STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

KENNETH V DEAL, Complainant

D & S MANUFACTURING, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200501152, EEOC Case No. 26G200501005


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, except that it makes the following modifications:

Numbered paragraphs 18. through 21. in the FINDINGS OF FACT section on page 6 of the decision are deleted.

Numbered paragraph 2. in the CONCLUSIONS OF LAW section on page 6 of the decision is modified to read as follows:

3. Deal is an individual with a disability within the meaning of the WFEA.

The MEMORANDUM opinion beginning on page 7 of the decision is deleted.

DECISION

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

Dated and mailed June 20, 2008
dealken . rmd : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

Timeliness issue

In the charge he filed on March 30, 2005, Deal alleges that he was discriminated against on the basis of disability when the following actions were taken:

(1)  After he returned from medical leave on April 14, 2004, his supervisory duties were removed and he was assigned demeaning duties, including janitorial duties;

(2)  D & S failed to reasonably accommodate his disability after his return from medical leave on April 14, 2004;

(3)  He received an unfavorable performance evaluation in April 2004;

(4)  He was placed on an involuntary leave on September 27, 2004;

(5)  He was terminated on or around October 27, 2004.

The Wisconsin Fair Employment Act (WFEA) requires that a complaint be filed within 300 days of the date that the alleged discrimination occurred. Wis. Stat. § 111.39(1). The actionable 300-day period for this complaint would be June 3, 2004, through March 30, 2005.

D & S challenges the timeliness of the charge as it relates to allegations (1), (2), and (3).

Clearly, the action underlying allegation (3) did not occur within the actionable period and the charge is not timely filed as to it.

Allegation (1) involves the decision by D & S not to return Deal to his plant supervisor position upon his return from medical leave on April 14, 2004. This was not during the actionable period. Deal argues, however, that the charge should be regarded as timely filed in regard to this allegation through application of the continuing violation doctrine. The commission disagrees.

Discrete employment actions are not susceptible to application of the continuing violation doctrine regardless of whether they are related in some way to employment actions which took place during the actionable period.

D & S's failure to return Deal to his plant supervisor position upon his return from medical leave was a discrete action occurring more than 300 days prior to the date of the complainant's charge and not actionable here as a result.. AMTRAK v. Morgan, 536 U.S.101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). (1)   See, also, Lau v. LATEC Credit Union, ERD Case No. CR200103183 (LIRC Feb. 7, 2003); Seil v. Dairy Farmers of America, ERD Case No. 200204104 (LIRC Aug. 26, 2005).

Allegation (2), as clarified in the record, also relates to Deal's contention that a reasonable accommodation would have been to maintain him in his plant supervisor position upon his return from medical leave on April 14, 2004. Obviously, as discussed above in relation to allegation (1), this was a discrete action, did not occur within the applicable 300-day period, and is not actionable here.

However, even if allegations (1), (2, and (3)) were actionable, as discussed below, probable cause was not established as to them. 
 

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.

In order to qualify as an individual with a disability within the meaning of the WFEA, a complainant must establish that the respondent either had reason to be aware, or perceived, that the claimed disability was a permanent one at the time the subject adverse actions occurred. See, Greco v. Snap-On Tools, ERD Case No. 200200350 (LIRC May 27, 2004).

The record does not establish that D & S had reason to be aware during the time period relevant here that Deal's shoulder impairment was actually a permanent one. The only medical information available to D & S prior to the date of Deal's termination indicated that he was still in the healing period for his shoulder injury.

The record does show, however, that D & S perceived Deal's shoulder impairment to be a permanent one. In fact, Sherrie Hein, D & S's human resources manager, testified that, after Deal's return from medical leave, D & S was "accommodating Mr. Deal's restrictions until permanent restrictions could be assessed." In addition, Hein testified that D & S did not intend to ever move Deal back to his plant supervisor position, but instead to develop a different position for him in which he would be placed indefinitely. This establishes that D & S expected permanent restrictions to be assessed once Deal had reached a healing plateau, and that these restrictions would prevent him from ever performing the duties and responsibilities of his plant supervisor position, i.e., that D & S perceived the impairment resulting from Deal's shoulder injury and surgery to be permanent and to limit his capacity to work.

