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



ERD Case No. 200504037, EEOC Case No. 26G200600113

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 position of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, for the reasons stated in the attached Memorandum Opinion the Labor and Industry Review Commission issues the following:


The ALJ's decision issued in this matter is set aside. This matter is remanded to the Equal Rights Division for further proceedings on the complainant's claim of disability discrimination before a different ALJ and the issuance of a new decision on the complainant's claim.

Dated and mailed August 14, 2009
willidi . rpr : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


This case arises from Diane Williams' charge of discrimination in which she alleged that the respondent, All Saints Healthcare System, Inc., discriminated against her on the basis of disability with respect to her terms and conditions of employment and termination of employment. (1)   The ALJ granted the respondent's motion to dismiss Williams' complaint at the close of Williams' case. In the ALJ's subsequent decision issued in the matter the ALJ held that there was no probable cause to believe the respondent discriminated against Williams on the basis of disability with respect to her terms and conditions of employment or termination of employment; that Williams failed to provide sufficient evidence to show that she is disabled; that the respondent had a legitimate, nondiscriminatory reason for Williams' termination, i.e., she was altering her time card to be paid for more time than she actually worked, and that Williams failed to establish a causal connection between her alleged disability and her termination.

The commission concludes that Williams is an individual with a disability within the meaning of the Wisconsin Fair Employment Act. Further, the commission concludes that this matter must be remanded for further proceedings on the issues of whether the respondent discriminated against Williams in her terms or conditions of employment and terminated her employment because of her disability.

Williams began employment with the respondent in 1997, working as a Health Unit Clerk (HUC). In 1998 Williams became a Resource & Operations Management Assistant (ROMA). Near the end of 2003, Krista Berger became Williams' immediate supervisor. Berger held the position of clinical nurse manager. Margaret Malnory is the director of the respondent.

Williams worked as a ROMA for the Women and infant's unit. Other individuals employed by the respondent as ROMAs included Elaine Giese and Kimberly Rogers. Giese was the ROMA for the neonatal intensive care, pediatrics and intensive care units. Michelle Stampa and Kay Pearson were Giese's immediate supervisors. Rogers was the ROMA for the emergency department. Jim Miller was Rogers' immediate supervisor.

The duties of a ROMA included ensuring that the units were properly staffed, preparing scheduling sheets and performing payroll functions. Williams prepared scheduling sheets for a six-week period for a total of approximately 125 employees. They included employees in the Labor and Delivery Department, Women and Children's Department, HUCs and receptionists. When employees called in sick or to take time off, the ROMA would have to arrange coverage for the absent employees.

The respondent utilizes an automated timekeeping system to track employees' hours worked. Employees use an identification badge to "swipe in" and "swipe out" at a badge reader when reporting for and leaving work. If an employee works at least six hours, the timekeeping system automatically deducts 30 minutes' time for lunch. Williams' regular work schedule was eight hours per day (7 a.m. to 3:30 p.m.), Monday through Friday.

ROMAs have access to the work times recorded for the employees in their units, as well as access to their own recorded work time. ROMAs monitor the recorded work time of employees to make sure employees have swiped in or out and that their paid time off (PTO) has been correctly entered. ROMAs are able to override the payroll system and manually delete, add and subtract recorded time.

The respondent has two-week pay periods. Payroll is processed every other Monday. On payroll Mondays ROMAs have to make sure that everything entered in the timekeeping system is accurate for their manager to review and approve for payroll.

Williams received training for the ROMA position in 1998 by Mary Ouimet. Williams testified that during training, which involved a lot of overtime, Ouimet suggested that the ROMAs could take fewer hours of paid time off (PTO) to offset the overtime; that if they were taking 8 hours of vacation and had 4 hours of overtime in that pay period, they could use only 4 hours of PTO and deduct the 4 hours of overtime. Williams testified that Ouimet did not discuss how not being able to take lunch would affect reporting payroll time.

On June 11, 2004, the respondent's President and CEO, Ken Buser, issued a memo to provide staff an update regarding the respondent's financial status. The memo stated that the respondent remained faced with a serious financial shortfall and that the Executive Team would be working with their departments to identify reductions in labor expenses, including reduction of staff.

