Iowa Civil Rights Commission Administrative Ruling: Martin Facts 3

IV. Ruling: The Respondent's Liability Is Established Because It Has Offered No Affirmative Defense To the Showing of Perceived Disability Discrimination Made Through the Credible Direct Evidence of Discrimination In the Record:

42. Unlike cases based on circumstantial evidence of discrimination, the probative direct evidence of discrimination in the record, which is sufficient to show that the discharge of Complainant Martin was due to a perceived physical disability, places the burden on the Respondents to prove an affirmative defense responsive to the direct evidence. Examples of such affirmative defenses would include the bona fide occupational qualification defense and the "mixed motive" or "same decision" defense. See Conclusions of Law No. 48, 62. Such defenses are not set forth on brief nor in Respondents' prehearing conference form or other pleadings. (Trial Brief, Reply Brief, Prehearing Conference Form).

43. The defenses set forth by Respondent are that the direct evidence of perceived disability discrimination is either not credible or not sufficient to show such discrimination; that perceived disability discrimination was not involved in the decision to terminate or replace the Complainant, and that the termination took place solely for legitimate non-discriminatory reasons. (Trial Brief, Reply Brief, Prehearing Conference Form). Since no affirmative defense responsive to the direct evidence of discrimination has been offered by Respondents, they have not rebutted the direct evidence of perceived disability discrimination. Thus, Complainant Martin and the Commission have established the Respondents' liability for terminating or replacing her due to a perceived physical disability.

V. Ruling in the Alternative: Complainant Also Established the Liability of the Respondents for Perceived Disability Discrimination Under a McDonnell-Douglas Analysis:

A. Complainant Established A Prima Facie Case of Perceived Disability Discrimination Under a McDonnell-Douglas Analysis Through Direct Evidence:

44. The direct evidence showing that Complainant Martin was perceived to be disabled and that she was terminated due to this perceived disability, see Findings of Fact Nos. 22-31, is also one means of establishing a prima facie case of perceived disability discrimination with respect to a McDonnell Douglas analysis. See Findings of Fact Nos. 22-31. See Conclusions of Law Nos. 68-69.

B. Respondents' Presentation of Evidence of Legitimate Non-Discriminatory Reasons Sufficient to Rebut the Prima Facie Case of Discrimination Under the McDonnell-Douglas Analysis:

45. To meet its burden of rebutting the prima facie case under the McDonnell-Douglas analysis, Respondents are only required to present evidence of legitimate, non-discriminatory reasons for their termination of Complainant Martin. The questions of whether the evidence is believed or is a pretext for discrimination are not considered at this point. See Conclusion of Law No. 70. Respondent presented evidence that:

(1) During the sixteen weeks Complainant Martin was absent from work through August 12, 1991, neither she nor her doctor ever informed Mr. McIvor as to when she could return to work, (See Finding of Fact No. 9; R. EX. 4; Tr. at 91-92, 93, 94, 260, 264, 276, 289, 293, 311, 322-23, 351);

(2) Complainant Martin had not requested from the Board of Directors a leave beyond six weeks in length as allowed under Respondent's Center Absence Clause in its personnel policy, (See Finding of Fact No. 19; Tr. at 83-84);

and (3) the absence of Complainant Martin caused serious financial difficulties for NEIMHC. (R. EX. 2; Tr. at 48, 264, 267, 284, 286, 316-17).

C. The Greater Weight of the Credible Evidence Shows That These Reasons are A Pretext for Discrimination:

46. The reasons given by Respondents for Complainant Martin's termination or replacement are all related to her absence. Although it is undisputed that the Complainant's total absence extended to 16 weeks by August 12th, the complainant was terminated or replaced effective July 16, 1991. This was 11 weeks after her absence began on April 29th. She was, however, unable to work for the full sixteen weeks. See Findings of Fact Nos. 9, 39.

