CHARISSA (BLACK) SLIFE, Complainant
MT MORRIS MUTUAL INSURANCE CO, 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, except that it makes the following modifications:
The second sentence of numbered paragraph 9. of the FINDINGS OF FACT is modified to read as follows:
She did not ask if she could bring in a fan or portable air conditioner at her own expense.
The language of the body (1) of numbered paragraph 14. of the FINDINGS OF FACT is modified to read as follows:
Mt. Morris had a practice of permitting employees to use accrued leave for temporary absences for medical reasons, and returning them to work when their medical restrictions were lifted.
The following sentence is added to numbered paragraph 16. of the FINDINGS OF FACT:
Mr. Fenske told Ms. Slife's boyfriend, when he contacted Mr. Fenske on December 4 upset about Ms. Slife's termination, that Ms. Slife should contact her doctor and the boyfriend should then get in touch with Mr. Fenske to discuss the situation.
The word "and" in numbered paragraph 1. of the CONCLUSIONS OF LAW is changed to "an."
The language of numbered paragraph 3. of the CONCLUSIONS OF LAW is modified to read as follows:
Ms. Slife failed to sustain her burden to prove that she was discriminated against on the basis of sex (pregnancy) within the meaning of Wis. Stat. § 111.36(1)(c) when she was laid off by Mt. Morris effective December 4, 2002.
The language of numbered paragraph 4. of the CONCLUSONS OF LAW section is modified to read as follows:
Ms. Slife sustained her burden to prove that she was discriminated against on the basis of sex (pregnancy) within the meaning of Wis. Stat. § 111.36(1)(c) when Mt. Morris failed to return her to work on and after December 5, 2002.
The language of numbered paragraph 1. of the ORDER is modified to read as follows:
That the Respondent shall cease and desist from discriminating against the Complainant on the basis of sex (pregnancy).
The language of numbered paragraph 5. of the ORDER is modified to read as follows:
Within 30 days of the expiration of time within which an appeal may be taken herein, the Respondent shall submit a compliance report which provides details of the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. Wisconsin Statutes § § 111.395, 103.005(11) and (12) 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.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed November 3, 2005
slifech . rmd : 115 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
Mt. Morris characterized its actions of December 4, 2002, as a "temporary layoff" of Slife. It is apparent from the record that this action was a layoff for an indefinite period of time with possible rehire only if there was a "catastrophe," i.e., a spike in workload. This is a permanent separation. The only comparable situations Mt. Morris had encountered related to employees who were temporarily unable to work for medical reasons and used accrued leave to cover their absences, and who were returned to their jobs when they were again able to work.
The administrative law judge concluded that discrimination because of sex (pregnancy) was proved because Slife's layoff resulted in part from her pregnancy-related medical condition (see Conclusion of Law 3.). Of course it did since the imposition of medical restrictions by her treating health care professional led to her layoff. But that does not constitute sex (pregnancy) discrimination unless it is shown that Mt. Morris did not follow its own policies regarding such restrictions, or treated Slife differently than it had treated employees with non-pregnancy-related temporary medical restrictions. See, e.g., Michno v. Pizza Hut, ERD Case No. 199555637 (LIRC Aug. 11, 1998)(not unlawful to treat medical conditions related to pregnancy callously, only unlawful to treat them differently than medical conditions related to other causes). The record in fact does not show this. The other circumstances cited for comparison purposes related to employees who used accrued leave to cover a temporary absence for medical reasons. Since Slife failed to show that she had accrued leave sufficient to cover her absence for the duration of her pregnancy, or, in fact, that she had any accrued leave, she failed to show that she was similarly situated to these other employees. In addition, Slife failed to show that Mt. Morris did not follow its own policies in regard to her layoff/separation.