On June 15, 2004, Krista Berger issued a memo to the Women & Infant's Staff with a number of actions to control labor costs. They included requiring that employees not swipe in before 7 minutes of their shift start time, and requiring Berger's approval for employees to swipe out later than the end of their scheduled shift and to swipe "no lunch". Berger's memo stated, "If you do not take a lunch during your shift, I need to be aware of this before the end of your shift."

In 2003, following a referral by Dr. Lisa Graham, Williams' ophthalmologist, Dr. Sharath Raja began treating Williams in June for a complaint of foggy vision. Upon examination, Dr. Raja found that Williams' left eye had a condition known as epiretinal membrane, which is a layer of scar tissue on the surface of her retina. Dr. Raja performed a vitrectomy with a membrane peel on July 16, 2003. A vitrectomy refers to the removal of the vitreous, which is the gel that comprises approximately 70 percent of the volume of the back of the eye. A membrane peel refers to the removal of the layer of scar tissue on the surface of the retina. It takes the average person three to four weeks to heal from the peel procedure. Williams' vision in her left eye prior to surgery was 20/80 and recovered to 20/20 after the vitrectomy and membrane peel.

Upon examination in March 2004, Dr. Raja found that Williams' right eye was notable for panuveitis with evidence of macular edema. Uveitis refers to inflammation of the uvea, which is the blood supply to the back of the eye. Panuveitis refers to inflammation of the entire eye. Macular edema refers to swelling within the macula, which is the central part of the retina. The macular portion of the retina affects a person's fine vision. As a result of this condition, Williams sustained a loss of central vision causing decreased ability to read, recognize faces and look at a computer screen. In April 2004, Williams underwent surgery for a "vitrectomy with membrane peel and intravitreal Kenalog injection OD for severe macular edema associated with uveitis." Williams' vision in this eye prior to surgery was 20/200, a visual acuity which caused her to be legally blind in that eye. By June 28, 2004, Williams' vision had recovered to nearly 20/25.

Williams was absent from work for approximately six to seven weeks for each of her membrane peels.

Williams testified that after the healing process was done she would notice improvement but that it would not stay improved; the same or worse would occur when the improvement went away. Williams testified that by worse, she meant she "wouldn't be able to see out of it at all... it wouldn't be able to clear up in order to read something." Williams estimated that 95 percent of her job duties as a ROMA involved her vision.

Williams testified that when she was having these problems she would talk to Berger and to Margaret Malnory. Williams testified that she would tell Berger exactly what was happening, what the next step was; what medically was happening, what had happened and what Dr. Raja talked about doing next.

Upon reexamination in December 2004, Dr. Raja noted that Williams had "mild persistent macular edema in her right eye with a trace epiretinal membrane", and that her vision was 20/40. With respect to her left eye, Dr. Raja noted that Williams' "cystic macular edema has unfortunately progressed to a full thickness macular hole with unroofing of a foveal cyst."

On January 20, 2005, Williams underwent surgery for repair of a "full thickness macular hole OS". Williams was absent from work for approximately eight weeks for the macular hole repair.

Williams' medical records show that on March 22, 2005, two months after her January 2005 surgery, Dr. Raja noted that Williams' vision had improved to nearly 20/40 in her left eye, but that her right eye "has had a flare of her cystoid macular edema with a trace of epiretinal membrane" and that her vision in that eye was 20/50. Raja remarked that if Williams should remain symptomatic in the right eye, he would recommend another vitrectomy and membrane peel in the right eye, but indicated that he wanted Williams to first see her ophthalmologist for a determination if a change in her glasses would alleviate her symptoms.

Dr. Raja testified that uveitis typically has a fluctuating clinical course in most patients, and that in Williams' case it resulted in a recurrence of the epiretinal membrane and accumulation of macular edema.

On March 18, 2005, Dr. Raja signed a medical release form in which he indicated that Williams could return to work, without restrictions, on March 23, 2005. However, the surgical procedures that Raja had performed on Williams' eyes to this point were not the last procedure he performed on her eyes.

