BONNIE K BURBACH, Complainant
MEDICAL EDUCATIONAL SERVICES, 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. Respondent Medical Educational Services (MEDS), headquartered in Eau Claire, Wisconsin, provides continuing education services throughout the United Stated and in Canada, primarily in the health care area. MEDS was established and is owned by Verna Pearson Duchesneau (Pearson).
2. Complainant Burbach began her employment by MEDS as a seminar planner on September 20, 1999.
3. Burbach has suffered from chronic back pain since at least 1992. This condition prevents her from performing routine household chores such as vacuuming, cleaning the bathtub, washing dishes, doing laundry, and hanging clothes on the line; getting up from a couch or getting out of bed without assistance; having intimate relations with her husband; and carrying a baby to term. This condition limits her ability to bend, lift, and stand for extended periods of time. Burbach experiences periodic episodes of intense pain which totally incapacitate her.
4. During the period of her employment for MEDS, Pearson and Brenda McGuire, Burbach's supervisor, were aware that Burbach suffered from a back impairment. Burbach requested from Pearson and was provided an ergonomically appropriate chair. McGuire was aware that Burbach had a permit which allowed her to park in spaces reserved for disabled drivers.
5. As a seminar planner, Burbach was assigned to research MEDS' database of 10,000 speakers as well as other sources and contact, select, and contract with seminar speakers, who are usually attorneys; obtain approval of continuing education credits for the seminar from the appropriate associations; develop a seminar brochure and advertising plan; coordinate mailing of the seminar brochure to 5,000 to 10,000 targeted professionals; select and book a location; collect and assemble seminar teaching materials; maintain attendee records; and tabulate and report seminar/speaker evaluation results. Each seminar planner is responsible for five to seven seminars each month.
6. MEDS provides an on-site program coordinator for most of the 500 seminars it presents each year. MEDS has seven full-time coordinators on staff. MEDS also utilizes seminar planners as program coordinators if they choose to perform that role.
7. Seminar materials are printed in Eau Claire. It is MEDS' practice to have program coordinators take seminar materials with them when they travel to a seminar from the Eau Claire office. It is MEDS' practice to have seminar materials shipped to the seminar location if the program coordinator travels to the seminar from MEDS' Waukesha office or if MEDS uses a local program coordinator in the seminar location, or to subsequent seminar locations if a program coordinator is traveling to more than one seminar and does not return to the Eau Claire office between seminars.
8. Seminar materials were sometimes heavy and bulky. For program coordinators traveling with seminar materials, MEDS provided cash for them to use to tip porters or others to carry the materials for them. A MEDS employee with lifting restrictions coordinated several seminars in late 1999 and experienced no difficulties transporting seminar materials utilizing this process.
9. McGuire was responsible for training Burbach. McGuire completed this training by reviewing with Burbach a complete and detailed list of seminar planner responsibilities and associated worker tasks. McGuire instructed Burbach that, before sending seminar brochures to the printer, she proofread the brochure and ask another planner or supervisor to proofread it as well. McGuire volunteered to perform this proofreading task for Burbach. McGuire instructed Burbach to keep a log of contacts she made with speakers and other seminar professionals, not to use speakers without legal backgrounds, and to retain speakers only in their geographical and subject matter areas of expertise. McGuire advised Burbach that she was available to answer any of her questions.
10. In early November of 1999, Burbach accompanied an experienced program coordinator to a seminar in Minneapolis for training purposes. When she returned from the seminar, Burbach expressed her enthusiasm for serving as a program coordinator. As a result, MEDS ordered a credit card for Burbach to use when traveling as a program coordinator, and shared with her a list of upcoming seminars. After reviewing this list, Burbach volunteered to serve as the program coordinator for a seminar to be held on December 9 and 10 in South Carolina. She would be traveling to South Carolina on December 8. Although MEDS typically required program coordinators to stay at the seminar site on Saturday nights in order to obtain a less expensive air fare, Burbach requested that she be allowed to return on Saturday so that she could attend a wedding shower. Pearson granted this request and, as a result, the round trip air fare for Burbach's flight from Minneapolis to South Carolina was $837. The typical air fare was around $400. Burbach was scheduled to travel by ground transportation from Eau Claire to the Minneapolis airport.
