BARBARA M ZAHORIK, Complainant

KARL SCHMIDT UNISIA INC, 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.

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

This matter is remanded to the Equal Rights Division to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that the respondent violated the Wisconsin Fair Employment Act by discriminating against the complainant based upon disability.

Dated and mailed June 18, 2015

zahorba_rsd . doc : 164 : 5  713

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

Retaliation

The initial question presented in this case is whether the complainant established that the respondent's actions in assigning her work outside of her work restrictions and in terminating her employment were undertaken in retaliation for her actions in filing a previous discrimination complaint with the Equal Rights Division. The administrative law judge concluded that retaliation was not established, and the commission agrees. In the first place, it was not shown that the individual who assigned the complainant to work a 50-hour work week, in violation of her medical restrictions, was aware of the complainant's discrimination complaint, and there is no evidence to suggest that his actions were motivated by the fact that she had engaged in protected conduct. While Michael Windberg, the individual who made the decision to terminate the complainant's employment, was aware of the complainant's discrimination complaint, he did not decide to discharge the complainant until four months after the complaint was filed and no evidence was presented to connect his actions with the filing of the complaint. To the contrary, the evidence indicates that Mr. Windberg's decision to discharge the complainant was motivated by his belief that the complainant had submitted a doctor's excuse that was medically unnecessary and which, in his opinion, amounted to an attempt to avoid weekend work. This explanation, while potentially raising concerns about disability discrimination and reasonable accommodation, does constitute a reason for terminating the employment relationship that is unrelated to the complainant's protected conduct. Because the complainant has failed to demonstrate by a preponderance of the evidence that she was discriminated against based upon her actions in filing a complaint with the Equal Rights Division, the dismissal of her retaliation complaint is affirmed.

Disability discrimination

The administrative law judge noted in her decision that the respondent's actions may constitute a violation of the Wisconsin Fair Employment Act as it relates to an individual with a disability and a failure to accommodate the complainant's disability, but stated that she had not reached this issue because the complainant did not allege disability discrimination in her complaint. However, the commission has read the complainant's complaint and believes that it does, in fact, allege discrimination based upon disability. On the front page of the complaint form the complainant checked the box indicating that the reason for the discrimination was "I filed a previous discrimination complaint with Equal Rights," but did not check the box marked "disability." However, in her attached "Statement of Discrimination" the complainant specifically indicated that she was assigned work outside of her medical restrictions and discharged because the respondent would not accept her doctor's restrictions. The complaint alleges, in relevant part:

3. The reason I was given for being fired was because of the doctor's prescribed restriction order; I received this on August 3rd, Mike Windberg said it was not acceptable.

4. I went to the doctor on August 3rd because of leg pain and I also missed work on August 4th; the following week I returned to work on Monday the 8th. I gave Al Klatt the two slips from the doctor and he then said personnel wouldn't like this.

5. . . . On Monday August 15th, Mike Windberg had myself, Al Klatt and Melissa Winters in his office at about 7:20 a.m. He didn't like what my doctor wrote for the prescribed restrictions. I was told to go back to the doctor and have it changed to what he had dictated to me. I then asked him to write it down so I wouldn't forget and he wouldn't. He then gave me his card and asked to have it faxed to him. He underlined his name and his fax number at this time. I was sent home at about 7:51 a.m. I called the doctor when I returned home. The doctor was busy and then I received a call back about 2 p.m. I explained that if this wasn't change [sic], I was going to be fired. Then another prescribed restriction was faxed. I went to work the following day the 16th and about 7:30 I was called to Al Klatts' [sic] office where Melissa was and she said no one here has this schedule. I didn't understand this comment because we all have a work schedule. Then I was told I was fired and they both walked me to my locker and then to the door.

. . .

9. Prior to this prescribed restriction I worked five ten-hour days: July 24th through the 28th and on the fourth day my legs and back really bothered me. I usually worked my normal forty straight hours for years until this year in March.

A complainant who was unrepresented when filling out her complaint form should not have that complaint read narrowly. Hiegel v. LIRC, 121 Wis. 2d 205, 35 N.W.2d 405 (Ct. App. 1984). In this case, the complaint filed her complaint without assistance from legal counsel and included a set of factual assertions that clearly encompassed an allegation of disability discrimination. The fact that the complainant did not check the proper box on the front of the form, which is not a statutory requirement for the filing of a complaint, is not a circumstance that should have prevented all of the allegations in her complaint from being investigated and resolved.(1)

Where an issue has been raised in a complaint but never investigated the commission has remanded the matter so that an investigation can be done. See, for example, Wikel v. Metro Bar and Cafe, ERD Case No. 200500847 (LIRC May 18, 2007). Because the complainant's complaint included an allegation of disability discrimination that was not investigated, the commission believes that a remand is warranted, and requests that the Equal Rights Division expedite this matter so that it can be resolved without further delay.

cc: Attorney Thomas Krukowski

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(1)( Back ) Indeed, even if the complainant had not alleged disability discrimination, the department's Equal Rights Officer could have advised her to amend her complaint once it was clear that disability discrimination may have occurred. Wis. Admin. Code § DWD 218.06(2).

uploaded 2015/07/22