DIANE M. KRAUSE, Complainant
MARQUETTE UNIVERSITY, Respondent
An Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on June 12, 1991, concluding that the Complainant had failed to prove the Respondent unlawfully discriminated against her on the basis of sex. Complainant filed a timely petition for review by the Commission. Both parties subsequently submitted written arguments to the Commission.
Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:
The decision of the Administrative Law Judge (copy attached) is modified as follows:
1. Delete the second sentence in paragraph 7 of the FINDINGS OF FACT and substitute the following sentence therefor:
"On the following morning when Kim Autio, the Director of the Program in Dental Hygiene, had called in to her office secretary, Complainant got on the phone and informed Autio that her physician had advised her that she could not travel with Autio to a recruitment meeting in Orlando, Florida the weekend of February 12-14, 1988, since she was pregnant."
2. In the second sentence of paragraph 10 of the FINDINGS OF FACT, the word "beginning" is deleted and the word "begin" is substituted therefor.
3. In paragraph 16 of the FINDINGS OF FACT, the phrase "Sometime in January of 1988" is deleted and the phrase "Sometime in late January or early February, 1988" is substituted therefor.
4., In the first sentence of paragraph 18 of the FINDINGS OF FACT, the words "and informed" are deleted and the words "to inform" are substituted therefor.
The above modifications have been made to make the findings better conform to the evidence, and in one instance to correct a misspelled word.
As modified, the decision of the Administrative Law Judge is affirmed and shall stand as the FINAL ORDER herein.
Dated and mailed June 30, 1992
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ James R. Meier, Commissioner
The Complainant in this case learned that she was pregnant in January 1988, with an expected due date in the latter part of September 1988. She worked as the supervisor of the Junior Clinic for Respondent's dental hygiene program. Her complaint of discrimination is that she needed a short time off to have her baby and had intended to immediately return to work, but she was not permitted to take a short leave; that the only option provided her was to take a leave for the entire fall semester (1988-1989 school year) and then return for the second semester not as the Junior Clinic supervisor, but as a regular clinical faculty member. Complainant refused to accept the leave offered and instead filed a complaint of discrimination on March 29, 1988.
The Commission agrees with the decision of the ALJ and is satisfied that the Complainant was not unlawfully discriminated against. The Complainant has presented numerous arguments on appeal. The remainder of this opinion addresses those arguments.
Complainant first argues that the ALJ erred in ignoring substantial evidence that Respondent had a leave policy and the leave policy was that coverage was arranged. Respondent's policy (actually it was an unwritten practice) with respect to time off for part-time employes in the Dental Hygiene program was as follows: the worker was to arrange for someone else to cover the absence and to get clearance of the change from Kim Autio, the director of the Dental Hygiene program. The overwhelming evidence makes it perfectly clear that there is no question but that this was the Respondent's practice regarding leaves of absence.
Complainant argues, however, that Respondent's treatment of her under the policy was not consistent with its treatment of others with disabilities; that the ALJ's findings are written as if the policy changed in 1988 but the overwhelming evidence in the record shows that the Respondent's policy has not changed. The Complainant's arguments are without merit. First, the ALJ's decision is not written as if the policy had changed; it is written to indicate that Respondent had never encountered a situation such as that which existed in January 1988 when the subject of a leave of absence arose in connection with the Complainant's announced pregnancy. The Respondent was facing a problem in the area of adequate clinical coverage because of extensive planned faculty cutbacks which were to begin as of the 1988-89 school year due to declining enrollment. Complainant, a junior clinical supervisor, was seeking a leave for a period of three to six weeks in the fall of 1988. Granting such leave presented problems of program continuity and student clinical development. The timing of the leave would have coincided with the most critical phase of the students' clinical training, the period when students first began to work with real patients and needed maximum supervision. Appointing someone else as the clinical supervisor for only the first semester and then reappointing Complainant as the supervisor for the second semester also presented the problem of not providing for continuity in the students' development of clinical skills. Secondly, with respect to Complainant's argument that Respondent's treatment of her was not consistent with its treatment of others with disabilities, this was because of the unusual situation which existed in 1988. Further, a request for a leave of absence for any reason would have met the same fate under these circumstances. Respondent's Exhibit 5; III, 175.
Secondly, Complainant argues that Respondent's own assertions as to what its leave policy was are varied and contradictory and do not support the adverse treatment of her. Complainant argues as follows:
"Marquette's position statement on April 13, 1988, said that it simply had no policy:
. . . Part-time faculty do not qualify for fringe benefits, which includes short-term disability leave. In other words, there is no provision for approved leaves of absence for part-time faculty. If time off is needed they go off the payroll.
(Exh. 3, Position Statement of Marquette)
On January 27, 1988, Autio outlined another 'policy' in her allegedly contemporaneous notes. She wrote:
Possibly a 1-2 week leave of absence for just a regular clinical faculty could be arranged, however, for anyone in a supervisory position, any leave of absence for any reason with the faculty cutbacks would cause clinical continuity difficulties for the program and students.
