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

RICHARD GELLER, Complainant

HARTLAND LAKESIDE JOINT #3 SCHOOL DISTRICT, Respondent

 

FAIR EMPLOYMENT DECISION
ERD Case No. 200404961, EEOC Case No. 26G-2005-00481C

 


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:

Numbered paragraph 63. on page 14 of the decision is deleted.

In the MEMORANDUM OPINION, the paragraphs in the Disability Discrimination section other than the first paragraph are deleted.

In the MEMORANDUM OPINION, the second and third sentences of the Summary are deleted.

DECISION

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

Dated and mailed March 27, 2009
gelleri . rmd : 115 : 9  

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

The complainant began working for respondent as a Custodian II in 1990. In 1998, Stephen Hogan (Hogan), respondent's Director of Buildings and Maintenance, promoted the complainant to a first shift Custodian I position. Almost immediately after this promotion, the complainant began consistently receiving write-ups and warnings for performance deficiencies, including those involving unsatisfactory interactions with his coWorker's; and unsatisfactory performance evaluations. To assist the complainant in remedying his unsatisfactory performance, Hogan began preparing task lists for the complainant to follow, as well as frequent feedback both orally and in writing. Despite this assistance, the complainant's performance did not improve.

In November 2003, the complainant requested and was granted FMLA leave. The complainant's treating psychiatrist (Schoettner) completed the FMLA medical certification. In this certification (exhibit # 52), Schoettner stated that the complainant's serious health condition, i.e., major depressive disorder and adult attention deficit disorder, commenced on October 29, 2003; was estimated to last six weeks; and did not render the complainant unable to perform the functions of his position.

Schoettner opined on January 16, 2004 (exhibit # 44) that the symptoms of the complainant's mental health condition "make performing the required duties of his employment impossible on a consistent basis," and the complainant was, at that time, totally disabled and would be unable to resume work in any occupation for 9-12 months." Despite this opinion, which apparently was not provided to respondent during the complainant's employment, the complainant returned to his Custodian I position on March 23, 2004, without any work restrictions.

On March 22, 2004, the respondent agreed to provide the following for the complainant:

The respondent understood that these were "accommodations your doctor thought would help you succeed in your position." (exhibit #3)

The complainant continued to fail to meet the respondent's expectations, and was so advised by the respondent.

On August 2, 2004, the complainant first provided notice to the respondent that he believed he was being discriminated against based upon his disability.

The complainant received a five-day suspension without pay in October of 2004, and was terminated on January 17, 2005, for unsatisfactory performance. 
 

Disability discrimination-discipline/discharge

In a disability discrimination claim under the Wisconsin Fair Employment Act, a complainant must show that: (1) he or she is an "individual with a disability" as defined in Wis. Stat. § 111.32(8), and that (2) the employer took one of the actions enumerated in Wis. Stat. § 111.322 because of the disability. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 42, 264 Wis. 2d 200, 225, 664 N.W.2d 651; Target Stores v. LIRC, 217 Wis. 2d 1, 9, 576 N.W.2d 545 (Ct. App. 1998). See, also, Daniel v. Berlex Laboratories, ERD Case No. 200601724 (LIRC July 25, 2008).

Here, it is undisputed that the complainant qualifies as an individual with a disability within the meaning of the WFEA based upon his November 2003 diagnosis of adult attention deficit disorder and major depressive disorder.

The complainant then has the burden of proving that the actions at issue, i.e., discipline and discharge, were taken because of this disability.

Two approaches have been taken to determine whether an action was taken "because of" a disability.

One approach analyzes whether the conduct upon which the adverse action relies was caused by the disability. This approach was analyzed by the Court of Appeals in Wal-Mart Stores v. LIRC and Schneider, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633. In the instant case, the question would be whether the conduct considered unsatisfactory by the respondent and relied upon in imposing discipline and in discharging the complainant was caused by his disability. However, the complainant has affirmatively indicated (see page 27 of brief and pages 2-3 of reply brief) that he is not relying upon this approach here.