1. Under the Circumstances Set Forth Below, Respondents' Failure to Make Any Effort To Ascertain When Complainant Martin Could Return to Work Indicates That The Complainant's Failure to Provide a Return or Recovery Date Is A Pretext For Discrimination.

a. Respondents never made any effort prior to August 12, 1991 to obtain complainant Martin's return to work or recovery date:

47. There was evidence produced in the record indicating that neither Complainant nor her doctors provided a recovery or return date through August 12, 1991. See Finding of Fact No. 45. However, at no point before August 12th did Respondents make any effort whatsoever to request that Complainant Martin either provide such a date or a release from her doctors which would have permitted them to communicate with the Respondents. (Tr. at. 33-35, 37, 54-55, 73, 104, 314-16, 345). Even on those instances where Respondent McIvor was in communication with Complainant Martin or others in contact with her, he never requested this information. This was the case when McIvor talked to the Complainant and her daughter on May 29, 1991; when he wrote the Complainant on May 30, 1991; when he talked to her on June 5, 1991; when a memo was sent to her at McIvor's direction on June 12, 1991; when a memo was sent to her from McIvor on July 2, 1991; and when McIvor wrote to her on July 18, 1991. (CP. EX. 1; Tr. at 33-35, 37, 54-55, 104, 345). If such information had been requested, Complainant Martin would have provided it. (Tr. at 104).

b. Respondents rely on a personnel rule which does not require employees to provide return to work or recovery dates:

48. Respondents argue that it was Complainant's burden to provide a recovery date on her own initiative. (Reply Brief at 11-12). This argument is based on the provision in Respondent's personnel policies stating, "It is the employee's responsibility to report his/her absence due to illness as soon as possible. Unless otherwise directed, the employee shall notify his/her immediate supervisor." Neither this nor any other sick leave or illness provision, however, states that the employee on sick leave is required to provide a return to work or recovery date. There is a provision, however, that permits the Executive Director to "require evidence of professional care and treatment" in "cases of continued . . . absence due to illness." See Finding of Fact No. 19. Also, if violation of a personnel policy or excessive absenteeism is considered to reflect of a lack of dependability, it is the supervisor's duty to inform the employee of the problem under the discipline and discharge policies. See Finding of Fact No. 18. (Tr. at 334, 336). Respondent McIvor admitted Complainant Martin had not violated personnel policy. (Tr. at 321).

c. Complainant Martin complied with the actual requirements of the rule, i.e. to report her absence as soon as possible:

49. There is overwhelming evidence in the record that Complainant Martin reported her absence due to illness as soon as possible in compliance with this provision of the personnel policy. Her time sheets are in the record for the period through May 25, 1991. (R. EX. 10). These are submitted weekly by employees to show how their time is spent. (R. EX. 5; Tr. at 280-81, 283,350). They show that she was off for sick and other leave from April 25th, the date she had her first biopsy, through May 25th. The one exception is four hours (16 units X 15 min./unit) of work and 3.5 hours of sick leave on May 7th. (R. EX. 10; Tr. at 18, 281). Summaries of her sick leave and vacation show that they were exhausted during the period from April 24th to noon on May 29th. (R. EX. 10).

50. As noted, Complainant Martin had taken time off for the biopsy on April 25th. (Tr. at 21-22). On May 1, 1991, when Complainant found out she had cancer, she informed Respondent McIvor. (Tr. at 18, 21, 26). The "Sick Leave, Vacation, Educational Leave, Personal Leave Summary" has a notation, dated May 10, 1991, signed by Jacqueline Fenelon, assistant to executive director McIvor, (Tr. at 162), stating: "Kathy Martin to have surgery & expects 18-20+ days for hospitalization & recuperation. After she uses sick leave & vacation plus personal day, we are to let her know." (R. EX. 10).

51. On May 22, 1991, Ms. Fenelon prepared a memo addressed to all staff indicating that Complainant Martin was at the Covenant Medical Center. On May 24th, a note was prepared for her personnel folder by Ms. Fenelon indicating that John Bandstra, a coworker and friend, had visited Complainant Martin. (CP. EX. 1; Tr. at 29, 32). Complainant Martin relied on Bandstra to inform her employer of her condition as she could not speak. (Tr. at 31-32). The note has a blank next to McIvor's name which is checked off. The memo states: "Her doctor said that three week after she is discharged from the hospital, she should be prepared for radiation therapy for 5-6 weeks. John said the lab reports had not been returned as yet but feels the doctor is preparing Kathy for the inevitable. The radiation treatments would be required on a regular basis for that period of time. Kathy is feeling supported by the agency. Told John to greet her for us and keep us informed." (CP. EX. 1).

52. On May 29th, according to a note prepared for Respondent McIvor, he had conversed with Complainant Martin that day. She agreed to his proposal to carry all her salary and benefits through June 24th. She also informed him that she would be leaving the hospital by May 31st and would be in touch with him. (CP. EX. 1; Tr. at 33).