11. MEDS first reviewed Burbach's work product on November 24, 1999. On that date, McGuire saw for the first time brochures Burbach had prepared, 8,000 of which had already been mailed, in relation to five seminars she was planning. These brochures contained numerous typographical errors as well as significant substantive errors, consisting of mismatches between speakers and topics; incorrect seminar locations, dates and zip codes; and incorrect indications as to the number of approved continuing education credits. As a result of these errors, speakers called MEDS and complained that the brochure identified them as speaking on a topic that was not within their area of expertise, and attendees learned for the first time at the seminar that they would not be earning as many continuing education credits as they had anticipated. It was the seminar planner's responsibility to make sure there were no errors in brochures before they were sent to the printer. Pearson did not decide when she first learned of these errors that Burbach should be terminated.
12. Although Burbach's error rate in regard to the preparation of job tickets was comparable to that of other seminar planners, the errors in the brochures she prepared were excessive in number and significant in consequence.
13. On or around November 25, 1999, Pearson discussed these errors with Burbach. Burbach told Pearson that McGuire had proofread the brochures for her. Pearson questioned McGuire who told her that she had not proofread the brochures and, in fact, that she had been out of the office at the time they were delivered to the printer. Burbach did not ask McGuire to proofread these brochures.
14. On December 1, 1999, Burbach advised Pearson by email that her physician was concerned about her making the trip to South Carolina, and requested that the seminar materials be shipped in advance so that she did not have to handle them while traveling to the seminar site. Burbach also stated as follows in this email:
I have been instructed by my Dr. yesterday that lifting is out of the question and so is a lot of walking or sitting too long. She is also concerned about my up coming trip. She doesn't think the flights and shuttle ride and change over etc will be good for me..Diane is going to get me a helper just for the morning of the 10th to help with registrations etc. I would like to be able to do it all myself but I fear my back and leg won't take it. It will be quite a while before I will be able to be cleared to coordinate again.
I know this is a lot of hassle, but I am still willing to do this trip. If you think it is too much bother, perhaps Brenda would like to go as the 9th is her program. Perhaps she could take all the manuals with her. I already have the shuttle scheduled to and from and a check for it. I understand that there is a penalty for changing people on a ticket, $75.00. If Brenda went, I would pay the $75.00 penalty myself for all the trouble I am causing. However, if you still want me to go, I will.
15. Burbach received the following response from Pearson on December 4, 1999:
Bonnie, the usual penalty of canceling a ticket may not apply to the South Carolina trip because of your medical condition. I would like you to have your physician provide us with the documentation so that we could receive a complete refund for this trip. We certainly do not want you to [do] anything that would be against medical advice. Please have the message sent immediately and request her to have any other contraindications for the work place included in the note.
16. Burbach's physician provided the documentation on December 7. This was too late for MEDS to apply and qualify for a refund from the airline. In this documentation, Burbach's physician stated that, due to a severe exacerbation of her back pain, Burbach would be unable to travel on December 8 under any conditions.
17. On December 3, 1999, based on her concerns relating to the seminar brochures prepared by Burbach, Pearson conducted a performance review of Burbach's assigned files. Pearson discovered in this review that Burbach had retained a Pennsylvania speaker unfamiliar with New Jersey law to conduct a New Jersey seminar; that Burbach had not been keeping a log of her contacts with speakers and seminar professionals as required; and that her files were disorganized.
18. Pearson also learned on or around December 3 that Burbach had failed to follow her instruction to contact a speaker named Fishman, who was an important resource for MEDS in Florida. Burbach, without reviewing information as to MEDS' financial agreement with Fishman, which was detailed in its database, initially advised him that she would not approve the reimbursement rate Fishman had negotiated with MEDS; told him that she would call him back after she discussed the matter with Pearson; was instructed by Pearson after this discussion to call him to advise that the negotiated reimbursement rate would be paid; subsequently failed to contact Fishman; and arranged a different speaker for the Florida seminar, who, unlike Fishman, who was legal counsel for the Florida medical records association, did not have any legal background.
19. Pearson also learned on or around December 3 that, despite the fact that McGuire had specifically told Burbach in response to her inquiries that MEDS did not use speakers without legal backgrounds and did not do mailings in excess of 10,000 for Medicare seminars, Burbach had called the Waukesha office and asked these questions.
