EUGENE DAVIS, Complainant

EATON CORPORATION, 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. Eugene Davis, a black male, began work for the respondent in 1998 through an assignment from CDI, a temporary job placement service. Prior to this employment he had had surgery on his left knee and his neck. (1)  Davis had also been seen for lower back problems. According to Davis, he has a degenerative condition in his knee and neck, and he has chronic arthritis.

2. On March 1, 1999, Davis became a permanent employee of the respondent. He was employed as a CAD (Computer Aided Drafting) designer of electromechanical components.

3.  In a charge of discrimination against the respondent dated February 8, 2000, that Davis submitted to the EEOC, Davis alleged in relevant part the following:

"During the period of August 18, 1998 through February 18, 1999, I had use of a scooter through DVR.

On July 21, 1999, there was a flood at work, which destroyed my accommodations, including the scooter, medication, lumbar support, brace heating pad, massager and other accommodations. The Respondent has not replaced any of these accommodations.

...As of January 12, 2000, I provided my most recent return-to- work statement in which my doctor again listed the accommodations needed for me to return to work and to perform the essential functions of my position, however, the Respondent still has not provided the accommodations, nor returned me to work.

No reason has been given as to why the Respondent will not provide me with the accommodations needed for me to return to work.

I believe that I have been discriminated against, based on my race (Black), in violation of Title VII of the Civil Rights Act of 1964, as amended, and based on my disabilities, in violation of Title I of the Americans With Disabilities Act of 1990."

The EEOC initially investigated this charge, as well as a subsequent charge of retaliation by Davis, but dismissed Davis' charges of discrimination and retaliation. Davis then brought these same charges before the Equal Rights Division.

4. At the March 29, 2001 hearing before the ERD, Davis stated that it was not the scooter that had been destroyed, it was the scooter's battery charger. Davis asserted that two days after the flood the respondent announced that it was going to replace items that were lost due to the flood and that employees were to make a list of the items lost and turn them in. Davis identified a document dated July 22, 1999 (Exhibit C-8), as a partial list of his lost items that was turned in to his supervisor, James Krenz. He identified a document dated July 30, 1999 (Exhibit C # 11), as a "more accurate" account of what he lost in the flood. It is not clear from the record if this list was given to his supervisor. Davis also identified a letter addressed to Krenz dated November 12, 1999 (Exhibit C-10), which included attached copies of receipts showing the cost of prescription medication and a heating pad that he lost due to the flood. Davis claimed no knowledge as to a requirement that he submit an expense report with attached receipts for the replacement cost of lost items before he would be reimbursed.

5. Davis continued working after July 21, 1999, until August 13, 1999.

6. Apparently on August 10, 1999, Davis saw his physician, Dr. Bolt, and complained about having "a little increase in back pain, right wrist pain and knee pain." Several pages of Dr. Bolt's medical notes regarding Davis were admitted into evidence as Exhibit C-5. Dr. Bolt's notes of Davis' August 10 visit comment about the flood that had occurred at the respondent, the disruption this had caused and also includes the following statements: "He doesn't have a good chair to sit in and is sitting kind-of on a stool. This is increasing his back pain. Knee is doing actually pretty well. His wrist is sore. He didn't hurt it but every time he pushes off it hurts. He's diffusly (sic) tender about the wrist. X-ray, AP of the wrist, doesn't show any abnormalities. X-rays of his back, which I redid, doesn't show any change, still looks pretty normal." Dr. Bolt's notes state that he would go ahead and put Davis in a D-ring splint on his right wrist to rest it, and that Dr. Bolt would like to see Davis again in three weeks.

7. On August 13, 1999, Davis worked roughly two hours, left his work area without notifying his supervisor or anyone else, and then left the premises about 11:30 a.m. He did not have his supervisor's permission to leave the premises when he left at 11:30 a.m.

8. On August 16, 1999, Davis attempted to get an office visit with Dr. Bolt but was unable to do so. On August 16 Dr. Bolt provided Davis with a note stating "No work until further notice." According to Dr. Bolt's notes of August 16, Davis left a message stating that "he wants to be off until the chair which would be acceptable to him and that since this is not available he has been having increased pain."

9. When Davis went off work on August 13, he also filed a claim with the Workers' Compensation Division alleging a work-related injury to his wrist. The respondent disputed this claim.

