DEBRA VAN SCOY, Complainant,

VS.

BURLINGTON MEDICAL CENTER and BOARD OF DIRECTORS OF BURLINGTON MEDICAL CENTER, Respondents.

FINDINGS OF FACT

1. The Complainant, Debra Van Scoy, timely filed verified complaint CP# 12-84-12383 on November 24, 1984, charging Respondents, Burlington Medical Center and Burlington Medical Center Board of Directors, with retaliation based on filing a complaint with the Commission.

2. The case was investigated, probable cause found, conciliation unsuccessfully attempted and the case proceeded to public hearing with Notice issued on January 21, 1987.

3. Complainant started to work for Respondent in August 1976 as a nurse's aide. She continued to work while going to school to get her certification as a Licensed Practical Nurse, (LPN). In November 1980, she began working as an LPN. She worked on what is called 3-North, Klein Unit, and 5-West. 3-North was basically a cardiac unit; Klein a nursing home unit; 5-West an orthopedic and surgery unit.

4. Complainant, in 1983, worked full-time (40 hours) on the 3- 11:30 p.m. shift.

5. In August 1983, Complainant became pregnant and put in a request for an every-other-weekend position (16 hours per pay period) because she did not want to work full time after the baby was born. On September 1, 1983, her request was granted for an every other weekend position, 3-11:30 p.m. on 5-West. The change was to start with pay period beginning December 5, 1983. Complainant understood that her full time position would be posted, i.e.. open for bids on October 1, 1983.

6. Complainant started to have back problems due to her pregnancy. She was restricted in lifting, pushing, pulling, bending and stooping. She then took a medical leave of absence beginning November 7, 1983. Note that this occurred after her full- time job was posted, but before she started working every other weekend. Her anticipated delivery date was January 27, 1984. Her planned return date was in March 1984.

7. In late February 1984, Complainant talked with Respondent about returning to work in March. She was told there were no positions available. She was also told that they would call her on March 12 and inform. her of positions available. They did not call, nor did Complainant call again. The next contact was in August when Complainant was offered the job mentioned in Finding of Fact #9.

8. Complainant's husband also worked for Respondent. They had worked out their shift arrangement so one or the other would be home to care for the children. He worked the 7-3 shift and she had worked the 3-11 shift.

9. On April 6, 1984, Complainant filed complaint CP# 04-84-11582 with the Commission alleging discrimination on the basis of sex against Respondent. Respondent was aware of this filing. This case was pending during the time at issue.

10. In August 1984, Complainant went to the office of Respondent and requested papers from her personnel file for the CP# 04-84-11582 complaint. On August 29, 1984 Respondent offered Complainant a 7:00 - 3:30 position in the psychiatric unit. She told them she did not want to work the day shift. Her reason was that she didn't want to worry about finding and paying for a baby sitter. On August 31, 1984, she received a call from Respondent offering her a float position on the 7:00-3:30 shift. Complainant told Respondent she did not want a float position. Respondent asked Complainant at that point where she would like to work in the hospital.

11. On September 12, 1984, Respondent called Complainant and offered her a 3:00 - 11:30 shift in the Klein unit. This was the shift that Complainant wanted. She refused the offer because she did not like to work in that particular unit. She had not, however, worked in that unit as an LPN, but only as a nurse's aide. Complainant was upset with Respondent over the fact that she had not been contacted between March and August. She was "mad" and admits that is part of the reason for refusing the job offers.

12. On September 20, 1984, Complainant received a letter from Respondent stating that she had been terminated for failure to take the jobs offered.

13. Complainant had exhausted her leave benefits in November 1983 and was on unpaid leave status. She understood that she was not guaranteed a position on 5-West or the 3:00 11:30 shift, that the policy stated only that she would be given preference for such an opening.

14. In January 1984, a Martha Lawrence was given a position in the Klein unit, every other weekend, 16 hours per pay period, 7:00 to 3:30 shift. It is noted that, not only was this position in the Klein unit which Complainant did not want and on the day shift which Complainant did not want, but Complainant was still on pregnancy leave at this time.

15. During the period of time encompassing June 1984, there was a decreased patient census and increased patient acuity at the hospital. It was during this time that Sherry Trumbo was placed in a position on 5-West. This, however, was a full time position. Trumbo had greater seniority and a better work record than Complainant. The work hours vacated by Trumbo were allotted to an RN as opposed to an LPN position. There were no other part- time positions available for Complainant between March 1984 and the time the job offers were made to her.

16. The "Request for Leave of Absence" form, signed by Complainant, includes the following provisions:

3. I cannot be granted the same unit when returning from my leave of absence except as stated in #4.

4. If I have completed one year of employment I can be eligible for a six weeks period for major surgery, a fractured bone or bones requiring an absence of six weeks or for a pregnancy delivery without having my position posted. To be eligible I must agree to take accrued and earned sick leave and vacation for the entire six weeks period, if accrued.

5. If there are not any openings I shall be given preference for an opening with the same number of hours and shift as I was working just prior to my leave of absence.