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

SHIRLEY A KANTER, Complainant

ARIENS COMPANY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200205229, EEOC Case No. 26GA300442


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 in order to more accurately reflect the evidence of record and the commission's decision rationale. :

Numbered paragraph 3. of the FINDINGS OF FACT is deleted.

The final sentence of numbered paragraph 5. of the FINDINGS OF FACT is modified to read as follows:

All the group leaders and Mercer reported to Patchett.

The penultimate sentence of numbered paragraph 22. of the FINDINGS OF FACT is deleted.

The final sentence of numbered paragraph 23. of the FINDINGS OF FACT is deleted.

The final two sentences of numbered paragraph 34. of the FINDINGS OF FACT are deleted.

Numbered paragraphs 35., 36., and 37. of the FINDINGS OF FACT are deleted.

Numbered paragraph 2. of the CONCLUSIONS OF LAW section is modified to read as follows:

That the complainant does not qualify as an individual with a disability within the meaning of the Wisconsin Fair Employment Act.

Numbered paragraph 3. of the CONCLUSIONS OF LAW section is modified to read as follows:

That the complainant has failed to prove by a preponderance of the credible evidence that the respondent discriminated against her in regard to the terms and conditions of her employment, or harassed her, because of a disability, in violation of the Wisconsin Fair Employment Act.

Numbered paragraph 4. of the CONCLUSIONS OF LAW section is modified to read as follows:

That the complainant has failed to prove by a preponderance of the credible evidence that the respondent discriminated against her by failing to reasonably accommodate a disability, in violation of the Wisconsin Fair Employment Act.

Numbered paragraph 5. of the CONCLUSIONS OF LAW section is modified to read as follows:

That the complainant has failed to prove by a preponderance of the credible evidence that the respondent discriminated against her by terminating her employment because of a disability, in violation of the Wisconsin Fair Employment Act.

Other than the portion entitled Exhibits, the MEMORANDUM DECISION section is deleted and the following substituted:   

Scope of commission review

The respondent asserts that, because the complainant did not reference certain facts or argument in her petition, they are not properly before the commission. The complainant argues that, due to the respondent's failure to file a cross-petition challenging the ALJ's conclusion that the complainant qualifies as an individual with a disability within the meaning of the WFEA, that issue is not properly before the commission.

However, the commission conducts a de novo review of the record upon appeal of an ALJ's decision, and, accordingly, all matters at issue, not simply those which form the basis for the petition, are properly within the scope of its review. See, Casetta v. Zales Jewelers, ERD Case No. 200204189 (LIRC June 14, 2005); Clemons et al. v. OIC of Greater Milwaukee, ERD Case No. 200102575 (LIRC Feb. 14, 2003); Krenz v. Lauer's Food Market, ERD Case No. 8802475 (LIRC Sept. 27, 1990). 
 

Timeliness

The Wisconsin Fair Employment Act (WFEA) requires that a complaint be filed within 300 days of the date that the alleged discrimination occurred. Wis. Stat. § 111.39(1). This 300-day filing limit is not a jurisdictional prerequisite, but a statute of limitations which is subject to waiver, estoppel, and equitable tolling. See, Milwaukee Co. v. LIRC and Nancy Williams, 113 Wis. 2d 199, 335, N.W.2d 412 (Ct. App. 1983); Mittelsteadt v. AJ Air Express (LIRC, January 16, 1998).

The adverse terms and conditions of employment, the alleged failure of reasonable accommodation, and the alleged constructive discharge, all occurred within the actionable 300-day period, as concluded by the ALJ.

The ALJ, however, also concluded that the acts of alleged harassment, some of which occurred prior to the actionable 300-day period, constituted discrete actions and, as such, could not be rendered timely by operation of the continuing violation doctrine. The commission disagrees.

In AMTRAK v. Morgan, 536 U.S. 101, 122 S.Ct. 2061 (2002), the U.S. Supreme Court identifies two classes of employment actions, i.e., discrete acts and harassing acts underlying hostile work environment claims. Its basic holding is that discrete acts are generally not subject to application of the continuing violation doctrine but that harassing acts generally are. In its decision, the Court identified the following as examples of discrete acts: termination, failure to promote, denial of transfer, refusal to hire, denial of training, written counselings, and award of compensation. Although the ALJ concluded here that the alleged comments that form the basis for the complainant's charge of harassment are discrete acts, this is not consistent with the manner in which such acts have been characterized by the courts or the commission. The acts of alleged harassment, one of which falls within the actionable 300-day period, are concluded to be part of a continuing violation and timely as a result. 
 