53. On May 31st, the day after Complainant Martin got out of the hospital, she called McIvor and told him that she would need 28 days of radiation therapy to her head and neck. She informed that she could not work during this time. McIvor's response was "that's fine. They have a treatment plan just like we have treatment plans for the people we see." He told her to follow through with the plan and stay in touch. (Tr. at 27).

54. Complainant Martin again conversed with McIvor about her leave on June 5th. (CP. EX. 1). At some point prior to July 8th, she wrote Mr. McIvor and informed him that the radiation treatment had been stopped due to side effects, but would resume on July 8th. (CP. EX. 1).

55. A July 18, 1991 letter sent to the Complainant by McIvor reflects his awareness that she had undergone surgery. According to a notation, dated July 22, 1991. by Ms. Fenelon on the letter, the Complainant called and stated she hoped to return part-time before August 12th. The notation indicates that the Complainant was told that McIvor did not want her to return until they talked on the 12th. (CP. EX. 1). This is apparently a reference to Complainant Martin's call on the 19th, not the 22nd. The Complainant had received McIvor's July 18th letter, which refers to McIvor taking vacation from July 19th to August 1st, on July 19th. (Tr. at 40). She called on the morning of the 19th in the hope she would talk to him prior to his leaving on vacation. (Tr. at 40). She called because she wished to tell McIvor that she thought she could come in to work on a part-time basis for two weeks before August 12th. (Tr. at 40-41). He had already left, however, and she talked to Ms. Fenelon. (Tr. at 41). She again called the office and talked to Ms.. Fenelon on July 22nd about insurance matters, which are also mentioned in the notation. (CP. EX. 1; Tr. at 43). McIvor was aware of the contents of this notation. (Tr. at 294).

56. Her next conversation with Respondent McIvor was on August 2nd. See Findings of Fact Nos. 22-23, 25-27. At no point during the course of her 1990-91 employment with Respondents was failure to comply with this rule given as a reason for Complainant's termination or replacement or was she told that she was not keeping Respondents sufficiently informed of her treatment or that she was violating any personnel policy. (CP. EX. 1; Tr. at 54-55, 73, 345).

d. In the course of complying with the rule, the Complainant gave the Respondents accurate estimates as to when her treatment would end:

57. While reporting to the Respondents and updating them about her absence, Complainant Martin also provided Respondents with estimated times as to the length of the different stages of her treatment and of her overall treatment. These are highlighted above. See Findings of Fact Nos. 50-55. At one point in his testimony, Respondent McIvor was asked to confirm that "[n]o one ever told you how many weeks she [Complainant Martin] had to be off work; is that right?" He replied, "She sent me a letter saying that she'd be off a certain amount of time." (Tr. at 323). It is not clear in the record exactly which correspondence this refers to.

58. Respondent McIvor admitted that he had been informed by Complainant Martin on May 10th that she would require 18 to 20 days hospitalization and recuperation. He also admitted that he had been informed by Bandstra, as indicated by the note of May 24 that the doctor had indicated that, three weeks after discharge from the hospital, Complainant Martin would require 5 to 6 weeks of radiation therapy. (Tr. at 325-27). Twenty days after May 10th is May 30th, which corresponds to Complainant's actual date of hospital discharge, of which McIvor was informed. See Findings of Fact Nos.52. 53. Nine weeks (3 weeks + 6 weeks) after May 30th is August 1st. Complainant's radiation treatments actually ended on July 30th, two days prior to August 1st. See Finding of Fact No. 9.

f. Respondent McIvor admits that, if he had known when Complainant Martin would be able to return, he would not have replaced her with Allen Ekholm:

59. Respondent McIvor admitted that if he known, especially before July 10th, when Complainant Martin would be able to return, he would not have replaced her with Al Ekholm. (Tr. at 351). He also acknowledged that, on August 12, 1991, Complainant Martin would be a more productive employee than Allen Ekholm. (Tr. at 355-56).

g. Summary: The Respondents' reason that Complainant was terminated or replaced because of her failure to provide a date for her return to work or expected recovery is a pretext for discrimination:

60. There are a number of factors which indicate this reason is not worthy of credence. First, the Respondents were aware that Complainant Martin would be a more productive employee than Mr. Ekholm. Second, they were also aware, prior to July 10th, that her treatment was expected to end by August 1, 1995. Ekholm did not begin work until August 5th. Respondents claimed that if they knew Complainant Martin would have been available for work when she was, they would not have hired Ekholm. Third, the personnel rule, which Respondents argue required the Complainant to provide a return to work date on her own initiative, in fact required only that she report her absence due to illness as soon as possible. Fourth, Complainant not only complied with the rule, but provided continuous updates on her treatment. Fifth, an employer whose concern was the cost and length of Complainant's present absence, and not anticipated future recurrences of the cancer, and who was aware her treatment was ending on August 1st, would have made an effort to ascertain when the Complainant would be able to return to work before hiring a new, less productive employee who would start on August 5th. In this case, however, Respondents made no such effort. Sixth, the direct evidence of perceived disability discrimination indicates that the true motivation for the termination of complainant was her perceived disability and not a failure to provide an anticipated return to work date.

