JEANETTE MARIE KING, Complainant

MARSHFIELD DOORS SYSTEMS INC, 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, except that it makes the following modifications:

The MEMORANDUM OPINION is deleted the following substituted:

The commission has applied the probable cause standard in deciding this matter.

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. Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998.) Since the respondent here does not dispute that the complainant is disabled due to her foot condition, this burden has been satisfied.

The complainant next has the burden to prove that she was discriminated against on the basis of this disability when she was terminated. Target Stores, supra.; Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991). Under the circumstances present here, in order to sustain this burden, the complainant would have to show that she was treated less favorably in this regard than non-disabled employees. The complainant has failed to sustain this burden.

The record shows that the complainant was terminated because, despite numerous notices and warnings from the respondent, she failed again to submit a written request for the extension of her medical leave by the deadline. The evidence offered by the respondent to the effect that submission of such a written request by the appropriate deadline was required of every employee on long-term disability leave was unrebutted. It should be noted that an employee on long-term disability leave is not necessarily disabled, i.e., such leave could also be utilized by employees with serious but temporary conditions.

The commission, as a result, agrees with the administrative law judge that probable cause does not exist to believe that the complainant was discriminated against on the basis of disability when she was terminated.

The complainant also alleges that the respondent failed to reasonably accommodate her disability. Apparently, this alleged failure of accommodation occurred when the respondent enforced its requirement for a written medical leave extension request. The analysis of this allegation would parallel that set forth above in regard to the termination allegation.

The complainant also refers at least tangentially in this regard to the respondent's failure to continue to pay her health insurance benefits after she was placed on long-term disability leave. However, the record shows that this was the respondent's consistent practice, and that, in numerous communications from the respondent, the complainant was advised of this practice and of her ability to continue these benefits through COBRA at her own expense.

In her charge, the complainant alleges that the respondent failed to reasonably accommodate her disability when it did not investigate or place her in other jobs which she would have been able to perform. However, the complainant was not terminated because she was unable to perform her job responsibilities; prior to her termination, had not been released to return to work in any capacity by her treating physician; and had never indicated any interest in returning to work in a different job. The only accommodation requested, or reasonably inferred from the surrounding circumstances, during the relevant time period, was the approval of medical leave. The respondent approved this leave until such time as it reasonably concluded that it could no longer tolerate the complainant's continuing failure to comply with its medical leave extension request requirements.

Probable cause does not exist to believe that the respondent failed to reasonably accommodate the complainant's disability.

In her appeal to the commission, the complainant urges the commission to consider documents which were not offered at the hearing. The commission may, however, only rely upon evidence which became part of the hearing record in rendering its decision here. These documents were in existence prior to the hearing, and the complainant and her union steward were necessarily aware of their existence. As a result, further hearing to permit the complainant the opportunity to offer these documents is not merited.

Moreover, even if these documents were considered, they do little to advance the complainant's case. The most that they show is that a grievance form was completed, and discussions were conducted with the respondent many months after the complainant's termination in an attempt to resolve the complainant's claims that her termination was discriminatory and without just cause.

The complainant claims that these documents show that, contrary to her hearing testimony, Kathy Dzikowich was aware that the union filed a grievance on the complainant's behalf in regard to her termination, and Dzikowich's hearing testimony was not credible as a result. However, the most that these documents show, as stated above, is that a grievance form was completed, not that it was actually filed, and discussions held.

It should also be noted in this regard that, even if the complainant had shown that the grievance process had resulted in a decision that her termination had been without just cause, this does not translate into a showing of discrimination. The essence of complainant's grievance appears to have been that the applicable collective bargaining agreement did not require that employees on long-term disability file written requests in order to extend their medical leave. However, the essential fact for purposes of the analysis here is that, as the evidence of record shows, such written requests were consistently and uniformly required by the respondent even if not compelled by the collective bargaining agreement.

Finally, in her appeal, the complainant attributes her termination to age discrimination. However, the complainant did not allege age discrimination in her charge and it is not cognizable here as a result. In addition, attributing her termination to age discrimination actually serves to undermine, rather than reinforce, her contention that she was terminated because of her disability.

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

Dated and mailed June 9, 2006
kingjea . rmd : 115 : 9

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc: Attorney Mari E. Nahn

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