P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

GERALD VALDES, Complainant


ERD Case No. CR200203820, EEOC Case No. 26GA202124

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:

The first two sentences of numbered paragraph 3. of the FINDINGS OF FACT section are modified to read as follows:

Since the early 1990's, Valdes has suffered from degenerative arthritis/cervical disc disease. This is a permanent condition.

The final two sentences of numbered paragraph 3. of the FINDINGS OF FACT section are deleted and the following substituted:

As a result of this condition, Valdes experiences chronic pain, for which he takes Excedrin, an over-the-counter medication; as well as periods of more intense pain, or "major flares," for which he takes a prescription pain medication. This prescription pain medication induces in Valdes, while he is taking it, some symptoms typical of clinical depression, including fatigue, loss of sleep, and mental confusion. Prior to his 2002 discharge, Valdes had not experienced a period of more intense pain, a "major flare," since February of 2000.

Numbered paragraphs 4., 5., and 6. of the FINDINGS OF FACT section are deleted and the following substituted:

Valdes has never been diagnosed as suffering from an anxiety disorder or major depression.

The following language is added to numbered paragraph 20. of the FINDINGS OF FACT section.

This was an unexcused absence under the applicable collective bargaining agreement.

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

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


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

Dated and mailed October 27, 2006
valdege . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



The complainant filed his original charge on September 11, 2002. In this charge, the complainant alleged that he had been discharged by the respondent because of his disability (anxiety disorder/clinical depression).

The Equal Rights Division (ERD) investigated this charge and, on June 23, 2003, issued a no probable cause initial determination. The complainant filed a timely appeal, and the case was certified to hearing on July 23, 2003.

On July 30, 2003, the complainant filed an amended charge. In this amended charge, the complainant:

(1) expanded the list of alleged disabilities to include degenerative arthritis in his neck and left shoulder, and a type of cervical disc disease known as ankylosing spondylitis;

(2) alleged that the respondent had failed to reasonably accommodate his disabilities on February 17, 2000.

On August 1, 2003, ALJ Jakubowski remanded this matter to the ERD investigator, pursuant to Wis. Adm. Code DWD 218.03(6)  (1),  for the purpose of investigating these additional allegations.

On August 29, 2003, the complainant filed a second amended charge. In this amended charge, the complainant:

(1) expanded the list of protected bases to include race, color, sex, age, national origin, creed, fair employment retaliation, and public employee health and safety retaliation;

(2) expanded the list of allegedly discriminatory/retaliatory acts to include constructive discharge, suspension, sexual harassment, other harassment, and failure to accommodate a religious practice;

(3) alleged that the respondent had failed to reasonably accommodate his disabilities on December 5, 2000.

ERD accepted both amended charges (see section IV of 11/18/04 initial determination), and issued an initial determination on November 18, 2004.

This initial determination found no probable cause in regard to the allegations of age discrimination, creed discrimination, failure to reasonably accommodate a religious practice, public employee health and safety retaliation, fair employment retaliation, sexual harassment, and other harassment.

This initial determination found probable cause as to the allegations of disability discrimination, including failure of reasonable accommodation; and race, color, national origin, and sex discrimination, both in regard to the complainant's terms and conditions of employment (suspension, last chance agreement), and discharge.

The complainant did not appeal the no probable cause findings of this initial determination.

The respondent subsequently filed a motion to dismiss certain of the surviving allegations due to untimely filing. Hearing on this motion, and a discovery motion, was conducted on June 1, 2005, by ALJ Schacht.

ALJ Schacht, reasoning that the two amended complaints were filed more than 300 days after the last allegedly discriminatory act, i.e., the complainant's discharge, ruled that the complainant's surviving allegations of race, color, national origin, and sex discrimination, which were set forth for the first time in these amended complaints, were untimely filed. ALJ Schacht ruled, however, that, since the disability discrimination allegations could be subject to application of the continuing violation theory, he would reserve ruling on this aspect of the motion to dismiss until hearing on the merits had been concluded.