20. In December of 1999, Pearson awarded Christmas bonuses to certain MEDS staff. Seminar planners were awarded bonuses based on the number of completed seminars they had planned during the calendar year. Since the seminars to which Burbach had been assigned were not completed in 1999, she was not awarded a Christmas bonus. On December 8, when Burbach learned of this, she became angry.
21. On December 8, in the middle of the work day while Pearson was at lunch, Burbach told list coordinator Bonnie Lillge that she was leaving the office to try to see a doctor because she was sick. Lillge relayed this message to MEDS finance manager Mary Hordjsh. When Pearson returned from lunch, Hordjsh told her that Burbach had left the office because she was mad about the Christmas bonus and had stated that she "had had enough of this shit," and had left a message that she was going to see her doctor. Burbach did not visit a physician on December 8 but went to her home after leaving the office.
22. On December 9, 1999, Pearson terminated Burbach's employment. Pearson told Burbach that she could keep her airline ticket to South Carolina as part of her severance package.
23. On or after December 9, 1999, Pearson contacted an individual who was looking for work, and scheduled her for an interview for the position Burbach had held.
24. Pearson's decision to terminate Burbach was motivated by her unsatisfactory work performance, including unresponsiveness to management directives, not her disability.
25. As a result of deficiencies in the manner in which Burbach had carried out her assignments, after her termination, MEDS rescheduled two Florida seminars, and purchased additional mailing lists and mailed thousands of additional brochures for five seminars.
1. Respondent MEDS is an employer within the meaning of the Wisconsin Fair Employment Act.
2. Complainant Burbach is disabled within the meaning of the Wisconsin Fair Employment Act.
3. Respondent MEDS sustained its burden to prove that it had reasonably accommodated complainant Burbach's disability.
4. Complainant Burbach failed to sustain her burden to prove that respondent MEDS discriminated against her based on disability when it terminated her employment.
The complaint in this matter is dismissed.
Dated and mailed February 24, 2004
burbabo . rrr : 115 : 9
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
The 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).
The medical evidence here shows that Burbach's back condition limits her ability to bend, twist, lift and stand, and, when she is experiencing a temporary exacerbation, her ability to travel. Since Burbach's seminar planner position did not require frequent bending, twisting, lifting, or standing, and did not require travel, the record does not support a conclusion that Burbach's medical condition limited her capacity to work.
However, the record also shows that Burbach's back condition prevented her from performing routine household chores such as vacuuming, cleaning the bathtub, washing dishes, doing laundry, and hanging clothes on the line; getting up from a couch or getting out of bed without assistance; having intimate relations with her husband; and carrying a baby to term. These constitute substantial limitations on life's normal functions, and support a conclusion that Burbach was disabled within the meaning of the WFEA.
MEDS argues that, in order to sustain her burden of proof here, Burbach would have to show not only that she was actually disabled, but that MEDS perceived her to be disabled. However, a reading of the statutory language and its use of the connector "or," refutes this argument. In order to prove discrimination under the circumstances present here, Burbach would only have to show that MEDS was aware of her back condition during the relevant time period, which is not in dispute. Specifically, MEDS concedes that Burbach and Verna Pearson, MEDS' president and owner and the individual who made the termination decision at issue here, discussed Burbach's back condition early in her employment; MEDS, at Burbach's request, provided her with an ergonomically appropriate chair due to her back condition; and Brenda McGuire, Burbach's supervisor, who reported certain of her alleged performance deficiencies to Pearson, was aware that Burbach had been issued a parking sticker which permitted her to park in spaces reserved for the disabled.
Complainant Burbach further contends that MEDS violated the WFEA when it denied her request that the materials for the seminar in South Carolina she had volunteered to coordinate be shipped to the seminar site.
The record shows, and Burbach does not dispute, that MEDS offered, as an alternative to the more expensive process of shipping the materials, that Burbach be provided sufficient cash to tip porters at the airport and hotel/seminar location so that she would not have to carry the materials herself.
It should first be noted that Burbach volunteered to travel as a coordinator, even though it was not a requirement of her seminar planner position and, in fact, two of the seminar planners in the Eau Claire office out of which she worked never performed coordinator duties; and even though she had traveled with a coordinator for training purposes and had observed the material handling responsibilities of a coordinator.