The other approach, i.e., disparate treatment, analyzes whether the decision-maker was motivated by a discriminatory animus in taking the adverse action.

Wisconsin courts, in the absence of the WFEA's establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172-173, N.W.2d 372 (Ct. App. 1985). See, also, Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003).

As stated by the court in Puetz:

McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).

In order to establish a prima facie case, the complainant would have to show that he was a member of a protected class, he suffered an adverse action, and the circumstances create an inference of discrimination. Although the complainant is protected based upon his disability, and suffered adverse actions when he was disciplined/discharged, the circumstances do not create an inference of discrimination not only because there was no difference in treatment before and after the respondent had reason to be aware of the complainant's disability but also because the complainant has not shown that he was treated less favorably than similarly situated Worker's not in his protected class.

If, however, the complainant had proved a prima facie case of disability discrimination, the burden would then shift to the respondent to articulate a legitimate, nondiscriminatory reason for the discipline/discharge. The respondent sustained this burden by explaining that it disciplined/discharged the complainant because he failed to meet reasonable performance expectations.

The burden would then shift to the complainant to establish that this reason was a pretext for discrimination.
 

Pretext - Discipline

The complainant argues that pretext is demonstrated by the allegedly trivial, inaccurate, or unsubstantiated nature of certain of the fourteen allegations underlying the five -day suspension imposed on October 18, 2004.

The complainant first points to the allegation that he did not appropriately clean up a spill or respond to a teacher who subsequently slipped and fell in the spill area.

The record shows that a teacher complained to management on May 25, 2004, that she slipped and fell in the area where the complainant had recently cleaned up a spill; so much water still remained in the spill area that the pants she was wearing became soaked with water; and, although he was in the immediate area, the complainant made no effort to respond when she fell.

The complainant explains that water remains on a floor after a spill is cleaned up, and that he put two caution signs out as a warning. However, the respondent was reasonably justified in expecting the floor to be damp, but not to have enough water remaining on it to soak a piece of clothing. The caution signs would reasonably have provided notice to the teacher that care should be taken walking in the area of the spill because the floor could still be damp, but would not reasonably have provided notice to her that there was a significant amount of water remaining on the floor.

The complainant further explains that, although he observed the teacher slip and fall, he did not consider it necessary to respond since certain of the middle school students in the area went over and assisted the teacher to her feet. However, the respondent was reasonably justified in expecting the complainant, as the only adult in the area, to respond to a situation involving a possible injury.

The complainant contends that the allegation involving his failure to respond to the teacher was not a concern at the time but was raised by the respondent significantly after the fact. However, Hogan's contemporaneous notes (exhibit #4) state not only that the teacher reported slipping in the spill area but also that the complainant "didn't help." In addition, the failure to respond to the teacher was raised as a performance deficiency in Hogan's July 28, 2004, letter to the complainant (exhibit #3).

The complainant also argues that, although his use of his work cell phone for personal purposes was one of the fourteen allegations of unsatisfactory performance for which he was disciplined, other custodians were not disciplined for this but were instead simply allowed to repay the respondent the cost of their personal minutes.

However, the record does not show that these other custodians were similarly situated to the complainant, i.e., that they had comparable performance/disciplinary histories, or, in fact, that they had any other incidents of unsatisfactory performance. It was reasonable for the respondent to have considered this an example of unsatisfactory work performance but not sufficient, standing alone, to justify the imposition of discipline.

The complainant contends that the fact that Hogan waited four months to provide notice of certain performance deficiencies demonstrates pretext. Those deficiencies to which the complainant is referring occurred on or after March 25, 2004, and written notice was provided to the complainant on July 28, 2004. However, Hogan testified (T. 60), and the complainant did not rebut, that Hogan discussed with the complainant each of the fourteen performance deficiencies cited in the July 28, 2004, letter as it occurred. The record does not show that it was Hogan's or the respondent's practice to generate a contemporaneous writing for each individual performance deficiency. Moreover, although complainant points to Hogan's testimony that he "did not wait for over four months to put any unacceptable work issues [in writing] for any other custodians who reported to" him (T.449), the record does not show that Hogan had any other subordinate custodian with a comparable performance history to the complainant's, or, in fact, that Hogan had ever put any unacceptable work issues in writing for any other custodians.