The complainant addressed only his disability discrimination allegations in his initial attempt to appeal ALJ Schacht's ruling, and in his arguments to the commission. As a result, and considering the particular circumstances of this case, the commission reviewed only those parts of ALJ Schacht's ruling and decision relating to the timeliness of the complainant's disability discrimination allegations.

The complainant alleges that he was discriminated against on the basis of disability when his requests for accommodation were denied on February 17 and December 5, 2000; when he was disciplined and placed on a last chance agreement in August and September of 2001; and when he was discharged on March 14, 2002.

Allegations in an amended complaint relate back to the date of filing of the original complaint if they arise from the same transaction or set of facts. See, Shidell v. Sears, et al., ERD Case No. CR200303801 (LIRC Aug. 30, 2005); Kirk v. Neenah-Menasha YMCA, ERD Case No. 199903613 (LIRC Feb. 14, 2003). Here, the only adverse action mentioned in the original charge was the complainant's discharge. As a result, allegations of disability discrimination in the amended complaints regarding transactions other than the complainant's discharge, i.e., failure of accommodation, discipline, and imposition of a last chance agreement, would not relate back to the date the original complaint was filed. However, even if they did, they would be untimely because they would be considered discrete actions, not part of a continuing violation, and they occurred more than 300 days prior to the date of the complainant's original charge. See, AMTRAK v. Morgan, 536 U.S.101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Lau v. LATEC Credit Union, ERD Case No. CR200103183 (LIRC Feb. 7, 2003); Koenigsaecker v. City of Madison, ERD Case No. CR200103889 (LIRC March 11, 2005); Wodack v. The Evangelical Lutheran Good Samaritan Society, ERD Case No. CR200230449 (LIRC Aug. 5, 2005); Seil v. Dairy Farmers of America, ERD Case No. 200204104 (LIRC Aug. 26, 2005).

As a result, the complainant's charge was timely filed only as to the disability discrimination allegation relating to his discharge, and not as to those disability discrimination allegations relating to his previous discipline, the resulting last chance agreement, or previous requests for accommodation.  


The complainant became subject to a last chance agreement after engaging in certain conduct in the work place which the respondent considered unacceptable. This last chance agreement was negotiated by the respondent and complainant's union representative, and the complainant signed it on or around September 4, 2001.

The last chance agreement provided that the complainant would serve a 30-day disciplinary suspension from August 16 to September 17, 2001; and was required, before he could return to work, to be assessed and released by Symmetry, the respondent's Employee Assistance Program (EAP) provider. This agreement also provided:

As a condition of this agreement, you will be expected to have no unexcused absences for a six month period or you will be terminated. No unexcused absences mean no late arrivals, early departures, sick days, personal days, unknowns or personal disability not covered by the FMLA. Vacation, jury duty, approved FMLA leaves and funeral leaves are excused absences....

The complainant was released by Symmetry and returned to work on September 17, 2001. The complainant was absent from work on February 22 and March 8, 2002. The complainant explained that he was absent because he was "sick" with a "cold." The complainant did not file for FMLA leave for these days, or claim that his illness on these days was a serious health condition within the meaning of the FMLA.

The complainant was discharged because these absences were unexcused and had occurred within the six-month period covered by the last chance agreement.

The complainant's initial burden in a disability discrimination case is to establish that he 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 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).

Competent medical evidence is required to establish the existence, nature, extent, and permanence of an impairment, if disputed as a matter of fact. Connecticut General Life Ins. Co. v. DILHR, 86 Wis.2d 393, 273 N.W.2d 206 (1979). See, also, Grell v. Bachmann Construction Co., Inc., ERD Case No. CR200202309 (LIRC July 15, 2005); Erickson v. Quad Graphics, Inc., ERD Case No. CR200102388 (LIRC May 25, 2004); Moller v. Metavante, ERD Case No. 200103621 (LIRC Nov. 13, 2003); Green-Brown v. Midwest Express Airlines, ERD Case No. CR200104139 (LIRC Sept. 16, 2004).

