MARY E BERG (RIEGLER), Complainant
FRANCISCAN WOODS, 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 modification:
Paragraph 4 of the CONCLUSIONS OF LAW is deleted.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed December 19, 2006
bergma . rmd : 125 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
Mark Farrell, a Human Relations Representative with the respondent at the time relevant herein, offered Mary Berg employment with the respondent as a certified nursing assistant (CNA) in September 2003. The employment offer was contingent, in part, on Berg completing a pre-employment physical.
Joseph Weyker, a nurse, administered the pre-employment physical on October 1, 2003. Prior to the physical Berg had completed a pre-placement health history form. In the section labeled Heart/Blood, she checked "Yes" to Heart Palpitations and wrote "past panic attacks" next to the check mark. In the section of the form labeled Mental Health, Berg checked "Yes" to Anxiety/Panic Attacks. Weyker asked Berg what the panic attacks were related to. Berg said they were just related to situations where she has to have her blood pressure taken, and that when she has it done at the doctor's office they have to give her time to relax. During the course of her pre-placement physical Berg mentioned to Weyker that she wanted to become a nurse.
While in Weyker's office Berg had a panic attack about having her blood pressure checked. Weyker attempted to take Berg's blood pressure on three different occasions during the physical but Berg was unable to let him take her blood pressure.
Berg testified that the first time Weyker tried to take her blood pressure she said she would need to relax because she gets really nervous and sometimes has a panic attack. T. I, 160. Berg testified that Weyker "rolled his eyes at me." Berg testified that the second time Weyker went to take her blood pressure she told him "I just can't do that right now", and that Weyker said, "(A)m I going to have to worry about you freaking out on the floor?" Berg testified that she then explained she doesn't have these panic attacks unless she gets her blood pressure taken and that Weyker asked if she was on medication, to which she responded, "No, I don't need to." Berg testified that in this same little phrase Weyker stated, "(A)nd you said you want to be an RN?" Berg apparently testified that on the third time she was unable to have her blood pressure taken Weyker said he was putting her employment on suspension.
Weyker denied making a comment about Berg freaking out on the floor and mocking her about stating she wanted to become an RN.
After Weyker concluded his physical of Berg he called Debbie Bartlett, Director of Employee Health and Wellness Services, who confirmed that he should let Farrell know that Berg was unable to complete the physical and that the job offer would have to be rescinded. Weyker then told Farrell that Berg was unable to complete all portions of the physical and that it's been the respondent's practice to withdraw the offer of employment where an individual does not successfully complete the physical. This is all that Weyker told Farrell during this conversation. Farrell contacted Shelly Olejniczak, Director of Human Resources, to verify that an offer of employment is rescinded where the individual does not successfully complete the physical.
Immediately after his conversation with Farrell, Weyker drafted notes regarding Berg's physical. Weyker's notes include the following comments: [Berg was] "very nervous and acting very odd. She had a great amount of [flight] of ideas and could not stay focused on one subject." By flight of ideas Weyker meant that Berg was unable to stay focused.
After his conversation with Weyker, Farrell called Berg and informed her that the respondent was withdrawing its offer of employment because she had not completed all facets of the physical. Berg inquired if the nurse (apparently Weyker) told him anything and Farrell responded, "[H]e doesn't have to tell me anything. You didn't complete the physical; you don't have a job." T. I, 163.
Over the next two days Berg left messages for Farrell to call her but Farrell never called her back so she left another message stating, "I'm going to get an attorney. You guys just screwed me over." When she still didn't get a call back Berg called the respondent's administrator, Mary Piette, and left a voice mail message stating that it was her dream to work for the respondent and explaining what happened at her physical.
Farrell admitted knowing that Berg left a voice mail to him or someone else threatening them with legal action if they didn't give her another chance but stated "it didn't faze me that much."
The following week Farrell called Berg. Berg testified that Farrell said he listened to her "message". She testified that she told Farrell about Weyker's comment about her "freaking out on the floor", about him stating "(A)nd you want to be an RN?" and Weyker's whole attitude towards her. She testified that Farrell mentioned that Weyker said she got a little cocky. Berg testified that Farrell kept sticking up for Weyker, saying he was just trying to protect the company and looking out for the company. Farrell told Berg that he was going to have a meeting with some people to discuss her getting rehired.