(Resp. Exh. 3)
On February 19, she stated 'It would be not be (sic) feasible to grant a leave of absence for any reason for just a portion of a semester." (emphasis in original)
Complainant's Revised Brief to the Commission, pp. 16-17.
As will be shown here, and below in connection with other arguments made by Complainant, time and time again the Complainant has taken things out of context and/or offered a distorted construction of the record evidence. For example, Respondent's April 13, 1988 statement of position was not a statement that it had no part-time leave policy, but a statement that it had no provision, i.e., no written contractual provision, governing leaves for part-time dental hygiene faculty. This is amply confirmed by the record. See I, 31-34; 62-63; 157-159; II, 53; III, 54, 56-57. Further, Autio was not outlining "another policy" in her January 27, 1988 notes, but was explaining her concerns associated with granting leaves of absences to regular clinic faculty and those in supervisory positions in view of the drastic upcoming faculty cutbacks for the 1988-89 school year, and the need to have a "consistent supervisor" (one supervisor) to allow for program continuity in the students' development of clinical skills. See Respondent's Exh. 3. Finally, Autio's February 19 statement was not a contradictory statement of Respondent's leave policy. Complainant apparently contends that Autio was now asserting that Respondent's leave policy was not to grant leaves for less than a full semester. Complainant distorts the meaning of Autio's February 19 statement by quoting only a portion of one sentence from her statement. When read in its entirety, however, such statement clearly shows that Autio was simply moving closer to the position that the faculty cutbacks for the 1988-89 school year and the need for consistency and continuity in the position of Junior Clinic supervisor did not make it "feasible to grant a leave of absence for any reason for just a portion of a semester." These were the very same concerns Autio had identified in her January 27, 1988 notes. Moreover, as the language just quoted shows, the circumstances were such that a leave of absence for any reason would not be feasible.
Next, Complainant argues that Autio's testimony at the hearing regarding Respondent's leave policy was inconsistent and incredible. For example, Complainant argues that Autio testified that she was instructed to cut back the faculty and was not permitted to bring in any temporary help or to bring back any faculty that had been let go, but this contradicts Dean Goggins' testimony, citing III, 57. Further, it is argued that Autio testified she never asked Dean Goggins if she could hire someone on a temporary basis to cover absences. Autio's testimony was not inconsistent nor was it incredible. First of all, Dean Goggins' testimony does not contradict Autio's testimony that she was instructed to cut back the faculty and was not permitted to bring in any temporary help or bring back any faculty that had been let go. Goggins had merely been asked the general question of whether "the dental school ever hired any temporary replacements," (1) and responded "yes." III, 57. Dean Goggins did not testify that Autio was advised or permitted to bring in temporary help in the program of Dental Hygiene in the midst of the faculty cutbacks. Further, the fact that Complainant may not have specifically asked Dean Goggins if she could hire someone on a temporary basis does not make her testimony that she was not permitted to bring in any temporary help, inconsistent or incredible. The decision on whether to grant Complainant a leave of absence was not completely left up to Autio, but, in fact, had included input from Goggins as they had looked at different options. for covering Complainant's class. 111, 58-63, 213, 147.
As other examples of alleged inconsistent and incredible testimony by Autio regarding Respondent's leave policy, Complainant argues that Autio testified that:
"8. Krause would have retained her position as Junior Clinic supervisor had she not been pregnant and needed a leave. (III, 191, 199.)
9. In this instance, there was 'nothing' Krause could have done to keep her job. (III, 191.)
10. If Krause had approached her and told her she needed a week off for an emergency instead of a week off for pregnancy, arrangements could have been made and Krause would not have lost her position as Junior Clinic supervisor. (III, 199.)" (emphasis in original)
Paragraph 8 cited by the Complainant simply fails to reveal any inconsistent or incredible testimony on the part of Complainant. Paragraph 9 fails to disclose the full context of this testimony by Autio. Autio's testimony was that under the circumstances as described in her February 19, 1988 memo relating to faculty cutbacks and the need for consistency and continuity in the position of clinical supervisor, there was nothing Complainant could have done to keep her job as Junior Clinic supervisor. III, 191. Paragraph 10 cited by Complainant can honestly be characterized as a blatant misrepresentation of the testimony by Autio. Autio did not testify as asserted by Complainant. Autio was asked if Complainant had not told her she was pregnant and needed a week off for an emergency, would she have continued as Junior Clinic supervisor. Autio's response was, "If arrangements could have been made, then it would have been accommodated."