The administrative law judge also implied in his findings that pregnancy discrimination resulted from Mt. Morris's failure to offer to place a fan or air conditioner in the vault or to offer Slife the opportunity to temporarily trade duties with the incumbent receptionist. However, the proper question in a differential treatment case such as this is whether Mt. Morris accommodated other employees with temporary medical restrictions not related to pregnancy by physically modifying their work environments or by allowing them to temporarily trade duties with other employees. The record does not show that this was Mt. Morris's policy or practice and, as a result, Mt. Morris's failure to accommodate Slife in this manner would not demonstrate sex (pregnancy) discrimination. Even, however, if it had been established that the temporary trading of duties was a Mt. Morris policy or practice, the record shows that Slife was not qualified to perform the duties of any other employee in the underwriting unit; that there was not enough work in the claims unit to justify assigning both Slife and Kikendall to work there, and reassigning Kikendall to perform Slife's duties in the underwriting unit before Kikendall's claims training was completed would violate the applicable directive from the Office of the Commissioner of Insurance; and Slife had not satisfactorily performed the duties of the receptionist position.
As a result, Slife failed to prove that she was discriminated against when Mt. Morris made its initial layoff/separation decision effective December 4, 2002.
The commission does, however, agree with the administrative law judge that Mt. Morris's failure to return Slife to her position on and after December 5, 2002, resulted from sex (pregnancy) discrimination.
Mt. Morris first argues that this action is not cognizable here because it was not pled by Slife, was not investigated by the department, and was not properly noticed for hearing. The commission disagrees. First of all, in the narrative accompanying her charge, and in several of her communications thereafter, Slife references this action as one of those underlying her complaint. Although, for a reason which is not clear, both the initial determination and the notice of hearing reference terms and conditions of employment and compensation as the matters at issue here, the ALJ, at the commencement of the hearing, clarified that the adverse action at issue was Slife's "layoff," and counsel for Slife and for Mt. Morris agreed. It is disingenuous for Mt. Morris, given the history of this matter, to now assert that this "layoff" did not subsume both the December 4 layoff/separation and the December 5 failure to reinstate. Since no prejudice results from the failure of the initial determination and the hearing notice to properly state the issue, both the December 4 termination and the subsequent failure to reinstate are properly cognizable here.
Fenske told Slife's boyfriend, when he contacted Fenske on December 4 upset about Slife's termination, that Slife should contact her doctor and the boyfriend should then get in touch with Fenske to discuss the situation. This implies that the matter of Slife's separation was still open and depended on updated medical information.
The question then is whether this other factor was Slife's pregnancy. Although the circumstances are not identical, Mt. Morris had brought other employees back to work from leave when their medical restrictions, unrelated to pregnancy, were lifted. Here, although technically Slife was not on leave, the circumstances were parallel in all other respects, particularly when you consider that Slife had been separated for less than a day, her position, and the need for it, still existed, and no one had been hired to fill it. Mt. Morris has failed to persuasively explain this difference in treatment and, as a result, the commission concludes that sex (pregnancy) discrimination has been demonstrated here.
Although not offered as an explanation by Mt. Morris at hearing, the respondent now argues that it decided not to reinstate complainant because her work performance had been unsatisfactory. Mt. Morris's failure to offer this explanation at hearing through the testimony of any of its three management witnesses, as well as its failure to initiate the performance improvement process set forth in its policies at any time prior to Slife's termination, militates against a conclusion that this constituted Mt. Morris's actual reason for not reinstating Slife on or after December 5, 2002.
Moreover, although Mt. Morris implies that Slife's alleged attempt to manipulate Abbott in order to avoid working in the vault formed another basis for this decision, this explanation, too, is unpersuasive given Mt. Morris's failure to specifically articulate it at hearing as a reason for its decision not to reinstate Slife.
Respondent's motion that case be held in abeyance
On September 2, 2005, the EEOC, on behalf of Slife, filed a complaint, including Title VII and § 1981 claims, in federal court in the eastern district of Wisconsin. On October 24, 2005, the respondent advised the commission that this action had been commenced and requested that the commission hold its processing of this matter in abeyance pending the outcome of this federal litigation. The complainant has not joined in this request.
It has not been the commission's practice to hold matters before it in abeyance pending the outcome of related actions in other forums. The policy reasons which would support a stay of administrative proceedings, primary among them the conservation of administrative resources, are no longer persuasive once a case nears the end of the administrative process.
cc:
Attorney Frank R. Terschan
Attorney Donald P. O'Meara
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