Williams testified that when she returned to work in March 2005 she told Berger what had been done, that she was doing all right and that she needed a magnifying screen to see better. The respondent provided the magnifying screen for Williams. Williams testified, "It helped me a great deal. I was able to see. I was able to see clearly. IT raised the font for me and with the magnifying screen, and then I brought in my own magnifying glass and more lighting from home, that helped."

Williams testified that when she returned in March 2005 she also told people, including Berger and Malnory, that there were problems going on now in her other eye and that she would have to go for surgery for that. Williams testified that she told Berger and Malnory this her first day back; that she explained that her left eye was fine-was doing better now but the right eye was acting up and there was going to have to be surgery done on that.

Williams testified that Berger talked to her about overtime and lunch swipes right before she went out for surgery in January 2005 and then again when she came back around March 2005. Williams recalled being told by Berger that she was not allowed any overtime and that if she did not get lunch, she could not swipe no lunch; that there wasn't to be any overtime on her pay card at all.

Williams testified that it was not possible to perform her job with the restrictions of not swiping no-lunches and no overtime. Williams testified that scheduling and the need to arrange coverage for shifts when employees called in sick or to take time off would cause her to incur overtime or not be able to take a lunch break.

ROMAs Giese and Rogers presented similar testimony. Giese testified that the greatest factor in her incurring overtime was "trying to find someone, if you had an ill call, so you were probably having to make calls or trying to arrange help." T1, 215. Rogers testified that the biggest part of her job that contributed to overtime was "Payroll, last minute call-ins, trying to fill the staffing holes." T1, 244.

Complainant's Exhibit #24 is Williams' Time Card Report (pay sheet) for various pay periods in 2004 and 2005. Bates page number R0143 of this exhibit shows Williams' time for the pay period of 06/12/2005 to 06/25/2005. It shows that for the first week of this pay period Williams worked 9.5 hours each day Monday through Thursday and that she took 2.0 hours of PTO on Friday, for a total of 40 hours. It shows that for the second week of this pay period Williams worked a varying number of hours Monday through Friday, for a total of 40 hours.

There are a number of dots on Williams' pay sheet next to several dates that Williams worked during the period from 06/12/2005 to 06/25/2005. The dots indicate that someone had made a change on Williams' pay sheet. Complainant's Exhibit #23 is an audit report with different date ranges. An audit report identifies who made changes to a pay sheet, what changes were made and when the changes were made. Bates pages R0078 and R0079 of Complainant's Exhibit 23 shows that between June 16, 2005 and June 27, 2005 (payroll Monday), Williams made changes to add or subtract time to the time she clocked out of work and to record 2.0 hours of PTO for June 17.

Williams testified that she was incurring overtime and would work through her lunch period, but could not report overtime or swipe no-lunch. Williams testified that therefore what she did was to deduct time for missed lunches and overtime from her PTO and days that she was able to leave early. Williams testified that she kept track of her swipe-in and swipe-outs for the whole two-week pay period; that on payroll Monday her pay slip would be the first one she'd do, and that she would make sure there was no overtime.

Williams testified that she showed Berger her time card every payroll Monday and went over the changes; that Berger wanted everything shown to her that had changes on it which included hers and others. Williams testified that she initiated showing Berger the changes (not just responding to questions Berger asked); that she explained all the changes that were done and that this included her changes. Williams testified that when she would talk to Berger about payroll changes, she would be looking at Complainant's Exhibit 24 (her Time Card Report) and that she would show Berger the dots. TR2, 383-384.

With respect to not being able to take lunch and having to notify someone, Williams testified that she told Berger. Williams testified that she would say, "I didn't get a lunch today"; that Berger would go by and be coming back from her lunch or going to get lunch and she would say, "I didn't get a lunch today." Williams testified that she never missed a lunch without telling Berger. TR2, 460. Williams testified that she would tell Berger that she was not going to get a lunch today, or that she did not get a lunch, and Berger would say to take off 30 minutes early but then when it was time for her to leave Berger would say "we had a call-in third shift, you got to start making some calls", which meant she better stay and start making some calls; that Berger knew that she was into overtime. TR2, 478.

