JOHN ABRAHAM, Complainant
ROUNDY'S INC, Respondent
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 conclusions in that decision as its own, except that it makes the following modifications:
In the first sentence of numbered paragraph 15. of the FINDINGS OF FACT section (on page 3 of the decision), the "July 19" date is changed to "July 18."
In the first sentence of numbered paragraph 16. of the FINDINGS OF FACT section (on page 3 of the decision), the "July 17" date is changed to "July 19."
Numbered paragraph 18. of the FINDINGS OF FACT section (on page 3 of the decision) is deleted.
The complainant's petition is accepted for review. The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed June 20, 2008
abrahjo . rmd : 115 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
In a decision dated and mailed on November 29, 2007, the ALJ found no probable cause to believe that discrimination had occurred as alleged, and dismissed the complainant's charge with prejudice. The face sheet of this decision, which sets forth the notice of appeal rights, states, "The Petition for Review must be received by the Equal Rights Division within twenty-one (21) days from the date of the decision, or the decision will become final." (emphasis in original)
On December 10, 2007, the ALJ issued an amended decision which noted, "Amended only because page 3 was omitted in the original decision." The face sheet of this decision states in bold type, "Appeal is now due January 31, 2008."
This statement of the appeal deadline was incorrect, i.e., 21 days after December 10 was December 31, 2007, not January 31, 2008.
The complainant's petition was filed January 15, 2008.
Wisconsin Statutes § 111.39(5) provides as follows, as relevant here:
(a) Any respondent or complainant who is dissatisfied with the findings and order of the examiner may file a written petition with the department for review by the commission of the findings and order.
(b) If no petition is filed within 21 days from the date that a copy of the findings and order of the examiner is mailed to the last-known address of the respondent the findings and order shall be considered final for purposes of enforcement under sub. (4)(d). If a timely petition is filed, the commission, on review, may either affirm, reverse or modify the findings or order in whole or in part, or set aside the findings and order and remand to the department for further proceedings. Such actions shall be based on a review of the evidence submitted. If the commission is satisfied that a respondent or complainant has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department.
Wisconsin Administrative Code § LIRC 1.02 provides in relevant part as follows:
All petitions for commission review shall be filed within 21 days from the date of mailing of the findings and decision or order...
It appears from the file in this matter that the sole exception stated in Wis. Stat. § 111.39(5)(b), relating to exceptional delay in the receipt of the ALJ's decision, does not apply here.
The commission, as the respondent correctly points out in its letter brief, has held that the timely filing requirement is a jurisdictional one, i.e., that the commission does not have jurisdiction to review the case in the absence of a timely petition. See, Lacy v. Briggs & Stratton (LIRC July 9, 1991); Harris v. State of Wisconsin, ERD Case No. 200500508 (LIRC Oct. 31, 2005)(commission has no authority to review decision of ALJ in absence of timely petition).
Wisconsin Statutes § 227.48(2), which applies to ERD proceedings, states as follows:
Each decision shall include notice of any right of the parties to petition for...administrative...review of adverse decisions, the time allowed for filing each petition and identification of the party to be named as respondent. No time period specified...for filing a petition ...under any...section permitting administrative review of an agency decision begins to run until the agency has complied with this subsection.
In analyzing this statutory provision in Heinritz v. Lawrence University, ERD Case No. 9002788 (LIRC Sept. 30, 1993), the commission held:
...the issuance of a notice of appeal rights which provides incorrect information is obviously as contrary to the purpose of this statute as is the failure to issue such notice at all....The "Decision on Motion" which dismissed Heinritz's complaint was not accompanied by a correct notice of the rights of the parties to petition for administrative review. By operation of sec. 227.48(2), Stats., the time period specified by statute for filing for such administrative review (by LIRC) never began to run.
Adopting the Heinritz approach to the circumstances present here, since the notice of appeal rights issued by ERD did not comply with Wis. Stat. § 227.48(2) because it misstated the appeal deadline, the time period for filing a petition for commission review never began to run, and the petition filed by the complainant on January 15, 2008, is deemed, as a result, to have been timely filed.
Disability discrimination
In his charge, the complainant (Abraham) specifies his disability as "permanent injury on left elbow; and alleges that he was discriminated against based on this disability when he was harassed by a coworker and terminated by respondent (Roundy's), and when Roundy's failed to accommodate his disability by requiring him on one occasion to lift heavy boxes.
The standard of proof is probable cause.
Individual with a disability
The complainant's initial burden in a disability discrimination case is to establish that he is an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA). Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980); Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998). The WFEA defines a disabled individual in Wis. Stat. § 111.32(8) as one who:
(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;
(b) Has a record of such an impairment; or
(c) Is perceived as having such an impairment.
