STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BRIAN SOBROFSKI, Complainant

TACO BELL OF AMERICA INC, Respondent A

WINTERHILL DEVELOPMENT CO LLC
d/b/a BREIDEL FOODS, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. CR200203797, EEOC Case No. 26GA202161


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 paragraph 24 of the FINDINGS OF FACT, the following is added as the last sentence: "Dr. Lloyd increased the Complainant's dosage of Zoloft to 100 milligrams per day."

2. In the last line of paragraph 39 of the FINDINGS OF FACT, the year "2003" is deleted and the year "2002" is substituted therefor.

DECISION

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

Dated and mailed May 27, 2005
sobrobr . rmd : 125 : 9

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The complainant correctly points out on appeal that in a disability discrimination case under the Wisconsin Fair Employment Act, a complainant must show that: (1) he has a disability within the meaning of the WFEA; and that (2) the respondent took one of the enumerated actions stated in Wis. Stat. § 111.322(1) (e.g., the respondent terminated his employment) on the basis of his disability. Once the complainant has met these two showings, the respondent must show either that a reasonable accommodation would impose a hardship, or that, even with a reasonable accommodation, the complainant cannot adequately undertake the job-related responsibilities. Target Stores v. LIRC, 217 Wis. 2d 1, 9-10, 576 N.W.2d 545 (Ct. App. 1998).

The Wisconsin Fair Employment Act defines an individual with a disability to mean an individual 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." Wis. Stat. § 111.32(8). An "impairment" under the Act is a "real or perceived lessening or deterioration or damage to a 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 complainant argues that his medical diagnoses of depression, situational adjustment disorder and borderline personality disorder establish that he has a disability within the meaning of the Act. However, not every medical condition constitutes a disability under the Act. In order to constitute a disability under the WFEA, the individual must have an impairment that makes achievement unusually difficult, i.e., the impairment must place "a substantial limitation on life's normal functions or a substantial limitation on a major life activity," or it must limit the capacity to work in the particular job in question. City of La Crosse, 139 Wis. 2d at 761.

The evidence fails to establish that the complainant's medical condition (1)  placed a substantial limitation on life's normal functions or a major life activity, or that it limited his capacity to work as an assistant manager for the respondent. The complainant, who began employment with the respondent in 1994 and was diagnosed with depression in 1998, missed one day of work in 1998 and could not recall missing any work in 1999. The complainant also had an emergency hospital detention of one day in Oct 2000 after getting drunk and cutting his wrist, and a total of about 7 additional days of emergency hospital detention for three separate incidents in December 2001 after getting drunk (and at least in one instance using marijuana) and cutting his wrist. However, Dr. Lloyd, the complainant's treating psychiatrist on each of the complainant's four emergency detentions, testified that in his opinion the complainant was aggravating his depression on his own when he would drink and use marijuana. Lloyd deposition, p. 9. In fact, Dr. Lloyd testified that "The issue of him harming himself always cleared up while he was on the way to the hospital. In other words, he didn't harm himself once he was in the hospital. So, the issue then is looking at what seemed to have built up to that, and it looked like the issue of him getting drunk was the thing connecting all the admissions." Id. at 56. (Emphasis added.) Dr. Lloyd testified that it was his belief that if the complainant had quit drinking, he would better be able to control his other behaviors, and that is why he was recommending AODA counseling for the complainant. Id. at 63. In short, the only condition identified that arguably created some impairment was a temporary one that was self-induced through alcohol and drug abuse, (2)  and only existed while he was intoxicated. There was no allegation or evidence that the complainant was ever intoxicated at work.

Assuming for purposes of argument that the complainant is an individual with a disability, however, the evidence fails to show that the respondent discriminated against the complainant on the basis of disability.

Sandra Garven, the respondent's vice president and partial owner, first learned that the complainant had an emergency detention after his second emergency detention on December 20, and she visited him in the hospital at that time. On January 2, 2002, Garven became aware that the complainant wanted to take some additional time off from work after his last emergency detention that began on December 30, 2001. Garven was agreeable to the complainant taking some additional time off and raised the idea of the complainant taking a family and medical leave. The complainant was discharged from the hospital on January 3, 2002. The complainant and Garven did not meet to complete the medical leave forms until January 7, 2003. On that date, Garven completed and the complainant signed paperwork in connection with his need to take a medical leave due to "a serious health condition that makes you unable to perform the essential functions of your job", and stating that his leave of absence was for him to receive counseling. Garven also furnished the complainant with a "Certification Of Physician Or Practitioner" form for his health care provider to complete regarding the date his serious health condition commenced and the probable duration of such condition. The medical leave form stated that the complainant would be required to furnish medical certification of his serious health condition by January 16, 2003, or the respondent could delay the commencement of his leave until the certification was completed.

