SARA M STELLOH, Complainant
WAUWATOSA SAVINGS BANK, Respondent
An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
1. The following sentence is inserted after the last sentence in paragraph 5 of the administrative law judge's decision:
"The respondent granted the complainant Family and Medical Leave Act (FMLA) leave for those absences.
2. The second sentence in paragraph 12 of the administrative law judge's FINDINGS OF FACT is deleted.
3. Paragraphs 3 and 4 of the administrative law judge's CONCLUSIONS OF LAW are deleted and the following paragraph is substituted therefor:
"That the complainant has established that the respondent discriminated against her based upon a disability, in violation of the Wisconsin Fair Employment Act."
4. The following paragraph is inserted after paragraph 2 of the administrative law judge's ORDER:
"That the respondent shall pay to the complainant reasonable attorney fees and costs associated with responding to the respondent's petition for commission review, in the total amount of $10,925.20.1(1) A check in that amount shall be made payable jointly to the complainant and her attorney, Rebecca L. Salawdeh, and delivered to Ms. Salawdeh."
5. Paragraph five of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:
"Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes 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. See Wis. Stat. § § 111.395, 103.005(11) and (12)."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed June 19, 2012
stellsa . rmd : 164 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
In its brief to the commission the respondent argues that it clearly established a legitimate, nondiscriminatory reason for discharging the complainant, namely that she had been written up three times in six weeks for poor customer service. The respondent contends that the complainant has failed to demonstrate that this was a pretext for discrimination. The commission disagrees. The first of the three instances of poor customer service involved the complainant's missing a real estate closing because it was not recorded on her calendar, and was unrelated to her disability. However, the second and third instances were directly related to the fact that the complainant was off work due to her disability. In one of the two instances a client telephoned the complainant and left a voicemail message for her, which she did not immediately return because she was home sick with a migraine. The complainant contacted the client the day she returned to work and assisted him at that time. In the second instance the complainant was home with a migraine when a customer sent her an inquiry via office e-mail. The complainant was not aware of the existence of the e-mail until she returned to work two days later, at which point the client had already contacted someone else at the bank for assistance.
The respondent takes issue with some of these facts. First, the respondent argues that the administrative law judge ignored testimony of several witnesses that the complainant was absent for other far-fetched reasons in July, August, and September, and accepted at face value the complainant's testimony that all of her absences were due to migraines. This argument fails. While some of the respondent's witnesses asserted that the complainant missed work for a variety of reasons apart from her disability, the two absences at issue, which occurred on October 6 and October 24, not during July, August or September, were undisputedly because of migraine headaches. The complainant testified, without rebuttal, that she was home with a migraine on October 4 through 6 and again on October 23 through 24. While the complainant's physician did not provide any testimony about the latter period of absence, he confirmed that the complainant called him on October 4 and October 5 because she was suffering from a migraine. Under all the circumstances, the commission sees no reason to doubt that the complainant's absences on the relevant dates were caused by her disability.
The respondent also argues that the complainant's failure to assist Ms. Eden was not because of her disability. It contends that Ms. Eden testified she left a voice mail message for the complainant during the week of October 16, at which point the complainant was not off work due to a disability, but received no response. However, the record does not support this assertion. At the hearing the complainant testified that she called Ms. Eden on October 16 to provide information about refinancing her properties. Ms. Eden did not dispute this. She testified that, although she did not remember the call, the complainant must have gotten back to her with the information she requested because she knew she had room to refinance. Ms. Eden stated that she left a voicemail message for the complainant two days before she contacted a different loan officer, an event which occurred on October 25. Thus, according to Ms. Eden's testimony, the attempted contact with the complainant was not during the week of October 16, but was on October 23, at which time the complainant was home from work because of her disability.
Based upon its independent review of the evidence the commission is persuaded that the complainant's two most recent failures in customer service were directly caused by her disability, which prevented her from being at work and receiving and/or responding to contacts from customers. The record reveals no reason to believe that the complainant would not have promptly responded to customer requests had she been at work. Under all the circumstances, the commission is satisfied that the complainant's termination for poor customer service was, in legal effect, because of her handicap. See, Crivello v. Target Stores, ERD Case No. 9252123 (LIRC Aug. 14, 1996), and cases cited therein, aff'd sub nom. Target Stores v. LIRC and Mary Crivello, 217 Wis. 2d 1; 576 N.W.2d 545 (Ct. App. 1998).
In its reply brief to the commission the respondent asserts that it cannot be found liable for discharging the complainant, because her disability was reasonably related to her ability to adequately perform the job and because it did provide her with a reasonable accommodation by granting her FMLA leave upon her request. These arguments fail. While an argument can be made that the complainant's disability was reasonably related to her ability to perform the job, given that it caused her to be sporadically absent from work and therefore unavailable to customers, the fact remains that the respondent failed to provide the complainant with a reasonable accommodation that would have enabled her to remain employed. Granting the complainant's request for sporadic FMLA leave was only a partial accommodation. The complainant required the additional accommodation of assistance in establishing a system for communicating with clients during her absences and for directing those clients to other bank employees if they required immediate assistance, coupled with an understanding that the complainant would not be able to perform her duties on days she was absent from work due to her disability, and a commitment not to discharge her as a result of her absences -- i.e., what the commission has referred to as "forbearance." See, Crivello, supra.
The record reveals that the respondent instructed the complainant, in the event she missed work due to her disability, to update her voicemail message to explain that she was out. The complainant did so, and customers who contacted the complainant by telephone at work were advised of her absence and were given the option of pressing a zero or a one to talk to someone else. The complainant was not given any instructions regarding her e-mail. Although the respondent was aware that the complainant could not update or access her e-mail remotely, it did not make any effort to find a way to accomplish this or to arrange for someone else in the office to check the complainant's e-mails during her absence. Moreover, while the respondent was clearly dissatisfied with the complainant's failure to communicate with her clients during her absence, the fact remains that the clients were able to request and obtain assistance from other loan officers. Both of the clients at issue were able to resolve their transactions in a timely fashion, notwithstanding the minor inconvenience of not being able to immediately reach the complainant, and neither of them indicated that they were considering changing banks due to poor customer service. The respondent has failed to demonstrate that accommodating the complainant's disability by assisting her to better help her customers and refraining from discharging her for her absences would have caused a hardship for its business.
The evidence in this record suggests that the respondent was not interested in tolerating the complainant's absences and did not want to provide her with an accommodation. The fact that the complainant's supervisor issued her an attendance warning, even though he was aware that the complainant's absences were because of her migraines and were covered by FMLA leave, along with the fact that, prior to her having missed the two customer contacts, the respondent had already obtained legal advice on how to deal with the complainant's absences and any resulting lack of productivity, suggest that the respondent was not genuinely interested in accommodating the complainant's disability, but was paving the way for her discharge. The respondent made no effort to work with the complainant to ensure that her clients continued to receive the level of service they were accustomed to, and then discharged her after only a few lapses in excellent customer service.
The commission has considered the remaining arguments raised by the respondent in its brief, but finds them similarly unpersuasive. The commission has modified the administrative law judge's decision to clarify two incomplete and/or misleading factual findings identified by the respondent. However, those minor modifications notwithstanding, the commission agrees with the administrative law judge's conclusion that the respondent discriminated against the complainant based upon her disability, in violation of the statute. Accordingly, the decision is affirmed.
cc:
Attorney Rebecca Salawdeh
Attorney Thomas Binger
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