10. Davis apparently next saw Dr. Bolt on August 31, 1999, but he cancelled his following appointment scheduled for September 30, 1999. Davis remained off work during this time. Dr. Bolt's notes for September 30 state that the rehab nurse was present, that she was upset because she had been unable to contact Davis and that "They have a new work station there now." Further, Dr. Bolt's notes indicate that the only thing he could do was to return Davis to work with the restrictions that Davis previously had. It is not clear from the record exactly what these previous restrictions were.

11. Dr. Bolt's notes of Davis' October 6, 1999 office visit read as follows:

"He is here with a rehab nurse. His hand symptoms are worse and he seems to be a fairly classic carpal tunnel. I am going to set him up for EMG and nerve conduction study of his right wrist. His back seems to be a little bit better. The nurse assures us that he has a new work station. I will let him go back to work as of tomorrow with limited use of his right hand and I will see him in a month but we will get this EMG and hopefully figure out what is going on with his wrist."

On October 6, 1999, Dr Bolt provided Davis with a return to work slip for October 7, 1999, with the following restriction: "Limit use of Rt arm/hand at work."

12. On October 7, 1999, Davis met with the respondent's environmental health and safety coordinator, Robert Weimer, to coordinate his return to work with restrictions. October 7 was Davis' last day of work at the respondent. Davis did not report any problems with his workstation or in doing his job to Weimer or his supervisor on October 7.

13. On October 8, 1999, Davis called in to work and left a message for his supervisor that stated he would not be in to work because he was having "physical problems." Apparently Davis' message also stated that he would call back later in the day to let Krenz know what was happening but he never called Krenz back.

14. Dr. Bolt's notes show that on October 22, 1999, Dr. Bolt had a telephone conversation with Davis in which Davis inquired what to do about his back. The notes for this conversation read as follows: "I think that he has been backing off on his exercise program and that helped him before and this is what he needs to get back to. So hopefully he will do this. I am suggesting that he try and continue working."

15. Dr. Bolt's notes of a November 3, 1999 office visit by Davis includes the statement, "He (Davis) also talked about changing jobs, but I hate to see him stop the job that he has because they are very accommodating for him."

16. In the November 12, 1999 (C-10) letter Davis sent to Krenz, Davis informed Krenz that he was scheduled for wrist surgery on November 22, 1999, and that it would take about six to eight weeks to recover.

17. The respondent arranged for Davis to see Dr. Kihm on January 11, 2000, for the purpose of obtaining an independent medical evaluation (IME) in connection with Davis' workers' compensation claim. The respondent had previously arranged an IME for Davis in September 1999. (See finding of fact # 22 below.) Dr. Kihm's IME report indicates that he reviewed Davis' complaints of pain and the history of his medical treatment for his knee, his neck and carpal tunnel syndrome. In response to specific interrogatories regarding Davis' medical condition, Dr. Kihm included the following statements:

"I think this patient's medical condition is that of nonorganic pain syndromes which have tended to be fostered by continuing medical treatment. He has not had pre-existing actual disease that I can tell.

I do not think that work exposure caused the employee's present medical condition by precipitation, aggravation, (sic) acceleration beyond its normal progression of a pre-existing problem. The reason I say this is because I do not think he has any objective findings of medical injury or disease at this time.

...

In my opinion, the patient is capable of working without restriction because I have not found any organic contraindications to his working. I have not found any condition which would require restrictions.

This patient could have been working light duty all along. Certainly, (sic) carpal tunnel operation would not stop one from using a mouse for even a week.

...

Mr. Davis, I think, has (sic) fairly clear problem with pain behavior which has been rewarded and supported by his medical care, and I think the pain behavior is presenting the problem, since there is no organic evidence of disease or disability."

18. On January 12, 2000, Dr. Bolt provided Davis a note stating that he may return to work when:

1) Ergonomically set up work station is ready
2) Special Key Board for carpal tunnel
3) Voice command modem
4) Scooter to get around plant
5) 25lb lifting restriction
6) No repetitive lifting, bending, twisting

19. In a letter to the respondent dated January 12, 2000, with Dr. Bolt's January 12 note attached, Davis stated that his doctor would not allow him to return to work if the respondent did not comply with the listed restrictions. Davis' letter also stated that his doctor recommended that an independent ergonomic engineer be consulted to evaluate the work area prior to his return and that Bill Hustedde of the Division of Vocational Rehabilitation offered to provide an ergonomic engineer to perform the evaluation.

20. On February 2, 2000, Davis and Russ Schallert, the respondent's plant human resources manager, had a telephone conversation in which they discussed the fact that Dr. Kihm's evaluation disagreed with Dr. Bolt's evaluation as to what Davis could do workwise. Based on the two evaluations, they disagreed over whether Davis could return to work without restrictions or needed work restrictions in order to return to work.

