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

LINDA SMITH, Complainant


ERD Case No. 199702722, EEOC Case No. 26G971594

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 agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own.


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

Dated and mailed August 25, 2000
smithli.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


The complainant's initial burden in a disability discrimination case is to establish that she is an individual with a disability, within the meaning of the Wisconsin Fair Employment Act (hereinafter "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 has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work, has a record of such an impairment, or 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). Flores v. Amcast Corp. (LIRC, October 13, 1994).

In this case, the evidence indicates that the complainant has a diagnosed mental impairment. However, the commission is unpersuaded that the complainant has satisfied her burden of demonstrating that her impairment made achievement unusually difficult for her or limited her capacity to work. The complainant's therapist/social worker, Linda Rounseville, testified that, as a result of her mental impairment, the complainant experienced symptoms including tearfulness, negative thoughts, difficulty concentrating and relating to people, racing heartbeat, and difficulty sleeping. However, Ms. Rounseville did not explain how or to what degree these symptoms made achievement difficult for the complainant or limited her in the performance of life's normal functions, nor did she specify whether any such limitations were long-term or temporary in duration. Consequently, the commission does not find that the complainant presented sufficient evidence to warrant a conclusion that she was substantially restricted in her ability to function or that achievement was unusually difficult for her.

Moreover, while Ms. Rounseville recommended that the complainant not work with Dr. Schmidt or at Sinai Samaritan Medical Center, she testified that the complainant was not disqualified from performing any position because of her mental condition and that she could do her job at Sinai Samaritan so long as she did not have frequent contact with Dr. Schmidt. (1) Given this testimony, and considering that Dr. Schmidt's practice was located in a different building, so that his contact with the complainant was limited to occasional meetings that brought him to Sinai Samaritan, the commission sees no reason to conclude that the complainant's mental impairment limited her capacity to perform her job.

In her petition the complainant also argues that she satisfied the other tests to be considered an individual with a disability. However, the commission sees no basis to conclude that the complainant has a record of a disability, nor does it see any reason to believe that the respondent perceived her as being disabled. The commission, therefore, agrees with the administrative law judge that the complainant failed in her burden of demonstrating that she is an individual with a disability who is entitled to the protections of the Act. Accordingly, the dismissal of the complaint is affirmed.

cc: Alan C. Olson
Mary Pat Ninneman


[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]


(1)( Back ) The complainant's expert witnesses were unpersuasive in their testimony with respect to her workplace limitations. Ms. Rounseville originally testified that the complainant had anxiety and panic attacks every time she got close to Sinai Samaritan, and could not even enter the building due to her post-traumatic stress disorder. However, Ms. Rounseville subsequently contradicted her own testimony by stating that the complainant could work in the building if she were not working around Dr. Schmidt. To further confuse the matter, Dr. Logan, the complainant's treating psychiatrist, acknowledged in his deposition that his understanding of the restrictions the complainant required to perform her job was based upon the incorrect assumption that Dr. Schmidt worked with the complainant at Sinai Samaritan. It also appears that Dr. Logan was operating under a misapprehension that, as of the time period in question, Dr. Schmidt's harassment of the complainant was ongoing. It is not clear from the deposition that Dr. Logan's recommendation would have been the same had he understood that the harassment had ceased approximately four years earlier and that Dr. Schmidt did not work with the complainant on a regular basis.