STEVEN P MOLLER, Complainant
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 conclusion in that decision as its own, except that it makes the following modifications:
The Findings of Fact are modified to read as follows, to more accurately reflect the evidence of record:
1. The Complainant, Steven P. Moller, a male, began his employment with the Respondent, Metavante, on March 1, 1997, as a Programmer/Analyst.
2. On July 28, 2000, after Moller reported that he was experiencing pain, Metavante hired Mary Waitkus, an ergonomic specialist, to do an ergonomic assessment of Moller's workstation. Moller was provided a new chair, keyboard, and mouse as a result of this assessment.
3. On August 14, 2000, Moller understood that his treating physician, who was associated with Hand Doctors of Milwaukee, had diagnosed carpal tunnel syndrome in his wrists and tendonitis in his shoulder. From September 14, 2000, through October 18, 2000, Moller attended physical therapy sessions three times a week.
4. On or around September 13, 2000, Moller submitted a written request for accommodation for carpal tunnel syndrome and tendonitis, which he had prepared, to Mary Schilz, Metavante's head nurse.
5. Waitkus did a re-evaluation of Moller's workstation on September 21, 2000; made suggestions to Moller at that time on techniques for using his keyboard and mouse; and checked in with Moller on September 28, 2000, to determine how the new equipment was working for him. On November 2, 2000, Waitkus made an adjustment to Moller's chair. On November 9, 2000, Waitkus followed up with Moller who told her that the equipment was working well and he would not need any more assistance.
6. Moller never presented any work restrictions to Metavante.
7. In late July of 2000, Metavante awarded Moller a bonus.
8. In late September or early October of 2000, Bob Diol, Moller's supervisor, stated, when Moller needed assistance getting one of his computer programs running, that maybe his shoulder was causing the problem.
9. In the summer of 2000, Tom Ruppel, Diol's supervisor, directed Moller to wear dress shoes, not tennis shoes, to work. Moller subsequently brought to Diol's attention that there was a female intern who was wearing inappropriate clothing to work. Moller did not learn whether the intern was directed by Metavante to wear other clothing or whether she was subjected to any employment action in this regard. In late summer or early fall of 2000, Moller complained to Ruppel that Diol had not properly followed up on his complaint about the female intern's inappropriate clothing.
10. On December 15, 2000, Moller met with Diol and Richard Dirksen of Metavante's Human Relations Department, to discuss his annual performance review. This review specified areas of Moller's performance requiring improvement.
11. At 10:58 a.m. on December 15, 2000, Moller sent an email to Diol which indicated its subject matter as "Job Termination." This email stated:
As a result of this mornings review and other issues, I will be search for a position outside of M & I. Once found I will give you additional notice. I am notifying you now so that you have sufficient time to search for someone.
12. On December 18, 2000, Moller sent the following email to Diol:
I want to clarify last Friday's email regarding me leaving M & I. This will probably not be until I work 1000 hours next year. Why 1000 hours? Because that is the time need for me to work in order for my retirement plan to be fully vested. I was simply providing notice early because there is a shortage of programmers and it will take time to find someone.
13. On or after December 18, 2000, Moller met with Diol and Dirksen. Dirksen advised Moller that Metavante interpreted his December 15 email as a resignation, and Metavante had already accepted it.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed November 13, 2003
mollest . rmd : 115 : 9
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
The Wisconsin Fair Employment Act (WFEA) defines an individual with a disability in Wis. Stat. § 111.32(8) as one 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 WFEA 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 whether there is a substantial limitation on life's normal functions or on a major life activity. Target Stores, supra. By contrast, the "limits the capacity to work" test refers to the particular job in question. Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985); Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC Aug. 25, 2000).
Moller failed to sustain his burden to prove that he had been diagnosed with carpal tunnel syndrome or shoulder tendonitis. He offered no competent medical evidence to this effect. The only evidence he offered was his own hearsay testimony that he had obtained this diagnosis from a physician associated with Hand Doctors of Milwaukee. See, Jones v. United Stationers, Inc., ERD Case No. 199803598 (LIRC Jan. 25, 2001).