Additionally, Complainant argues that Autio testified that: (1) if Complainant had found an acceptable replacement, she (Autio) would have considered it; and that (2) she never told Complainant of the alternative to find an acceptable replacement. However, there was no reason for Autio to tell Complainant to find a replacement. Complainant herself knew of this alternative (II, 11), and in fact she had secured acceptable replacements in the past. III, 211. Finally, Complainant argues that the faculty cutback which allegedly precipitated the change in leave policy, did not result in a change in leave policy since supervisors were not affected by any cutbacks. Continuing, Complainant argues that, in any event, logic precludes the rationale that because faculty had hours reduced, they could not accept additional hours. First, it again must be noted that Respondent's leave policy did not change. Secondly, Complainant's assertion that supervisors were not affected by the cutback is simply wrong. Dental Hygiene faculty did sometimes substitute for absent supervisors for short periods of time (e.g., for 1 day II, 73-82). Less faculty meant there would be fewer individuals to serve as replacements. Thirdly, Complainant's second argument totally ignores the further basis for Autio's action in this matter. The time at which Complainant would have needed a leave of absence occurred at the most critical time in late September when the Junior Clinic students would first begin to work with real patients and needed maximum supervision. It was important that the students have a consistent supervisor to address their questions and concerns in order to insure program continuity and student clinical development. Allowing various other faculty members to accept additional hours to cover for Complainant would not have permitted this program continuity. In this regard, Complainant admitted that "not to (her) knowledge had any supervisor in dental hygiene asked for three weeks off in September." II, 17-18.
A third argument by Complainant is that the ALJ erred by failing to analyze the facts in accordance with the applicable law. First, apparently attempting to suggest that Respondent's explanation for its treatment of Complainant was pretextual, Complainant argues that while Respondent had said its policy was to permit faculty to arrange coverage or to go off the payroll pursuant to discovery requests, "At the hearing, Marquette stated for the first time that its 'policy' was that an individual in a supervisory position cannot have a disability which would require time off during the school year, because accommodating this would be a 'hardship' " (citing III, 202), but it submitted only statements, no evidence to establish that an absence would, in fact, be a hardship.
Complainant's argument here fails. First, Respondent did not simply state that "an individual" in a supervisory position cannot have a disability which would require time off during the school year because accommodating this would be a hardship. The Respondent was specifically referring to a clinical supervisor. The testimony by Autio at III, 202 was that she "would permit someone to have a child in July without losing her job as a clinic supervisor, but if she had the child during the school year, she does lose her job as clinic supervisor." Id. (emphasis added) The reason, identified by Autio in Respondent's position statement way back on April 13, 1988, was that "for anyone in a supervisor position, any leave of absence would cause clinical continuity difficulties for the program and students." Complainant's Exh. 3, p. 3, par. 2. Contrary to the suggestion by Complainant, Respondent was not offering a belated explanation to justify its action taken in connection with Complainant. Respondent's statement was not an announcement of some "new policy," as Complainant seems to assert, but a course of action that would be necessary under the circumstances presented. Further, it must be noted that it was not for reasons of "hardship" that actually prevented Complainant from obtaining the length of leave she desired. It was actually because the only faculty found to be qualified to cover Complainant's position, either as a substitute or on a co-supervisor basis, were either unavailable or unwilling to work with Complainant.. This will be discussed further below. In any event, contrary to the suggestion made by Complainant, Respondent does not bear the burden of proving that "an absence would, in fact, be a 'hardship'." Respondent need only present clear and reasonably specific reasons for its conduct. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113, 117 (1981); Sanchez v. Texas Commission on Alcoholism, 660 F.2d 658, 27 FEP Cases 1001 (5th Cir. 1981). Respondent satisfied that obligation.
Secondly, Complainant has argued that "If Marquette has a 'no leave' policy based on allegations of hardship, this case should be remanded for a disparate impact analysis; however, such a policy would be so facially discriminatory that a traditional disparate impact analysis is not even necessary." However, this is not a disparate impact case. As noted above, it was the unavailability of a qualified substitute to either cover or co-supervise with Complainant that actually caused Respondent not to grant Complainant the leave she desired. Respondent does not have a "no leave" policy for pregnant women. Other faculty have requested time off for maternity purposes and Autio had always been able to accommodate them. (III, 171)
Next, Complainant argues that, in essence, Respondent implemented a mandatory leave policy exclusively for Complainant based on her pregnancy (which is per se illegal unless a bona fide occupational defense is established) ; that it is irrelevant that Respondent gave leaves to pregnant women in the past, under the Wisconsin Fair Employment Act (WFEA) discrimination cases must be considered on an individual basis. However, considering Complainant's case on an individual basis does not establish a violation under the WFEA. A request for a leave of absence for any reason for anyone in a supervisory position at the time in question would have ended with the same result. See Respondent's Exhs. 3 and 5; III, 175.
A fourth argument by Complainant is that the ALJ erred in failing to recognize that the Respondent's articulated reasons for its actions were pretextual. Complainant lists Respondent's reasons for its decision with respect to her as follows: (1) continuity or consistency would be a problem; (2) there was no one to cover for her; and (3) her personality was such that she could not co-supervise. Complainant then makes several arguments in an effort to establish that said reasons were a pretext for unlawful discrimination. First, Complainant asserts that Autio admitted that she never asked anyone to cover and never sought substitutes, citing III, 190 of the transcript. However, Complainant ignores Autio's testimony at the bottom of the preceding page (189) where Autio states that she had considered but rejected the idea of obtaining a substitute as unsatisfactory. Next, Complainant asserts that neither "'administrative convenience,' the allegation that it was 'too difficult to find a replacement,' or 'continuity of education' are considerations sufficient to sustain an employer's burden in establishing a business justification for denying a leave." (emphasis added) This argument fails, however, because Complainant was not denied a leave. III, 212; Resp. Exh. 6.
