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



ERD Case No. 200402916

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:


1. The respondent, Wackenhut Corp., (hereinafter "respondent"), operates a Public Service Ambassador (hereinafter "PSA") program in downtown Milwaukee, Wisconsin. The PSA program's purpose is to promote tourism in Milwaukee.

2. The complainant, Brenda Rutherford, (hereinafter "complainant"), began working for the respondent as a PSA on July 6, 1999. The complainant's duties included, among other things, greeting people, giving directions, and handing out brochures at events and in public places, such as farmers' markets and shopping malls, in order to promote the city to visitors.

3. The complainant loved working as a PSA. She received high performance review ratings and numerous commendations for excellent work.

4. On July 3, 2003, the complainant fell on the job, injuring her ankle and right wrist. The complainant filed a Worker's Compensation injury report. She was off work until July 8, at which point she was assigned a mixture of light duty and sedentary work.

5. On October 22, 2003, the complainant began a medical leave of absence to undergo surgery to repair torn cartilage in her wrist. The complainant also had reconstructive surgery on her left ankle in January of 2004.

6. The complainant returned to work on April 5, 2004. Because she was unable to walk and relied upon a motorized scooter, she was assigned to the brochure room at Grand Avenue Mall, where she would be able to perform sedentary work.

7. The supervisor in the brochure room abused the complainant over the use of the scooter, telling her that she was "useless" and that the scooter was in the way. The supervisor threatened to smash the scooter and pretended to do so. The complainant complained to the respondent's director, Andrea Morisse, but no actions were taken. The complainant therefore requested to leave the brochure room and recommence her regular PSA duties.

8. Shortly thereafter the complainant was assigned to the Guest Service Center at the Grand Avenue Mall. The complainant was no longer required to use the scooter at that point, and performed her duties using a cane to walk and wearing a wrist brace.

9. At all relevant times the complainant was treating with two different doctors, Dr. Cummings for her ankle, and Dr. Chamoy for her wrist. The complainant saw both doctors at regular intervals and provided copies of all of her medical documentation to Ms. Morisse.

10. Dr. Cummings' medical notes for May 18, 2004 indicate that the complainant was required to use a cane for ambulation.

11. On June 11, 2004, the complainant was seen in Dr. Chamoy's office by Dr. Olson, because Dr. Chamoy was not available. Dr. Olson's notes indicate that the complainant would benefit from splinting her wrist.

12. Medical notes dated June 3, 2004, indicate that Dr. Chamoy informed the complainant's rehab nurse that measurements had been taken and that the complainant had reached a healing plateau and had a disability.

13. On June 9, 2004, the respondent sent the complainant to see an independent medical examiner, Dr. Barron, in connection with her Worker's Compensation claim. The complainant met with Dr. Barron for about fifteen minutes, after which he prepared a medical report on which he noted that the complainant reported daily wrist and ankle pain, that she had a lifting restriction, and that she walked with a slight limp and used a cane. Dr. Barron concluded, however, that the complainant had no objective findings indicating a permanent disability and that she required no further treatment for her work injury.

14. Doctor's notes prepared by Dr. Chamoy on June 24, 2004, indicate that he prescribed a permanent five-pound lifting restriction for the complainant and that she could work wearing a brace.

15. In a letter addressed to the respondent's Worker's Compensation carrier, dated June 28, 2004, Dr. Chamoy wrote:

"Brenda Rutherford was last seen on June 3, 2004.  (1)   At that time measurements were taken. Based on her loss of wrist motion, she would have a 20 percent impairment of her right wrist as compared to amputation."

Dr. Chamoy enclosed a copy of the measurements for the Worker's Compensation carrier to review.

16. On June 30, 2004, the respondent met with the complainant and told her that, based on Dr. Barron's evaluation, it had determined she no longer needed the wrist brace and cane, and that she would no longer be allowed to use them. (2)   The complainant replied that she was afraid if she stopped using the brace or cane she would reinjure herself. The respondent told the complainant that if she continued to use her brace or cane she would be placed on unpaid leave as of July 6. She was also told that if she provided updated medical information from her doctor before July 6 the respondent might be willing to change its directive.

17. The decision to require the complainant to work without the wrist brace or cane was made by the human resource department located at the respondent's corporate headquarters in Palm Beach Gardens, Florida.

18. After the June 30 meeting the complainant made numerous attempts to reach Dr. Cummings.  (3)   However, given that it was the 4th of July weekend, she had difficulty in doing so. The complainant was ultimately able to reach Dr. Cummings on July 6, at which point his office sent a fax to the respondent indicating that the complainant was to continue under the work restrictions in effect and was to keep using her cane until her next medical appointment.