Moreover, even if Moller had succeeded in establishing that he had been diagnosed with carpal tunnel syndrome or shoulder tendonitis, he failed to sustain his burden to prove that these conditions made achievement unusually difficult or limited his capacity to work. He failed to offer any evidence to show that he experienced a substantial limitation on his normal life functions or on a major life activity because of these conditions, other than to make a general, unquantified reference to pain he experienced while at work. In addition, Moller did not show that these conditions resulted in the imposition of any work restrictions by his treating physician, in the taking of medical leave, or in any other limitation on his capacity to work. See, Jones, supra. Although Moller testified that he requested and was granted certain accommodations, this alone would not satisfy his burden here.
Finally, the record does not show that Metavante had reason to perceive Moller as disabled. The respondent was not presented with any medical documentation or any work restrictions, and was advised by Moller in early November of 2000 that the ergonomically appropriate equipment they had provided him was working effectively and he would need no further assistance. See, Jones, supra.
By failing to establish that he was an individual with a disability within the meaning of the WFEA, Moller failed to prove that he could have been discriminated against on this basis.
In regard to the failure of accommodation issue, the commission notes that, once Moller advised Metavante that he was experiencing pain while using the equipment at his workstation, Metavante, over a period of approximately three months, brought in an ergonomic specialist, implemented her recommendations, and followed up with Moller until he indicated that he was satisfied. If the burden had shifted to Metavante to prove that it had reasonably accommodated Moller, the record shows that Metavante would clearly have sustained this burden.
Moller also claims that he was discriminated against in regard to his December performance review, his termination, and the enforcement of Metavante's dress code, and that he was harassed, based on his sex.
To prove disparate treatment, as Moller alleges here, he would have to show that he was treated differently than similarly situated females. Since Moller failed to introduce any evidence as to Metavante's treatment of any of its female employees, and acknowledges that he does not know what Metavante did to follow up on his complaint about the inappropriate manner in which a female employee was dressing at work, it would have to be concluded that Moller failed to make this showing.
Moller does not explain the basis for his claim of sexual harassment. The only possible action which could fit this category was his exposure to the allegedly inappropriate clothing worn by a female intern. Moller has failed to show that this action was sufficiently severe or pervasive to qualify as harassment.
Moller also alleges that he was retaliated against for engaging in a protected fair employment activity when he was terminated from his employment. Apparently, the protected activity he is claiming is his complaint to one of his supervisors that, although he had been required to wear dress shoes rather than tennis shoes, a female employee was allowed to dress inappropriately at work. The evidence of record, although it establishes that Metavante was aware of Moller's complaint that he was being treated differently than another employee, does not establish that Metavante was aware that Moller believed this different treatment was based on his sex. See, Weier v. Heiden, Inc., ERD Case No. 199601631 (LIRC Feb. 5, 1998) (where employee has protested an employment action but has not indicated a belief that discrimination is being opposed, employer's reaction to that protest not prohibited retaliation). Moreover, even if Moller had succeeded in demonstrating that he had engaged in a protected fair employment activity and that Metavante had reason to be aware that he had done so, Moller failed to introduce any evidence that he was treated differently in regard to his termination than employees who had not engaged in such activity.
Finally, Moller's petition for commission review in this matter does not specifically challenge any of the procedural and evidentiary rulings made by the administrative law judge, nor does it challenge any specific findings of fact as being unsupported by the record, nor does it specifically assert whether and why any conclusions of law are claimed to be in error. Thus, the commission has no specific indication as to why the complainant believes he should prevail on this record or what he claims was erroneously decided by the administrative law judge. Notwithstanding this, the record in this matter has been reviewed for the purpose of determining whether the findings of fact and conclusions of law made by the administrative law judge are supported. Concluding that they are, as modified above, the commission has adopted them as its own.
Attorney Adam C. Benson
Attorney Ely A. Leichtling
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