The complainant also argues that the incidents cited in the July 28, 2004, letter relating to his misplacement of keys and to his failure to secure cleaning chemicals/equipment demonstrate pretext because other custodians were not disciplined for losing a set of keys or for not putting cleaning supplies and equipment away.

However, again, the record does not show that these other custodians had work performance/disciplinary histories comparable to the complainant's, or, in fact, had ever been disciplined or been deficient in their performance in any other way. In addition, the record does not show that any other custodians had failed to secure cleaning chemicals, a serious safety breach, as the complainant had.

The complainant further argues that pretext is demonstrated by the perfunctory investigation of his internal discrimination complaint by Stowasser, a member of the respondent's human resources staff. However, the record does not show that Stowasser did not follow her typical practice in conducting this investigation, or reached a conclusion contrary to her investigatory findings. 
 

Pretext - Discharge

The complainant contends that pretext is demonstrated by the fact that he was held to account for the failure to put traffic ropes/cones out on January 14, 2005, an early release day, even though he was never told it was his responsibility to do so.

The ALJ found that the complainant had been assigned this responsibility, crediting principal Fisher's testimony that he had given the complainant this assignment orally in the fall of 2004, rather than the complainant's testimony that he had never been given this assignment; and based upon a contemporaneous report dictated by the complainant two days later (exhibit #39) that he "forgot" to put the ropes/cones out on January 14. The commission found no persuasive reason to overturn this finding/credibility determination. First, there were problems with the complainant's credibility generally. In addition, although the complainant testified that the statement in exhibit #39 that he "forgot" to put the ropes/cones out on January 14 was an error, he also testified (T. 364) that, in creating this document, as with the other documents his wife typed for him, he told her what to type and she typed it.

In addition, simply as a practical matter, putting the ropes/cones out was a custodial function and, since the complainant was the only custodian on duty at the middle school during the first shift, it follows that it would be his responsibility. Complainant showed he was capable of anticipating changes in his routine for early release days, even when not stated on his task list, when he noted on his calendar for January 14 that he did not need to put the lunch tables out that day.

Moreover, not only did the complainant fail to carry out his responsibility to put the ropes/cones out on January 14, but he refused to take responsibility for this failure, simply repeating the explanation to Fisher at the time that "no one told me" to do it, and then refusing to answer questions at the subsequent investigatory meeting.

The complainant argues that it was pretextual for the respondent to consider it insubordinate for him to refuse to answer questions at the meeting on January 14 because, since it was a performance review, he was permitted to have his union representative speak for him.

However, as the ALJ found, this meeting was intended as an investigatory meeting and the complainant had reason to be aware of its purpose. Fisher testified (T.256) that he told the complainant that the purpose of the meeting was to discuss the ropes/cones incident further. The complainant testified (T.286) that he was told the meeting was going to be a performance review. The ALJ credited Fisher's testimony rather than the complainant's and the commission agrees. The complainant's version of events is not only incompatible with the other events of the day, but, as discussed above, there were problems generally with the complainant's credibility.

In addition, even if the complainant had a reasonable belief prior to the meeting that it was to be a performance review, it should have become immediately apparent to him when the meeting commenced that its purpose was to investigate further the lack of ropes and cones in the parking lot.

The record does not show that a worker had a contractual right to refuse to answer questions during an investigatory meeting. Moreover, the complainant was specifically counseled during the meeting by management that his failure to respond to questions would be considered insubordination. Despite the investigatory nature of the meeting and the warning that his silence was insubordinate, the complainant continued to refuse to answer questions. Although he claims that it was within his rights to permit his union representative to speak for him, this claim is misplaced. The complainant's union representative had no direct knowledge of the ropes/cones incident under investigation, and, in fact, did not provide information to the respondent during the meeting other than the simple statement that the complainant would not be answering questions.

