NATALIE HANSON, Complainant

STATE OF WISCONSIN, 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 conclusions in that decision as its own, except that it makes the following modifications:

1. On the second line in paragraph 3 of the FINDINGS OF FACT, the word "restrains" is deleted and the word "restraints" is substituted therefor.

2. On the first line in paragraph 14 of the FINDINGS OF FACT, the words "a memo to" are inserted after the word "sent". Also, in this paragraph which continues on to the next page, on line seven the word "Examines" is deleted and the word "Examiner" is substituted therefor.

3. On the fifth line in paragraph 15 of the FINDINGS OF FACT, the word "whatever" is deleted and the word "whatsoever" is substituted therefor.

4. In paragraph 18 of the FINDINGS OF FACT, the word "On" is inserted as the first word of this paragraph.

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

Dated and mailed October 20, 2006
hansona . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Natalie Hanson is employed by the respondent as a Psychiatric Care Technician-2 (PCT) at the Wisconsin Resource Center (WRC). She has been employed in this capacity since January 9, 1995. The WRC is a secure treatment facility for inmates and patients with mental disorders. The inmates are sent from other correctional facilities to the WRC for evaluation and treatment because they are not behaving in a way that is manageable in a general population. Many of these inmates have acted out in aggressive ways towards other people, such as throwing bodily fluids and smearing feces, and may also have issues with showing disrespect and not following the orders of correctional officers. A significant number are depressed and suicidal or acting out in a self-harming way. Hanson's duties include implementing care plans, daily living skills and therapeutic activities for inmates/patients, and monitoring inmate/patient, visitor and staff behavior in order to maintain security, safety and sanitary needs of the institution.

In 2002, Hanson was assigned to Unit 12. The primary mission of Unit 12 is to house offenders who have been on an open unit and misbehaving, and therefore requiring more control over them in an attempt to stabilize them. They are confined in their cells at all times unless they are supervised by staff in small groups. PCTs are the first line of intervention to get inmates/patients who are upset or agitated into a more stable mood. In situations where inmates and patients become engaged in these types of behavior, a PCT would be expected to engage in whatever action necessary to bring the situation under control. This could include becoming physically involved in a fight, restraining inmates, and possibly being in areas where chemical agents have been deployed in order to take control of these emergencies. PCTs are covered under Wis. Stat. § 230.36 regarding Hazardous Employment because of the nature of the respondent's business, and are often injured by inmates or patients while responding to emergencies.

Anne Flynn is the human resources director at the WRC and has held that position since the fall of 2001. Ann Wiskow, an administrative psychiatric care supervisor (PCS), is Hanson's immediate supervisor. Gretchen Ertmer was the payroll and benefits specialist at WRC for about three years until becoming employed elsewhere on January 20, 2003. Kathleen Bellaire is the deputy director of WRC and has held this position since September 2000.

In January 2002, Hanson filed a complaint of discrimination against the WRC alleging harassment and discrimination based upon her sexual orientation. Hanson states that she is homosexual.

In June 2002, Hanson suffered a work-related injury to her shoulder as a result of an altercation with an inmate. "It is the policy of the respondent to provide modified/alternate duty to employees who have sustained a work related injury, and have reached a point in their healing process where medical restrictions/limitations can be accommodated." Exhibit R-9. Hanson performed light duty from June 6 to apparently August 8, 2002, but did not work from August 9 throughout the following week, the week of August 11-17.

On August 19, 2002, Hanson underwent a "corneal transplant required for keratoconus". This was a non-work-related injury. For non-work-related injuries, the respondent offers modified/alternate assignments to employees at its discretion, depending on the type and amount of modified/alternate work available and the limitations/restrictions of the employee. Exhibit R-9.

On September 24, 2002, Hanson submitted a request for a leave of absence with pay for August 9 and August 12-16 (44 hours) for a sprained/inflamed left shoulder based on her June 2002 work related injury. The respondent approved this request.

Hanson alleges in her instant complaint of discrimination against the respondent that the respondent discriminated against her with respect to her compensation and terms and conditions of employment on the basis of disability and sexual orientation, and in retaliation for having made a complaint under the Act. Specifically, Hanson asserted at the hearing that she was discriminated against because of Flynn's refusal, following her August 2002 eye surgery, to permit her to return to work beginning in October 2002 and continuing until April 2003, because she had difficulty obtaining some section 230.36 pay and because of instances where her income continuation insurance benefit payments had been stopped, and because the respondent had posted her job position as available during February 2003.