An "impairment" for purposes of the WFEA is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition.
City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). Proof of a disability typically requires competent medical evidence of the employee's alleged impairment.
Erickson v. LIRC, 2005 WI App 208, 704 N.W.2d 398 (Ct. App. 2005). An impairment must be permanent in order to constitute a cognizable disability within the meaning of the WFEA.
Erickson, supra.
The test to determine whether an impairment makes achievement unusually difficult is whether there is a substantial limitation on life's normal functions or on a major life activity.
Target Stores, supra. By contrast, the "limits the capacity to work" test refers to the particular job in question.
Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985). The inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty.
AMC v. LIRC, 19 Wis.2d 706, 350 N.W.2d 120 (1984);
Jones v. United Stationers, Inc., ERD Case No. 199803598 (LIRC Jan. 25, 2001). It is not enough to state a diagnosis or to list symptoms. The complainant must explain through credible and competent evidence how or to what degree these symptoms made achievement unusually difficult for him.
Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC August 25, 2000).
The record does not show that any work restrictions relating to the elbow injury were in effect, were requested, or were applied, during June and July of 2005, the period of time the allegedly discriminatory actions occurred, and Abraham testified that he was able to perform the duties and responsibilities of his position at that time. Although the medical evidence of record shows that Abraham reported he was experiencing some elbow pain in April of 2005, it does not show that this pain was present in June or July of 2005, or, even if it were, that it or any other symptom of Abraham's elbow injury was sufficiently severe at that time to impose a substantial limitation on his life functions or his ability to work.
Abraham failed to prove that he had a physical or mental impairment in June/July of 2005 which made achievement unusually difficult or limited his capacity to work;
The next question then would be whether the record shows that Roundy's perceived that Abraham suffered from such an impairment at that time.
Abraham testified that he took leave to attend medical appointments for evaluation of his elbow injury. This, however, would not establish that Roundy's necessarily or reasonably would have perceived complainant to be disabled. Medical treatment is sought, and medications prescribed, for conditions which are disabling as well as for conditions which are not. See, e.g., Erickson v. Quad Graphics, Inc., ERD Case No. CR200102388 (LIRC May 25, 2004); Moller v. Metavante, ERD Case No. 200103621 (LIRC Nov. 13, 2003); Lester v. Compass Group USA, ERD Case No. CR200203879 (LIRC March 22, 2005).
In addition, the fact that no work restrictions relating to his elbow injury were in effect during June/July 2005 further militates against a conclusion that Roundy's had reason to perceive Abraham as disabled at that time. See, Greenwood v. Ross Furniture, ERD Case No. CR200001517 (LIRC Dec. 30, 2004).
The record does not establish that Abraham was an individual with a disability during the time period at issue.
However, even if the record would have established that Abraham qualified as an individual with a disability within the meaning of the WFEA, it does not show that Roundy's harassed or terminated him because of his claimed disability, or failed to accommodate this disability, as alleged.
Harassment
Abraham alleges that, on one occasion in June 2005, a non-management co-worker (Kotecki) wrapped one of her arms in gauze and pretended it impaired her ability to work. Abraham interpreted Kotecki's actions as mocking his elbow impairment.
Assuming that the WFEA protects workers from harassment based upon disability, where a complainant seeks to hold the respondent accountable for the actions of a coworker, he must show that these actions were sufficiently severe and pervasive to create a hostile work environment (see, Thompson v. Ashley Furniture Industries, Inc., ERD Case No. CR199903292 (LIRC July 16, 2003); Starck v. Midwest Airlines, Inc., ERD Case No. CR200202357 (LIRC May 8, 2006)); and that the respondent knew or should have known of these actions and failed to take prompt remedial action (Crear v. LIRC, 114 Wis. 2d 537, 542, 339 N. W. 2d 350 (Ct. App. 1983)).
Abraham concedes he never reported the Kotecki incident to Roundy's management. Moreover, even if he had, this single incident was not sufficiently severe or pervasive to constitute harassment.
Accommodation
The single example cited by Abraham of Roundy's failure to accommodate his claimed disability occurred in June of 2005 while he was employed as the assistant produce manager after his transfer to the Green Tree location in Glendale.
The record does not show, however, that there was a work restriction related to Abraham's claimed disability in effect at the time. The work restriction imposed by his treating physician on December 1, 2004, stated that it expired on February 1, 2005, and, although the record shows that Abraham met with this physician on February 10 and February 23, 2005, it does not show that she continued the prior restriction or imposed a new one.
In his appeal to the commission, Abraham includes a work restriction ostensibly bearing a date of March 14, 2005; signed by his treating physician; and limiting his lifting to 15 pounds. However, Abraham, who was represented by counsel at hearing, did not offer this document into the hearing record.