The record shows that, although materials were shipped to some seminars, it was not MEDS' policy or practice to ship materials to the seminar site under the circumstances present here, i.e., when a coordinator from the Eau Claire office was traveling to a single seminar location. The record also shows that one of MEDS' coordinators, whose physician had imposed lifting restrictions, coordinated several seminars during the time period relevant here and experienced no difficulties transporting the seminar materials by retaining the services of porters.
The record supports a conclusion that there were two reasonable accommodations available, i.e., two methods by which it would have been possible for Burbach to travel to South Carolina to coordinate the seminar without having to lift and transport the seminar materials herself, and that MEDS chose the less expensive method. The employer may exercise discretion in selecting from among reasonable accommodations (see, Baxter v. Wisconsin Dept. of Natural Resources, 165 Wis. 2d 298, 477 N.W. 2d 648 (Ct. App. 1991), citing Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 107 S.Ct. 367 (1976); and the employee's speculation that she could experience difficulty locating a porter, particularly given MEDS' experience in this regard, is not sufficient to defeat a conclusion that the porter accommodation was a reasonable one (see, e.g., EEOC v. Humiston-Keeling, Inc., 10 AD Cases 1665 (7th Cir. 2000)).
The commission also notes in this regard that MEDS, during Burbach's short period of employment, had accommodated her disability by providing her, pursuant to her request, with an ergonomically appropriate chair; and by assigning other employees to lift and carry her heavier office equipment during a relocation.
The commission concludes that the record does not support a conclusion that respondent MEDS failed in its duty of reasonable accommodation.
Finally, it is complainant Burbach's burden to prove that MEDS terminated her because she was disabled.
MEDS contends that Pearson terminated Burbach because her performance as a probationary employee was unsatisfactory. The question to be resolved is whether this reason, which is legitimate and non-discriminatory on its face, is a pretext for disability discrimination.
The record supports a conclusion that, although Burbach's error rate in regard to the preparation of job tickets was comparable to that of other seminar planners, at least in regard to those of which MEDS was aware at the time of termination, the errors she made in regard to seminar brochures were excessive in number and significant in consequence.
Moreover, the record shows that, after learning of these errors but before she made her decision to terminate Burbach, Pearson became aware of the following:
The commission concludes from the evidence of record that Pearson was displeased with Burbach in regard to her inability to attend the South Carolina seminar because she failed to turn her medical documentation in soon enough to enable MEDS to get a refund on an unusually costly ticket; and that Pearson's decision to terminate Burbach's employment was based on her genuine and justified concern about the deficiencies in Burbach's work performance and the manner in which they impacted on MEDS' image and relationships.
Furthermore, the commission notes that there was no practical reason for Pearson to be concerned about Burbach's disability since it did not limit her capacity to work as a seminar planner, and MEDS did not need her to function as a program coordinator with its attendant travel requirements.
The commission concludes that the evidence of record does not support a conclusion that Burbach was terminated in whole or in part because of her disability.
NOTE: The commission conferred with the administrative law judge (ALJ) about witness credibility and demeanor. The ALJ indicated that, although it was clear to him from the record that Burbach had significant performance deficiencies and Pearson was not satisfied with her performance, it was his conclusion that the termination decision was not made until Pearson discovered that Burbach would not be able to travel to South Carolina, and that was the basis for his finding of discrimination. However, the evidence of record shows that Pearson learned of the performance deficiencies on which she based her termination decision, other than those relating to the errors in the brochures, after she was advised that Burbach would not be able to travel to South Carolina. The ALJ also indicated that he did not credit Pearson's and McGuire's testimony that they discovered numerous and significant errors in the brochures prepared by Burbach because the respondent did not offer these allegedly flawed brochures as exhibits. However, although the presence of such documents in the record would have strengthened the respondent's case in this regard, the fact of the errors may be established through witness testimony. Moreover, given that the ALJ did not base this credibility determination on his assessment of witness demeanor, he is in no better position than the commission to evaluate the evidence in this regard. The commission, after conducting a careful and thorough review of the hearing record, concludes that the respondent's evidence as to the existence of these errors is the more persuasive. Moreover, the commission agrees with the ALJ that, even without considering the errors in the brochures, the record supports a conclusion that Burbach had significant performance deficiencies and Pearson was not satisfied with her performance.
cc:
Attorney Brian T. Smestad
Attorney Daniel J. Chanen
Appealed to Circuit Court. Affirmed January 5, 2005.
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