DAVID C ESAU, Complainant
INTERCONNECT COMMUNICATIONS LLC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. The complainant, David C. Esau (hereinafter "Mr. Esau"), began his employment as a technical engineer with the respondent, Interconnect Communications LLC (hereinafter "Interconnect"), on February 19, 2007.
2. Interconnect was a small telecommunications company owned by Patricia Zarbock and managed by her husband, Darin Zarbock, that provided digital phone systems for small to medium-sized firms.
3. Mr. Esau has a hearing impairment. As a result of this hearing impairment, he needs to wear hearing aids in both ears and face people who are talking to him in order to fully understand what is said to him. If he has operational hearing aids in his ears and can see who is talking to him, he is able to fully understand what that person is saying.
4. Mr. Zarbock hired the complainant, and observed that he wore hearing aids at that time.
5. In 2007, Interconnect offered health insurance coverage to its employees who had worked for Interconnect for at least ninety days, and Mr. Esau applied for insurance coverage on June 6, 2007. Interconnect would pay 50% of the premium for each qualified employee who chose to take the coverage.
6. In July of 2007, Interconnect received an insurance quote from UnitedHealthcare for six employees, including Mr. Esau. Mr. Esau's premium, $395.31 per month, was the highest of the four employees who did not have children, but was less than either of the two employees with children, whose monthly premiums were $489.23 and $461.19. These premiums did not cover vision or dental coverage, which together cost approximately $50 more per month.
7. After receiving the quote from UnitedHealthcare, Mr. Zarbock called each eligible employee into his office to offer health insurance, and to explain what Interconnect would pay and what the employee would have to pay. Mr. Zarbock explained to Mr. Esau that he would have to pay 50% of his premium, plus the full cost of the supplemental vision and dental plans.
8. When Mr. Zarbock explained Mr. Esau's choices to him, Mr. Esau said that he could not afford, and did not need, the health insurance. He also told Mr. Zarbock about financial problems he was experiencing. In response, Mr. Zarbock told Mr. Esau that Interconnect would pay him an additional $50 per pay period, since he was a good employee.
9. Mr. Esau signed a waiver of health insurance coverage on July 25, 2007. The waiver statement included the sentence, "I was not pressured, forced or unfairly induced by my employer, the agent or the insurer(s) into waiving or declining the group health insurance."
10. In July of 2007, Mr. Zarbock gave Mr. Esau a $2 per hour raise, from $15 to $17 per hour, as a result of his good work performance.
11. On July 30, 2007, Interconnect received an insurance quote from UnitedHealthcare for five employees. Mr. Esau and another person had been removed from the list, and a different person had been added. The rate adjustment percent increased in this quote from the previous quote - from 4.71% to 15.29% - and each of the listed employees' premiums increased from the previous quote.
12. On February 5, 2008, Mr. Esau injured his left ankle while he was off-duty.
13. As a result of this injury, Mr. Esau was off work until February 7, 2008. When he returned to work, he was given a desk job. In that job, the duties were consistent with the restrictions contained in a medical note dated February 6, 2008 that stated, in part: "David Esau may return to work tomorrow with the following restrictions: must use crutches at all times. Foot is to be elevated as much as possible, but no less than 20 minutes every hour."
14. On February 25, 2008, Mr. Esau sent Mr. Zarbock an email asking for a meeting to discuss Interconnect helping him pay the hospital bill resulting from his ankle injury.
15. On February 27, 2008, Interconnect sent Mr. Esau an email stating that the company was not in a position to help with his hospital bill.
16. On February 28, 2008, Mr. Esau asked Mr. Zarbock to be enrolled in the health insurance plan provided by the employer. Mr. Zarbock had no ability at that time to do anything that would result in Mr. Esau being covered for his ankle injury earlier in the month.
17. During this conversation on February 28, 2008, Mr. Esau claimed that Mr. Zarbrock was denying him health insurance and that he was going to find out what his rights were. He was upset, and his voice was raised. As a result, Mr. Zarbrock asked him to leave the office.
18. On February 28, 2008, Mr. Esau sent Nick Bevilacqua, sales manager, an email, with a copy to Mr. Zarbock, that stated: "I am being asked to leave because Darin will not accept my request to be enrolled in the Group Health plan."