21. In a letter to Schallert dated February 3, 2000, Davis challenged Schallert as to whether he was willing to trust Dr. Kihm's medical recommendation and be held responsible if he (Davis) was injured working without restrictions and accommodations. In the letter Davis recited his past treatment for his neck, wrist, back, knee and ankle and his doctor's diagnoses. Davis asserted that his doctor's opinions were based on "clinical assessment, X-rays, M.R.I., Bone scans" by state-of-the-art equipment unlike the methods used by Dr. Kihm. (2)   Further, Davis stated that if Schallert could prove his information to be untrue he would immediately resign from his position at the respondent. Finally, Davis ended his letter with the following comment:

"What about you? Are you willing to trust Dr. Kihm to hold yourself and Eaton Corporation responsible if I return to work without restrictions and accommodations and experience injury to any of the above preexisting conditions? I know you (sic) love to get rid of me. This would be the perfect opportunity to kill two birds with one stone. I will await you (sic) answer. If you decide to not respond. (sic) I will assume that you are not to (sic) sure of Dr. Kilm's (sic) evaluation as well. YOU DA MAN, the H.R. Manager. So, go for it and challenge me. I DARE YOU!!!!!"

22. By letter dated March 7, 2000, Schallert notified Davis that his continued employment was not in the best interest of the company and was therefore deemed terminated as of March 6, 2000. Schallert's letter stated that additionally the respondent had been advised Davis had applied for unemployment compensation, signaling that he wished to have his employment considered terminated, and that the respondent considered him to have abandoned his job. Schallert's letter to Davis also included the following comments:

"While we struggled to work with you and your physician with regard to your alleged disability, you have not cooperated, have been insubordinate, abusive and threatening in your communications with us in violation of Eaton's Harassment Free Workplace policy. In addition, you have failed and refused to return to the workplace after having been advised that our information reveals you have no compensable injury under the worker's compensation program and no disability requiring any accommodation under the Americans with Disabilities statute. Therefore, you have been away without leave for several weeks. In addition, you failed to keep the scheduled Independent Medical Evaluation appointment with Dr. Kihm on September 17, 1999, not because you were so disabled that you could not attend, but because you had made vacation plans which you were not willing to change. These plans, you said, had been made 4 1/2 months before the appointment, even though you had no vacation entitlement at the time the plans were made, nor for the time the vacation was allegedly taken. In fact, you were representing to the Company that you were too disabled to work but apparently were not too disabled to go on vacation and miss an opportunity to have your alleged disabilities assessed in an independent medical evaluation. You have applied for worker's compensation as well as short term disability benefits during the time period you stated that you took vacation."

23. The respondent cannot be found to have refused to reasonably accommodate Davis under the circumstances presented in this case. Davis left work on August 13, 1999, without notice or permission of his supervisor (apparently without repercussion) and remained off work until October 7, 1999. When Davis returned on October 7 he met with Weimer to coordinate his return to work with restrictions. Davis did not report any problems with his workstation or in performing his work to either Weimer or his supervisor. Despite failing to make any complaint about his workstation or in performing his job, Davis did not report back for work on October 8. Instead, on October 8, Davis left a message for Krenz stating that he was unable to work and would get back to Krenz to let him know what was happening, but Davis never called Krenz back. In the very next month Davis' physician, Dr. Bolt, comments in his notes written on November 3, 1999, that the respondent had been "very accommodating" to Davis. Subsequently, the results of Davis' IME performed on January 11, 2000, caused the respondent to question Davis' need for any accommodation. This led to a discussion between Davis and Schallert on February 2, 2000, after which Davis issued the challenge to Schallert as discussed above. Davis presented no evidence to show that it was not reasonable for the respondent to have relied on the IME from Dr. Kihm. Indeed, a number of comments in Dr. Bolt's notes regarding Davis, which Davis states had been given to the respondent, provided the respondent additional reason to question Davis' need for accommodation. For instance, just prior to Davis' leaving work on August 13, 1999, Dr. Bolt's August 10, 1999 notes include the comments "knee is doing actually pretty well" and "X-rays of his back, which I redid, doesn't show any change, still looks pretty normal." Commenting about Davis' back in notes of October 22, 1999, Dr. Bolt states, "I think that he has been backing off on his exercise program and that helped him before and this is what he needs to get back to. So hopefully he will do this. I am suggesting that he try and continue working." Furthermore, after Davis' February 3, 2000 letter to Schallert, it is obvious that the respondent would not be inclined to consider any accommodation requests made by Davis, nor could the respondent reasonably be expected to do so. Based on the record in this case, there is also no reason to believe that the respondent discriminatorily refused to replace or reimburse Davis for the items he used as accommodations that were lost due to the flood at the respondent.

