Wisconsin Telephone Co. v. Department of Industry, Labor & Human Relations

• Decision Date: 06 May 1975
• Docket Number: No. 488,488
• Citation: 228 N.W.2d 649,68 Wis.2d 345
• Court: Wisconsin Supreme Court
• Parties: , 12 Fair Empl.Prac.Cas. (BNA) 45, 9 Empl. Prac. Dec. P 10,185 WISCONSIN TELEPHONE CO., Respondent, v. DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS, Appellant.

Page 649

228 N.W.2d 649

68 Wis.2d 345, 12 Fair Empl.Prac.Cas. (BNA) 45,

9 Empl. Prac. Dec. P 10,185

WISCONSIN TELEPHONE CO., Respondent, v. DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS, Appellant.

No. 488.

Supreme Court of Wisconsin.

May 6, 1975.

Robert W. Warren, Atty. Gen., Charles D. Hoornstra, Asst. Atty. Gen., Madison, Wis. Civil Liberties Union Foundation (amicus curiae), Milwaukee, Peter D. Goldberg, of counsel, for appellant.

John M. Clarke and Philip L. Wettengel, Milwaukee, A. Thomas Breit, Milwaukee, of counsel, for respondent.

WILKIE, Chief Justice.

This is a sex discrimination case.

The judgment of the trial court set aside an order of the appellant Department of Industry, Labor & Human Relations, finding the respondent Wisconsin Telephone Company's maternity leave policies to violate secs. 111.32(5)(g) 1 and 111.325, Stats., prohibiting sex discrimination. The court never reached the merits, but instead ruled that the proceedings before the Department contained three fatal procedural errors: (1) The Telephone Company received inadequate notice of the issues; (2) only one of three commissioners of the Department was present during oral argument; and (3) the Department's decision was based upon sex discrimination 'guidelines' that were invalid because not promulgated in accord with the Administrative Procedure Act, ch. 227, Stats. The court set aside the Department's order and remanded with instructions to dismiss the discrimination complaint filed by one of the Telephone Company's employees. We conclude that the Department did commit reversible procedural errors and therefore affirm the trial court's judgment, but with instructions that the case be remanded to the Department for further proceedings rather than dismissal.

The complainant, Karen Smith, is a blind employee of the Telephone Company who in November of 1971 signed a request for a six-month pregnancy leave. She testified that she signed involuntarily upon threat of discharge. She testified she told her supervisor she wanted to take no leave at all, but in any event, desired to come back to work six weeks after childbirth. She stated that her supervisor insisted upon a minimum leave period of six months. The supervisor testified that Smith came to her for guidance, told her she was pregnant, and asked 'what the normal procedures were in a case like that.' The supervisor testified she said the normally, pregnant employees take a six-month maternity leave and she recommended that Smith take such a leave. She admitted never telling her this leave time was not mandatory or a shorter leave could be taken, because, she said, Smith 'did not request a leave for a shorter period of time.'

The leave commenced November 21, 1971, the child was born on December 14th, and On April 14, 1972, she filed a sex discrimination complaint with the Department, containing the following statement:

Smith terminated her parental rights on January 18, 1972. On January 25th her doctor found her in good health and able to return to work. On that date Smith requested re-employment but was told no work was available. Subsequent to January 25th she contacted the company once a week asking to be re-employed. She applied for unemployment compensation but was turned down because she was on voluntary leave. She asked the State Employment Service to help her find another job but the service's efforts were fruitless.

'I was employed as a C.A.M.A. operator for three years. In November 1971, I took a leave to give birth to a child. At that time I signed a paper which said that I was taking a six month leave. The paper said it was voluntary but actually, I had no choice. After the baby was born in December, I informed the employer that I was able to return to work in January. I was told that they didn't need me and that I couldn't come back until May 20 when my leave ends. They even said I might have to wait longer. I am not receiving Unemployment Compensation even though I am able to work. I have no income coming in. My doctor has advised me to return to work as soon as possible and because of my blindness it is difficult to find another job. I believe that my employer's policy regarding maternity leave is discriminatory and in violation of the prohibition against sex discrimination in Wisconsin's Fair Employment Law §§ 111.31--111.37, and Title 7 of the 1964 Civil Rights Act.'