Abraham argues that the produce manager, his supervisor, was necessarily aware that he had a lifting restriction because the health records maintained by Roundy's followed him to each transfer location. However, the record does not show that his health records, even if they had included a current restriction and had transferred with him, were made known to his supervisor.
Abraham testified that his supervisor had reason to be aware of the work restriction related to his claimed disability because he objected to lifting the boxes and told the produce manager that he had "not done any form of lifting since the year of 2002, since my accident." This, however, referred to an earlier right shoulder injury, not to the left elbow injury which is the only disability Abraham claims here. As a result, even if this would have provided notice to his supervisor of the existence of a work restriction, it does not relate to the disability at issue.
Termination
The reason offered by Roundy's for Abraham's termination was his purchase of store products at a discount, which its work rules strictly prohibit and for which these rules require immediate termination.
Since this reason is legitimate and non-discriminatory on its face, it is Abraham's burden to prove that it is a pretext for disability discrimination. See, Ford v. Lynn's Hallmark, Inc., ERD Case No. CR200301184 (LIRC June 27, 2005), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Abraham asserts that pretext is demonstrated by the fact that, citing a medical restriction, he objected to his supervisor's directive to lift some heavy boxes, and was terminated "a few days" later.
However, his objection to lifting the boxes occurred on an unspecified date in June 2005, and he was not terminated until July 19, 2005. Moreover, as discussed above, he did not relate his lifting restriction to his claimed disability.
Abraham also asserts that, although Roundy's alleges he purchased a medium coffee, two doughnuts, and some deli items but only paid 98 cents for them, he "never, never, and I insist never purchased donuts during my evening breaks when working." However, in direct conflict with this assertion, Abraham testified that he had bought doughnuts to eat on his break prior to this incident. (see pages 54 and 55 of transcript). Moreover, Abraham did not dispute during his testimony that he had bought the listed items and was aware they would cost more than 98 cents. Although he testified that he was unaware of the discount, the ALJ did not credit this testimony. As the ALJ reasoned, Abraham admitted he was aware the items would cost more than 98 cents, and it was simply not plausible that Abraham would have been unaware of the amount he paid for them.
Abraham did not show that probable cause exists to believe that he qualified as an individual with a disability within the meaning of the WFEA, or, even if he did, that he was discriminated against on that basis as alleged.
Other issues raised in Abraham's appeal to the commission
One of Abraham's primary objections is to actions by his attorney during the period of representation.
However, as the commission has consistently held, the actions or inactions of the complainant's attorney, even if erroneous, are imputed to the complainant. See, Hamilton v. Northwestern Elevator Co., Inc., ERD Case No. CR200003827 (LIRC Dec. 10, 2002); Valdes v. Harley Davidson Motor Co., Inc., ERD Case No. CR200203820 (LIRC Oct. 27, 2006); Amos v. McDonalds, ERD Case No. CR200600319 (LIRC May 25, 2007).
One of the actions for which Abraham criticizes his attorney is his apparent misrepresentation to the ALJ that he had not received prior to hearing a copy of the DVD Roundy's offered as a hearing exhibit. However, not only is this misrepresentation by his attorney imputed to Abraham, but the party prejudiced by this misrepresentation, upon which the ALJ relied to exclude the DVD from the record, was Roundy's, which was seeking to have it made a part of the hearing record, not Abraham.
Abraham also argues that a DWD appeal tribunal decision awarding unemployment insurance benefits should establish for purposes of this matter that his termination was not reasonably justified. However, pursuant to Wis. Stat. § 108.101(1), (1) an unemployment insurance determination is not admissible or binding in a proceeding before the Equal Rights Division. See, Mihalovich v. Jewel Osco, ERD Case No. 199904227 (LIRC Sept. 13, 2001); Neulreich v. U S Bank, ERD Case No. 200500517 (LIRC April 11, 2008).
Abraham also takes issue with Roundy's decision to cancel its scheduled deposition of him. However, Roundy's was not required to depose him or, in fact, to engage in any discovery.
Abraham argues that he was prejudiced because "[t]he Respondent resisted complying with the production of key witnesses." It is not clear to what he is referring, but there is no indication in the record of the hearing or in the file in this matter that Abraham was prevented from calling or seeking to compel the attendance of any witnesses.
Finally, Abraham relies on many facts in his appeal which are not part of the hearing record and may not, as a result, be relied upon by the commission in rendering its decision. See, Butler v. City of Madison, ERD Case No. 199704815 (LIRC Jan. 27, 2000).
cc: Attorney Laura Lindner
Appealed to Circuit Court. Affirmed December 3, 2008.
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