A further argument made is that the co-supervisor option rejected by Autio lacks credibility. Complainant makes a number of assertions on this subject. First, she asserts that co-supervisors, as defined by Autio and another witness, worked together to supervise a class and that Complainant could not have worked with someone, as she would have been absent. If Complainant had been granted a leave for a portion of the semester, it is obvious that she would not have been working with someone during her period of absence. Autio's concern, however, was with Complainant's ability to co-supervise with someone else when she was at work.
Next, it is argued that while Autio has stated (per Respondent's Exh. 5) that after Complainant announced her pregnancy and before she determined she would not give Complainant a contract she (Autio) was actively considering alternatives and, in fact, had asked individuals to co-supervise Complainant's class, this statement is "blatantly false." Complainant argues that there is no evidence that Autio legitimately tried to obtain a co-supervisor; that "Autio did not discuss the alleged co-supervisor issue with anyone until after she gave Krause's job to Nancy Bell." (emphasis in original) In support of her theory, Complainant argues that Autio's February 19, 1988 memo (Resp. Exh. 5) states that she discussed the option of a co-clinic supervisory position with two faculty (Nancy Bell and Colleen Wirth) before "denying Krause her job," but that Bell's deposition and hearing testimony was that Autio did not mention co-clinic supervisor until after she (Autio) asked her to take Complainant's job.
Preliminarily, it must be noted that Autio's decision was not that she "would not give Krause a contract," but that she would recommend to the Dean that Complainant be given a leave of absence for the first semester with opportunity to return to clinical responsibilities for the second semester. More importantly, however, Bell's testimony does not establish that Autio's Exhibit 5 statement is false at all. First, while Complainant has sought to make it appear that it was a "done deal," that Bell had in fact been made the Junior clinic supervisor before Autio had discussed the possibility of co-supervision with Bell (and Wirth), there was absolutely nothing in the record to establish that this was the case. Bell's deposition testimony at pp. 13 and 14 was that she did not know and could not remember if she had signed a contract for the Junior Clinic supervisory position for the 1988-89 year before being asked to co-supervise with Complainant. (Wirth simply did not know when she had been asked by Autio to co-supervisor with Complainant.) Secondly, assuming for purposes of argument that Bell's testimony is accurate in that she had been asked to take (i.e., offered) the Junior clinic position prior to being asked to co-supervise with Complainant (see contradictory testimony by Autio at III, 204, however), this too fails to make Autio's February 19, 1988 statement false. Two important points must be noted here. One is that Autio's February 19 memo indicates that she was ready to inform Complainant of her final decision (not to grant Complainant a leave for a portion of the semester) on February 19, 1988, when Complainant brought up the idea of appointing someone to co-supervise with her, that Autio told Complainant she did not consider such a proposal a good idea but would consider it, and that after this conversation Autio discussed with two faculty members the idea of sharing Junior Clinic duties with Complainant and both responded "no" because Complainant would take charge. The second point, as already noted above, is that Bell did not know if she had already signed a contract for the position of Junior Clinic supervisor (i.e., accepted Autio's offer to become Junior Clinic supervisor) when asked to co-supervise with Complainant. All Bell was able to state was that she had been offered the Junior Clinic position prior to being asked to co-supervise with Complainant. Accepting Bell's testimony that she had been offered the Junior Clinic position prior to being asked to co-supervise with Complainant does not render Autio's February 19 statement incredible. The most reasonable interpretation to be given the evidence is that after offering Bell Complainant's position, but before Bell accepted the offer, Complainant raised the idea of co-clinic supervision for the entire year and Autio therefore went back to Bell with the proposition of co-supervision with Complainant as a last-minute effort to accommodate Complainant in her requested length of leave of absence.
Next, Complainant argues that the incredibility of Marquette's position is evident because its reasons for its treatment of Complainant varied and changed during the investigative stage of the case, the depositions and finally during the last day of the hearing. This argument is without merit. Complainant has failed to identify any changes in the Respondent's stated reasons for its treatment of Complainant, and the record, in fact, provides ample evidence that Respondent's reasons for its treatment of Complainant remained consistent.
Finally, Complainant attempts to portray Autio as unable to be consistent regarding the reasons for her treatment of Complainant, contrasting Autio's February 5, 1988 letter to Complainant which refers to Complainant as needing a leave for a "major portion" of the first semester of the 1988-89 academic year with a subsequent letter given to Complainant on February 26, 1988, which had deleted the word "major" and referred to Complainant's need for a leave of absence for a "portion" of the first semester. of the 1988-89 academic year. This argument is also without merit. At the time of the February 5 letter, Autio was considering the feasibility of a six-week leave of absence for Complainant, while on February 26 Autio was considering the feasibility of a three-week leave of absence for Complainant. See Respondent's Exhs. 3 and 5; 111, 147-148.
