KAREN SANDERS, Complainant

AURORA SINAI MEDICAL CENTER, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

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

Dated and mailed April 14, 2006
sandeka . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Karen Sanders worked for a little over two years as a clinic clerk at the Wisconsin Avenue Family Care Center (WAFCC), a facility operated by the respondent Aurora Sinai Medical Center, a medical facility. On April 29, 2004, WAFCC's business office manager, Dessie Levy terminated Sanders' employment when Sanders refused to assist with packing for a move the WAFCC was making to a new location.

Sanders contends that the respondent violated the Wisconsin Fair Employment Law by terminating her employment because of a disability and by refusing to reasonably accommodate a disability.

On September 29, 2003, Sanders had surgery on her left arm to relieve the pain, tingling and numbness she was experiencing in her elbow and hand. Levy had previously placed Sanders on light duty in August 2003 when Sanders informed Levy about the tingling, numbness and pain she was experiencing. Sanders returned to work about six weeks after her surgery, with work restrictions, and again was placed on light duty.

On February 25, 2004, the respondent was furnished a Health Progress Report from Sanders' physician, which released Sanders for a full return to work without any restrictions but noted that she was not yet discharged from his care. Shortly after February 25, Sanders returned to her regular job duties. Subsequently, on March 24, 2004, the respondent was furnished a Health Progress Report from Sanders' physician, which released her for a full return to work without any restrictions and that stated she was discharged from his care.

Although Sanders continued to experience tingling, numbness and pain in her left arm after her release for a full return to work, at no time did she ever indicate to the respondent that she believed she had a condition which required restrictions in the work she did, nor did she ever indicate to anyone at the respondent that she believed that she had a permanent disability.

On April 28, 2004, Levy announced to the whole clerical staff that they would have to assist that day with the move of the clinic. Sanders tried to help with the packing but her hand was swollen and purplish and she could not grip or lift anything using both hands, so she arranged with the lead worker and a co-worker to only perform her regular duties at the front desk.

Levy apparently noticed that Sanders was not assisting with the move and asked Sanders to meet with her early the next day. During the morning on April 29 Levy asked Sanders if she was going to assist with the move. Sanders showed Levy her left hand which was swollen and discolored, and also her right hand which was swollen. Sanders told Levy that she would be more than willing to help with the unpacking once the swelling went down but that she could not see herself helping to lift boxes or anything like that. Levy then told Sanders that she would have to talk to human resources and would get back to her before the end of the day.

Later, during the afternoon on April 29, Levy called Sanders into the office, again asked whether she would help with the move and indicated that it would be considered insubordination if Sanders did not do it. Sanders showed Levy her hands and said there was no way she could help lift or do anything at this time. Levy then asked Sanders if she was sure. Sanders replied that she was positive and then Levy told Sanders that she would have to let her go.

With respect to the Wisconsin Fair Employment Act's prohibition against discrimination on the basis of disability, § 111.32(8) of the WFEA defines an "Individual with a disability" as meaning 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.

Further, for a claim to be actionable under the WFEA, a disability must be permanent.  Erickson v. LIRC and Quad Graphics, Inc., 2005 WI App 208, ¶ 16, ___ Wis. 2d ___, 704 N.W.2d 398 (2005).

Sanders' claims that the respondent violated the WFEA by terminating her employment because of a disability and by refusing to reasonably accommodate a disability fail because she has not established by competent medical evidence that she has a permanent disability within the meaning of the WFEA. Similarly, there is no basis to conclude that the respondent ever perceived Sanders as having such a disability since Sanders admits that she never indicated to anyone at the respondent that she believed that she had a permanent disability, and because the Health Progress Reports that Sanders' physician had furnished the respondent in February and March 2004 indicated that he had released her for a full return to work without any restrictions.

In her petition for review, Sanders apparently argues that for reasons relating to her worker's compensation claim her physician had released her for a full return to work before she was actually completely healed, and she has submitted a number of documents in support of her position. However, the commission's review of this matter is limited to the testimony or other evidence that was presented at the hearing. In any event, the critical shortcoming in Sanders' claim of disability discrimination is that she has failed to establish by competent medical evidence that she has a permanent disability within the meaning of the WFEA. While it is understandable why Sanders might feel that she was treated unfairly, the issue presented by her claim of disability discrimination is whether or not she has established that the respondent discriminated against her on the basis of a disability in violation of the Act. Concluding that she has not, the commission has affirmed the decision of the administrative law judge.

cc: Attorney Mary Pat Ninneman

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