24. Davis' February 8, 2000 charge of discrimination includes a claim that the respondent had not provided him with work accommodations or allowed him to return to work because of his race. The evidence fails to support this claim. At the March 29, 2001 ERD hearing Davis related (for the first time) two incidents as examples of alleged racial discrimination. He asserted that during his interview before hired while on a plant tour with Krenz he heard a racial slur made by "some individuals" in the shop (the record is not clear as to whether this is alleged to have occurred in August 1998 or March 1999 before he was made a permanent employee), and that in August or September 1998 some unknown person had left a note on his scooter that stated, "(w)alk nigger. There's nothing wrong with you." Neither of these incidents supports Davis' claim that the respondent had not provided him with work accommodations or allowed him to return to work because of his race. First, if the respondent was inclined to discriminate against Davis it is not likely that it would agree to accept him as a contract hire in 1998, and it certainly would not have made him a permanent employee in March 1999. Second, there was no evidence that any management employee was involved in either of these alleged incidents.

25. In Davis' amended charge against the respondent dated March 14, 2000, that was submitted to the EEOC, Davis alleged that his employment had been terminated in retaliation for having filed a charge of discrimination. Davis, however, was unable to establish that the respondent had been aware of his charge of discrimination dated February 8, 2000, at the time the respondent terminated his employment. Even assuming Davis had been able to establish employer knowledge of his February 8 charge of discrimination though, the evidence shows that the respondent terminated his employment for reasons having nothing at all to do with his charge of discrimination. The evidence shows that the respondent terminated Davis' employment because of his insubordinate, abusive and threatening communications with the respondent, in violation of the company's Harassment Free Workplace Policy, and because the respondent believed that he had abandoned his job.

Based upon the above FINDINGS OF FACT, the commission makes the following:

1. The respondent, Eaton Corporation, is an employer within the meaning of the Wisconsin Fair Employment Act.

2. The complainant, Eugene Davis, is an individual entitled to protection against discrimination on the basis of disability, race and retaliation as provided under the Act.

3. Assuming for purposes of argument that the complainant has a disability, there is no probable cause to believe that the respondent violated the Act by refusing to reasonably accommodate his disability.

4. There is no probable cause to believe that the respondent violated the Act by discriminating against the complainant in his terms or conditions of employment because of his race.

5. There is no probable cause to believe that the respondent violated the Act by terminating the complainant's employment because he made a complaint under the Act.

That the complainant's complaint in this matter is dismissed.

Dated and mailed March 14, 2002
daviseu . rrr : 125 : 9 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

Davis makes numerous arguments in support of his petition for review of the ALJ's decision. Davis argues that he was not given the opportunity to present his case. However, Davis, who appeared without counsel at the hearing, was given an opportunity to present his case. And contrary to argument by Davis, the record shows that he did receive a fair and unbiased hearing. In the absence of counsel, the ALJ questioned Davis about his employment in an attempt to ascertain the basis for his complaint. While perhaps Davis may have benefited from the assistance of an attorney, he appeared at the hearing without counsel. Davis' previously retained law firm had withdrawn as his counsel over two months prior to the March 29, 2001 hearing. Davis waited until the hearing on March 29 to request additional time to obtain an attorney to represent him. This request, of course, came too late.

A number of assertions that Davis makes on appeal were not made at the hearing. For instance, on appeal Davis asserts that he was unable to work on August 13, 1999, due to a variety of ailments and that prior to leaving work he advised a person named Angela Beacon about his condition and asked her to inform Krenz. On appeal Davis asserts that on October 7, 1999, the respondent's Human Resources Department informed him that he would have to attend an IME before his accommodations would be replaced. On appeal Davis asserts that his October 8, 1999 message left for Krenz stated that he would not be in to work until he saw his doctors. These factual assertions were not made by Davis at the hearing and cannot be considered by the commission. The commission must decide cases before it based on the testimony and evidence introduced into the record at the hearing. See Wisconsin Administrative Code Chapter LIRC 1.04 ("Review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing.")