Another argument presented by Complainant is that the ALJ erred in finding that covering for Complainant would be a hardship because there was "never any attempt to cover Krause's class in accordance with Marquette's established policies." The evidence fails to support Complainant's argument. First, as previously stated, Respondent's established leave practice for part-time employes was that the "worker" was to arrange for someone else to cover the absence and then to get clearance for this change from Autio. As found by the ALJ, the Complainant failed to follow this practice because she never provided Autio with the names of anyone that was willing to cover for her. III, 211-212; II, 10-11. Complainant was aware of this practice as she had provided Autio with the name of a substitute to cover her absences in the past. III, 211. Secondly, even though Complainant had not followed the usual procedure, Autio took it upon herself to determine if a suitable arrangement could be made to meet Complainant's need for a leave of absence. Autio's efforts included considering covering Complainant's evidence by means of a substitute as well as not only considering, but actively requesting two individuals to be a co-supervisor with Complainant. III, 151, 162, 189, 203.
Referencing the first half of Finding of Fact 26 wherein the ALJ states Complainant requested a leave ranging from three to six weeks beginning in the fall semester of 1988, Complainant argues that she would have returned after only one week if Autio had said that was the only way she could keep her job (citing I, 115), and that she, in fact, had only taken one and one-half weeks off from another job she held as a waitress at the time in question. Actually, however, what Complainant stated at p. 115 of the transcript was that she "would have tried (her) hardest to come back in one week." Id. Further, the only medical evidence regarding Complainant in the record was a statement from her doctor saying that he had reviewed Complainant's medical history and concluded that she was physically capable of returning to work after a "two to three week leave." (Comp. Exh. 1) In any case, Autio testified that Complainant had never apprised her that anything less than a three-week leave would be taken. Moreover, Autio stated that she really did not know what to believe as far as how long a period Complainant would be gone because Complainant had continued to change the amount of time that she would be gone. Autio commented in her February 19, 1988 letter as follows: ". . . During the February 19 conversation, Diane stated that her physician said she could be back to work in three weeks. (Please note that initially Diane asked to be gone six-weeks, then four weeks, and now three-weeks. I am unsure as to the time period she will be gone. The times have continued to change in a downward trend. I almost feel like I am in a 'sale of the century' game with Diane rather than what is the best price -- what is the best leave of absence time period. Don't know what to believe.) . . ."
Complainant has also argued that there is no "substantiation" of any hardship in covering for Complainant, but the evidence is to the contrary. Faculty cutbacks restricted Autio's flexibility to accommodate faculty leaves of absence. Autio had previously been instructed by the Dean to begin planning for part-time faculty cutbacks for the 1988-89 scheduled year due to declining student enrollment and those plans had been submitted in April 1987 and approved by the Dean in December 1987. (III, 171, 175-176; Resp. Exh. 1) Secondly, there was the problem of inability to maintain continuity of instruction that would have resulted by granting Complainant a leave for only a portion of the semester. The time that Complainant would have needed a leave coincided with the most critical phase of the student clinical training, the latter part of September. As previously noted, at that time period of the first semester the junior year clinical students would have begun their exposure to dealing with real patients in the Dental Hygiene clinic and it was important that they have consistent and maximum supervision. Resp. Exh. 3; III, 10-11, 70, 102-103, 148. Appointing someone to substitute as clinical supervisor for only the first semester and then reappointing Complainant as the supervisor for the second semester would have also presented a continuity problem for the program and the students. Comp. Exh. 3.
Complainant's further argument that the Findings of Fact are devoid of evidence for Marquette's need to demote her is simply not true. A review of paragraphs 9, 10, 13, 18 and 19 indicates the reason for this. In short, it was due to the problem of a lack of program continuity which would have resulted if Complainant were to be absent during a critical time in the first semester or had sought to take over as the supervisor for the second semester, plus the unwillingness of Bell and Wirth to co-supervise with Complainant for the entire academic year.
Complainant next argues that the rationale based on the availability of limited resources and scheduling problems is false; that Autio had nine months and 11 staff available to arrange coverage for Complainant. The problem facing Autio, however, was that the only faculty she found to be qualified to cover Complainant's position either as a substitute or on a co-supervisory basis, were either not available or were unwilling to work with Complainant.
The Complainant has stated that the reasons accepted by the ALJ in Finding of Fact 19 (Complainant apparently means 18) are "incredulous," asserting that the discussion "concerning co-supervisors and dickering with the enrollment is irrelevant and (an) obvious pretext." However, these were suggestions Complainant herself had presented to Autio.