19. On February 29, 2008, Mr. Zarbock sent Mr. Esau an email in response that read, in part:
Per your message below, I did not ask you to leave the office because you want to now be enrolled in the Group Health Plan. I asked you to leave due to your spontaneous outburst. As you recall, I asked you several times to settle down to no avail. After a while of trying to calm you down, I asked you to leave several times. That is when you asked me about health insurance. The conversation escalated once again and I saw that there was no point trying to reason with you at that moment, therefore; I asked you to leave immediately.
I would like to address your statement below that you were denied health insurance. When the group plan was first made available I offered every eligible employee the opportunity to sign up. As you recall, you said that you could not afford to have the health insurance taken out of your wage, therefore declining the coverage. You have not mentioned that you would like to be added to the insurance plan until yesterday's outburst. If you can think rationally about it, there is not (sp) reason I would offer insurance to every employee except to you.
You could have easily made an appointment with me to discuss adding the health insurance at any time, but you failed to do so. You stated that you had set up a meeting to discuss adding insurance when in fact, it did not state that you wanted to add health insurance.
20. On March 7, 2008, Mr. Zarbock called Mr. Esau into his office and laid him off, stating that he could no longer afford to have him sitting around and doing nothing. At that time, Mr. Esau was limited to sedentary work, ambulating with crutches to and from the work entrance and rest room only, and elevating his left leg as necessary.
21. During the time that he worked at Interconnect, Mr. Esau never told either Mr. or Mrs. Zarbock that he thought that he was being discriminated against or being treated differently due to his hearing impairment or his age.
22. Mr. Zarbock did not call Mr. Esau back to work, nor did Mr. Esau contact Interconnect when his work restrictions were lifted.
23. Interconnect went out of business between May and August of 2010.
Based on the Findings of Fact made above, the commission makes the following:
1. Interconnect Communications LLC was an employer within the meaning of the Wisconsin Fair Employment Act.
2. Mr. Esau did not oppose a discriminatory practice within the meaning of the Wisconsin Fair Employment Act.
3. Mr. Esau failed to establish probable cause to believe that Interconnect violated the Wisconsin Fair Employment Act by discriminating against him in terms and conditions of employment, including compensation, or by terminating his employment based upon his age or disability, or by refusing to reasonably accommodate a disability, or by discharging or otherwise discriminating against him because he opposed a discriminatory practice.
The complaint in this matter is dismissed with prejudice.
Dated and mailed April 30, 2012
esaudav : 120 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission has rewritten the ALJ's decision for clarification purposes, as well as to make several modifications to his findings of fact and conclusions of law. However, in revising the ALJ's decision, the commission has adopted the substance of most of the ALJ's factual findings, and agrees with the ALJ that Mr. Esau did not demonstrate probable cause to believe that Interconnect discriminated against him as he alleged in his complaint, supplemented by an amended complaint.
Before addressing the merits of Mr. Esau's complaint, the commission wishes to respond to several allegations made in his petition for commission review. He disputes the accuracy of the factual findings made by the ALJ, stating his assumption that several of these findings must be based on a post-hearing brief filed by the respondent, Interconnect, but not sent to him. However, no post-hearing brief was filed by the respondent.
Mr. Esau also argues that the ALJ limited his questioning of Mr. Zarbock during the hearing. As a result of this concern, the digital recording of the hearing was reviewed, as well as the exhibits entered into the record. The commission notes that, during Mr. Esau's cross-examination of Mr. Zarbock, the ALJ repeatedly attempted to focus him on relevant issues relating to his complaint, specifically events that would have a bearing on the question of whether Interconnect had discriminated against him, and repeatedly stopped Mr. Esau from making arguments, noting that argument could be made in a subsequent brief, but should not be made during cross-examination of a witness. These are appropriate instructions for the ALJ to give, and the ALJ's efforts to assist Mr. Esau in formulating his questions were also appropriate.