2. Under the Circumstances Set Forth Below, the Respondent's Reason that Complainant Martin Was Terminated or Replaced Because of Her Failure to Request Approval From the Board of Directors of a Leave Beyond Six weeks in Length, as Allowed Under Respondent's Personnel Policy, Is a Pretext for Discrimination:

61. Respondents argue that Complainant was terminated or replaced for a legitimate reason because she failed to follow a personnel policy (the Center Absence Clause) which "required that she could not be absent from work longer than six consecutive weeks unless approved by the Board of Directors." (Reply Brief at 12). This is a reasonable construction of the Center Absence Clause. See Finding of Fact No. 19. Nonetheless, it was Respondent McIvor, who, on his own initiative, relied upon another provision of the sick leave policy as authority to offer the Complainant an extended paid leave beyond her usual sick leave through June 24th. See Findings of Fact Nos. 10, 19. (CP. EX. 1, 6; Tr. at 84, 99-100, 166-68, 169-70, 276-77, 332, 339). As indicated by a note in her personnel file, he informed her on June 5th that she would be on unpaid leave of absence beyond June 24th, which would be reevaluated on July 24th. This is also confirmed by a written message sent to the Complainant by Ms. Fenelon dated June 12th. (CP. EX. 1). At hearing, it was McIvor's position that Complainant was on an unpaid leave of absence through August 12, 1991. (Tr. at 320-21). Based on the sick leave and personnel records, her leave had extended to beyond six weeks before June 24th. (CP. EX. 1; R. EX. 10)

62. It makes no sense to require or expect Complainant Martin to apply for an extended leave when she was already informed by her employer that she had such a leave. Why would the Complainant be expected to challenge the employer's application of its own leave policies under these conditions? If there was a misinterpretation or misapplication of the leave policies, the record shows it was committed by the Respondents, not the Complainant. Respondent McIvor admitted Complainant Martin had not violated personnel policy. (Tr. at 321). In addition, although there is evidence (a) of the content of the Center Absence Clause, see Finding of Fact No. 19, and (b) that Complainant Martin never applied to the Board of Directors for leave under the Clause (Tr. at 83-84), there is no evidence in the record that her failure to apply for such leave played any role in Respondents' decision to terminate or replace her. Respondents never informed her that failure to apply to the Board for such leave was a reason for her termination. (Tr. at 105). In light of these facts, and the direct evidence of perceived disability discrimination in the record, this is a pretextuous reason for the termination of Complainant Martin.

3. Under the Circumstances Set Forth Below, the Financial Difficulties Allegedly Caused By the Absence of Complainant Martin for Respondent NEIMHC Are Pretexts For Discrimination:.

a. Respondents' argument:

63. Respondents argued that the absence of Complainant Martin "caused serious financial difficulties for her employer." (Reply Brief at 12). As previously noted, Complainant Martin was informed by Respondent McIvor on August 12, 1991 that the loss of money due to the length of her absence was a factor in his hiring Ekholm as a replacement. See Finding of Fact No. 41.

b. Funding of the substance abuse program is dependent on billing for client counseling:

64. Complainant Martin's position was part of the substance abuse program. See Finding of Fact No. 5. The substance abuse program is funded through a contract from the Iowa Department of Public Health and from fees collected from individuals or their insurance companies. (R. EX. 20; Tr. at 219, 221). It is a patient driven, revenue producing system. (Tr.at 221). The state sets an allotment of a total lump sum for the program at Respondent NEIMHC. It also determines group counseling and individual rates. (Tr. at 219). The basic method of "drawing down" this allotment is to counsel clients and submit expenses to the state at a hourly unit rate for each individual counseled. (Tr. at 219). Thus, in order to receive revenues from the Department, it is necessary for counselors to see patients each month and to submit hours and billings to the Department. (Tr. at 220, 285).

c. Amount and methods of computation of claimed losses:

65. The Respondents claim that the absence of Complainant Miller cost NEIMHC $32,519.80 in revenue over a four month period from May to August of 1991. (R. EX. 2; Tr. at 316-17). This is an amount over $7,000 higher than the amount of losses McIvor stated to the Complainant in 1991. She found even that amount hard to believe. (Tr. at 96-97).