19. The complainant also sent the respondent a personal note on July 6, 2004, in which she stated that she had not been given enough time to get to see her doctor, and that she had permanent disabilities but still did the job well and wanted to keep her job. The complainant indicated in her note that the independent medical examiner did not spend much time with her, did not listen to her, and did not look at her x-rays or MRIs.

20. On July 6, 2004, the complainant reported for work wearing her brace and cane. The respondent called her into a meeting at which it reiterated its position that its independent medical examiner found she was physically able to return to work without the wrist brace or cane, and the complainant reiterated her position that she was not fully healed and needed to use the wrist brace and cane to avoid further injury. The respondent thereupon told the complainant that it had no choice but to cease employing her until she was medically cleared or agreed with the findings of the independent medical examiner.

21. The complainant performed no further services for the respondent.

22. A note from Dr. Cummings dated July 13, 2004, a week after the complainant's last day of work, indicates that the complainant has a 10 percent permanent partial disability based on decreased subtalar motion of the left ankle.

23. Subsequent to her discharge the complainant settled her Worker's Compensation claim with the respondent for $14,000. The complainant also applied for Social Security disability benefits. As of February 10, 2010, the date of the hearing, the complainant was still wearing a wrist brace and using a cane.

Based on the above FINDINGS OF FACT the commission makes the following:


1. That the complainant established probable cause to believe that she is an individual with a disability, within the meaning of the Wisconsin Fair Employment Act.

2. That the complainant established probable cause to believe that the respondent discriminated against her based on her disability, within the meaning of the Wisconsin Fair Employment Act.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:


1. That the decision of the administrative law judge is reversed. This matter is remanded to the Equal Rights Division for further proceedings.

Dated and Mailed May 13, 2011


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


This case is before the commission on probable cause. The complainant's burden in a probable cause proceeding is a lesser one than in a case on the merits. The burden of proof at a probable cause hearing has been described as "low." See, Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992). It is somewhere between a preponderance and a suspicion. Hintz v. Flambeau Medical Center (LIRC, Aug. 9. 1989). The complainant's burden is to show a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that discrimination occurred. Herling v. Dealers Office Equip. (LIRC, Feb. 18, 1987). The commission is satisfied that the complainant has met this burden.

To prove disability discrimination under the Wisconsin Fair Employment Act (hereinafter "Act"), a complainant must first establish that she is an individual with a disability, within the meaning of the Act. Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980). Section 111.32(8) of the Act defines the term "individual with a disability" as 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. An "impairment" for purposes of the Act 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). The test to determine whether an impairment makes achievement unusually difficult is concerned with the question of whether there is a substantial limitation on life's normal functions or on a major life activity. By contrast, the "limits the capacity to work" test refers to the particular job in question. Further, 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).

The commission has consistently found that the statute only covers permanent impairments, and not injuries of a transitory nature. Erickson v. Quad Graphics, Inc. (LIRC, May 25, 2004); aff'd sub. nom Erickson v. LIRC, 287 Wis. 2d 204, 704 N.W. 2d 398 (Ct. App. Wis. 2005). See, for example, Terrell v. Pabst Brewing (LIRC, March 4, 1981)(short-term illness such as bronchitis not considered a disability); Wollenberg v. Webex, Inc. (LIRC, Nov. 8, 1991)(temporary eye irritation caused by exposure to chemicals not a disability); Falk v. WIPC, LLC (LIRC, Dec. 18, 2003)("back impairment due to slow recovery from surgery" not considered disability); Hollett v. Sauk County Health Care Center (LIRC, June 12, 2009)(no disability where complainant established she suffered knee and back strains and pain, but presented no evidence regarding the permanency of any impairment to her knee or back).

In Reiter v. Waukesha Engine Division (LIRC, Nov. 30, 2007), a case involving the question of whether an injury constitutes a disability, the commission stated, in relevant part:

". . . An injury, by its very nature, is generally regarded as a temporary condition that will heal over time, and there is no reason to assume that the complainant's shoulder injury is more serious than a typical shoulder injury which would be expected to heal. The complainant's medical records, in which his doctor describes the condition only as a "shoulder strain," contain nothing to suggest that the condition is likely to be permanent. To the contrary, the complainant testified that his doctor told him if he resumed performing all of his former job duties he would risk permanent damage, suggesting that the injury was not thought to be a permanent one. . ."

The instant case also involves an injury. However, in contrast to Reiter, the complainant presented persuasive evidence to indicate that her injury was not going to fully heal and that the damage sustained was permanent.