In addition, the commission notes that, after Mr. Zarbock had testified for one hour and 13 minutes on direct examination, including responding to the ALJ's questions, and an additional 35 minutes of cross-examination by Mr. Esau, the ALJ continued the hearing in order to give Mr. Esau an opportunity to think about and prepare additional specific questions to ask Mr. Zarbock when the hearing resumed. However, when the hearing resumed several months later, Mr. Esau did not ask focused or easily understood questions, and continued to make statements and to argue his position, even though he knew that Mr. Zarbock could not stay long because he had just started a new job. After 34 minutes, Mr. Zarbock indicated that he had to leave. The commission considers that an hour and nine minutes in total was sufficient time for Mr. Esau to cross-examine Mr. Zarbock, and that, given the manner of his cross-examination, it is unlikely that additional relevant testimony would have resulted.
Mr. Esau also argues that the ALJ limited his efforts to show that Mr. Zarbock was responsible for human resources decisions. However, the ALJ's factual findings on this matter, adopted by the commission, support the conclusion that Mr. Zarbock managed the business and made major decisions in all aspects of the business. His wife's actual ownership of the business is irrelevant to the matters at issue in this case. It is not unusual for ownership to be vested in one person, with another person being responsible for the management of the business.
As to Mr. Esau's specific factual disputes, the commission's rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission shall be based on the record of the case including the evidence previously submitted at hearing before the department. Therefore, factual assertions made by the complainant for the first time in his petition will not be considered by the commission. For example, Mr. Esau states that David Arbetter, whose name appears on the insurance quote, was never employed by the respondent. However, he did not ask Mr. Zarbock about that insurance quote during the hearing, which was the appropriate time for a discussion of that issue. The commission cannot reasonably determine that issue without the respondent having an opportunity to respond to Mr. Esau's assertion. Mr. Esau also argues that another manager, Mr. Bevilacqua, told him that David Arbetter never worked for the respondent. However, the burden of establishing probable cause of discrimination is on Mr. Esau, and if he wanted Mr. Bevilacqua's testimony, he should have made arrangements, through subpoena or otherwise, to have Mr. Bevilacqua at the hearing. This is true as well for work colleagues who the complainant argues knew about the "buyout arrangement" he had with Mr. Zarbock. He should have subpoenaed witnesses who could testify in support of his contentions, or made other arrangements for them to appear at the hearing.
Mr. Esau has disputed numerous other factual findings made by the ALJ. Although the complainant may disagree with the ALJ's factual findings and may have testified differently about what occurred in the employment, the ALJ, who could observe the demeanor of the parties, was in a good position to assess their credibility and to make his factual findings accordingly. The commission, seeing no reason in the record to conclude otherwise, defers to the ALJ's credibility judgments, and, after revising or omitting several factual findings to more accurately reflect the record, finds ample support in the record for the remainder of the ALJ's substantive findings of fact.
The most significant modification that the commission has made to the ALJ's decision has been to delete finding of fact #3 - that Mr. Esau has a physical impairment which makes achievement unusually difficult and which limits his capacity to work. Mr. Esau asserts that this is not a true statement, and the commission agrees.
To prove disability discrimination under the Wisconsin Fair Employment Act (hereinafter "Act"), a complainant must first establish that he 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, 119 Wis. 2d 706, 350 N.W.2d 120 (1984).
In this probable cause case, the complainant has the burden 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. Jacobs v. Lakeland College, ERD Case No. CR200600708 (LIRC June 30, 2011). The first element of that test would be to show that he was an individual with a disability. However, although he demonstrated the existence of a hearing impairment (1), he has not shown that that impairment made achievement unusually difficult for him or limited his capacity to work. As the commission noted in Gouge v. Randy's Family Restaurant, ERD Case No. 200502921 (LIRC June 27, 2008), wearing a hearing aid does not, by itself, establish the existence of a hearing disability. Mr. Esau wore hearing aids, and was able to position himself so that he could hear those who were speaking to him. In fact, he asserted that he performed his job well, and he received a raise during his employment for his good work. He never complained to Mr. Zarbock or to other managers that his hearing impairment was interfering with his ability to do his job, and there is no indication in the record that his hearing impairment made achievement unusually difficult for him. He has not demonstrated probable cause to believe that he was disabled during his employment at Interconnect, or that he was perceived by Mr. or Mrs. Zarbock as being disabled. (2)
However, even if Mr. Esau had established that he had a hearing impairment that constituted a disability, (3) the commission agrees with the ALJ that Mr. Esau did not establish reasonable cause to believe that Interconnect discriminated against him due to such a disability. His testimony that Interconnect denied him health insurance was simply not credible. He provided no evidence by way of emails or corroborating testimony by coworkers that he was coerced into waiving health insurance coverage or that he was unhappy that he was not covered under the group health plan. In addition, he was not able to explain why Mr. Zabock would want to coerce him into waiving insurance coverage given that his quoted insurance premium was not as high as it was for two other employees. Furthermore, if Mr. Zarbock was so concerned about the cost to Interconnect of health insurance for Mr. Esau, it is not clear why he would decide to give Mr. Esau a raise of $2 an hour and a $50 bonus in each paycheck.
