power to discharge the applicant.

Mr. Wigins testified that it was made clear to the applicant at the time that she was hired as a public service officer in April 1993 that all employes were on a 24 hour program, 7 days a week, and that she was subject to being placed at any position at the discretion of the program, for the good of the program. Mr. Wigins testified that the applicant was transferred to the third shift in February 1994 because of a shortage of females on that shift. When asked why Ms. Stuart, a co-worker, was not allowed to substitute for the applicant on the third shift Mr. Wigins testified that these decisions were based on the needs of the organization and the needs of the housing authority and he could not justify arbitrarily changing these decisions without jeopardizing the program.

Ms. July, who was Mr. Johnson's supervisor and was employed as the manager of community services for the housing authority, testified that there was a legitimate policy reason to have female employes working the third shift as well as the other shifts to provide service to female residents, as well as affirmative action and equal opportunity reasons. Irene Smith, one of the applicant's co-workers, testified on behalf of the employer that all of the employes were told in March 1993 when they were first hired for full-time work as public service officers that they would be required to work any shift on any day of the week, and that the policy had not changed. The evidence indicates that the employer gave the applicant 30 days following her rehire in February 1994 to continue working on the second shift to arrange for childcare since the applicant informed the employer she would have trouble with childcare if she was required to work the third shift. The administrative law judge who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility, credited the testimony from Mr. Wigins and Ms. July. Based on an independent review of the evidence in the record the commission has found nothing to warrant overturning the administrative law judge's credibility determination.

The evidence indicates that the applicant was given adequate notice that she would be required to work on any shift including the third shift for the employer, when she was hired as a public service officer in April 1993. Further, the employer allowed the applicant 30 days to continue working on the second shift in order to make childcare arrangements when she was required to move to the third shift. The commission credits the testimony from Mr. Wigins and Ms. Paul that the employer needed the applicant to move to third shift to provide service to the female residents.

The commission did not find Ms. Merchant's testimony to be persuasive or credible. Ms. Merchant could not remember the date time or even the year of the meeting with Mr. Johnson and Mr. Wigins. Mr. Wigins testified that the reason for the meeting with Mr. Johnson prior to the applicant's return was because Ms. Merchant refused to work with him and refused to take his directions. If the employer was trying to force the employer to quit due to her childcare problems it does not seem reasonable that the employer would have allowed the applicant 30 days to make the necessary childcare arrangements following her transfer to the third shift. Rather, it appears that the employer made a good faith effort to accommodate the applicant's childcare problems.

Also, the commission does not find that the administrative law judge abused her discretion by refusing to admit hearsay testimony from Ms. Bias. It was not established that proper delivery was made of the subpoena to Mr. Johnson for the hearing in October 1997. Further, the administrative law judge indicated when she sustained the objection to Ms. Brimley's testimony as hearsay that Mr. Johnson was not an employe of the employer at the time of the hearing, and she pointed out that the applicant had the ultimate recourse to go to circuit court to have the subpoena enforced. The administrative law judge noted that if the applicant wanted to pursue that avenue that the applicant should let the administrative law judge know at the end of the hearing. However, it was not established that the applicant informed the administrative law judge that the applicant had any intent to go to circuit court to enforce the subpoena. Therefore, it was not established that the administrative law judge abused her discretion in refusing to allow the testimony from Ms. Bias. Based on the evidence in the record, including the evidence that the applicant had been informed that she may be required to work on any shift for the employer, and given the employer's actions in attempting to accommodate the applicant's need to arrange for childcare on the third shift and based on the testimony from Mr. Wigins and Ms. July, the evidence did not establish the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3). Rather, the employer made a good faith effort to rehire the applicant but the applicant voluntarily terminated her employment in May 1994.

cc: ATTORNEY JAN SCHROEDER
PETERSON JOHNSON & MURRAY

ATTORNEY ANJUM DIECKMANN
HAROLD BLOCK LAW OFFICE

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