Prior to her wrist surgery the complainant's diagnosis was a triangular fibrocartilage tear. In examination notes dated June 3, 2004, Dr. Chamoy, the doctor who treated the complainant's wrist, stated that the complainant had reached a healing plateau and had a disability, and in doctor's notes from June 24, 2004, Dr. Chamoy indicated that the complainant had a permanent five-pound lifting restriction. In a letter to the respondent's Worker's Compensation carrier, dated June 28, 2004, Dr. Chamoy stated that, based on her loss of wrist motion, the complainant would have a 20 percent impairment of her right wrist as compared to amputation. At the hearing, which took place on February 4, 2010, nearly six years after the discharge, the complainant testified that she still suffers from wrist pain. The record reveals that she was wearing a wrist brace at the hearing.

With respect to the ankle, the complainant's presurgical diagnosis was lateral instability and pain in the left ankle, for which she underwent reconstructive surgery. Dr. Cummings' notes dated July 13, 2004, a week after the complainant's last day of work, indicate that the complainant has a 10 percent permanent partial disability based on decreased subtalar motion of the left ankle. The complainant was using a cane at the hearing.

The record also indicates that, subsequent to the discharge, the complainant settled her Worker's Compensation claim for $14,000, and applied for Social Security disability benefits. Although the respondent was willing to concede that the Social Security Administration found the complainant had a disability, it objected to the complainant's testimony about Worker's Compensation and Social Security benefits on the ground that, as of the date of termination, no governmental agency had found a permanent disability. The administrative law judge apparently agreed that only those facts known by the respondent at the time it discharged the complainant were relevant. Although the complainant made no offer of proof, the commission believes that, to extent the administrative law judge may have limited her testimony on these points, he did so in error. To base a decision on whether an impairment is permanent strictly on the information that was available at the time of discharge would effectively allow an employer to discharge an injured or sick employee with impunity, provided the employer did so prior to any assessment of the permanency of the injury or illness. The statute does not contemplate such a result.

While, as stated above, the commission does believe that post-termination evidence about permanent disability would have been relevant, it is satisfied that even in the absence of such evidence, the complainant has submitted sufficient evidence to establish probable cause to believe that she has a permanent impairment, notwithstanding the independent medical examiner's opinion to the contrary.

The next question to consider is whether the complainant's wrist or ankle impairment makes achievement unusually difficult, i.e. whether there is a substantial limitation on life's normal functions or on a major life activity, or whether those impairments limit her capacity to perform the job. While the complainant offered no firsthand testimony on this point, her doctor's notes indicate that she has a permanent five-pound lifting restriction. A five-pound lifting restriction is a significant restriction that would render an individual unable to perform many of life's normal functions, including lifting a bag of groceries or taking out the trash. Similarly, while the record is silent with regard to how or whether the complainant's ankle injury affects a major life activity, it can be presumed that a person who must walk with a cane is limited in the performance of major life activities. The commission is satisfied that the complainant's evidence on this point is sufficient to warrant a finding of probable cause.

Having concluded that the complainant met her burden of establishing probable cause to believe that she has a disability, the question to decide is whether she was denied a reasonable accommodation or otherwise discriminated against based upon her disability. The accommodation the complainant sought in this case was to be allowed to perform her job wearing a wrist brace and using a cane. While in its brief to the commission the respondent argues that the complainant presented no medical evidence establishing that she required the use of these devices, it is clear from the evidence that the cane and brace were prescribed by her doctors, (4)   and the commission can see no legitimate basis to question their necessity.

More importantly, whether or not the respondent agreed that the complainant required the use of the brace and the cane, the fact remains that it has presented absolutely no reason to believe that allowing the complainant to use these devices, which she provided at no expense to the respondent, would result in any hardship to it. No evidence was presented to establish that the use of a wrist brace or cane compromised the complainant's ability to adequately perform the job and, in fact, the respondent's witnesses testified to the contrary.

Given all the facts and circumstances, the commission concludes that there is probable cause to believe that the respondent discriminated against the complainant based upon her disability when it terminated the employment relationship rather than allow the complainant to perform the job with the use of a reasonable accommodation.

Attorney Monica M. Murphy
Attorney Michael J. Cieslewicz

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(1)( Back ) This date appears to be in error. While measurements were taken on June 3, the complainant was also seen on June 24, 2004, as noted in paragraph 14.

(2)( Back ) A memo prepared by the respondent which summarizes this discussion is erroneously dated June 27, 2004. The parties agree that the conversation took place on June 30.

(3)( Back ) It is not clear from the record whether or not the complainant also attempted to reach Dr. Chamoy.

(4)( Back ) Mark Schaefer, the respondent's area manager, testified that he received the complainant's doctor's restrictions regarding the use of the cane and wrist brace and, as of the date of her discharge, had never heard anything from the complainant's doctors indicating that she no longer needed these devices.


uploaded 2011/05/17