In Finding of Fact 22 the ALJ states that Autio did not believe Carol Benson and Katherine Schrubbe were qualified to function as supervisors in the Junior Clinic. Complainant has argued, in essence, that the ALJ's emphasis on clinical supervisory experience in this finding is misplaced; that of the 1988-89 staff members, only two did not have supervisory responsibilities and even they covered for supervisors. However, the supervisory responsibilities of which Complainant speaks involved dental hygiene faculty designated as course or lab supervisors. These supervisory functions were exercised in a non-clinical setting. It did not involve exercising supervisory functions over students working with real patients for the first time, a time that was really scary and caused great anxiety for the students. I, 101; III, 103, 165. Further, Autio was uncertain as to the length of time Complainant would be absent. In Autio's professional judgment, someone with clinical supervisory experience was required to fill in either as a substitute or on a co-supervisory basis. However, those with this supervisory experience were either not available or were unwilling to work with Complainant. The evidence corroborates Autio's professional judgment. Barbara Komives, the Chairwoman of the Department of Dental Hygiene at West Virginia University, the only other university besides Marquette with a four-year dental hygiene program, testified that to cover for complainant's absence she would not just have a regular faculty person cover her position, it would have to be someone with experience as a clinical supervisor. III, 12-13. Marilyn Tarkowski, a former Senior Clinic supervisor for Respondent (and Complainant's own witness), testified that when she was clinic supervisor she generally sought another clinic supervisor, i.e., Complainant, to cover for her absences. 11, 31, 40. See also testimony of Colleen Wirth at III, 96.
Carol Benson and Katherine Schrubbe are among the faculty Autio concluded were not qualified to cover for Complainant. Complainant argues that they were and that it was not until each had agreed to testify for Complainant that they had heard any criticism about them from Autio. This argument by Complainant also fails. At the hearing, the witnesses generally agreed that important qualities for the Junior Clinic supervisor position included, among other things, reliability, on-time performance, adherence to and enforcement of policies and a willingness to do extra work. Tarkowski, who last worked for Respondent in January 1987, testified that with respect to Schrubbe's reputation for on-time performance, "she had some problems with being on time." II, 38. In a letter dated September 18, 1987 (Resp. Exh. 18), Autio had recommended to Dean Goggins that Schrubbe not be granted early promotion to the rank of Adjunct Associate Professor because Autio found her to have "a problem in that she concerns herself with other faculty members and their responsibilities. She is all too concerned that she not be required to do more than the minimum." Other witnesses corroborated those views about Schrubbe. III, 40-42, 84-86, 106-107. Extolling the qualifications of Benson, Complainant asserts that Benson was promoted to the position of Adjunct Professor effective August 16, 1987, and in response Autio had commented to her that "Your contributions to the program over the years have insured the high quality of education that our students receive," (Comp. Exh. 13) and also that Benson had received an award as outstanding hygienist from Sigma Phi Alpha. (Comp. Exh. 12). However, other evidence and testimony presented at the hearing tended to offset the "mileage" Complainant seeks to obtain from Complainant's Exhibits 12 and 13. For example, Autio testified that there were various instances of conduct by Benson going back to 1984 when she (Autio) first became director that would cause her to have concerns if Benson were the clinical supervisor. Autio cited a November 30, 1984 letter of Benson's in which Benson had complained about the manner in which Autio had elected to staff the dental therapy laboratory, making quite a few negative accusations about Autio's judgment. III, 157; Resp. Exh. 19-A and 19-B. Other evidence, including a February 4, 1988, memo from Benson to Autio in which Benson, who had favored that seniority be given more consideration by Autio in making the faculty cutbacks, began the memo stating, "I wish to go on record objecting to the method used to cut some part-time faculty and to reduce other teaching days." Further, other witnesses confirmed Autio's concerns about Benson stating, her "attitude and the manner in which some issues would be raised would create a negative outlook," and that Benson was not "supervisory material." II, 44, 86, 108-109.
Complainant has further argued that there were other staff members qualified to cover for Complainant, but were never asked. They include Barbara MacMillan, Nancy Bell, Colleen Wirth, Marilyn Beck, Mary Wann, Patrice Sisulak and Linda Diedrich. Complainant also cites Autio herself as having been able to cover for Complainant. However, MacMillan was never a Junior Clinic supervisor. Further, she had a problem with tardiness, and it had been brought to Autio's attention that she had failed to fulfill all of her clinical responsibilities even as a regular faculty member and that there were also serious concerns regarding MacMillan's instructions of a didactic (lecture) course. III, 167. Bell and Wirth, of course, had. refused to co-supervisor with Complainant because of Complainant's domineering personality. (2) Beck herself conceded that she was too busy to have covered for Complainant. I, 52. Wann had never been a clinic supervisor. II, 123. Sisulak had never been a clinic supervisor, and in fact had been one of Autio's merit-based faculty cutbacks. II, 181. Diedrich herself basically admitted that she was not qualified. III, 173. Autio's testimony shows that she was too busy to have taken over the position. 111, 135-138.