On June 20, 2005, Williams signed a PTO Request for an eye appointment on July 29, 2005, which Berger signed on June 20. Williams testified that she told Berger that she was going to need a PTO day to see Dr. Raja, the eye surgeon. Williams admitted that she did not tell Berger anything else and that she had no other conversation with Berger regarding this eye appointment between June 20 and her termination of employment on July 12, 2005.

In June 2005 (apparently on June 27), Berger questioned Williams about her payroll entry for June 17, 2005. Williams testified that she explained about the hours for that day. Williams was told to leave her pay sheet exactly the way it was and that Berger was going to talk to Malnory and there would be an investigation.

On July 6, 2005, Berger and Shelly Olejniczak, the director of human resources, met with Williams to discuss Williams' time entries for the weeks Sunday June 12, 2005 through Saturday June 18, 2005, and Sunday June 19, 2005 through Saturday, June 25, 2005. Williams testified that she explained that the changes she made kept her out of overtime and gave her a 40-hour week; that she explained to them that she was not allowed any overtime and that what she had done she had taken to Berger and that Berger approved it. Williams testified that there was no objection to her explanation; that "they never said you can't do that, change it. Nothing like that was ever said." Williams testified that she also told Berger and Olejniczak that she had been doing "this for myself and others for an elongated period of time, that that's the way it was done." Williams testified that it was her belief that this was accepted practice because that's the way she was taught in ROMA training, and that she specifically told Berger and Olejniczak she was taught that in ROMA training.

On July 12, 2005, Olejniczak and Berger met with Williams and presented her with a memo dated July 12. That memo was entered into evidence as Complainant's Exhibit #22. Williams testified that she did not have a chance to see it before July 12. This memo reads as follows:

We have concluded our investigation and based on your admission(s) of altering your timecard for the purpose of incurring more time, your employment with All Saints Healthcare is being terminated effective immediately.

Here is a summary of the facts of our findings:

These acts and admissions are blatant and gross misconduct on your part and are against numerous company policies. In addition, this behavior has cost the organization money which could have otherwise been put to more productive use or patient needs.

With respect to the statement, "You admitted to altering your time cards for an elongated period of time", Williams testified that she had been doing this for herself and others for an elongated period of time, that that's the way it was done. Williams testified that this was her belief because that's how she was taught in ROMA training - that you could deduct (overtime worked) from your PTO so as not to go into overtime.

With respect to the comment, "More specifically, you changed your time card after your shifts were completed to reflect more time than actually worked", Williams testified that she told them that was not true, she did not do that. Williams testified that she told them if they were to go back and put the old values back in as if none of the changes were done, they would have seen all the overtime that was there; she did not put in any time that was not worked. All she did was so that she would not be into overtime; it would be paid to her at straight time instead of overtime.

With respect to the statement about admitting to "adding in work time when in fact you were on vacation, in order for you to save your banked time for future dates", Williams testified that she assumed what Olejniczak meant by that was when she was out on leave (for her 2004 eye surgery) and that she did explain to Olejniczak that she had prior permission from Malnory and Berger to do that; that there was no objection raised to her explanation.

With respect to acknowledging having been talked to in the past about the importance of an accurate time card, Williams testified that she didn't recall any past conversations. Williams testified that she recalled a conversation about no longer being allowed to take work home-referring to the original incident where she did schedules while she was at home and she was accused of time fraud-and she explained that this was pre-approved through Malnory and Berger, and that Olejniczak and Berger then dropped that and just said that she would never be able to do that again. Williams testified that she did not do any work when out on a leave after that; that she did no work for the company when she was out for her last surgery in February of 2005.

Berger was at the July 12 meeting but not Malnory. Williams testified that she had asked that Malnory be at the July 12 meeting because there were things she had talked to Malnory about, i.e., the way we did PTO; not taking the full eight hours of PTO in order to cut down on the overtime, and that Malnory agreed with that. Williams testified that she talked with Malnory periodically, as Berger would be upset about that.