66. The Respondents claimed an estimated loss of $27,519,80 based on a comparison of the revenue produced by the full staff at the Oelwein office, including Complainant Martin, during the period of January through April of 1991 ($69,654.00) to the amount of revenues produced by the Oelwein staff minus the revenues produced by (a) Dave Hans and the Decorah staff while they were covering for the Complainant and (b) new hire Allen Ekholm during the period of May through August 1991 ($42,134.80). (R. EX. 2).

67. Respondents added another $5,000.00 to the above losses to compensate for the revenue lost at the Decorah office while the Decorah staff was covering for Martin in Oelwein. (R. EX. 2). It is unexplained in the record how this $5000.00 estimate was computed.

d. Deduction of revenues earned by Decorah staff in Oelwein is not justified:

68. This methodology overstates the losses of the Respondents. The only justification that there might be for not including the revenues earned by the Decorah staff in Oelwein would be that the amount they earned there approximates the amount they might have earned in Decorah. However, Respondents add an estimated $5000.00 in losses for precisely this reason. Rationally, only the $5000.00, if that is a reasonable estimate, should be included in the losses while the amount earned by the Decorah staff is added back in to Oelwein revenues.

e. Deduction of revenues earned by Hans in Oelwein is not justified:

69. There is no reason to deduct the Oelwein revenues earned by David Hans as he was not part of the Decorah staff, but was hired "to provide group service in Kathy's absence." (R. EX. 2). It should be noted that these figures deal only with revenues and do not take into account either the salary of Hans, the salary expense for Complainant Martin through June 24th, or the salary savings for the unpaid leave for Martin after June 24th. (R. EX. 2).

f. Deduction of revenues earned by Ekholm in Oelwein is not justified:

70. Similarly, there is no reason to deduct the Oelwein revenues earned by Allen Ekholm, who was hired to replace the Complainant in Oelwein.

g. Revised estimate of losses:

71. Once the Oelwein revenues of the Decorah staff, Hans, and Ekhom are added back in to revenues, the total Oelwein revenues for the four month period from May to August 1991 are increased from $42,134.80 to $53,054.80. This reduces the revenue losses in Oelwein by $10,920.00. The total losses, therefore, including the $5,000 estimated loss in Decorah, would be $21,599.80, not $32,519,80.

h. None of the estimated losses take into account any factor for the losses other than Complainant's absence from May to August 1991:

72. The losses represented above are all based on the assumption that they were caused solely by Complainant's absence. They do not take into account, for example, the impact of staff vacations during the summer. Respondent McIvor has been Executive Director of NEIMHC since 1967. See Finding of Fact No. 16. On June 5, 1990, he made application to the Iowa Department of Public Health "for a cash advance of $40,000 against our 1990-91 contract." (R. EX. 20). The cash advance was requested because of financial difficulties. In the letter, McIvor noted, "We have never been able to draw down sufficient dollars in July and August of each year to meet our expenses because of staff vacations." (R. EX. 20). This factor is not accounted for by Respondents. (R. EX. 2).

73. The statistics provided by the Respondents also show fluctuations in revenues from month to month at the Oelwein office which are unexplained in the record. For example, revenues at the Oelwein office increased from $15,184.60 in March of 1991 to $21,658.00 in April of 1991. Revenues decreased from $18,071.03 in October of 1991 to $14,918.00 in November of 1991. (R. EX. 2). It is not known whether or not the causes of these fluctuations could account for all or part of the change in revenues from the first third of 1991 to the second third.

i. None of the revenue losses incurred through August 5, 1991 were avoided by terminating Complainant Martin and replacing her with Allen Ekholm:

