LORI P BELL, Complainant

LIKNESS HOME CARE, 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, except that it makes the following modifications:

1. The following paragraph is inserted after paragraph 8 of the administrative law judge's FINDINGS OF FACT:

"The complainant was not scheduled to work on October 26, October 27 or October 28."

2. Paragraph 9 of the administrative law judge's FINDINGS OF FACT is renumbered to paragraph 10 and is rewritten as follows:

"On October 27, 2011, the complainant contacted Elena Perez to say that she was still in the hospital and would let her know when she could return to work."

3. The remaining FINDINGS OF FACT are renumbered in accordance with the above.

4. The following paragraph is inserted after paragraph 3 of the administrative law judge's ORDER:

"That the respondent shall pay to the complainant reasonable attorney fees and costs associated with responding to the respondent's petition for commission review, in the total amount of $3,811.25. A check in that amount shall be made payable jointly to the complainant and her attorney, Rebecca L. Salawdeh, and delivered to Ms. Salawdeh."

5. Paragraph 4 of the administrative law judge's ORDER is renumbered to paragraph 5, and the following is substituted therefor:

"Within 30 days of the date on which this decision becomes final, the respondent shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. The respondent shall submit a copy of the Compliance Report to the complainant at the same time that it is submitted to the commission. Within 10 days from the date the copy of the Compliance Report is submitted to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report.

"Notwithstanding any other actions a respondent may take in compliance with this Order, a failure to timely submit the Compliance Report required by this paragraph is a separate and distinct violation of this Order. The statutes 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. See Wis. Stat. § § 111.395, 103.005(11) and (12)."

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

Dated and mailed August 12, 2013
belllo_rmd . doc : 164 :

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

In the petition for commission review the respondent argues that it did not discharge the complainant because of her disability. Rather, it maintains that the complainant's termination fell under its policy by which an employee is considered to have quit if he or she misses two or more consecutive days of work without notice. The respondent contends that the complainant missed six days of work, October 25, 27, 28, 29, 30 and 31. It maintains that on October 25, the complainant's husband called and said the complainant would be out for three days and that he would follow up after three days, but did not do so. The respondent further states that it attempted to contact the complainant twice, but she did not respond or call it back.

The evidence adduced at the hearing does not support the factual assertions made in the respondent's brief. To the contrary, the evidence indicates that the complainant called the respondent herself on October 25 to explain that she was in the hospital with a kidney infection, and again on October 27, at which time she stated she would let the respondent know when she could return to work. The complainant was not scheduled to work on October 26, 27 or 28. Although the complainant was scheduled to work on October 29 and 30 and did not call the respondent on those days, she had previously notified the respondent that she was hospitalized and would keep it apprised of her status. The respondent was aware of the complainant's situation, but nonetheless chose to terminate the employment relationship. No evidence was presented to suggest that the respondent attempted to contact the complainant before doing so.

The commission agrees with the administrative law judge that the complainant established the respondent perceived her as having an impairment that limited her capacity to work and that it discharged her for absences that were related to her disability. Given those factors, and considering that there is no reason to believe that accommodating the complainant by keeping her job open for her until she could return to work would have created a hardship for the respondent, a finding of discrimination is warranted. The administrative law judge's decision is, therefore, affirmed.

NOTE: The commission has modified the administrative law judge's decision to more completely set forth the relevant facts in this case. The decision has also been modified to include payment of the attorney fees and costs incurred by the complainant with respect to responding to the respondent's petition for commission review. The respondent has not objected to the amount of fees requested, and the commission considers both the hourly rate billed and the number of hours expended to be reasonable.

Finally, the commission notes that it has not reviewed the amount of the administrative law judge's back pay order, since neither party has raised any arguments with respect to that aspect of the decision. While the commission has the authority to reach issues that are not expressly raised by the parties, it will not generally do so. Dude v. Thompson, ERD Case No. 8951523 (LIRC Nov. 16, 1990). Absent any objection from the parties, the commission considers the issue of the appropriate amount of back pay to have been waived.

cc: Attorney Rebecca L. Salawdeh

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