Next, Complainant attempts to characterize the Junior Clinic supervisory position as basically involving planning activities which are all completed prior to the beginning of the academic year. It is true that there were several activities that were completed before the start of the year. However, this did not mean that a qualified individual was no longer needed to run the clinic. As several witness testified:
"The most important duties I would think are the guidance and the counseling that you have to give to the students on a day-to-day basis, being there and showing them professionalism and continuity, seeing that everything is followed through and that they understand what needs to be done and are oriented into the clinical setting. . . Just the frustration that the students can exhibit and feel that anxiety that can build up in them at this time I feel is something that needs to really be kept in track and monitored. . . . You need to have someone in there who is there who can always answer the questions and direct the students in the way that they need to be directed so that there is a total follow-through, that they don't get any erroneous information or even just slightly different information."
III, 102-103. See also, III, 38, 148. Even Complainant's witness, Schrubbe, testified that the clinical supervisor was needed to address "questionable things that could come in the clinic day." 11, 67.
In seeking to minimize the importance of the clinical supervisor's functions, the Complainant has also argued that the evidence showed there was no special training to be a clinic supervisor. However, even so, this does not mean that individuals with prior clinic supervisory experience were not best qualified for this position. And, in any case, this does not diminish the important qualities of reliability, on-time performance, willingness to adhere to and enforce policies and willingness to do extra work, which a clinic supervisor must possess.
Complainant further argues that Autio's assertion about not being able to arrange coverage (co-supervision) because individuals would not work with her due to her domineering personality is not believable and a pretext. First, Complainant argues that the pretextual nature of this reason is evident based on Autio's description of Complainant before her pregnancy was announced and after. In this regard, Complainant cites the following comments made by Autio on Complainant's November 1983 and 1987 evaluations: "Krause has been an extremely cooperative faculty member. . ." (Comp. Exh. 5) ; "Diane is a team member who is valuable to the success of the program. She thinks nothing of doing more than her share of the work." (Comp. Exh. 4) (Complainant notes that Autio testified that "to function as a team member is to be able to work well with others.") Complainant then contrasts these comments with Autio's statements that Complainant was "too bossy" and her personality too domineering to work with others as set forth in Autio's 2/19/88 memo (Resp. Exh. 5) and Respondent's April 13, 1988 statement of position sent to the ERD (Comp. Exh. 3).
However, Autio provided a persuasive rationale for her statements through the following Q and A exchange:
"Q: Why was Diane's personality not important when she was a clinic supervisor?
A: Well, it was, but she was in a supervisor role at that time, all right?
Q: So what does that mean?
A: So, I mean, a lot of times supervisors will tend to be -- you know, in the leadership they'll tend to take charge and sometimes be somewhat bossy, but that was just an assumption with her, and that was not a reason not to give her a leave of absence. It only came into play when she asked me to consider co-supervisors. That's the only time it came up, it was not meant to be derogatory at all, it was just rationale as to why someone wouldn't work with her." (III, 213-214)
Complainant has also attempted to show evidence of pretext by asserting that while Autio maintained in her 2/29/88 notes (Comp. Exh. 17) (notes Autio kept on personnel) that she had brought Complainant's bossy personality to her attention on a yearly basis, in Autio's 9/13/88 submission to the ERD (Comp. Exh. 18) Autio stated, "It was not until this time that her bossy attitude was brought up and that was to point out that she couldn't share supervisory duties because of her behavior." This argument also fails. Autio's comments contained in the 9/13/88 statement were only some "key points" Autio chose to make in response to information the Complainant had submitted to the ERD on 5/31/88. It is evident that Autio was not trying to state in her 9/13/88 communication that she had never raised Complainant's "bossy personality" with her. This is clear because when Autio had submitted her detailed statement to the ERD on 4/13/88, she had repeatedly commented about her discussions with Complainant on this subject.
Moreover, further evidence that a pretext was not established can be seen in the following testimony by Colleen Wirth, who had introduced Complainant to her husband, served as Complainant's maid of honor, and who even still considered herself to be a good friend of Complainant's at the time of the hearing (III, 100- 101):
"A: I told her (Autio) I didn't feel I could do that (co-supervise with Complainant).
Q: Why couldn't you?
A: Because of Diane's domineering personality. She has a tendency to do things the way that she wants to and to direct them the way that she wants things to be done, and I didn't feel that she would be able to equally share the responsibility and actually give me half of the responsibility that would have been required. And I would have felt that I was still under her and not equal to her." (III, 105)
Additionally, Complainant has argued that a further instance of pretext can be found in Autio's conversation with Rosemary Petranech, Respondent's Director of Affirmative Action. Complainant argues that Autio had led Petranech to believe there was a problem with Complainant's performance. Complainant makes this argument because at Petranech's deposition she indicated that Autio might have had some question about how Complainant interacted or related to the students. Petranech Deposition, pp. 4, 7-8. However, as both Petranech's deposition testimony and her testimony at the hearing at I, 165, 171 show, Petranech could not really remember what Autio had said, as she was unsure whether it was about Complainant's relationship to the students or perhaps in relationship to her co- workers.