Following her dismissal, Williams wrote a letter dated July 18, 2005, to Kenneth Buser. Williams' letter to Buser states, in part, as follows:

After 8 years of faithful and excellent service to your organization, as witnessed by numerous staff members, I have been unfairly dismissed and falsely accused of time card fraud and misconduct by Krista Berger and Shelly Olejniczak

I am appalled, outraged, and I emphatically object to the biased, malicious and poorly investigated statements made by Shelly Olejniczak, I used my resources as a ROMA for personal benefit costing you money, as well as all of her other findings. (Emphasis in original.) Would you please read the following statement, it is the true account of the incident I am accused of....

Weeks before my 2nd eye surgery on 04/19/04, I was being told by everyone what burden my workload was adding to Elaine Giese, the ROMA covering for me while I was out sick. I went to Krista Berger my manager and offered to do the schedules at home during my recovery time when I felt better. Krista approved the idea and told me to clear it with the director, Margaret Mallnory (sic), who also gave her approval. A week after my surgery I was able to start working on the schedules a little at a time, which included making phone calls to employees from my home to fill the scheduling holes as well as discussing any staffing problems with Krista Berger and Elaine Giese. In other words, the same work I would do at my desk. I then e-mailed the finished schedule along with days and hours that were still short of help to Elaine Giese and Krista Berger. Both parties received the finished schedule I sent them via e-mail and it was posted for the staff; therefore I am entitled to the pay for the time worked. This can be verified through the All Saints computer system and my home AOL account, both of which have records of these documents.

When I returned to work following the surgery and recovery time, approximately 6 weeks, I added the hours worked from home to my time card as was pre-arranged with Krista Berger. A few days later I was called to her office and accused of time card fraud. I tried to remind Krista Berger of our arrangement but she dismissed me. Later in the day I went back to her and asked what she would like me to do about these hours. I told her I did not want her accusation of fraud in my file, and she said she would talk to the director Margaret Mallnory. Neither Krista Berger nor Margaret Mallnory ever got back to me concerning this issue and I never heard any more about it.

I have never put in hours I did not work nor was I ever paid for hours that I did not work. From the day she became my manager 2 years ago, Krista Berger has had full knowledge of my every action and approved each and every payroll, schedule, and PTO or vacation request that I worked on, and her signature is on each and every document. I was not allowed to make any decisions without her approval. Krista Berger also told me numerous times that I was not allowed to swipe for missed lunch periods and days worked over 8 hours no matter what the circumstances were. Because it is illegal for me as an hourly employee not to receive pay for hours worked, her unfair constraints severely limited my ability to accurately account for my day.

The procedure I used consisted of deducting missed lunches and time that would have put me in overtime from my PTO hours and from days I was able to leave early. When an employee has put in extra hours during a pay period that they have taken PTO, they are given the option to take back the vacation day to use at a later date. We did this to keep the overtime for the units down. I was taught this procedure during ROMA training by Mary Ouimet 5 years ago, and no one had informed me of when or if this policy was changed. This procedure is done for and by everyone.

Before my 3rd eye surgery on 01/20/05, I was asked to cover for Elaine Giese the other ROMA in our office while she was on vacation, which is the procedure. During this time my manager Krista Berger was also out of the office. At this time I did accrue some overtime. When my manager returned I was called into her office and reprimanded for the overtime. Once again I tried to explain my workload for the week since I was the only person there. Krista Berger told me that we would not have this discussion again because I was not allowed any overtime no matter what the situation, and again I was dismissed. Later I was also told my productivity was down and I wasn't making good use of my time.

It is unjust for Kristal Berger to demand that I complete in an 8-hour shift, what no other ROMA in the organization, especially those on the specialty units, are asked to do. I'm supposed to carry the workload of others with no problem, yet when the roles are reversed that same workload is a burden on them.

When I tried to explain I was having trouble with my sight I was simply told that if I had trouble keeping up I could no longer work in the capacity of a ROMA. She then turned to her computer and started to read her e-mails, I was again dismissed. Before returning to work after my 3rd surgery on 01/20/05, I requested a magnifying screen for my computer as recommended by my surgeon Dr. Raja.