When Garven had not received the Certification of Physician or Practitioner form back from the complainant's health care provider by January 16, on January 17 she wrote to the complainant stating that he had not furnished the required medical certification of a serious health condition and that he must report for work on January 21st. Garven's letter further indicated that the complainant's failure to report on the 21st would be considered a self termination.

On January 21, Garven received a faxed medical certification from the office of Dr. Gerald Berman, the complainant's family physician, which listed "January 2, 2002" as the date his condition commenced and stated that the duration of his condition was "unknown-Please refer to treating psychiatrist". This fax also contained the comment, "Pt has an appt on 1/23/02 for follow-up". (This comment was incorrect in that the appointment was on 1/22/02.) Dr. Berman's secretary, Susan Pallister, faxed this medical certification to the respondent on January 21.

Garven was eventually able to speak to Pallister on January 22, after having received the January 21 fax. Garven asserts that Pallister stated that Dr. Berman felt the complainant should be on a leave of absence, but that she also stated that Dr. Berman was not treating the complainant for depression. Pallister asserts that she told Garven that Dr. Berman was treating the complainant for depression. The evidence indicates that Dr. Berman had not seen the complainant since December 14, 2001, at which time he saw the complainant regarding complaints of abdominal pain and dark streaks of blood in his stool. In a prior visit by the complainant on November 13, 2001, (3)  because of complaints of fatigue Dr. Berman thought that the complainant's fatigue was "probably" related to depression and gave him a Zoloft starter pack. On December 14, however, Dr. Berman learned that the complainant had never started taking the Zoloft but encouraged him to do so.

Dr. Berman next saw the complainant at some point on January 22, 2002. The complainant reported that he was feeling better since he took the Zoloft and Dr. Berman kept him on a 100 mg. per day dosage, the dosage the complainant had apparently informed Dr. Berman that he was taking since his last stay while in the hospital. Dr. Berman's notes of this visit state that the complainant's affect appeared to be improved, that he had been referred to the Mental Center for counseling, that he was presently on a leave of absence from work, and that the complainant would return in one month and a decision would be made at that time regarding his return to work. However, as noted above, prior to the complainant's January 22 visit, Dr. Berman had last seen the complainant on December 14, 2001. Dr. Berman admitted that prior to this January 22 visit he had not reviewed any records from the Waukesha County Mental Health Center regarding the complainant, he had not talked to anyone at the Health Center to determine what their recommendations were for the complainant, nor had he been informed as to what the complainant's treating psychiatrist had recommended for the complainant. Moreover, Dr. Berman admitted that between himself, an internist, and the treating psychiatrist, the treating psychiatrist would have been in a better position to determine what, if any, treatment or treating options were appropriate for the complainant. Dr. Berman was thus in no position to provide a competent opinion regarding the complainant's status or needs as of January 22.

Garven had not spoken to Dr. Berman and thus did not know to what extent Dr. Berman had been treating the complainant, however. In any event, after receiving Pallister's January 21 fax from Dr. Berman's office indicating that she should refer to the complainant's treating psychiatrist with respect to his condition, Garven reasonably and appropriately considered it necessary to receive a medical certification from the treating psychiatrist.

Later on January 22, Garven informed the complainant that Berman's certification referred her to his treating psychiatrist so that was who the respondent needed to have the forms filled out by. The complainant asked if he should take the forms to Dr. Lloyd and Garven told him yes, if Dr. Lloyd was still treating him since he'd been released from the hospital. The complainant responded that Lloyd was not still treating him, at which point Garven told him that whoever he was seeing for counseling needed to complete the forms. It was agreed that the complainant would meet Garven the next day with the paperwork.

When the complainant met with Garven on January 23rd the complainant nevertheless presented Garven with a medical certification form signed by Dr. Lloyd on that date, which listed the date the complainant's condition commenced as "12-30-01", and the probable duration of his condition as "ending 01-03-02". Further, Dr. Lloyd's medical certification indicated that the complainant was able to perform work of any kind and that he was able to perform all of the essential functions of his position. Garven told the complainant that Dr. Lloyd's certification was not good and pointed out to the complainant that Lloyd's medical certification indicated that he should be back to work as of January 3. Garven told the complainant to come back to work. The complainant asked for a telephone book to try and obtain the name of a psychologist (Bob Porter) at the Waukesha Memorial Hospital Center for Behavioral Health that Dr. Berman's secretary had made an appointment on January 21 for him to see on January 31, but Garven was unable to locate a telephone book for him. The complainant also went out to his vehicle in an attempt to locate the slip of paper on which the name and number of this psychologist was written but was unable to find the slip of paper. Garven then told the complainant that it was too late and to return to work on January 24 and that if he did not, she would assume it was a self-termination and his choice not to return back to work.