Individual with a disability

The complainant's initial burden in a disability discrimination case is to establish that she is an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA). Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980); Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998). The commission disagrees with the ALJ that the complainant sustained this burden here.

The WFEA defines a disabled individual 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). The inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty. AMC v. LIRC, 19 Wis. 2d 706, 350 N.W.2d 120 (1984); Jones v. United Stationers, Inc., ERD Case No. 199803598 (LIRC Jan. 25, 2001).

The medical evidence of record establishes that the complainant experienced a myocardial infarction (heart attack) in 1996, and, during the time period relevant here, was diagnosed with congestive heart failure, which primarily manifests itself by intermittent shortness of breath which is exacerbated by hot and humid weather, and occasional peripheral edema (swelling of the feet and legs due to fluid retention) which is exacerbated by standing for long periods of time. This evidence does not quantify "intermittent," "occasional," or "long periods of time."

The complainant claims as the limitations on her capacity to work her need, during hot and humid weather, to miss work or to leave work early due to shortness of breath; her occasional need to sit at work due to painful swelling in her feet and legs caused by edema; and her decreased productivity.

However, the record shows that the complainant was off work because of hot and humid weather one week in August of 2001, and left work early for this reason approximately six times in five years. The record also shows that, other than the time she spent sitting while performing spring yoke subassembly work prior to May of 2002, which would not consume more than 60-90 minutes during a shift, the complainant requested that she be permitted to sit while performing assembly work only once, in March of 2002. In fact, Mercer, the complainant's supervisor from November of 2000 through July 24, 2002, testified that the complainant never asked him for permission to sit, and the complainant did not rebut this testimony. Moreover, although she had three contacts with medical professionals in the last month of her employment, a period of time she has characterized as one in which she was suffering acutely from edema, she does not mention this problem during any of these contacts, and apparently did not request permission to sit during this period of time. Finally in this regard, although the complainant claims that her productivity suffered because of her congestive heart failure/edema, she met productivity goals at all times, and failed to show any actual decrease in her productivity during the period of her employment with respondent or that her productivity was linked in any way to the symptoms of her congestive heart failure/edema.

Both the complainant and her husband testified as to the impact her congestive heart failure/edema had on her normal functions. The complainant testified that her edema was so debilitating during the last months of her employment for the respondent that she would have difficulty getting out of the vehicle when she arrived home and would, other than an hour between 10 and 11 p.m., when she would try to eat dinner and get ready for bed, essentially lie down and sleep from the time of her arrival until it was time to get up and go to work the next day; and that she was unable to do the laundry and other household chores.

The complainant's husband testified, however, that, although the complainant seemed to tire easily during the spring and summer of 2002, she still fixed dinner each night, although some nights not until 7:30 or 8:00 p.m.; and she still took care of his medications and other needs and did all the household chores, including the yard work, although some, like the laundry, not as frequently as before.

Given the husband's testimony and the fact that she did not report these allegedly debilitating symptoms despite three contacts with medical professionals in June and July of 2002, and did not request permission to sit at work during this period of time, the commission finds that the complainant exaggerated her edema symptoms and their impact on her life functions in her testimony. Moreover, her principal symptom was fatigue which she failed to show was primarily attributable to her edema in particular, or to her congestive heart failure in general. Not only was there no expert testimony to this effect, but there were other possible causes, i.e., the complainant was doing physical labor eight or nine hours a day, was 48 years old, and weighed more than 250 pounds.

Although the complainant established that she had a physical impairment, congestive heart failure/edema, which placed limitations on her ability to work and on her normal life functions, she did not establish that these limitations were substantial or that the difficulties they created for her were unusual ones. See, Toborg v. ShopKo, ERD Case No. CR200102517 (LIRC March 30, 2005); Seil v. Dairy Farmers of America, ERD Case No. 200204104 (LIRC Aug. 26, 2005).

