P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. CR200501141, EEOC Case No. 26GA501584

An administrative law judge (ALJ) 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 ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


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

Dated and mailed May 8, 2008
anderba . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


In her petition for review, Barbara Anderson asserts that she was told prior to the hearing that only her complaint claims going back 300 days before she filed a complaint would be addressed at the hearing but when she got to the hearing the ALJ told her "to go back to when I was first hired in 2000", and therefore she was unprepared to present that evidence. The record shows that shortly before the October 17, 2006 hearing the respondent made a motion to limit Anderson's testimony and evidence to events that occurred no more than 300 days prior to the filing of her complaint. At the hearing, apparently referencing the case of Abbyland Processing v. LIRC, 206 Wis. 2d 312, 557 N.W.2d (Ct. App. 1996), the ALJ ruled that events that happened outside the statute of limitations period that tended to prove something that happened within the statute of limitations period were admissible for that purpose. (1)    Anderson does not state who it was that had told her only her complaint claims going back 300 days before her complaint would be addressed at the hearing, nor does she state when it was that she was told this. Per the case file, based upon the discovery requests that Anderson made upon the respondent in July 2006, she was preparing to present evidence from when she was first hired. However, the case file also indicates that by August 30, 2006, the respondent had provided Anderson with the evidence she had requested. Thus, it would appear that Anderson was prepared to present evidence from when she was first hired in 2000. Moreover, Anderson made no claim at the hearing that she was unprepared to present her evidence.

Anderson also apparently asserts that she was unable to subpoena witnesses to testify in her behalf because at the time of the hearing she did not have money to pay the witness or mileage fees. Anderson has also asserted, however, that because various witnesses feared "losing their jobs if they testified" and did not want to testify, she "had to respect their wishes."

Anderson argues that the ALJ would not let her introduce a letter from her doctor that was in the case file, which stated she suffered from long term depression and had a hard time getting along with others, even though all parties had a copy of it. Further, Anderson argues that the respondent knew in 2002 that she "had depression"; that Trudy Achterhof (director of human resources) set up an appointment for her with a psychiatrist associated with the respondent and that she did see the psychiatrist. The ALJ did not err in refusing to admit the letter from the doctor as evidence. In addition to the fact that the letter was hearsay, the letter was prepared by a doctor who was not Anderson's attending physician. Furthermore, while Achterhof may have been aware that Anderson "suffered from depression", not every health condition constitutes a disability within the meaning of the Wisconsin Fair Employment Act. The record contains no competent medical evidence to indicate to what extent, if any, Anderson's condition affected a normal life function or a major life activity, or her capacity to work. Indeed, even the letter that Anderson complains was not admitted into evidence fails to provide this information.

Further, with respect to her claim of depression, Anderson argues that she gave a note to Achterhof in 2002 asking for accommodations. Anderson argues that "Trudy nor anyone else did not at any time try to help me with the process", the "only thing Trudy did was send me to a shrink associated with the hospital. I did not trust this situation. Also, I had gone through the shrink thing many times before and I didn't see it had helped." Anderson also argues that she asked for accommodations with a written note in December 2004. Anderson argues that she believes the respondent refused to reasonably accommodate her request for accommodations.

The evidence fails to support Anderson's claim that the respondent refused to reasonably accommodate a disability (assuming for purposes of argument that her depression constituted a disability). Achterhof responded to Anderson's 2002 note by memo to her dated August 20, 2002. In the memo, Achterhof requested Anderson to provide information from her physician regarding the nature, severity, and duration of her impairment(s), the activity or activities the impairment limits, the extent to which the impairment limited her ability to perform her job duties and why an accommodation was needed. Exh. R-12. Achterhof's memo further informed Anderson that once this information was received, she (Achterhof) could then begin the process of evaluating the appropriateness of accommodation. Id. Achterhof wrote to Anderson again in January 2005 regarding an accommodation. In this memo, Achterhof referenced her 2002 memo and stated, "As of this writing I have never received any information from you to verify the existence of a disability and the need to establish an accommodation." Achterhof therefore again requested that Anderson provide information, from a medical professional, that described the nature, severity, and duration of her impairment(s), the activity or activities that the impairment limits and the extent to which the impairment limited her ability to perform the job duties assigned to her. Exh. R-5. Achterhof testified that she did not receive a response to her January 2005 correspondence. Further, Achterhof again wrote to Anderson on February 2, 2005, requesting information from a medical provider regarding her condition. Anderson had still not provided the respondent with the requested information from her physician at the time the respondent terminated her employment on March 2, 2005.