With respect to Hanson's claim of disability discrimination, 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 for purposes of the statute 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 such bodily condition. LaCrosse Police and Fire Commission v. LIRC, 139 Wis. 2d 740, 761, 407 N.W.2d 510.

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

In a letter dated October 28, 2002, a copy of which was sent to the respondent, Hanson's eye surgeon, Dr. Vrabec, stated the following:

Natalie Hanson underwent a corneal transplant procedure on August 19, 2002. The surgery was successful and uncomplicated.

Natalie will be ready to resume full activities with absolutely no restrictions whatsoever after November 19, 2002. This is regardless of whether or not stitches remain in the eye. Of note, stitches can stay in the eye for many years and by three months time she will have no restrictions whatsoever.

(Exhibit C-4)

Hanson took Dr. Vrabec's October 28 letter to the respondent, apparently around the beginning of November 2002. Hanson testified that she first gave this letter to Ertmer, who made copies, and then they gave it to Flynn. (Summary of Proceedings, p. 12.) Ertmer testified that Hanson said it would be about a year before the implant in her eye was completely done healing. Ertmer testified, "I know she had very blurry vision and could hardly see out of the eye. I could see myself that her eye was red and irritated when she came by my office..." (Summary of Proceedings, p. 8.) Ertmer also testified that Hanson had told her that it was possible for the corneal transplant to detach itself from her eye if she were to be jarred. Ertmer further testified that Flynn was worried about Hanson working in the prison environment, that inmates are good at picking out a person's weakness and will go after that weakness, which in Hanson's case was her eye problem. (Summary of Proceedings, p. 9.) Ertmer testified that she had told Flynn that the healing process for Hanson's eye could take up to a year to complete. Id.

Although Hanson denied ever telling Ertmer "anything about a detached retina", she admitted on cross-examination that she talked to Ertmer about her sight being blurry after her corneal transplant. (Summary of Proceedings, p. 16.) Hanson also testified that "After surgery, I could see out of my eye pretty well." (Summary of Proceedings, p. 13.)(Emphasis added.) (In Hanson's written statement attached to her discrimination complaint, after discussing stopping in Ertmer's office during the first week of November 2002 and then going to Flynn's office, she asserts, "I was asked how my eye was doing and I said good and I just didn't have the greatest sight yet, but otherwise the surgery went well.") (Emphasis added.)

Hanson testified that Flynn told her she could not return to work because of the stitches in her eye.

Subsequently, in order to maintain her eligibility for income continuation insurance benefits, Hanson's regular eye doctor provided the respondent a form dated November 7, 2002, which restricted her to "Light duty", and on November 14, 2002, Hanson's eye surgeon wrote a letter stating, "Because of her [Hanson's] extenuating circumstances as a prison guard, she should be limited to light duty - no inmate contact through July 1, 2003." Exhibits C-6 and 7.

Hanson argues that the WRC perceived that she had a disability. As evidence, Hanson cites a portion of a March 14, 2003 letter that Flynn sent to Dr. Vrabec which reads, "We understand that Natalie has stitches in her eye and the stitches will remain in the eye permanently." Exhibit C-9. Hanson then argues, "It was, after all, the stitches that were the problem, according to Flynn. If she believed the stitches were permanent, and the stitches were cause for keeping Hanson from work, then Flynn believed that the condition (stitches) impaired her ability to work." (Emphasis in original.)