With regard to Mr. Esau's claim that Interconnect failed to provide employment-related matters to him in writing due to his hearing impairment, he did not show that such documents were provided to his coworkers or that he was treated differently in this matter than were his coworkers without hearing deficits. In addition, there is no evidence that he told Mr. Zarbock that he needed to have documents in writing because he was concerned that he may not have accurately heard what was being said to him, or that he otherwise requested a "reasonable accommodation" for his hearing impairment that was denied by Interconnect.
As to Mr. Esau's claim that he was subjected to disability-tinged verbal harassment by Mr. Zarbock or others, there is absolutely no evidence in the record to support such a claim.
Mr. Esau also alleges that he was placed on layoff and was terminated (or not recalled) due to his hearing impairment. However, even if the commission had found that his hearing impairment constituted a disability, he has not provided reasonable grounds to believe that either his layoff or his lack of recall to work was due to his hearing impairment. He was laid off because there was not enough work for him to perform while restricted to sedentary work after his ankle injury, and there was credible testimony provided that no one had been recalled who had previously been laid off by Interconnect. Given that he did not manifest any work performance problems related to his hearing, there is no reasonable basis to believe that he was laid off or not recalled due to his hearing impairment. Of significance as well, Mr. Esau did not contact Interconnect to return to work after his physical restrictions were lifted.
As to Mr. Esau's claims of retaliation by Interconnect, it is not clear what activity he engaged in that would be protected by the Act. His amended complaint alleges that Interconnect retaliated against him for his opposition to Interconnect's treatment of him due to his disability or its perception of his disability. However, even if it had been established that Mr. Esau was disabled, it is an essential element of any retaliation case that an employer be shown to have been aware of the protected activity that the employee engaged in, and that it understood that the activity was related to alleged discrimination. Hanson v. Department of Transportation, ERD Case Nos. 200303172, etc. (LIRC June 14, 2005). Given the record in the case, it is simply not reasonable to believe that Interconnect was put on notice that Mr. Esau believed that he was being discriminated against due to his hearing impairment or that he was opposing a discriminatory practice by Interconnect when he said that he was going to find out what his rights were about being covered by group health insurance. He did not mention his hearing impairment, and there is no reason in the record to believe that Mr. Zarbock would have understood that he was referring to rights related to his hearing impairment.
As to the allegation in his original complaint that Interconnect discriminated against him due to his age, Mr. Esau testified that his age was not a factor in the work that he did for Interconnect, and there is no evidence in the record to indicate that Interconnect discriminated against him due to his age.
In summary, Mr. Esau was given a fair opportunity to present his case, but simply failed to present evidence that showed a reasonable ground for belief that he was an individual with a disability or that he was discriminated against by Interconnect as alleged in his complaint.
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(1)( Back ) The commission notes that there is no medical documentation of this impairment in the record. Typically, such evidence is required before there can be a finding of a disability. See Fields v. UW Hospital & Clinics Authority and/or Board, ERD Case No. CR200302716 (LIRC Feb. 12, 2007), and cases cited therein. However, it appears that the existence of an impairment has not been disputed in this case and that Mr. Esau made an effort (albeit untimely) to provide medical documents at the hearing.
(2)( Back ) Mr. Esau testified that he never provided any medical documentation to Interconnect regarding his hearing impairment, further evidence that he did not consider that this impairment made achievement unusually difficult for him or interfered with his ability to work at his job.
(3)( Back ) Mr. Esau's ankle injury would not count as a disability under the Act. The commission has consistently held that the Act covers only permanent impairments, not injuries of a transitory nature. See Rutherford v. Wackenhut Corp., UI Dec. Hearing No. 200402916 (LIRC May 13, 2011).