As a result, the record supports a conclusion that Deal qualifies as an individual with a disability within the meaning of the WFEA. 
 

Disability discrimination

Removal of plant supervisor duties/failure to accommodate-allegations (1) and (2)

Deal contends that he could have continued to perform the duties of his plant supervisor position within the restrictions imposed by his treating physician. However, as the ALJ found, the evidence of record does not support this contention. Plant supervisors are working supervisors with lifting/moving and reaching requirements which Deal's restrictions prohibited. Although Deal argues that D & S assigned him janitorial duties which were not only at a substantially lower level than his plant supervisor duties but also exceeded his restrictions, the record shows that Deal was assigned to oversee others in the performance of these janitorial duties, not to perform them himself. D & S made a good faith effort to find work for Deal within his restrictions.

Deal failed to show that probable cause exists to believe that he was discriminated against on the basis of disability in regard to these two allegations. 
 

Unfavorable performance evaluation-allegation (3)

Even though Deal received his first unfavorable performance evaluation in 18 years after his shoulder injury, the record does not show that this was the result of disability discrimination. The record shows instead that this evaluation resulted from, and was justified by, reports D & S had received and reasonably credited prior to April 2004 that Deal had threatened to do violence to Giese.

Deal failed to establish probable cause to believe that he was discriminated against based on disability in regard to his April 2004 performance evaluation. 
 

Involuntary leave/termination-allegations (4) and (5)

Over a period of months, D & S received reports from several sources that Deal had, among other things, threatened to do violence to Giese, threatened to do violence to D & S managers who had not returned him to his plant supervisor position after his medical leave, and stated he had a loaded gun in his vehicle. Given the number, content, and consistency of these reports, D & S was reasonably justified in crediting them, and in concluding that Deal's denials were not credible and manifested a failure by him to take responsibility for his actions. The record shows that D & S was motivated by its legitimate concerns about Deal's relationships with coWorker's and belief that he was not being honest, not by his shoulder condition, when it placed him on leave and then terminated him.

Deal contends that he never threatened violence or indicated he had a loaded gun in his vehicle. However, even if this contention is true, the record shows that D & S reasonably believed the reports it received to the contrary. In some cases, such as that here, the question of whether an employer's asserted nondiscriminatory reason is objectively correct can be considered irrelevant if it appears that the employer genuinely believed it to be true. See, Moncrief v. Gardner Baking, ERD Case No. 9020321 (LIRC July 1, 1992); Kleinsteiber v. Eaton Corp., ERD Case No. CR200103841 (LIRC March 15, 2004); Grell v. Bachmann Construction Co., Inc., ERD Case No. CR200202309 (LIRC July 15, 2005). The trier of fact need only determine that the employer in good faith believed in those reasons and that the asserted reasons for the action were not a mere pretext for discrimination. See, Atkins v. Pepsi-Cola General Bottlers, ERD Case No. 199550094 (LIRC Dec. 18, 1996); Ford v. Lynn's Hallmark, Inc., ERD Case No. CR200301184 (LIRC June 27, 2005).

Deal further argues, analogizing to fair employment retaliation cases, that the proximity in time between his shoulder injury/restrictions and his involuntary leave/termination is sufficient, particularly given that the issue is one of probable cause, to establish a causal connection. However, whether the issue is one of probable cause or the merits of a charge, although proximity in time may create an inference of a causal connection, it is not sufficient by itself to establish such a connection. Kannenberg v. LIRC, 213 Wis. 2d 373, 396, 571 N.W.2d 165 (1997) (timing does not in itself establish retaliation). See, also, Nelson v. Westby Cooperative Creamery, ERD Case No. 200400105 (LIRC April 11, 2008).

Deal did not sustain his burden to prove that probable cause exists to believe that he was discriminated against on the basis of disability when he was placed on an involuntary leave and then terminated. 
 

cc:
Attorney Carol S. Dittmar
Attorney William Smoler



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Footnotes:

(1)( Back ) The commission has looked to federal court decisions in Title VII cases for guidance on continuing violation and other timeliness issues even though, for example, Title VII refers to "practice" while the WFEA refers to "discrimination." See, e.g., Josellis v. Pace Industries, Inc., ERD Case No. CR200100081 (LIRC June 21, 2002).

 


uploaded 2008/07/01