The complainant did not return to work on January 24, 2002.

The complainant argues that the respondent terminated his employment because his "depression, situational adjustment disorder and borderline personality disorder caused his destructive behaviors which led to his hospitalizations in December" [and] "[h]e needed a leave of absence to treat his disability and bring it under control". The complainant further argues that "However, [his] relief at being able to take time off of work to get better was short lived because the respondents terminated [him] barely eighteen days into his leave of absence", that Garven ended the employment relationship on January 21, 2002, and that "[t]he overwhelming evidence in the record shows that [he] was terminated because, and only because, he needed a reasonable accommodation for his mental impairment." Further, with respect to Dr. Lloyd's statements on the certification form that his condition commenced on December 30, 2001 and that the duration of his condition ended on January 3, 2002, the complainant points out that Dr. Lloyd testified that he filled out the certification form with the dates that he did because those were the most recent dates that he had treated him and was under the impression that after his discharge from the hospital that he would be following up with Dr. Berman because Dr. Berman was prescribing his Zoloft and the drug and alcohol counselors would not prescribe medicine.

The complainant's arguments fail. The evidence shows that it was the complainant's getting drunk and use of marijuana that caused his destructive behaviors and led to his hospitalizations in December 2001, as well as the occasion in October 2000. Dr. Lloyd testified that "it was the issue of [the complainant] getting drunk [that] was the thing connecting all the admissions" and that "it was his belief that if the complainant had quit drinking, he would better be able to control his other behaviors." Further, the evidence fails to support the complainant's assertions that "he needed a leave of absence to treat his disability and bring it under control," or that "he needed a reasonable accommodation (i.e., a leave of absence) for his mental impairment". It is true that Dr. Lloyd was under the impression that the complainant would be following up with Dr. Berman because Dr. Berman was prescribing the complainant's Zoloft and because he knew that the AODA counselors themselves would not prescribe medicine. However, while recognizing that the complainant was on 100 milligrams of Zoloft a day, Dr. Lloyd testified that the complainant's "use of Zoloft did not require him to refrain from working", and that he "didn't recommend that [the complainant] take time off from work." Lloyd deposition, p. 76. Dr. Lloyd further testified that in recommending that the complainant seek AODA counseling, he "didn't say he had to be on a medical leave. The thing I signed said that he could be going to work. You can get counseling while you're working." Id. at 73. Further, Dr. Lloyd testified that "at no time, either directly to [the complainant] or indirectly to [the respondent], did [he] indicate that [the complainant] should be on a medical leave following January 3 of 2002." Id. at 81.

Finally, the evidence fails to show that the respondent had terminated the complainant's employment on January 21, 2002, or on any other day. The evidence shows that on January 23, 2002, the complainant had provided Garven with a medical certification from his treating psychiatrist that stated he was able to perform work of any kind and that he was able to perform all of the essential functions of his position, that after receiving this medical certification Garven requested that the complainant return to work on January 24 and advised him that if he did not return to work he would be considered to have self-terminated, and that the complainant did not return to work thereby terminating his own employment.

The complainant also argues that in addition to the respondent's Family and Medical Leave Policy, the respondent also had a Breidel Foods leave policy that stated, "if you are not eligible [for FMLA leave] Breidel Foods leave of absence policy will be in effect" and therefore the respondent should have permitted him a leave under the Breidel Foods leave policy. However, the decision to grant a company leave policy was discretionary, and having received Dr. Lloyd's medical certification on January 23, 2002, the respondent had no basis or reason to believe that the complainant was in need of any leave.

cc:
Attorney Patricia A. Lauten
Attorney Paul R. Erickson



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Footnotes:

(1)( Back ) Dr. Lloyd, the complainant's treating psychiatrist, indicated that the complainant's depression and situational adjustment disorder referred to the same thing. Lloyd testified that the complainant's depression was " 'situational depression,' which...includes a depressed mood and it is a depression that is a response to some stress in the person's life..." Lloyd deposition, pp. 7-8. The complainant testified that he has had depression since middle school. Dr. Lloyd testified that borderline personality disorder likewise stems from childhood. Lloyd testified that borderline personality traits are normally long-standing issues that go back to one's childhood. Id. at p. 54.

(2)( Back ) The complainant had the additional diagnosis of cannabis abuse at the time of his 4th emergency detention.

(3)( Back ) Dr. Berman's only other prior occasion to see the complainant was on July 26, 2000, at which time the complainant related that since having mononucleosis a year earlier he had had problems with fatigue.

 


uploaded 2005/05/31