Complainant also makes a number of arguments in an effort to establish that continuity was not the real reason for Autio's decision. For instance, Complainant asserts that if continuity were of paramount concern, Autio could have given Complainant the first semester off with no demotion. However, continuity of instruction was important with respect to the entire year, not just the first semester. And, in any event, the individual Autio found qualified and willing to serve as clinic supervisor, refused to take the position unless it was for the entire year. III, 31.
Further, citing Dean Goggins' testimony at III, 70, Complainant argues that continuity is no less a concern for the full-time faculty, yet a review of the Dental School faculty employment records shows that hundreds of leaves which fall during the school year were granted and continuity was arranged. Complainant mischaracterizes Goggins' testimony. Goggins did concede that continuity was a concern of the Dental School as a whole; however, Goggins further testified that the dental hygiene program requires "closer supervision of or more intense supervision of student clinical activities." III, 70-71. Further, Dean Goggins had earlier testified that "Dental hygiene students are a different-very different student population. They're younger, most of them coming in fresh out of high school." III, 69.
Finally, Complainant argues that the fact that Nancy Bell, the current Junior Clinic supervisor of the two-day course, is only present in the clinic for a day and a half and is either at school, home, out shopping or at the art museum during the second half of the day clinic, indicates that the continuity defense is a pretext. Complainant apparently makes this argument in conjunction with her initial statement under this section of her brief titled "'Continuity' Was Not the Real Reason for Autio's Decision." The initial statement made by Complainant was that "Another reason asserted by Autio was that it was not in the best interest of the students to have a Junior Clinic supervisor that is 'not there all the time,"' citing Complainant's Exhibit 17. However, Complainant has once again taken things completely out of context. It is clear from a reading of Complainant's Exhibit 17 that Autio's comment about the need for the Junior Clinic supervisor to be there all the time was not a reference to the need for the supervisor to be there for every minute of each day, but a need to be there for a whole semester or a year.
A fifth argument presented by Complainant is that the ALJ erred in failing to recognize that the Respondent's real reason for its actions with respect to Complainant may have been to reduce staff. There was no persuasive evidence presented to show that this was the case, however. In fact, Complainant never really even pursued this argument at the hearing.
The sixth and final argument made by Complainant is that the ALJ erred in citing "'FINDINGS OF FACT' unsubstantiated by the record." However, no such finding has been identified by the Complainant and a review of the record shows that the findings are overwhelmingly supported by the record.
Finally, the Commission makes the following additional observations and comments:
1. Complainant has asserted that "Under the ALJ's erroneous view, if a pregnant individual applies for a job, the employer is within its rights to at that point turn her down because, obviously, most pregnant women will need time off." (emphasis in original) This is not necessarily the case. The critical factors that would have to be examined in such a case are: (1) what is the work situation which exists at the employer's place of business; and (2) what is the employer's practice with respect to other disabilities?
2. Complainant has asserted that if this decision is permitted to stand as precedent, the equal rights for women -- particularly in educational settings -- will be a thing of the past. Employers will be able to assert a reason for their discriminatory treatment without having to provide substantiation. Neither of these assertions is true. Based on the facts as presented, Respondent's conduct was not discriminatory, and as the discussion above shows, the Respondent did provide substantiation for its actions taken with respect to Complainant.
3. There are two basic facts in this case which provide convincing evidence that the Respondent's actions were not motivated on the basis of Complainant's sex (pregnancy): (1) in the past, when dental hygiene faculty had sought leaves for maternity purposes, Autio had always accommodated their leave requests (III, 171); and (2) Autio and the Complainant had been good friends. Autio had socialized with Complainant more than any other faculty member. They went out to dinner, Autio would go out to Complainant's golf club and Autio had stayed at Complainant's house for two days in 1987 when Autio had torn some knee ligaments. Having been involved in this type of friendship with Complainant, it is simply unbelievable that Autio would have been motivated to discriminate against Complainant on the basis of her sex (pregnancy).
4. The facts of this case are remarkably similar to Ekumah v. Greenery Group, 58 FEP Cases 1045 (3/31/92), a case decided by the District Court of Massachusetts. The headnote in that case reads as follows:
"Pregnant nursing assistant, placed on unpaid leave instead of being reassigned to light duty, has not shown employer's explanation -- no appropriate long-term, light duty assignments were available and her heavy lifting duties could not be reassigned to other nursing assistants for remaining five or six months of her pregnancy -- to be pretext for sex discrimination, even though disputed factual issues regarding employer's policy of accommodating temporarily disabled employes and bona fides of its articulated reason are created by evidence that past unwritten policy has been to reassign duties when nursing assistant is disabled, that employer initially failed to accommodate two pregnant nursing assistants, and that she never observed discharge of nursing assistant with disability other than pregnancy due to unavailability of light-duty assignments, since evidence is insufficient to support any reasonable inference that employer's alleged 'sham' reason was pretext for sex discrimination; employer accommodated the two pregnant employes, and she has not carried her burden to adduce any evidence to show pretext."
125
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