Finally, the fact that the medical documents the complainant provided the respondent did not state any restriction other than permission to sit or to be excused from work when experiencing symptoms, and the complainant's infrequent resort to these restrictions, militates against a conclusion that the respondent would reasonably have perceived the complainant to be disabled. See, Toborg, supra.

As a result, the complainant failed to sustain her burden to prove that she qualified as an individual with a disability within the meaning of the WFEA. However, even if she had sustained this burden, the complainant failed to prove that she was discriminated against on this basis as alleged.  
 

Terms and conditions

The complainant is apparently alleging three adverse terms and conditions of employment here, i.e., Laughrin's timing of her work on the snow throw line beginning in May of 2002, Laughrin's removal of four or five stools from the vicinity of the snow throw line in the spring of 2002; and Laughrin's direction to another worker to "pull" the machine the complainant was working on some time in May of 2002.

Complainant did not prove, however, that she was treated less favorably than other, presumably non-disabled employees, in regard to these three actions.

Although the complainant and her witness and former co-worker Robyn Casper testified that Laughrin spent significantly more time timing complainant than other Worker's, the ALJ did not credit this testimony, and there is no persuasive reason in the record for overturning this credibility determination. Not only did Laughrin testify that he did not do so and would have had no reason to do so, but there is no indication in the record that the respondent had any concerns about the complainant's efficiency or productivity.

The record shows that four or five stools used by the complainant and by other Worker's were removed in May of 2002, but that, if complainant needed to sit down, she was permitted to go into another area and do so, and, if she desired to sit on her break, she, like the other Worker's, was permitted to go into the break room to do so.

The record also shows that "pulling" machines from one assembler to another is a common practice followed by Laughrin to increase efficiency, and he has, in fact, done so in regard not just to the complainant but also in regard to every other worker on his line.

Finally, it should be noted that the complainant did not bring her concerns regarding any of these actions to the attention of management at any time prior to her separation, which not only deprived the respondent of the opportunity to address them, but which also tends to show either that they did not occur as alleged or were not of significant concern to her. 
 

Harassment

The complainant alleges that she was harassed because of her disability in regard to the following actions:

  1. Patchett's statement in the fall of 1999 that subassembly was not a sitting job; 
     
  2. Laughrin's allegedly loud, rude, and demanding interactions with the complainant in July of 2001; 
     
  3. Laughrin's alleged comment in August of 2001 that the respondent was trying to get rid of employees with heart conditions; 
     
  4. Ruppenthal's questioning of complainant about her sitting in an area away from the assembly line in March of 2002; and 
     
  5. Patchett's alleged comments to the complainant implicitly questioning or criticizing her early departures from work when the weather was hot and humid.

The record shows that Patchett's statement in the fall of 1999 was reasonably justified since sitting was not generally permitted in any of the assembly work areas, and he was unaware that, due to a medical condition, the complainant was permitted to sit when she felt it necessary. This same rationale would apply to Ruppenthal's inquiry in March of 2002.

The record shows that Laughrin's actions in and around July of 2001 were directed not just to the complainant but to each of the employees in the line he was leading and, as a result, the complainant failed to prove that she was treated less favorably in this regard than other, presumably non-disabled employees.

The record does not support a finding that Patchett made questioning or critical comments to the complainant when he observed her leaving work early when it was hot and humid. The complainant did not mention such comments in her charge of discrimination or when she was asked in her deposition to relate everything objectionable Patchett had done to her. Moreover, she testified that this had occurred a number of times, but Patchett credibly testified that he had observed her leaving work early only once.

The complainant reported, and the respondent investigated, Laughrin's alleged comment that the respondent was trying to get rid of employees like her with heart conditions. There was no witness to this incident, and, due to Laughrin's vigorous denial, respondent was unable to conclude that it had occurred as alleged, but counseled Laughrin, and encouraged the complainant to report any future incidents. Even though the complainant created a contemporaneous memo of the incident, on balance, the evidence of record supports Laughrin's version of events, primarily because it does not show that Laughrin would have had any reason to be aware at that time that the complainant even had a heart condition. However, even if Laughrin, who was not a supervisor or a member of management, had made this comment, it was not sufficiently severe or pervasive, without more, to constitute harassment.  
 

Reasonable accommodation

It is undisputed that the respondent permitted the complainant to sit and to be excused from work when she requested to do so.