The record, however, refutes Hanson's contention that Flynn, or anyone else in management, perceived that she had a disability within the meaning of the Act. First of all, Hanson conveniently ignores the very next paragraph of Flynn's March 14 letter wherein Flynn states, "We need to be absolutely sure that when Natalie is released to return to work she is fully recovered, and capable of performing the full duties of her job, without any restrictions." (Italics emphasis added; underlining in original.) As noted by the respondent, that the respondent viewed Hanson's condition following her eye surgery as a temporary condition and that she would be returning to work is supported by the testimony of Flynn, Wiskow and Bellaire, who uniformly spoke in terms of when Hanson would return to work, not whether she would return to work. For example, Flynn testified, "I never contemplated or discussed with other administrators, terminating Ms. Hanson's employment permanently. It was apparent that Ms. Hanson would be returning to work at some point when she was healed." Wiskow testified, "In February 2003, I asked Ms. Flynn when Ms. Hanson would be returning to work. I believe it was around that time that Ms. Flynn received a doctor's excuse saying that Ms. Hanson would return to work in June or July 2003." Bellaire testified, "After speaking to Ms. Hanson, I met with Ms. Flynn and we discussed what we needed to do to return Ms. Hanson to work. At that point there was a decision that we needed further clarification." Further, Bellaire testified, "I remember talking to Ms. Wiskow about Ms. Hanson's situation. We talked about Ms. Hanson and whether or not she could come back to the institution at that point and whether there would be any accommodation for someone to come back with goggles." (Underlining emphasis added.) Indeed, Hanson's own witness, Richard Steibs, the chief union steward, who had discussions with Flynn regarding Hanson's return to work indicates that Flynn did not perceive Hanson as having a disability. Steibs testified, "Ms. Flynn said that she did not know when Ms. Hanson would be back to work. There was concern about Ms. Hanson's safety at work if she did come back, that she might be injured." (Summary of Proceedings, p. 10.)(Emphasis added.)

Second, as also noted by the respondent, if Flynn perceived Hanson to have a permanent disability, she wouldn't have so quickly accepted Dr. Vrabec's March 28, 2003 response (that Natalie is now completely healed from her corneal transplant and may resume the duties of a prison guard with no restrictions), nor would Flynn have allowed Hanson to return to work on April 4, 2003, the same day that Dr. Vrabec's response was received at the WRC. Rather, if Hanson's argument were correct, Flynn would most likely at that point have required Hanson to undergo an independent medical examination.

With respect to her compensation, Hanson asserts that she was eligible for section 230.36 pay and that she had some difficulty obtaining that pay. She asserts that she called several times, but was told she would not receive it until she returned to work. Hanson also asserts that there were two occasions when her income continuation benefits were stopped.

The evidence fails to show that the reason Hanson had difficulty obtaining her section 230.36 pay, or that the reason her income continuation insurance (ICI) benefits had stopped, was because the respondent perceived her as having a disability, because of her sexual orientation or because she had made a complaint under the Act.

First of all, with respect to the section 230.36 pay, the evidence shows that this involved a total of 44.0 hours (Exhibits R-14 and 15), and that the difficulty here arose because this 44.0 hour period ran right into the time Hanson went on leave for her August 19, 2002 eye surgery. Flynn testified that the problem was that Hanson was out on an absence (medical leave effective Aug. 19) and the payroll transaction requires that the person be in active pay status at the time the payroll is done. (Summary of Proceedings, p. 6.) The problem was corrected and Hanson received her section 230.36 pay around October 31, 2002. With respect to her income continuation benefits, the evidence shows the following: That Hanson did not get an ICI benefit check on October 17, 2002, because Hanson's doctor's office, not the respondent, had reported to CORE, the company that administers the respondent's income continuation benefits, that she was returning to work on September 19, 2002. (See Exhibit R-2; Ertmer testimony, Summary of Proceedings, p. 8); and that Hanson again had a problem receiving ICI benefits in January 2003 as a result of CORE's January 10, 2003 contact with Dr. Vrabec and his response indicating that "Hanson can work with the restrictions of wearing safety goggles." See Exhibit C-5. The respondent had no knowledge Dr. Vrabec had indicated to CORE that Hanson could work with the restriction of wearing safety goggles. See Exhibits R-19 and 20. On February 4, 2003, Flynn advised CORE that based on Hanson's job the respondent could not accommodate her in such fashion, and requested that CORE continue her ICI benefit payments. See Exhibit R-21.