On my first day back to work Krista Berger informed me that they had no problems with scheduling or payroll while I was off and with this added equipment I better keep it that way. (Emphasis in original.) I have endured Krista Berger's condescending, demeaning and abusive remarks about my job performance in front of everyone on a daily basis for the past year and a half. Krista Berger's verbal abuses were so out of control that members of the office staff and nurses out on the units, were asking me how long I was going to put up with this type of abuse....

During my 8 years of service to the All Saints Healthcare Corporation, I have received outstanding evaluations every time and there are no disciplinary actions in my file. Which leads me to wonder if this isn't a result of my failing eyesight and pending 4th eye surgery, but I don't know that for certain and can't prove it. I have tried to comply with the restrictions I was put under by Krista Berger by making sure my time card never reflected any overtime. Though there were many times I didn't take a lunch; I never swiped no lunch nor did I work for free....

(Complainant's Exhibit #26.) 


Whether Williams has a disability within the meaning of the WFEA

In a disability discrimination claim under the Wisconsin Fair Employment Act a complainant must show that: (1) she is an "individual with a disability" as defined under Wis. Stat. § 111.32(8); and (2) the employer discriminated against her 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).

The WFEA provides that an " 'Individual with a disability" means an individual 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." Wis. Stat. § 111.32(8).

An "impairment" for purposes of the statute is a real or perceived lessening or deterioration or damage to a normal bodily function, or the absence of such bodily function or such condition. City of La Crosse Police & Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). The test for determining whether an impairment makes achievement unusually difficult rests on whether or not the impairment places a substantial limitation on life's normal functions or a substantial limitation on a major life activity. 139 Wis. 2d at 761. By contrast, the "limits the capacity to work" test refers to the particular job in question. Id.

In support of the ALJ's decision, the respondent argues that Williams did not establish that she has a disability under the WFEA because neither Dr. Graham nor Dr. Raja testified about how Williams' diagnosis of uveitis made achievement unusually difficult or limited Williams' capacity to work. The respondent argues that Williams never had any restrictions at work, and that she was fully able to perform the duties of her position despite her eye condition.

The evidence presented is sufficient to establish that Williams has a disability within the meaning of the WFEA. Williams' diagnosis of uveitis constitutes a lessening, deterioration or damage to the normal bodily function of her eyes. Dr. Raja's testimony that uveitis typically has a fluctuating clinical course in most patients, and that in Williams' case resulted in recurring epiretinal membrane and accumulation of macular edema, which required that Williams be absent from work for surgical procedures including the removal of scar tissue from her eyes, in and of itself, establishes that Williams was limited in her capacity to work because the vision in the damaged eye would range from 20/80 to 20/200 vision (legally blind) before the procedures and then she would be off work for periods of six to eight weeks while recovering. Further, Dr. Graham testified that based on her examination of Williams and Williams' history, the waxing and waning of Williams' condition with her eyes was likely to continue; that Williams' uveitis has not been one to remit on its own. Indeed, as noted above, the surgical procedure that Williams was off work for from January 20, 2005 until March 23, 2005, was not the last surgical procedure that Dr. Raja performed on Williams' eyes.

Whether the respondent discriminated against Williams on the basis of disability

Wisconsin courts, in the absence of the WFEA's establishment of a specific procedure by which a complainant must prove a claim of employment discrimination, have adopted the 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, 173 N.W.2d 372 (Ct. App. 1985). In Puetz, the court, which looked at federal employment discrimination cases for guidance in interpreting the WFEA, noted that the basic allocation of burdens and order of presentation of proof in employment discrimination claims brought under Title VII was determined in McDonnell Douglas v. Green, 411 U.S. 792 (1973). The court stated:

McDonnell Douglas 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 (internal citations omitted)....

In Puetz, while acknowledging that the elements of a prima facie case will vary with the factual circumstances of each case, the court listed the elements of a prima facie case of discriminatory discharge as requiring the complainant to show that: (1) he or she is a member of the protected group; (2) he or she was discharged; (3) he or she was qualified for the job, and (4) either he or she was replaced by someone not within the protected class or others not in the protected class were treated more favorably. Puetz, 126 Wis. 2d 173.

