MELISSA JEAN HILL, Complainant

CHINMI 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, with the following modifications:

Paragraph 2. of the CONCLUSIONS OF LAW section is modified to read as follows:

2. That the complainant was an employee of the respondent within the meaning of the Wisconsin Fair Employment Act.

Paragraph 1. of the ORDER is modified to read as follows:

1. That the respondent shall cease and desist from discriminating against the complainant on the basis of pregnancy, childbirth, maternity leave, or related medical condition.

The requirement in paragraph 3. of the ORDER that the compliance report be directed to the compliance officer at the Equal Rights Division is modified to require that such report be directed to Kendra DePrey, Labor and Industry Review Commission, PO Box 8126, Madison WI 53708-8126.

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

Dated and mailed May 26, 2006
hillmel . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The respondent contends that she discharged the complainant on July 2, 2004, for unsatisfactory work performance. The complainant contends that, on July 2, 2004, Zhang stated that the complainant should go home and rest, and she would be taking her off the schedule until after her baby was born as a result.

The administrative law judge (ALJ) credited the complainant's version of events in this regard and the commission agrees. First, the record does not show that Zhang documented any concerns she had with the complainant's work performance. Although she noted shortages in the petty cash fund, Zhang delegated responsibility for investigating these shortages to the complainant, which tends to militate against a conclusion that she considered the complainant responsible for the shortages. Furthermore, Zhang did not rebut the complainant's testimony that these shortages occurred during shifts the complainant was not present at the work site. Moreover, the record shows that Zhang regarded the employment relationship with the complainant as a continuing one after July 2, 2004. Specifically, Zhang did not rebut the complainant's testimony that she was called into work on July 7, 2004, and was paid for that day, or that the complainant was frequently called for advice and assistance at home by Zhang, by Denise, and by other workers between July 2 and August 5, 2004.

Wisconsin Statutes § 111.36(1)(c) states as follows, as relevant here:

111.36 Sex, sexual orientation; exceptions and special cases.

(1) Employment discrimination because of sex includes, but is not limited to, any of the following actions by any employer,...:

(c) Discriminating against any woman on the basis of pregnancy, childbirth, maternity leave or related medical conditions by engaging in any of the actions prohibited under s. 111.322 , including, but not limited to, actions concerning fringe benefit programs covering illnesses and disability.

Since the record shows that the complainant was required by the respondent to commence her maternity leave on July 2, 2004, even though she was physically able to perform her work responsibilities on and after that date, and that this requirement was imposed solely based upon Zhang's concern about complainant's pregnancy and related medical symptoms, the commission agrees with the ALJ that the complainant sustained her burden to prove that she was discriminated against in violation of Wis. Stat. § 111.36(1)(c) in this regard.

The complainant gave birth on July 27, 2004. She phoned Zhang on August 5, 2004, to discuss her return to work. What was stated in this discussion is in dispute.

Zhang testified that, during their conversation on August 5, she told the complainant she would give her another chance, but her pay would be reduced from $10 per hour to $8.50 per hour. Zhang further testified that the complainant told her that she would need to discuss this with her sister, but never got back to Zhang.

The complainant testified that, during their conversation on August 5, Zhang told her she was no longer needed because she currently had a manager for the gas station, the kitchen, and the restaurant, and the complainant told Zhang that she intended to discuss this with the unemployment office and with her sister. The complainant further testified in this regard that Zhang called her back later on August 5 and told the complainant that she would like to bring her back doing the same job, but "only making $8.50 per hour."

The ALJ credited the complainant's testimony, and the commission agrees. First, there would have been no reason for Zhang to tell the complainant on August 5 that she "would give her another chance," since, as concluded above, the employment relationship continued through the complainant's maternity leave, and Zhang had not brought any work performance concerns to the complainant's attention prior to or during this leave. In addition, it should be noted that, in her written response to the complaint, Zhang stated that, "I fired [the complainant] on August 6, 2004, when she asked me to come back to work."

The next issue then is whether this discharge was based on the complainant's pregnancy, childbirth, maternity leave, or related medical conditions within the meaning of Wis. Stat. § 111.36(1)(c).

The commission agrees with the ALJ that it was. The record supports a conclusion that the attitude exhibited by Zhang toward the complainant's pregnancy and maternity leave in July, i.e., that, consistent with the practice in Zhang's native culture, the complainant should stay home at least three months before her baby was born and at least three months after, continued into August, and accounted for Zhang's reluctance to recall the complainant from maternity leave. This attitude, which resulted in the complainant's discharge, was based on childbirth and maternity leave, in violation of Wis. Stat. § 111.36(1)(c).

The commission concludes as a result that the respondent was motivated by the complainant's pregnancy, childbirth, maternity leave, or related medical conditions when she was required to commence her maternity leave on July 2, 2004, and when she was discharged on August 5, 2004.

DAVID B. FALSTAD, Commissioner (dissenting):

I agree with the majority that the complainant was discriminated against on the basis of pregnancy and related medical conditions when she was required by the respondent to commence her maternity leave earlier than medically necessary.

I disagree, however, with the majority's conclusion that the complainant was discriminated against in violation of Wis. Stat. § 111.36(1(c), when she was discharged on August 5, 2004.

In my opinion, the record supports a conclusion that the actual motivation for the complainant's discharge was Zhang's desire to save money, not the fact that the complainant had recently given birth and was on maternity leave. This is evidenced in the record by Zhang's offer of a reduced wage to the complainant on August 5, and her reduction of the work hours, and her discharge, of certain non-protected workers. In fact, the complainant, in her testimony, states that the only reason she would have believed the respondent would have discharged her was Zhang's desire to cut costs. Moreover, the existence of these other discharges underscores the complainant's failure to establish an essential element of any disparate treatment claim, i.e., that she was treated less favorably than similarly situated non-protected workers.

/s/ David B. Falstad, Commissioner

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