Other assertions that Davis makes on appeal are simply unconvincing. For example, Davis argues on appeal that he did not meet with Weimer when he returned to work on October 7, 1999, nor did Weimer offer him any assistance to coordinate his return to work. At the hearing Davis initially testified that he did meet with Weimer on October 7, 1999, to coordinate his return back to work with restrictions. Tr. 91 A short while later when questioned about meeting with Weimer on October 7, Davis responded as if puzzled about Weimer having met with him, and then stated, "He came by my desk, and that was about it. He offered some--", apparently being cut off by the next question before completing his statement about what Weimer offered. Tr. 100 The next question that Davis was asked was whether Weimer had shown him in his workstation his keyboard tray, his chair and how to use it, to which Davis responded, "I already knew how to use it. No." Tr. Id. Then, when asked again if he had been shown that and to answer yes or no, Davis replied "No." Tr. Id. Davis simply does not appear to be straightforward in his testimony about meeting with Weimer to coordinate his return to work with restrictions on October 7, 1999.

Davis also now claims on appeal that on October 7, 1999, he reported having severe pain in his back, neck, left knee, right hand, right ankle and a headache to the human resources department because he did not have a scooter to get around, but nothing was done. However, oddly enough, Davis failed to report any problem in doing his job to Weimer or his supervisor on October 7, and he failed to assert at the hearing that he had reported having a problem doing his job to the human resources department.

Davis also contests the validity of the IME report by Dr. Kihm, asserting that Dr. Kihm only interviewed him and did not conduct an examination. Dr. Kihm's report indicates that he did examine Davis, however, such examination including the conducting of a variety of range of motion and forward flexion tests, a spine examination, a wrist examination, leg raises and knee flexes. Further, while Davis takes issue with Dr. Kihm's report, asserting that he has a variety of serious medical conditions, except for what is contained in Dr. Bolt's progression of notes on his carpal tunnel syndrome (and those notes do not show that his carpal tunnel release was not successful), Davis failed to present any medical report regarding his alleged medical conditions at the hearing.

Further, in his petition Davis attempts to downplay his abusive and threatening letter to Schallert. He asserts that the phrase "YOU DA MAN" in his letter was not disrespectful because that phrase is used to refer to various sports figures and a phrase used by different radio and television personalities. He asserts that his statement "I DARE YOU!!!!!" was not a threat but simply a challenge to Schallert to "do the right thing and allow him to return to work and stop all of the corporate Bull." These arguments fail. It is evident that Davis did not use the phrase "YOU DA MAN" out of respect for Schallert. This is clear because following his use of that phrase in his letter he stated, "So, go for it and challenge me. I DARE YOU!!!!!" Davis' argument that his "I DARE YOU" comment was a challenge to Schallert to allow him to return to work is nonsensical. It is clear from the context of Davis' letter that his intent was to defy Schallert's authority to terminate his employment.

Davis also argues that he had not filed for unemployment insurance at the time of Schallert's March 7, 2000 letter, and that he had not abandoned his job, the respondent had abandoned him. While Davis argues that he had not yet filed for unemployment insurance, he also admits that in January 2000 he "had inquired with the unemployment office to see if Eaton Corporation had terminated [him]." Why Davis would have been inquiring if the respondent had terminated his employment at the unemployment office is curious, however, since the unemployment office would have no information regarding his employment status until after he had filed a claim and obtained a report from the respondent regarding his employment. Regardless of whether Davis did or did not file a claim, however, the respondent was advised of Davis' contact with the unemployment office and understood that he had applied for unemployment insurance. Davis argues that the respondent abandoned him because he had kept the respondent informed of the progress of his medical condition (apparently referring to his status after his carpal tunnel release), even visiting the plant during the months of February and March to inquire about his return to work. However, Davis' argument ignores the IME report by Dr. Kihm and his disrespectful and threatening letter to Schallert.

Davis has also argued that he has documents that show that he was discriminated against in his terms and conditions of employment on the basis of his race, and that he has documentation that shows the respondent was aware he had filed a complaint of discrimination against the respondent prior to his termination. These arguments are also unavailing. Davis failed to introduce any of these documents at the hearing. The evidence presented at the hearing failed to show reason to believe that Davis was discriminated against on the basis of his race, or that his employment was terminated because he made a complaint under the Act.

NOTE: The administrative law judge's decision in this matter has been rewritten in order to present a more complete statement of the facts and analysis of the evidence presented at the hearing.

cc: Attorney J. Patrick Condon

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(1)( Back ) Davis apparently also had surgery on his knee in April 1999.

(2)( Back ) Davis presented no medical reports or documentation at the hearing from any physician, including Dr. Bolt, which contained a medical diagnosis with respect to his back, knee or ankle.

uploaded 2002/03/18