The respondent argues that Williams did not establish a prima facie case of disability discrimination because she failed to establish that All Saints treated at least one similarly situated individual outside of her protected class more favorably; that there are no employees similarly situated to Williams, as Williams was the only ROMA in the Women and Infant's Unit and the only ROMA who reported to Berger.

However, as noted by the Court in McDonnell Douglas, its "specification...of the prima facie case proof required from the not necessarily applicable in every respect to differing factual situations." McDonnell Douglas, 411 U.S. 802, n. 13. See also, Furnco Construction Corp. v. Waters, 438 U.S. 767, 572 (the elements of a prima facie case are "not intended to be an inflexible rule").

Indeed, federal case law does not hold that a complainant must always establish that he or she was replaced by someone not within the protected class or that others were treated more favorably in order to establish a prima facie case of discrimination. See e.g., Bryant v. Aiken Regional Medical Center, Inc., 333 F.3d 536 (4th Cir. 2003)(Court rejected argument that there could not be a finding of race discrimination because there was no evidence of different treatment of similarly situated white applicants); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29 (2d Cir. 1994)(In order to establish fourth element of a prima facie case of discriminatory discharge the plaintiff must show that the discharge occurred in circumstances giving rise to an inference of discrimination on the basis of membership in the protected class); Walker v. St. Anthony's Medical Ctr., 881 F.2d 554 (8th Cir. 1989)(There is no per se requirement that plaintiff was required to show that she was replaced by an individual outside the protected class; rather, Title VII has been interpreted to require only that, in addition to the first three elements of a prima facie case, the plaintiff demonstrate that his or her discharge occurred in "circumstances which allow the court to infer unlawful discrimination", quoting Craik v. Minnesota State Univ. Bd., 731 F.2d 465, 469 (8th Cir. 1984).

In Timmons v. General Motors Corporation, 469 F.3d 1122, 1126-27 (7th Cir. 2006), a case arising under Americans with Disabilities Act, the court stated:

The plaintiff's prima facie case typically requires a showing that the plaintiff was disabled, performing satisfactorily, subjected to adverse employment action, and treated less favorably than a nondisabled, similarly situated person. (Internal citations omitted) At least that is the usual statement of the test.

But it is not the exclusive statement of the test. The McDonnell Douglas method of proving discrimination was not meant to be inflexible. (Internal citation omitted) Sometimes a plaintiff cannot identify similarly situated employees. See, e.g., Leffel v. Valley Fin. Servs., 113 F.3d 787, 794 (7th Cir. 1997). To account for such circumstances, we have said that the fourth prong (and, actually, the test as a whole) really requires a showing "that the circumstances surrounding the adverse action indicate that it is more likely than not that his disability was the reason for it." Lawson [v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001)] at 922; see also Weigel [v. Target Stores, 122 F.3d 461 (7th Cir. 19970] at 465; Spath v. Hayes Wheels International-Indiana, Inc., 211 F.3d 392, 396-97 (7th Cir. 2000); Rehling v. City of Chi., 207 F.3d 1009, 1018 n.7 (7th Cir. 2000); Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1230-31 (11th Cir. 1999); Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1085 (10th Cir. 1997; Leffel, 113 F.3d at 794; Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58-59 (4th Cir. 1995); Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994). A showing, for example, that employees who are situated similarly to the plaintiff in all respects except disability were treated better may give rise to the inference that the plaintiff was treated adversely because of his disability. But there are other ways to show the same thing, and that is the reason for the broader formulation of the test....

"Any demonstration strong enough to support judgment in the plaintiff's favor if the employer remains silent will do, even if the proof does not fit into a set of pigeonholes." Carson v. Bethlehem Steel Corp., 82 F.3d 159, 159 (7th Cir. 1996). (Text italicization emphasis in original.)

A similar analysis is appropriate at a probable cause hearing; however, the standard by which the evidence is measured is not as demanding as that used at a hearing on the merits. Fluekiger v. Mathy Constr. Co. (LIRC, 05/14/87).

