ALLEN D SIKORSKI, Complainant
AMTEK GEARS INC, Respondent A
SMITH JONES, INC, d/b/a
MIDWEST MANUFACTURING, Respondent B
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 respondents, Amtek Gears Inc. (hereinafter "AG") and Smith Jones, Inc., d/b/a Midwest Manufacturing (hereinafter "MM"), are employers in the State of Wisconsin.
2. Amtek Auto Ltd., with headquarters in the U.K, owns various corporations around the world, including Amtek Investments U.S.A. Inc., a holding company that owns AG, and MM.
3. AG is a corporation that was created in or around January 2005 to operate a ring gear manufacturing facility in Bay City, Michigan. Ring gears are components of engines.
4. MM is a sister company working within the same marketplace as AG, and also manufactures ring gears, in facilities in Kellogg, Iowa and Stanberry, Missouri.
5. The complainant was offered the position of sales and marketing manager for AG via a letter dated May 16, 2006 from David Townsend "For and on Behalf of Amtek Gears, Inc." The complainant accepted the job offer on May 17, 2006.
6. The Bay City facility was not successful and ceased operations in or around May, 2007.
7. In June, 2007, the employees of AG in the U.S., including the complainant and Townsend, were transferred to MM's payroll.
8. During his employment, the complainant had a heart condition known as atrial fibrillation for which he had taken blood thinners in the past. At times, the condition caused him to be fatigued. In October, 2007, he underwent a procedure on his heart, an internal ablation, to treat his atrial fibrillation. He took one day off from work, and notified Townsend that he was having the procedure. The procedure was not successful in controlling his atrial fibrillation, and he continued to experience fatigue.
9. In November, 2007, Kenneth Parker, who had been working for various Amtek entities for years, took a position with Amtek Investments (UK) Ltd. In that position, he was in charge of the ring gear operations at MM, and Townsend reported to him.
10. Parker immediately became aware of serious financial difficulties being experienced by MM, describing the business as "losing cash by the day."
11. The combined MM/Amtek Investments U.S.A., Inc. financial statements for fiscal years ending June 30, 2007 and June 29, 2008 showed major losses, the accompanying default in certain provisions of the companies' loan agreements, and a lien placed on company assets due to a failure by MM to make the required minimum contributions to certain benefit plans. It showed a combined net operating loss of $2,901,800 for the fiscal year ending June 29, 2008, and an additional unfunded pension liability of $3,331,720.
12. The independent auditors' report contained in the above combined financial statements stated, in part:
As discussed in Note 3 to the financial statements, as shown in the financial statements, the Companies are in default on certain covenants of its loan agreements at June 30, 2008, primarily as a result of a net loss incurred in 2008. The lenders may demand repayment of the loans. No such demand has been made. Negotiations are presently under way to obtain revised loan agreements to permit the realization of assets and the liquidation of liabilities in the ordinary course of business. The Companies cannot predict what the outcome of the negotiations will be. Also, as discussed in Note 5, the Pension Benefit Guaranty Corporation has placed a lien on Company assets as a result of the Smith Jones, Inc. not making the required minimum contributions to certain benefit plans. These conditions raise substantial doubt about the Companies' ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
The financing section of the combined financial statements, at Note 3, states as follows:
The Companies' Credit Agreement contains certain restrictions and requirements, including the maintenance of specified levels of net worth and certain financial ratios, among others. At June 29, 2008, the Companies were in default on the loan and were subject to a period of forbearance with the bank as of June 29, 2008.
13. In December, 2007, the complainant attended a business meeting in the U.K., and was scheduled to travel on to India for business. He was tired and not feeling well, which Townsend noticed. Townsend asked him if he felt up to the trip to India, and whether the travel was too taxing. The complainant continued on to India, and completed the scheduled business trip. He did not limit his business activities due to symptoms associated with his atrial fibrillation during his employment.
14. Due to the poor financial situation of MM/AG in late 2007/early 2008, Parker told Townsend sometime in January 2008 that he would need to downsize his operation, and that MM could afford only one salesperson in the U.S., either Townsend or the complainant. At that time, Parker knew that the person who would be let go would be the complainant, since Townsend would not choose to terminate his own employment. Parker did not know that the complainant had atrial fibrillation.
15. The complainant scheduled another procedure to control his atrial fibrillation, an external ablation, for February 8, 2008. He told Townsend about the second operation, and said that it would require a weekend hospital stay. During the procedure, the complainant's liver and diaphragm were inadvertently cut, which required an emergency surgery. As a result, he remained in the hospital through February 14, 2008.
16. While in the hospital, the complainant continued to work, contacting customers, working on a large quote for a customer, and dealing with other business issues.
17. On February 21, 2008, the complainant participated in a conference call, referred to as a "fish pond" conference, with salespeople from the U.S., the U.K., and India. These fish pond conferences were held regularly to ensure that the various Amtek salespeople were not quoting prices to the same customers that would undercut other Amtek Auto Ltd. businesses, and Townsend also participated in the calls.