The complainant has failed to sustain his burden to show that the reason articulated by the respondent for his discipline/discharge was a pretext for disability discrimination.

The complainant claims that the respondent was motivated by a discriminatory animus based upon his disability in regard to his numerous unsatisfactory performance evaluations and disciplines, as well as his discharge. However, complainant's claim that he was being unfairly targeted and "harassed" about his attitude, his relationships with coWorker's, and the quality of his work began long before respondent had any reason to be aware of his disability (see, e.g., exhibit #26). Moreover, respondent's concerns about the complainant's work performance began long before it first became aware of his disability in November of 2003, as evidenced by his unsatisfactory performance evaluations (2/8/02, 4/29/03); and disciplines, including verbal warnings (6/3/99, 4/30/01), written warnings (2/17/00, 6/5/03, 8/11/03, 8/29/03), and a three-day suspension (10/24/03).

The record does not show that respondent's expectations for complainant's performance or its response to his continuing failure to meet those expectations changed after it first became aware of his disability on November 4, 2003. The fact that the nature of the discipline became more severe was a function of the respondent's progressive discipline system. The complainant attempts to minimize his performance deficiencies by isolating a few and asserting that their trivial nature or the existence of allegedly mitigating circumstances demonstrates the respondent's general lack of reasonable justification for disciplining/discharging him. Certainly, some of the many incidents were not as significant as others. However, considered as a whole, the evidence of record shows that the panoply of incidents relied upon by the respondent, including complaints from different staff members as to complainant's poor attitude and lack of cooperation, and the complainant's continuing failure to take responsibility for his actions, reasonably justified its decision to discipline and then to discharge him. 
 

Retaliation

The complainant also claims that he was retaliated against for engaging in a protected fair employment activity.

Complainant first argues that retaliation is demonstrated by the fact that, "...within two days of Mr. Geller's return to work [on March 23, 2004] following his use of FMLA and agreed upon accommodation, Mr. Hogan began papering Mr. Geller's employment file with false and exaggerated allegations of poor performance." (page 36 of brief) However, the first protected activity in which the complainant engaged occurred on August 4, 2004. As a result, any actions taken prior to August 4, 2004, could not have been in retaliation for any of the complainant's protected fair employment activities.

Complainant also argues that retaliation is demonstrated by the fact that, immediately after August 4, 2004, Hogan "stopped conducting regular touch-base meetings" with the complainant. However, first of all, these were intended as ad hoc meetings and the record does not show that touch-base meetings in addition to those that occurred were merited. In addition, although their average frequency decreased from their inception in March 2004, these meetings did not stop and, in fact, Hogan held three in December 2004 and one in January 2005 just five days before the complainant's discharge. The decrease in the frequency of these meetings did not begin after the complainant engaged in his first protected activity in August 2004, but instead in June 2004, when only one meeting was held, and July 2004, when no meetings were held. Moreover the record shows that Hogan discussed with the complainant each incident of unsatisfactory performance as it occurred, on an average of once or twice daily. Finally, it is worth noting that, although he now claims that the lack of such meetings prevented him from succeeding, the complainant stated in his August 2, 2004, response to the July 28 critique of his performance (exhibit #6) that "The meetings with Steve Hogan are not helpful."

Finally, the complainant offers many of the pretext arguments he offered in regard to his claim of disability discrimination, but, as discussed above, given the evidence of record, these arguments are not persuasive.

The complainant failed to sustain his burden to prove retaliation.
 

Reasonable accommodation

In addition to the basic prohibition against discrimination "because of" or "on the basis of" disability which is included within Wis. Stat. § § 111.321 and 111.322, the WFEA also sets out "exceptions and special cases" relating to discrimination because of disability, in Wis. Stat. § 111.34. There, in subsection (1)(b), the statute provides that employment discrimination because of disability includes refusing to reasonably accommodate an employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business.