The commission concludes that in the absence of the presentation of any evidence by the respondent, Williams has demonstrated circumstances which present probable cause to believe that she was unlawfully discriminated against on the basis of disability. Included in the evidence presented by Williams is the following:

Furthermore, the record shows that after repeated ALJ rulings that testimony Williams was about to give regarding what Berger had said or told her was hearsay, but in fact did not constitute hearsay per Wis. Stat. § 908.01(4)(b)4,  (2)  Williams was convinced that she could not testify about what Berger and/or Olejniczak had allegedly said to her regarding her eye condition during her meetings with them on July 6 and 12, 2005. See, e.g., TR2, 363; 367; 500.

The respondent argues that even if Williams had worked the time that she added to her timesheets, the respondent had a good faith, reasonable belief that she was in fact adding time not worked "because she had not received permission to work beyond her scheduled shifts, she had not received permission to work through lunches, and the ROMA position was a position that only required forty hours per week." As discussed above, however, Williams, Giese and Rogers all testified that trying to find replacements for ill calls and last minute call-ins caused them to incur overtime hours, and, Williams testified that she never missed a lunch without telling Berger. Further, the evidence of record is that Berger would tell Williams to leave work 30 minutes early due to missing lunch but when it came time to leave early Berger would tell her they "had a call-in third shift, you got to start making some calls", which meant she better stay and start making some calls; that Berger knew that she was into overtime. Moreover, the statements Williams makes in her letter to Buser that: (1) before Williams' third eye surgery when she tried to explain that she was having trouble with her sight Berger told her that if she had trouble keeping up she could no longer work in the capacity of a ROMA; (2) when Williams returned to work after her third eye surgery Berger commented that the respondent had no problems with scheduling or payroll while she was off and that with the added magnifying screen for Williams' computer she "better keep it that way", as well as Williams' inability to testify about what Berger and/or Olejniczak allegedly said to Williams about her eyes during their meetings on July 6 and 12, 2005, are particularly troubling.

Finally, the respondent also attacks Williams' credibility, claiming that Williams "has no credibility" because at the time of the hearing Williams was receiving Social Security benefits based on an application for benefits she completed on July 14, 2005, in which she represented that she stopped working "due to illnesses, injuries or conditions" beginning on July 6, 2005, when she had no restrictions on July 6, 2005, had not applied for a leave of absence on that date and her fourth eye surgery wasn't even scheduled as of that date.

The complete representation Williams made in her application for Social Security benefits was that: "During the past 14 months, you have been unable to work due to illnesses, injuries or conditions that lasted, or are expected to last at least 12 months, or could be expected to result in death. You stopped working due to illnesses, injuries or conditions beginning 07/06/2005." Respondent's Exhibit #9. Williams testified that it was a true statement that her injury, illness or condition was expected to last at least 12 months and could even result in death, that July 6, 2005 was the last day she worked (the respondent suspended Williams' employment on July 6) which she took to mean when she stopped working, and that this was due to illnesses, injuries or conditions because she was still having problems with her eyes and needed to see Dr. Raja because of her eye ailment. TR2, 517. Williams also testified that her receipt of Social Security benefits was based on more than the application she completed. TR2, 512-513.

Regardless of whether Williams was or was not truthful in her application for Social Security benefits, however, that matter provides no reason to question Williams' testimony in her discrimination claim against the respondent. ROMAs Giese and Rogers corroborated Williams' testimony about the difficulty they had in incurring overtime due to trying to arrange for coverage due to ill calls. Giese testified that she made changes to her pay sheet. Rogers testified that she felt the need to adjust her time records so that she wouldn't accrue overtime because Malnory told her to do that. Moreover, a review of the record indicates that Williams' testimony was consistent, appeared to be truthful, and, as expressed in her letter to Ken Buser following her termination, indicated a complete sincerity that the manner in which she was making adjustments to her time card was proper.


Attorney Patricia A. Lauten
Attorney Lucinda J. Schettler

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(1)( Back ) Williams had also alleged discrimination on the basis of age, but Williams withdrew that claim and proceeded at the hearing solely on the disability claim.

(2)( Back ) Wis. Stat. 908.01(4)(b) provides that a statement is not hearsay if "The statement is offered against a party and is: 4. A statement by the party's agent or servant concerning a matter within the scope of the agent's or servant's agency or employment, made during the existence of the relationship..."


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