REGINA A JONES-JOHNSON, Complainant

UNITED STATIONERS 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 April 10, 2002
jonesre . rsd : 164 : 9 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

In her petition for commission review the complainant urges the commission to reject the respondent's contention that her discharge was based upon her continuous absences and the fact that the respondent had no vacant positions for her. The complainant maintains that, if those were the real reasons for her discharge, she would have been discharged after a year, in keeping with company policy. She asserts that the respondent's actions in permitting her to remain employed for two years on inactive status, then discharging her shortly after an administrative law judge issued a decision dismissing her discrimination complaint, were undertaken in retaliation for having filed the complaint. The complainant's argument fails. Even assuming that the respondent bent its own rules to keep the complainant employed until her discrimination complaint was resolved, this would suggest that the complainant was treated more favorably than other workers who did not file complaints, not the contrary. Moreover, given that the complainant had not been able to perform any work for the respondent for two years, the commission is uncertain as to why she believes she should have continued to remain employed. At some point an employer must be permitted to discharge a worker who is unable to work, and the fact that the complainant filed a discrimination complaint did not guarantee her employment status indefinitely or abrogate the respondent's right to sever the employment relationship where it had a legitimate reason to do so.

In her petition the complainant also argues that she was denied the right to use certain evidence she thought would support her claim. Specifically, the complainant states that at the previous hearing Kathy Bruno testified that she had not been discharged. The commission is somewhat perplexed by this argument, as it is clear from the transcript that the complainant did enter this piece of evidence into the record. (Transcript, at 16.) Moreover, the commission fails to see the relevance of Ms. Bruno's testimony to these proceedings. At the time Ms. Bruno allegedly made the statement in question, the complainant had, in fact, not yet been discharged. The complainant also states that she requested information from Enid Adelman regarding extra insurance she was paying for but which was no longer in force. Again, however, the record indicates that the complainant was able to present her evidence on this point, and the commission is unable to see how such information has any bearing on the outcome of this matter. Based upon its review of the record the commission finds absolutely no reason to believe that unlawful retaliation occurred, and it is satisfied that the complainant was discharged for legitimate, nondiscriminatory reasons. The dismissal of the complaint is, therefore, affirmed.

cc: Attorney Jody A. Ballmer

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uploaded 2002/04/24