18. During this February 21st call, Townsend asked the complainant to call him later in the day. Later, during the call, the complainant received an email from Chris Hopwood, the human resources manager at MM, to which was attached a copy of a letter signed by Townsend and dated February 15, 2008. The letter read as follows:
Dear Alan:
Due to the closure of Amtek Gears, Bay City and the economic poor state of the US operations, we will be terminating your services effective February 29, 2008. Per your contract, you will remain on the payroll through March 31, 2008 (1). Your health, dental, and life insurance will run through the month of March.
I will be in contact with you to discuss any pending sales issues and arrange for the return of all company property you may have.
I would like to thank you for your efforts given to Amtek this past year and I wish you much success in your future endeavors.
I would be happy to furnish you with a reference if required.
Sincerely,
David Townsend
President
For and on behalf of Amtek Gears Inc.
19. The complainant remained on MM's payroll through March 31, 2008. No one was hired to replace him. Townsend assumed most of his sales responsibilities after the complainant's employment ended.
20. Ms. Hopwood was terminated from employment in or around September, 2008, as was Paul Fields, the person who had run the MM facility in Kellogg, Iowa. No one was hired to replace either of them.
21. Townsend was terminated at the end of 2008, although he remained on the payroll until March 2009 pursuant to a three-month notice of termination provision in his contract. No one was hired to replace him.
22. The complainant was not an individual with a disability, within the meaning of the Wisconsin Fair Employment Act.
23. The respondents did not perceive the complainant to be an individual with a disability, within the meaning of the Wisconsin Fair Employment Act.
24. The complainant's atrial fibrillation condition was not a motivating factor in regard to the respondents' decision to terminate his employment.
1. Respondents AG and MM are employers within the meaning of the Wisconsin Fair Employment Act.
2. Neither respondent AG nor respondent MM discriminated against the complainant because of disability in violation of the Wisconsin Fair Employment Act when the complainant was discharged from employment.
The complaint in this matter is dismissed with prejudice.
Dated and mailed December 10, 2012
sikoral : 120 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The complainant alleged that he was discharged due to his age and his disability, in violation of the Wisconsin Fair Employment Act ("WFEA"). An equal rights officer found that there was probable cause to believe that the complainant was discharged due to his age and disability, in violation of the WFEA. In his decision, the ALJ found no discriminatory discharge based on age, but found that the complainant was discriminated against by employers AG and MM on the basis of disability. In his memorandum opinion, the ALJ found that the employers had a mixed motive in discharging the complainant, partly due to economic concerns, but also because the employers perceived the complainant's medical condition to affect his ability to do his job.
AG and MM have petitioned for commission review, questioning, among other things, that complainant's alleged disability was a motivating factor in the discharge decision; that complainant established that he was disabled within the meaning of the WFEA or that petitioners perceived him as such; that complainant was discriminated against in violation of the WFEA on the basis of disability with regard to his termination; that this is a mixed motive case; and that petitioners terminated complainant in part because they perceived his medical condition to affect his ability to do his job.
The complainant has not appealed the ALJ's finding of no discrimination based on age under WFEA. Therefore, it is not necessary for the commission to address that issue.
Applicable Law
To prove disability discrimination under the WFEA, 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 (e.g., terminated the complainant's employment) because of the disability. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651 (2003); Lundstad v. Management Computer Support Inc., et al., ERD Case No. CR200500591 (LIRC Dec. 26, 2008).
Section 111.32(8) of the WFEA 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). In this case, there appears to be no dispute that the complainant has a physical impairment - atrial
fibrillation (2). He testified to that condition, and the petitioners do not dispute that he has atrial fibrillation.
However, not every impairment is a disability. To establish that he is an individual with a disability under Section 111.32(8)(a), the complainant must show that his impairment makes achievement unusually difficult or limits his capacity to work. 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, whether an impairment limits the capacity to work refers to the particular job in question. City of La Crosse Police and Fire Comm. v. LIRC, cited previously; Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985). Further, the inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty. See Wucherpfennig v. Personal Development Center, ERD Case No. CR200201383 (LIRC June 29, 2006), and cases cited therein.
In this case, the complainant argues that he is an individual with a disability, within the meaning of the WFEA, and that his disability is heart disease. However, he has presented no medical evidence that he has heart disease. In addition, although the petitioners appear to accept that the complainant has an impairment - atrial fibrillation, they question that this impairment constitutes a disability, noting that the complainant presented no testimony or evidence from a medical professional that this condition constitutes a disability under the WFEA.
Generally, if disputed as a matter of fact, competent medical evidence is required to establish the existence, nature, extent, and permanency of an impairment.