Apparently referencing her spinal and neck conditions, conditions which the parties stipulated constituted a disability, Anderson argues that there was no proof that she ignored her restrictions throughout her employment; the only time she could not follow her restrictions was when the respondent told her she had to wear a headset that caused her a lot of headaches. However, Anderson's supervisor, Sherry Deiss, testified that Anderson never fully complied with her work restrictions; that they had to remind her "to not carry too many charts, and there was always an excuse for not doing things per her work restrictions." Also, Achterhof testified that there were several times when they had conversations with Anderson in which Anderson was reminded of her restrictions. Anderson herself testified that she was not to perform any functions above shoulder level without using a stool or ladder and that she "did not know if there were times when I did not do that."

Anderson asserts that it is her belief the respondent "did terminate me because of my depression (attitude)." Again, the record contains no competent medical evidence that Anderson's depression constituted a disability. The evidence shows that the respondent terminated Anderson's employment because she had made minimal progress (after being placed on a performance improvement plan) with regard to her tendency to ignore the chain of command and be insubordinate, to violate patient confidentiality and her failure to modify her negative attitude and behavior toward others.

With respect to her work performance, Anderson argues that "there was no written proof of who was making complaints against me except for three people", no written proof of her not doing her work or of making errors, or of the circumstance of her violating patient confidentiality and that no complaints concerning "this" was placed in her file until December 2004. Further, she apparently argues that she provided the respondent names of employees who violated patient confidentiality but the respondent "basically ignored this", and that she was singled out for questioning Sherry Deiss' qualifications because quite a few others in the facility did also. Anderson's arguments fail. First of all, the evidence showed that the respondent decided to take action in December 2004 because the staff had "bombarded" Deiss with incidents involving Anderson that had happened while Deiss was on vacation. Second, while there were three staff members that had reduced their complaints about Anderson in writing, Deiss identified a total of eight staff members who had complained to her about Anderson and were tired of Anderson's behavior, negative attitude and not being a team player. Third, with respect to patient confidentiality, Deiss testified that she had seen Anderson reading the charts extensively and saying which patients were coming in for which procedures or appointments, and that this was not done in the context of work. Fourth, Deiss testified that several times they addressed with Anderson why she (Deiss) got the job, "but [Anderson] never accepted what we gave as an answer." Finally, the respondent did not ignore the conduct of other employees; the respondent simply wanted Anderson to focus on her own conduct.

Anderson argues that as far as her attitude not getting better, what the ALJ did not take into consideration is that a person who has had various problems in their life and a person who has had a "fairly smooth" life will react differently to situations; that because of her past she does not react the same way as other people. While it is no doubt true that a person's past experiences will affect how they react to various situations, this does not permit an employee to violate an employer's reasonable rules of conduct and behavior.

Anderson apparently argues that the respondent terminated her employment in retaliation for complaining about a co-worker, Bev Bignell, at the end of 2004. Anderson states that her complaint about Bignell was that she was making discriminatory remarks about the respondent hiring "cripples". While the evidence does show that Anderson complained about discriminatory remarks allegedly made by Bignell, the evidence fails to show that the respondent terminated Anderson's employment for complaining about Bignell. The evidence shows that the respondent's reason for terminating Anderson's employment related solely to the minimal progress that she had made with respect to following the chain of command, respecting her supervisor, maintaining patient confidentiality and improving her attitude and behavior toward other staff members.

Anderson also argues that the ALJ did not act on her complaint claim that younger, less experienced people were promoted for jobs that she was well qualified for and would have fit her limitations a lot more than the job she had. However, the available evidence indicates that Anderson's denial of promotion claims relate to job promotions that were available in the latter part of 2003. See Exhs. C-2 and C-4. A failure to promote discrimination claim is a discrete employment action and discrete discriminatory acts are not actionable if time barred (i.e., filed more than 300 days after the discrete discriminatory act occurred). Amtrak v. Morgan, 536 U.S. 101 (2002).

Anderson further argues that "Listening to foul language all the years I worked there, dirty jokes being pinned on the bulletin board", she was subjected to sexual harassment, and, apparently, that she was harassed on the basis of sexual orientation because of an "ex-supervisor insinuating that I was gay." These claims by Anderson are also untimely. Anderson admitted she had no evidence that anyone had discriminated against her on the basis of sexual orientation and no evidence of any sexual harassment as far back as March 2004, which was a year before she had first attempted to file a complaint of discrimination against the respondent on March 21, 2005.

cc: Attorney Carol N. Skinner

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(1)( Back ) In Abbyland, the court held that acts of discrimination occurring outside of the limitations period were admissible to show state of mind for acts of discrimination alleged to have occurred within the statute of limitations period as long as they were not "unduly remote" from the incidents alleged to be within the limitations period.


uploaded 2008/05/13