Connecticut General Life Ins. Co. v. Department of Industry, Labor & Human Relations
| Decision Date | 09 January 1979 |
| Docket Number | No. 76-421,76-421 |
| Parties | , 18 Fair Empl.Prac.Cas. (BNA) 1447, 18 Empl. Prac. Dec. P 8880, 1 A.D. Cases 41 CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Petitioner-Appellant, v. DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS, Respondent. |
| Court | Wisconsin Supreme Court |
This is an action to review a make-whole order of the Department of Industry, Labor and Human Relations (DILHR) issued after a hearing upon a complaint which alleged a discriminatory discharge because of a handicap. The circuit court affirmed the DILHR order and the employer appeals.
William A. DeMark (argued), Racine, for petitioner-appellant; DeMark, Kolbe & Brodek, Racine, on the brief.
David C. Rice, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.
M. Dianne Greenley, Madison, filed brief amicus curiae for Center for Public Representation, Inc.
DILHR found the complainant had a "drinking problem," concluded it was a handicap and that the employer discharged the complainant because of his handicap contrary to Wisconsin's Fair Employment Act. 1 A make-whole order was issued and is the subject of this appeal.
The dispositive issues as we view them are whether the evidence is sufficient to support the findings, and whether the findings of fact and conclusions of law are adequate. We conclude they are not and reverse.
On August 3, 1973, Gerald F. Bachand, the claimant, was discharged by petitioner-appellant Connecticut General Life Insurance Company. Bachand had been with Connecticut General in various positions in branch offices in several cities for over five years. At the time of his discharge he was an assistant manager in the company's Racine office, a position he had occupied since his promotion and transfer to the branch approximately one year earlier. The appellant-employer maintains that Bachand was fired for his unsatisfactory job performance. The respondent DILHR concluded that Bachand was discharged because of a handicap. The trial court affirmed this finding by DILHR.
Gerald Bachand filed a complaint with DILHR on August 29, 1973, alleging discrimination and unlawful discharge by his former employer, the appellant Connecticut General Life Insurance Company, because of a handicap. The charge was routinely handled by a DILHR field representative. On the basis of her investigations, on May 15, 1974 an initial determination was made that there was probable cause to believe Connecticut General had discriminated against Bachand because of a handicap in violation of sec. 111.31-111.37, Stats. The department's conciliation effort over the next several months undertaken pursuant to sec. 111.36(3) proved unsuccessful, and on December 5, 1974 the matter was certified for hearing.
Notice of hearing dated April 30, 1975 was given the parties. Connecticut General responded on May 8, 1975, with an answer denying any unlawful discrimination on its part and alleging that Bachand was legitimately terminated for not properly discharging his duties, for acting beyond the scope of his authority and for having a disruptive influence on the other personnel in the office. In addition, it asserted affirmative defenses: first, that the complaint failed to state facts sufficient to constitute a cause of action; second, that alcoholism was not a handicap within the meaning of sec. 111.32 of the Wisconsin Fair Employment Act; third, that even if alcoholism were to be so classified, appellant's action in discharging Bachand was legitimated by the terms of the exemption in sec. 111.32(5)(f) since Bachand's drinking problem prevented him from adequately fulfilling his job-related responsibilities.
On June 5, 1975, a hearing was held on the complaint before a DILHR hearing examiner. Complainant Gerald Bachand and Robert Strom, Regional Claims Manager of appellant company and Bachand's former supervisor, were the principal witnesses at the hearing. In addition, Kendra Piotrowski, office supervisor of the Racine branch, testified on behalf of the company, corroborating certain aspects of Strom's testimony.
Gerald Bachand testified he worked for appellant company for more than five years. He joined the company as a junior claims representative, received several promotions and ultimately rose to the position of Assistant Manager of the company's Racine office the position he occupied at the time of his termination. The company's annual progress evaluation reports ranked him as a satisfactory employee who met or exceeded company standards and had good potential. Strom himself had given Bachand a satisfactory rating seven months before deciding to discharge him. To the best of Bachand's knowledge, there had been no complaints from policyholders about the manner in which he handled their accounts.