The only accommodation which the complainant asserts she was improperly denied was the assignment to subassembly duties in May of 2002 which would have permitted her to sit while performing the spring yoke subassembly part of that assignment.

Prior to May of 2002, the complainant had been assigned subassembly duties, although the record does not show during what specific periods of time she performed these duties, or, while she was performing subassembly duties, what percentage of her overall duties they represented. The record does show, however, that, after making extensive changes in its assembly operation prior to May of 2002 in order to increase efficiency, the nature of the available subassembly work was modified to the extent that subassembly comprised only one-third of one assembler position, and only 60 to 90 minutes of subassembly work each day could be done in a sitting position.

The ALJ concluded that, due to the age of the complainant's most recent medical slip referencing a sitting restriction, i.e., September 27, 2000, and the failure of the complainant's more recent medical slips to reference such a restriction despite the presence of a blank on the form for that specific purpose, the respondent had no reason to be aware in May of 2002 of such a work restriction and, consequently, no duty of accommodation. The commission disagrees.

Even if the complainant had not frequently invoked the restriction, she did so in March of 2002, two months before the request at issue here, when she reminded Ruppenthal of the restriction and he confirmed its existence with management. As a result, the respondent was aware in May of 2002, when the complainant requested assignment to subassembly, that her physician had recommended that the complainant be permitted to sit at work as she deemed necessary to ease the symptoms of edema.

The real question in regard to the accommodation issue is whether the respondent should reasonably have interpreted the complainant's request to be assigned to subassembly work as a request for accommodation of her congestive heart failure/edema.

The record shows that the complainant, after being assigned to the first station of one of the snow throw lines, a relatively complex job, requested assignment to subassembly, explaining that she found it less stressful and easier on her, and that she was better at it than the person currently performing that work. Mercer denied her request, explaining that he needed someone with her skill and experience to work at this station.

It should first be noted that there is no medical evidence linking the stress the complainant experienced as an assembler to her heart condition/edema, either as a cause or as an effect. Her friend and witness, Robyn Casper, testified that the complainant was "hyper," and frequently addressed the stress she experienced as an assembler by going to the restroom to calm down.

The respondent had reasonably relied in the past upon the complainant to provide notice when she needed to be excused from work or to sit, and the complainant's notices to respondent in this regard had apparently been direct and unhesitating. This was consistent with the complainant's cardiologist's instruction that the complainant be excused from work or be permitted to sit "as necessary." In contrast, the complainant, in making her request for assignment to subassembly work in May of 2002, made no mention of her medical condition or a need to sit.

The complainant argues that, since the respondent was aware of her medical condition and her occasional need to sit, it was required to engage in an interactive process in May of 2002 in order to satisfy its duty of reasonable accommodation. However, such a process, even if contemplated by the WFEA, would only be required if complainant's request for reassignment to subassembly should reasonably have been interpreted by the respondent as a request to accommodate her medical condition rather than as a request to accommodate her personal preferences. There was no reason for the respondent to link the complainant's request to her medical condition and no reason for the respondent to explore further the reasons for her request.

As a result, the record supports a conclusion that the respondent did not fail to fulfill its duty of reasonable accommodation.  
 

Constructive discharge

Finally, the complainant claims that she was constructively discharged. To prove a constructive discharge, the complainant must show that, for a discriminatory reason, working conditions are rendered so intolerable that a reasonable person would feel compelled to resign. See, Waedekin v. Marquette University, ERD Case No. 8752240 (LIRC, March 5, 1991), citing Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 22 FEP Cases 1191 (5th Cir. 1980); Dingeldein v. Village of Cecil, ERD Case No. 199503536 (LIRC May 8, 1997), citing Bartman v. Allis Chalmers Corporation, 799 F.2d 311 (7th Cir. 1986); Froh v. Briggs and Stratton Corp., ERD Case No. 200101453 (LIRC Sept. 29, 2004).

The complainant failed to sustain this burden.

First of all, as concluded above, the complainant failed to prove that the respondent was motivated by a discriminatory animus in regard to any of the incidents she cites as the basis for her complaint.

Furthermore, the complainant began searching for another job in January of 2002, before most of the incidents which she claims as compelling her resignation had even occurred.

DECISION

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

Dated and mailed September 23, 2005
kantesh . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

cc:
Attorney Timothy M. Scheffler
Attorney Mitchell W. Quick

 


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