She returned to work at the Telephone Company ten days later, on April 24, 1972, approximately one month before the end of her six-month leave period.

The Department found probable cause that discrimination had occurred and after attempts at conciliation failed, scheduled a hearing on August 2, 1972. The notice of hearing, which was attached to a copy of the complaint, merely stated as to the issues to be raised at the hearing:

'. . . The Complainant charges that the Respondent committed an act of discrimination due to sex, within the meaning of Chapter 111 of the Wisconsin Statutes.'

In the hearing itself the Telephone Company presented just two witnesses, whose testimony, on direct examination, was limited to the question whether the company had a fixed or flexible leave policy for pregnant women and whether Karen Smith had been forced to take a six-month leave of absence against her will. The complainant, on the other hand, presented testimony from three witnesses concerning not only the fixed or flexible leave policy, but also the company's policy of providing to other temporarily disabled employees certain disability payments, free insurance coverage, and seniority credit not provided employees on pregnancy leave. While not directly presenting any such evidence itself, the Telephone Company did establish, on redirect examination of one of its own witnesses in response to matters raised on cross examination, that absence due to abnormal complications of pregnancy was treated like all other medical disabilities. Following the hearing, the hearing examiner issued recommended findings of fact, conclusions of law, and order and relief that were adopted with only minor changes by the commissioners. As finally adopted, they read:

'Based upon the record and file herein, and upon the Hearing Agent's recommendations, and upon the oral argument of counsel, the Department makes the following:

'FINDINGS OF FACT

'(1) That the Complainant Karen Smith has been employed by the Respondent Wisconsin Telephone Company since December 16, 1968 as a CAMA operator (the only job she can perform because she is blind).

'(2) That in October 1971 the Complainant became aware she was pregnant; that she informed her immediate supervisor, Mary Oliver, of her pregnancy and she inquired as to the Respondent's 'normal' maternity leave procedures; that Mary Oliver recommended that a six-month period was a normal period for a maternity leave; that Complainant was not told that she could take a maternity leave of less than six months despite her indication that she would prefer a shorter leave; that in fact, she signed a maternity leave request prepared by Mary Oliver for the perido November 19, 1971 through May 20, 1972.

'(3) That Complainant began her leave on November 19, 1971; that her child was born on December 14, 1971; that Complainant's parental rights to said child were terminated on January 18, 1972; that on January 25, 1972 Complainant was examined by her doctor and was found medically able to return to work; that she informed the Respondent of her medical readiness and availability to return to work; that the Complainant did not return to work with the Respondent until April 24, 1972 because there was a lack of available work for a CAMA operator in her department.

'(4) That Respondent's official maternity leave policy states that a leave should be for a 'reasonable period of time'; that the average length of maternity leaves for the period October 1970 through September 1, 1971 was 5 months and 23 days; that the most frequent period of leave during the period December 1971 to July 1972 was six months; that maternity leaves can be granted for a fixed period of more or less than six months.

'(5) That persons who require time away from work for temporary disability other than temporary disability due to pregnancy and childbirth need not request a leave of absence for a fixed period of time; that a woman who requires time away from work because of temporary disability due to pregnancy and childbirth must request a leave of absence for a fixed period of time.

'(6) That a woman on maternity leave (leave of absence because of temporary disability due to pregnancy and childbirth) accrues seniority for only the first month of absence from work; that persons disabled from working by any other temporary disability accrue seniority for the entire period of disability.

'(7) That for the first seven days of any temporary disability other than temporary disability due to pregnancy and childbirth, persons receive payments from their department according to seniority; that a woman on maternity leave is not eligible to receive such payments.

'(8) That disability benefits are paid by the Respondent after the seven-day period to persons disabled from work by temporary disabilities other than temporary disability due to pregnancy and childbirth, according to their seniority; that a woman on maternity leave is not eligible to receive such payments.

'(9) That women on maternity leave may continue their basic medical insurance coverage but at their own expense; that persons disabled from work by temporary disabilities other than temporary disability due to pregnancy and childbirth have their insurance expense borne by the Respondent.

'(10) That persons disabled from work by temporary disabilities other than temporary disability due to pregnancy and childbirth may return to work as soon as they become medically able to do so; that a woman on maternity leave may return to work upon becoming medically able only...