In sharp contrast to Bachand's testimony, Strom testified that Bachand's work was frequently inconsistent and untimely throughout the entire time he had been with the Racine office. There had been many situations where Strom had received complaints from disgruntled policyholders that calls had not been returned or things had been delayed past promised or due dates. However, no written warnings had been given to Bachand. Kendra Piotrowski corroborated Strom's evaluation. She testified that files referred to Bachand were delayed "quite frequently." None of her staff wanted to submit work to Bachand for his approval for fear they would not get it back. From the end of 1972 on, Ms. Piotrowski would frequently report to Strom that Bachand was not doing his work.
The testimony at the hearing also revealed that the events which immediately preceded and allegedly triggered Bachand's termination were also in dispute. Bachand testified that he voluntarily admitted himself to DePaul Rehabilitation Hospital, a rehabilitation hospital for alcoholics and drug addicts, for a period of approximately one month from April 29, 1973 to May 26, 1973. He informed his supervisor Strom two days prior to his admittance. At this time Strom was very supportive; he told Bachand that he had been doing a good job and was generally encouraging. On his return Bachand essentially resumed the same duties as before, with the additional management of a new project involving the computerization of Long Term Disability (LTD) benefit policies.
On May 30, 1973, just four days after his release from DePaul, Bachand and Strom had a meeting. According to Bachand's testimony, at this meeting Strom "informed me that the personnel department told him to tell me that if I had one slip I'd be placed on disability retirement." Strom in his testimony denied making that statement. Strom also asked to receive Bachand's medical records and a written statement from his treating psychiatrist indicating what he could and could not do. Bachand testified that the usual post-sick leave procedure was simply to provide a "certification" for work letter from the physician. At the end of June, Bachand left for vacation. At this time there was no indication that the LTD project was falling behind. On July 10, 1973, shortly after returning from his vacation, he received a letter signed by Strom placing him on "demand performance." In a meeting the following day, Strom explained that this was due to the fact that the LTD computer conversion project had fallen seriously behind in his absence and had required extensive overtime work by other employees to meet the scheduled deadline. Approximately twenty days after being placed on probation Bachand received a termination letter effective August 3, 1973.
Bachand contends that his loss of favor with the company from the time his drinking problem became known to his ultimate firing, his previous satisfactory work record, and the lack of substantial reasons for termination cited by the company justify the conclusion that he was discharged because of his handicap.
Strom's testimony concerning the two-month period between Bachand's return from sick leave and his ultimate termination was very different. Strom testified that Bachand totally failed to implement the LTD program before leaving for vacation and consequently left the entire unit without direction during his absence. Strom also testified that Bachand neglected an important account, the White Pin Corporation, by failing to make timely return telephone calls. Furthermore, he improperly injected himself into personnel problems, contrary to their express agreement, and caused serious upset among the staff. Bachand had earlier testified that the White Pin calls had been returned in two days and that any involvement he had in personnel matters was at Mr. Strom's specific request. With respect to the demand for medical reports, Strom testified that he had followed routine procedure for lengthy disability and hospitalization cases. He further testified that while he did in fact read the medical records, they did not influence his discharge decision. Strom also stated that he considered the twenty-day probationary period sufficient in Bachand's case, although the average demand performance period was about sixty days. He also testified that Bachand was not terminated because of his drinking problem but because of his unsatisfactory job performance, citing specifically the LTD program, the White Pin affair, and interference in personnel problems.
After the hearing, recommended findings, conclusions, order and relief were made and duly served on the parties. Timely exceptions were filed on behalf of the company. Oral argument on the recommended decision was had before the commission of the department on October 28, 1975. The recommended findings and conclusions of the hearing examiner were adopted by the commission without exception. The relevant findings are as follows:
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