74. Complainant Martin was terminated and replaced by Allen Ekholm on July 16, 1991. See Finding of Fact No. 20, 35-39. When Respondents extended the offer to him on July 10th, they did so with the understanding that he would not begin work until August 5, 1991. (CP. EX. 3). Therefore, none of the losses incurred due to Complainant's absence through July 16th were avoided by the hire of Ekholm or the termination and replacement of the Complainant. The same is true for all losses through August 5th which were incurred due to absence of a substance abuse counselor in the Oelwein office. Allen Ekholm began his employment two weeks earlier than the Complainant could have if she had been retained. See Findings of Fact Nos. 9, 20. Therefore, the only losses which may have been avoided by the hiring of Ekholm were the ones which would have been incurred during those two weeks. Given her higher productivity, see Finding of Fact No. 59, and Respondent McIvor's estimate that Ekholm was working only 40% of the time, (Tr. at 322), it is likely that the revenues the Complainant generated would soon have exceeded those of Ekholm.

j. Respondent McIvor's admission that he would not have hired Ekholm if he had known Complainant Martin would be able to return by August 19th demonstrates that the revenue losses incurred through that date would not have led to her termination if he had made inquiry about her return date:

75. Respondent McIvor's admission that he would not have hired Ekholm if he knew that the Complainant would return when she did demonstrates that, if he had such knowledge, he would not have terminated the Complainant despite revenue losses. See Finding of Fact No. 59. This brings us back to the ultimate question of motivation. If Respondents' only concern was the length and cost of Complainant's current absence, and not future absences, Respondent would have made inquiry as to her expected date of return. The accurate information Complainant provided as to the length of her treatment and her willingness to obtain a return date indicate that such inquiry would have been successful. The failure to make such inquiry, and the direct evidence in the record, lead to the conclusion that perceived disability discrimination was the true motivation behind Respondents' termination and replacement of Complainant Martin.

75A. Even if there were no evidence undermining this rationale for Complainant Martin's discharge and replacement, the finding that the two previous reasons were pretexts sufficiently damages the Respondents' credibility so as to support a finding that this reason is also a pretext. In addition, the weaknesses, inconsistencies and implausibilities concerning this reason supports such a finding. See Conclusion of Law No. 74.

4. Other Circumstances Indicating That Respondent's Reasons for Terminating and Replacing Complainant Martin are Pretexts for Discrimination:

76. There are other respects in which the termination of Complainant Martin is so at variance with Respondent's policies as to suggest that concerns other than the costs associated with Complainant's absence from April 25th through July 16th of 1991 were involved in the decision. The policy manual provides, at page 20, that "[P]rofessional staff receive at least one (1) month's notice in writing before discharge or termination of service. If discharge is effective immediately, the employee receives one (1) month's salary." (CP. EX. 6). Complainant Martin received neither one month's notice nor pay. (R. EX. 9; CP. EX. 1). See Findings of Fact Nos. 11, 39.

77. The policy manual also provides, at page 28, for a grievance procedure where grievances may progress from the Executive Director, to the Personnel Committee of the Board, to the full Board of Directors. A similar termination grievance procedure is provided at page 19. (CP. EX. 6). Complainant Martin asked Respondent McIvor if she could contest her being given the choice of part-time, disability, or termination with the Board of Directors He indicated that she had no rights; that the Board did not know what had been done, and that it made no difference if they did. This effectively discouraged Complainant Martin from filing any grievance. (Tr. at 49, 111-12).

78. On August 2, 1991, Allen Ekholm has not yet begun his employment. See Finding of Fact No. 20. Ekholm is a probationary employee who Respondent McIvor has no reason to believe is sick or disabled. (CP. EX. 3; 6; Tr. at 320, 321, 356). Under the rules he can be terminated "for any cause deemed worthy by the Executive Director. The grievance process is not available to employees on probation." (CP. EX. 6). See Finding of Fact No. 17. McIvor believes he has the "sole discretion" to retain or discharge Ekholm. (Tr. at 319-20). Complainant Martin has just informed Respondents of her readiness to return from her leave for cancer treatment. See Finding of Fact No. 11. (If Respondent McIvor's version of the facts were believed, she is on leave and not yet terminated). (Tr. at 320-21). She is a nonprobationary employee, who can only be discharged for "justifiable reasons," and has grievance rights. See Findings of Facts Nos. 5, 17-18. Respondent McIvor considers her to be the more productive of the two employees. (Tr. at 355, 356).

79. McIvor is now faced with a choice as there are two employees who want the same position. (Tr. at 317-18). Despite the Complainant's nonprobationary status and her higher productivity, Respondent McIvor never even thinks of terminating Ekholm and returning the Complainant to her position. (Tr. at 336).

D. Finding of Discrimination:

80. In light of the above circumstantial and direct evidence of discrimination, Complainant Martin has established by a preponderance of the evidence that she was terminated and replaced due to a perceived physical disability.

Findings of fact continued