It is not enough to state a diagnosis or to list symptoms. The complainant must establish through credible and competent evidence how or to what degree these symptoms made achievement unusually difficult for him or limited his capacity to work. Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC Aug. 25, 2000). As a result, the fact that the complainant's treating physician rendered a diagnosis would be insufficient alone to establish the existence of a disability. See, Ford v. Lynn's Hallmark, Inc., ERD Case No. CR200301184 (LIRC June 27, 2005) (diagnosis of diabetes alone insufficient to establish existence of disability).

The complainant does not qualify as an individual with a disability on the basis of an anxiety disorder/clinical depression. The only medical expert to provide evidence at the hearing was the complainant's family practitioner, Louis Seno, M.D.   Dr. Seno testified that the complainant reported certain symptoms which were consistent with a diagnosis of depression, and Dr. Seno suspected that these symptoms were caused by the complainant's use of the prescribed medication Vicodin for pain associated with his degenerative arthritis/cervical disk disease. Dr. Seno testified, however, that he never actually rendered a diagnosis of anxiety disorder or treated the complainant for depression. The complainant testified that he took the Vicodin only when he had a "major flare" of pain, and that he had no such incident between February of 2000 and March 14, 2002, the date of his discharge. As a result, not only was there no competent medical evidence that the complainant had ever been diagnosed as suffering from anxiety disorder or a form of depression sufficiently significant to merit treatment, but he had not used the medication triggering the depression symptoms, i.e., the Vicodin, for two years prior to his discharge.

The complainant also does not qualify as an individual with a disability on the basis of his degenerative arthritis/cervical disc disease. The medical evidence of record shows that these conditions had been diagnosed, and caused frequent and significant pain. The complainant testified that, other than when he had a "major flare," he took over-the-counter Excedrin for the pain, and experienced infrequent shaking, an occasional inner crunching sound in the pain/shoulder area, fatigue, nausea, and headaches. The complainant did not, however, testify as to the frequency or the extent of the fatigue, nausea, or headaches; the extent to which the Excedrin relieved his pain; or the manner and extent to which his symptoms interfered with life's normal functions or a major life activity.

The evidence of record does not show that the complainant's degenerative arthritis/cervical disk disease interfered with his ability to perform the duties and responsibilities of his position, and, in fact, his treating physician did not impose any permanent work restrictions, and no work restrictions were in effect during the last two years of the complainant's employment. The record also does not show that this condition caused the conduct which resulted in the imposition of the last chance agreement, or caused the two absences for which the complainant was discharged.

The evidence of record is insufficient to establish that the complainant's claimed disabilities made achievement unusually difficult or limited his capacity to work within the meaning of Wis. Stat. § 111.32(8).

Finally in this regard, the complainant appears to argue that the record supports a conclusion that the respondent necessarily perceived him to be disabled. However, the fact that respondent may have been aware that the complainant was seeking medical treatment or taking prescription medications does not establish that respondent necessarily or reasonably would have perceived complainant to be disabled. Medical treatment is sought, and medications prescribed, for conditions which are disabling as well as for conditions which are not. See, e.g., Erickson, supra.; Moller, supra.; Lester v. Compass Group USA, ERD Case No. CR200203879 (LIRC March 22, 2005).

In addition, the complainant points to certain incidents as supporting a conclusion that the respondent perceived him to be disabled First, he argues that the work restrictions imposed by his physician on February 17, 2000, would have resulted in such a perception. However, such restrictions, which were removed the same day, provided for only a temporary restriction, and were imposed two years before the adverse action at issue here. See, Greenwood v. Ross Furniture, ERD Case No. CR200001517 (LIRC Dec. 30, 2004).  Next, he argues that the fact that he experienced chest pains during a meeting with the respondent on August 9, 2000, and emergency medical care was sought as a result, would have caused the respondent to perceive him as disabled. However, the complainant reported back to the respondent that his chest pains had resulted from overuse of nose spray. Not only would this chain of events be insufficient to necessarily create a perception of disability, but the complainant has failed to link this incident to his degenerative arthritis/cervical disk disease. The complainant argues further that his request on December 5, 2000, for more space because he "didn't feel good" and "didn't feel safe," would have caused the respondent to perceive him as disabled. However, these statements were not sufficiently specific to create such a perception. Finally, the complainant argues that his superior's observation of his stress and anxiety on two occasions would necessarily have led them to perceive him as disabled. However, exhibiting stress and anxiety while performing one's job is not necessarily a sign that an employee is suffering from a permanent impairment qualifying as a disability for purposes of the WFEA.