There are two elements to the question of whether there was a refusal to reasonably accommodate an individual's disability within the meaning of Wis. Stat. § 111.34(1)(b): whether a reasonable accommodation existed, and, if so, whether providing such an accommodation would have worked a hardship on the employer. See, Gamroth v. DOC, ERD Case Nos. CR200308157, etc. (LIRC Oct. 20, 2006).

The initial burden is on the complainant to prove that a reasonable accommodation, i.e., one which would enable the complainant to perform the duties of his position, is available. See, Gamroth, supra.

The only accommodations the complainant argues he should have been provided were those to which the parties agreed on March 22, 2004:

Although the respondent appears to be arguing that there was no medical support or recommendation for these accommodations, the respondent conceded (exhibit #3) in its July 28, 2004, letter to the complainant that, "We met on March 22, 2004, to discuss the accommodations your doctor thought would help you succeed in your position."

The complainant argues that the respondent failed to reasonably accommodate the complainant when it did not put notice of his performance deficiencies in writing. However, not only was this not one of the accommodations requested by the complainant, but the record shows that Hogan or another supervisor gave the complainant notice of each incident of unsatisfactory performance by discussing it with him at the time it occurred.

The complainant also argues that the respondent failed to reasonably accommodate him when it did not comply with its agreement to provide touch-base meetings. The complainant asserts that the respondent agreed that Hogan would hold "frequent" touch-base meetings with him. However, the record shows instead that the respondent agreed to "regular" touch-base meetings, not "frequent" ones, and that these meetings were intended to be ad hoc, conducted as circumstances warranted. As discussed above, the record does not show that touch-base meetings in addition to those that were held were actually merited. The record also shows, contrary to certain of the complainant's statements in his arguments, that Hogan did not "stop" conducting touch-base meetings, but instead that, although the average number decreased, there were three held in December 2004 and one in January 2005 just five days before his discharge. In addition, the record shows that the complainant was receiving instruction, notice of performance deficiencies, and suggestions for improvement orally an average of once or twice daily during the relevant time period. Finally, as noted above, although he now claims that the lack of such meetings prevented him from succeeding, the complainant stated in his August 2, 2004, response to the July 28 critique of his performance (exhibit #6) that "The meetings with Steve Hogan are not helpful."

The complainant also argues that the respondent failed to reasonably accommodate him when it held him accountable for the ropes/cones incident on January 14, 2005, even though this responsibility had not been listed on his task list for that day. However, as the ALJ found, the complainant had been orally assigned this task by Fisher in the fall of 2004. Moreover, it is unrealistic to expect a supervisor to list every eventuality on a task list, especially for a higher level, first shift position expected to respond to changing circumstances. In addition, given that it was a custodial responsibility and the complainant was the only custodian on duty during the first shift, it was reasonable for the respondent to expect complainant to have anticipated his responsibility for this task as he had anticipated the fact that he need not put lunch tables out on that early release date even though that, too, had not been noted by Hogan on the task list. Finally, and most importantly, the record shows that it was not the complainant's failure to put out the ropes/cones that was the respondent's primary concern but instead his refusal to take any responsibility for this failure and his insubordinate refusal to participate in a related investigatory meeting.

Finally, the complainant asserts that, based upon his work history, had the respondent consistently provided the accommodations to which the parties had agreed, he would have been successful in performing the duties and responsibilities of his position. First, as discussed above, the record shows that the respondent was consistently providing these accommodations. Moreover, even during the period of time, both before and after his FMLA leave, that the respondent was providing daily and weekly task lists, and immediate feedback as well as frequent meetings, the complainant's performance, including his attitude and his interactions with other staff members, was unsatisfactory. Simply because the complainant was completing the tasks on the task lists does not mean that he was completing them satisfactorily.

The record does not show that the respondent failed to reasonably accommodate the complainant's disability.

cc:
Attorney Robert M. Mihelich
Attorney Michael J. Cieslewicz


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