Connecticut General Life Ins. Co. v. DILHR, 86 Wis. 2d 393, 273 N.W.2d 206 (1979) (the diagnosis of "alcoholism" requires more than evidence of a "drinking problem"). See also
Grell v. Bachmann Construction Co. Inc., ERD Case
No. CR200202309 (LIRC July 15, 2005), and cases cited therein. In this case, there is no evidence that the complainant provided the petitioners with any medical documentation of his atrial fibrillation or of any heart condition during his employment. In addition, he presented no medical evidence of his atrial
fibrillation or any heart condition at the hearing, much less that this
condition was permanent (3) or that it was so serious that it made achievement unusually difficult or substantially limited him in his ability to work, including to travel abroad. In fact, he continued to travel on business, as he had before, and there is no evidence that he requested any limitations or restrictions on his work or on his travel responsibilities. Nor is there any evidence that his atrial fibrillation substantially limited him during his employment in his normal life functions or in any major life activities.
Therefore, the commission agrees with the petitioners that there is insufficient evidence to find that the complainant is an individual with a disability, under Section 111.32(8)(a). Nor is there any evidence that he had a record of an impairment that made achievement unusually difficult or limited his capacity to work, within the meaning of Section 111.32(8)(b).
The final question is whether the complainant established that the petitioners perceived him as having a disability, within the meaning of the WFEA, Section 111.32(8)(c). The ALJ found that the "employer perceived the Complainant's medical condition to affect his ability to do his job," and that its decision to discharge the complainant was motivated in part because it perceived the complainant to have a disability. In support of this finding, the ALJ states that, in addition to the financial problems the employer was experiencing, "the timing of the discharge suggests that the Complainant's medical condition related to his heart was also a factor."
To establish that the petitioners perceived him as having a disability, the complainant must show that they determined that he had an impairment that made achievement unusually difficult or limited his capacity to work, and discharged him, at least in part, on that basis. Erickson v. LIRC, 287 Wis. 2d 204, 704 N.W.2d 398 (Ct. App. 2005). However, the only evidence that could be used in support of that proposition is that Mr. Townsend knew that the complainant experienced atrial fibrillation and that it caused him to become fatigued on occasion, and that Mr. Townsend asked him during a business trip to the United Kingdom in December 2007 whether he felt up to the next leg of travel to India and whether traveling was too taxing for him. However, the complainant acknowledged that he was not feeling well at that time, and Mr. Townsend's question to him is certainly understandable and appropriate under those circumstances and would be so toward any employee who appeared unwell. In fact, the complainant continued on to India and there is no evidence that his atrial fibrillation made achievement unusually difficult for him or limited his capacity to work. Other than minimal time off for his two ablations, the complainant requested no time off, nor did he request a limited work or travel schedule.
There simply is no evidence to suggest that Mr. Townsend or any other of the petitioners' managers perceived the complainant as being disabled, i.e., being limited in his capacity to work or substantially limited in normal life functions or major life activities due to his atrial fibrillation. In fact, Mr. Townsend was aware that the complainant was undergoing procedures to regulate his heart rhythm, and that his impairment might well be temporary. Furthermore, the complainant continued to work after both the October and the February procedures, even making customer calls and working on a large quote for a customer while still in the hospital in February, and Mr. Townsend was aware of the complainant's continuing sales efforts at that time. There is no evidence that Mr. Townsend believed that the complainant's atrial fibrillation made achievement unusually difficult or limited his capacity to work.
However, even if Mr. Townsend had perceived the complainant to have a disability, Mr. Townsend was not the person who was ultimately responsible for the complainant's discharge. Kenneth Parker, Mr. Townsend's superior, made that decision when he told Mr. Townsend in January of 2008 that either Mr. Townsend or the complainant would have to be discharged because the business could not afford them both. Mr. Parker testified that he knew that Mr. Townsend would not discharge himself, and that it would be the complainant who would be discharged. However, in January of 2008, Mr. Parker was not aware of the complainant's atrial fibrillation and, therefore, could not have perceived him to have a disability. He did not become aware of the complainant's atrial fibrillation or his hospitalization until after the complainant was terminated.
Finally, about six months after the complainant was discharged, two other MM managers were discharged; and a few months after that Mr. Townsend himself was discharged. These actions were taken due to the worsening global economic situation and the extremely negative financial circumstances of the petitioners' operations. No one was hired to replace any of these managers, including the complainant.
Therefore, while it is true that the timing of the discharge raises questions since it came right after the complainant was released from the hospital, that timing plus the manner of notification (by email during a telephone conference) present more of a question of poor and insensitive management, not that of discrimination.
Mr. Parker told Mr. Townsend to take action well before the complainant's hospitalization, and without knowledge that the complainant had any physical impairment. He had ample reason to do so, given the extremely poor finances of the employers.
In sum, the complainant did not establish that he was an individual with a disability or that Mr. Townsend perceived him to be an individual with a disability. In addition, he did not establish that his medical condition played any role in the petitioners' decision, made by Mr. Parker, to discharge him.
NOTE: The commission conferred with the ALJ to determine whether he had any credibility impressions to share with the commission. He did not. In any case, the commission has based its decision on a different view as to what the hearing record established and a different interpretation of the relevant law.
cc:
Attorney Victor Plantinga
Attorney Lawrence Lynch
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