However, even if the complainant had sustained his burden to prove that he was disabled, he failed to show that he was discriminated against on this basis.

The last chance agreement, the negotiation and imposition of which is not at issue here, set forth certain requirements for the complainant's continued employment. One of these was that he "have no unexcused absences for a six month period or you will be terminated."

The complainant called in sick on February 22 and March 8, 2002. As the last chance agreement expressly provides, sick days, other than those which qualify for FMLA leave, are considered unexcused absences. The complainant attributed these sick days to a "cold." The complainant returned to work from his 30-day suspension on September 17, 2001. As a result, both of these 2002 absences occurred within the six-month period specified in the last chance agreement.

The respondent's enforcement of the provisions of the last chance agreement provides a legitimate, non-discriminatory reason for the complainant's discharge. (2)

The complainant has failed to establish that this reason was a pretext for discrimination.

The complainant appears to be arguing in this regard that the six-month period would more reasonably have been interpreted as commencing on August 16, 2001, not September 17, 2001, and the respondent's use of the September 17 date from which to measure the six months demonstrates pretext. However, the complainant has failed to prove that his interpretation is consistent with the intent of the agreement's language, or that the respondent led him to believe that this was the proper interpretation. In addition, since the complainant could not have had an absence from work during the period of his suspension, when he was not scheduled to work, the respondent's interpretation is clearly the more reasonable one. The complainant has failed to show pretext.

The complainant also appears to be arguing that the respondent failed to reasonably accommodate his disability when it discharged him. First of all, of course, the complainant failed to prove he was disabled at that time. Moreover, even if he had, the complainant failed to show that he had requested an accommodation at that time, that it should have been obvious to the respondent that he required one, or that his absences were attributable to his claimed disabilities.  


The complainant takes issue with the ALJ's refusal to consider certain documents relating to his application for unemployment benefits, including a Department of Workforce Development determination. However, the law in this regard is clear. Wisconsin Statutes § 108.01(1), part of the Unemployment Insurance and Reserves Act, states as follows:

No finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under this chapter is admissible or binding in any action or administrative or judicial proceeding in law or in equity not arising under this chapter, unless the department is a party or has an interest in the action or proceeding because of the discharge of its duties under this chapter.

The complainant also challenges certain actions taken by his attorney. However, these actions are imputed to him (See, e.g., Hamilton v. Northwestern Elevator Co., Inc., ERD Case No. CR200003827 (LIRC Dec. 10, 2002)), and neither the department nor the commission is the proper forum in which to have these concerns addressed.

The complainant offers facts not of record in his arguments to the commission. The commission is limited to the evidence of record in rendering its decision. Since the complainant had full and fair opportunity to present his case, no further hearing is merited. In rendering its decision the commission did not consider any facts not of record.

The complainant takes issue with the ALJ's alleged failure to receive into the record a document dated February 17, 2000, and signed by "M. Bock RN." However, this document was received into the record as part of exhibit C-1.

The complainant also argues that ALJ Schacht ignored ALJ Jakubowski's order in rendering his ruling and decision here. However, ALJ Jakubowski's order simply required that this matter be remanded to ERD's investigative unit for further investigation. This remand was accomplished and further investigation completed.

cc: Attorney Jess Villa

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(1)( Back ) (6) AMENDMENT OF COMPLAINT A complaint may be amended, subject to the approval of the department, except that a complaint may not be amended less than 45 days before hearing unless good cause is shown for the failure to amend the complaint prior to that time. If the complaint is amended prior to the issuance of an initial determination, the department shall investigate the allegations of the amended complaint. If the complaint is amended after the case has been certified to hearing, the chief of the hearing section or the administrative law judge may remand the complaint to the investigation section to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that the respondent has violated the act as alleged in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s. DWD 218.05(1).

(2)( Back ) McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).


uploaded 2006/10/30