SHERRY NEULREICH, Complainant
US BANK, 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 April 11, 2008
neulrsh . rsd : 115 : 9
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
In her charge of discrimination, (1) the complainant alleges she was discriminated against on the basis of disability, age, and sex in regard to the following adverse actions:
(1) After she returned from medical leave in April 2004, she was denied promotion to Senior Vice President;
(2) In June of 2004, she was placed on involuntary disability leave;
(3) In late June of 2004, Stammler, her supervisor, harassed her by screaming at her and throwing temper tantrums;
(4) She was discharged on August 23, 2004.
Wisconsin courts, in the absence of the Fair Employment Act's (WFEA) establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, such as that advanced here, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985); Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003).
As stated by the court in Puetz:
McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).
In general, to establish a prima facie case of discrimination, a complainant must show that she was a member of the protected group and suffered the adverse action alleged, and that the relevant circumstances create an inference of discrimination, i.e., typically, that others not in the protected group were treated more favorably.
Under the circumstances present here, in order to sustain her burden to show probable cause to believe that she was discriminated against, the complainant is required preliminarily to establish that she suffered the adverse actions upon which her charge is based.
The record, however, does not show that the complainant ever applied for, or was considered for, promotion to a Senior Vice President position, or, in fact, that she applied for promotion to any other position during the time period relevant to this matter. As a result, she failed to sustain her burden in regard to allegation (1).
In addition, the only actions detailed by complainant in her hearing testimony as constituting harassment of her by Stammler consist of Stammler's criticism that the complainant had not finished her assigned work. This, without more, does not qualify as harassment within the meaning of the WFEA. The complainant, contrary to her representation in her charge, did not testify or otherwise establish that Stammler screamed at her or threw temper tantrums in her presence. As a result, the complainant failed to sustain her burden in regard to allegation (3).
Allegation (2) relates to the complainant's return to work after a hospitalization in May/June of 2004. The record shows that the complainant was on leave for, and received treatment for, a mental health condition from approximately January 14 through April 9, 2004; and provided notice to the respondent through a relative that she was in the hospital over the Memorial Day weekend, i.e., some time during the period Saturday, May 29, through Monday, May 31, 2004. The respondent advised the complainant some time prior to Thursday, June 3, 2004, when she reported to work, that she could not return to work without a release by her treating physician, but the complainant did not provide such a release on June 3 or thereafter.
This was a reasonable requirement for the respondent to impose to assure that the complainant was able to perform the duties and responsibilities of her position with or without accommodation. Moreover, the complainant failed to show that other employees, including those who were male, younger, or not disabled, were not directed to obtain medical releases in order to return to work after a hospitalization. She failed, as a result, to establish a prima facie case of discrimination as to allegation (2).
Finally, allegation (4) relates to the complainant's discharge.
In a claim of discriminatory discharge, the elements of a prima facie case that the complainant must establish are that: (1) she was a member of the protected group; (2) she was discharged; (3) she was qualified for the job, and (4) either she was replaced by someone not within the protected group or others not in the protected group were treated more favorably. Puetz Motor Sales, Inc. v. LIRC, supra.
Here, again, the complainant has failed to prove that she was replaced by someone who was male, younger, or not disabled, and has failed, as a result, to establish a prima facie case of sex, age, or disability discrimination.
If the complainant had succeeded in establishing such a prima facie case, the burden would shift to the respondent to articulate a legitimate, non-discriminatory reason for the discharge. The record shows that the reason offered by the respondent was the complainant's failure to complete her assigned work in a timely manner. This reason is legitimate and non-discriminatory on its face.
The burden would then shift to the complainant to show that this reason was a pretext for discrimination. The complainant has failed to sustain this burden or to even articulate her theory of how pretext is demonstrated here. The record does not show, for example, that the complainant's assigned work was actually completed on a timely basis, that the time limits imposed upon her were unreasonable, or that others with similar duties and records of accomplishment were not discharged.
The complainant has failed to sustain her burden to prove that probable cause exists to believe that she was discriminated against on the basis of sex, age, or disability as alleged.
In her appeal to the commission, the complainant takes issue with the administrative law judge's failure to receive or consider evidence as to the resolution of her related unemployment insurance case. However, pursuant to Wis. Stat. § 108.101(1), an unemployment insurance determination or decision is not admissible or binding in a proceeding before the Equal Rights Division. See, Mihalovich v. Jewel Osco, ERD Case No. 199904227 (LIRC Sept. 13, 2001).
The complainant also takes issue with the administrative law judge's failure to receive or consider evidence as to her qualification for social security disability benefits, and uncertified medical records from her treating physicians as to her epilepsy. (2) The complainant offered this evidence to prove that, due to her epilepsy, she qualified as an individual with a disability within the meaning of the WFEA.
However, to sustain her burden to prove disability discrimination, the complainant would have to prove both that she qualified as an individual with a disability pursuant to Wis. Stat. § 111.32(8), and that she was discriminated against on this basis. Since, as discussed above, the complainant failed to prove that she was discriminated against, consideration of the excluded evidence relating to her epilepsy would not change the outcome here.
cc: Attorney Bradley C. Fulton
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