PATRICIA D TURNER, Complainant

VISITING NURSE ASSOCIATION OF WISCONSIN - SHEBOYGAN, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:

1. In the last line of paragraph 3 of the FINDINGS OF FACT, the date "April 8, 1999" is deleted and the date "April 7, 1998" is substituted therefor.

2. The following is added as paragraph 4 of the CONCLUSIONS OF LAW:

4. "The Respondent did not discriminate against the Complainant in violation of the Act by making any inquiry in connection with prospective employment, which implied or expressed any limitation, specification or discrimination with respect to her or any intent to make such limitation, specification or discrimination on the basis of disability."

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

Dated and mailed
June 27, 2001
turnepa . rmd : 125 : 9 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The complainant, Patricia Turner, was employed as an admissions coordinator for the respondent when it was discovered she had two brain tumors. Turner decided to undergo surgery to have the tumors removed and therefore took a medical leave of absence, which began on or about April 15, 1998. Under the respondent's leave policy an employee's position is held for 90 days. If the employee's leave extends beyond 90 days and the position held by the employee is no longer in existence, the employee goes on inactive status and must apply for an available position when the employee is able to return to work.

After a period of 90 days had elapsed, the respondent elected to restructure the admissions coordinator position (also known as a discharge planner position) by turning it into two part-time positions consisting of 24 hours of work per week.

During the latter part of July 1998, Turner, who had not yet been released to return to work, learned of the elimination of her former position. She spoke with Rick Balzan, the respondent's human resources manager on August 6, 1998. Balzan informed Turner that she would have to apply for a position as a discharge planner and asked if she was sure she could return to work.

On August 24, 1998, Turner interviewed for a position as discharge planner with Balzan and her immediate supervisor, Michelle Oostdyk. Oostdyk informed Turner that even though the position was part time, the duties involved would probably increase and therefore increase the hours of work needed for the position. Balzan informed Turner that she would have to submit a medical release form in order to be considered for a position and inquired if she had any residual side effects and any work restrictions. Turner faxed a medical release to the respondent that afternoon. The medical release stated that she could return to work on August 26, 1998, with no restrictions.

The respondent offered Turner a discharge planner position on August 31. On or about September 2, 1998, she refused the offer, informing Balzan that financially she could not take the part time position.

Turner apparently claims that her employment was terminated because of a perceived disability when her position was converted into two part-time positions. The evidence fails to establish this claim. Turner's employment was not terminated. Under the respondent's leave policy it would hold the position of an employee out on a medical leave for a period of only 90 days, after which the employee would go on inactive status if the employee's position no longer existed. No evidence was presented which indicated that the respondent converted Turner's former position into two part-time positions because it perceived her to have a disability. Turner further claims that Balzan's inquiries about her ability to return to work in late July and again in August is evidence that it perceived her as having a disability. This claim also fails. Turner, who began her medical leave in April 1998, had not submitted a doctor's statement releasing her to return to work. She did not do so until after her August 24, 1998 interview. Under the respondent's leave policy an employee is not permitted to return to work until the employee submits a release to return to work from a physician.

NOTE: The ALJ's decision has been modified to change an incorrect date, and to add a conclusion of law regarding the claim (under Wis. Stat. § 111.322(2)) that the respondent violated the Act by making an illegal employment inquiry in connection with the complainant's application for employment with the respondent.

cc: 
Sandra G. Radtke
Mary Pat Ninneman

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uploaded 2001/06/29