Hanson asserts, as evidence she was discriminated against on the basis of her sexual orientation, that the respondent had posted her job position as available during February 2003, which was less than the six months that the respondent typically holds jobs for individuals on leave. Hanson asserts, in contrast, Jim Meyer, who testified that he is not gay, testified that his position was not posted for at least six months after he left on a medical leave. Hanson's claim of discrimination on the basis of sexual orientation fails. Wiskow testified that the respondent could look at posting a person's position after three months. (Summary of Proceedings, p. 26.) Flynn testified that if at the six-month mark the respondent does not have a clear return-to-work date for an individual, the job is posted. (Summary of Proceedings, p. 6.) Wiskow testified that taking into consideration how long a person will be out on leave, which she and Flynn did in February 2003 when told that Hanson would not be returning to work until June or July 2003, they decided to post her position. (Summary of Proceedings, p. 26.) February 2003 was the six-month mark of Hanson's absence from work. The November 14, 2002 doctor's note that Hanson provided to the respondent stated that she "should be limited to light duty - no inmate contact through July 1, 2003. Further, Meyer testified that he was off work on a medical leave "about six months."

Finally, Hanson argues that she was retaliated against because she had filed an earlier discrimination complaint. She asserts that she filed her first discrimination complaint against the respondent on January 17, 2002, that Flynn received the complaint by March 27 or 28, 2002, and that she suffered an adverse employment action in that her return to work after her cornea transplant was delayed nearly six months. Further, Hanson argues that there is circumstantial evidence of retaliation based on the difference in the way Flynn treated her after her 2001 surgery on her jaw and the 2002 surgery on her eye. Hanson argues, "After the 2001 surgery, Flynn allowed Hanson to return to work with a mouth full of stitches. The stitches were visible to others when Hanson opened her mouth. Flynn did not raise any concerns about threats to Hanson's health such as whether an inmate might throw feces or urine into Hanson's face or whether chemicals used to restrain patients might also pose a threat to Hanson's health. Flynn did not deny Hanson the ability to return to work because Hanson looked funny and might be targeted by inmates."

Hanson has failed to establish by a preponderance of the evidence that the respondent's delay of her return to work was motivated by her filing of an earlier complaint of discrimination against the respondent, however. First of all, the overwhelming evidence indicates that the delay of Hanson's return to work was caused by the respondent's concern about Hanson's health and safety and the health and safety of other employees at WRC. Flynn testified, "We were concerned for Ms. Hanson's safety. She had just undergone a delicate surgery. We wanted to be sure, as we do with all of our employees, that we are not putting them in harm's way when we return them to work. We have questioned other employees where doctors have returned them to full duty and it appears to us that they are not able or have difficulty so we question that." (Summary of Proceedings, p. 29.) Further, this same sentiment is echoed in Flynn's March 14, 2003 letter to Dr. Vrabec. There, Flynn stated in part, "Our concern is for Natalie's health and safety, as well as the health and safety of her peers, the inmates and patients under our care, and the security of our institution....I would appreciate a written statement from you regarding Natalie's present condition, so that we can evaluate whether or not it is safe to return Natalie to this work environment." Exhibit C-9. Second, as noted above, despite Dr. Vrabec's October 28 letter statement that Hanson could resume full activities with no restrictions on November 19, 2002, Ertmer, who was no longer employed at WRC, testified that when seeing Hanson around November 2002 "I know she had very blurry vision and could hardly see out of the eye. I could see myself that her eye was red and irritated when she came by my office." Indeed, Hanson herself admitted talking to Ertmer about her sight being blurry after her corneal transplant. Subsequently, by doctors' notes dated November 7 and 14, 2002, the respondent was advised that Hanson should be limited to light duty and have no inmate contact. Third, with respect to Hanson's condition after her jaw surgery, unlike Hanson's condition following her eye surgery, the record fails to show that there was an indication by Hanson herself which suggested that her condition compromised her ability to fully perform her job in any way. Furthermore, the evidence fails to show that the two surgeries themselves were so similar that the same concerns would have been presented by both surgeries.

For all of the above-stated reasons, the commission has affirmed the decision of the administrative law judge.

NOTE: The commission notes, as pointed out by the complainant's counsel, that before setting forth his FINDINGS OF FACT, while the ALJ states his findings are "Based on the evidence received by stipulated facts", the facts found by the ALJ were not all stipulated. Exhibit C-1 lists the stipulated facts. The commission has taken note of this fact in its review of this matter.

cc:
Attorney Brenda Lewison
Attorney Paul A. Harris

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