Piette, after receiving Berg's voice mail, which included the statements that she (Berg) was unable to complete the physical because she was unable to have her blood pressure taken and would complete the physical if given another chance, asked Phyllis St. Denis, Director of Nursing, about giving Berg a second chance to take the physical. St. Denis' response was, "If it's just a mere blood pressure, if she's agreed to take it, there's no reason why we can't hire her. Everything else checked out." Piette wanted to give Berg a second chance because of her enthusiasm about working for the respondent. Piette and St. Denis called Farrell and asked him if Berg could be given a second chance to take the physical. Apparently by this time Farrell was already talking to Olejniczak and they had decided that it would be okay to give Berg another opportunity to take the pre-employment physical. Farrell testified that reoffering the position was absolutely not based on any legal threat by Berg. Farrell testified that in his capacity as human resources rep he had received complaints or threats of legal action based upon an employment decision more than once. Farrell informed Piette and St. Denis that they could give Berg a second chance if they wanted to; it was their decision to make.
Apparently the next morning Farrell informed Berg that the respondent had decided to rehire her, but she had to have another physical and that it would be with a different person at a different location. Farrell testified that during this conversation Berg stated that her difficulty in having her blood pressure taken would have no impact on her ability to work as an CNA and that she would have no problem taking anyone else's blood pressure. T. I, 59.
Weyker faxed Berg's original pre-placement health history form to Julie Shields, who was to conduct the second physical. Weyker later spoke to Shields and informed Shields that Berg did not pass the first physical because Berg became very panicky and was unable to finish it; that Berg was subject to panic attacks when she has to have her blood pressure taken.
After Weyker's conversation with Shields he had no further involvement regarding Berg's employment with the respondent.
Berg was able to have her blood pressure taken during a second physical with Shields on October 14, 2003. Shields did not recall anything unusual regarding Berg's second pre-employment physical. Berg started work at the respondent on October 20, 2003.
Berg spent her first day on the job in an orientation session conducted by the respondent's clinical educator, Theresa Walters, and the next three days she was assigned to work with a preceptor, Cheryl Draeger. A preceptor works one on one with a new employee, orienting the employee to the unit he or she will work on, going over the safety procedures and introducing the new employee to the other employees on that unit. Shields testified that she never spoke with Walters or Draeger regarding Berg after administering Berg's second physical.
When Farrell had initially extended an offer of employment to Berg contingent on her completing a pre-employment physical, he had also notified Walters that Berg would be coming to work for the respondent. Farrell testified that when Berg did not complete the first physical he notified Walters that Berg would not be starting as scheduled. Farrell testified that he did not mention to Walters anything regarding Berg's "panic attack or anxiety disorder" or mention to Walters that Berg hadn't completed her physical. T. I, 55-56.
Walters testified, as did Farrell, that at the time of this conversation with Farrell she did not learn that Berg had panic or anxiety issues. However, it was Walters' recollection that she did learn from Farrell that Berg did not complete the physical; that Berg had not wanted her blood pressure taken. T. II, 272, 294-295.
Farrell testified that when he notified Walters that Berg had been offered employment again, Walters asked how this came about and he told her "there were some issues that were resolved." Farrell testified that he did not tell Walters anything more than that, and that he did not convey any concerns about Berg's employment. T. I, 31.
Walters testified, as did Farrell, that Farrell did not express any concerns about Berg's employment. However, it was Walters' recollection that she did not ask Farrell what had changed so that Berg would be starting work with the respondent. T. II, 295.
Walters testified that after the six hours spent orienting Berg on October 20 it was her impression Berg would need some direction and help in focusing on the topic at hand. Walters testified that there were times she would be talking and Berg would interrupt with a question about something previously discussed or something that she hadn't actually got to yet. T. II, 278. Walters discussed her concerns with Draeger. Id.
St. Denis testified that on October 20 Walters spoke to her about how the orientation was going with the new hires and indicated she found that Berg was not paying attention to what she was trying to explain and interrupted her several times throughout the orientation. St. Denis testified that after this Walters spoke to her again about Berg, stating that Draeger felt Berg wasn't paying attention, wasn't following directions and that Walters was concerned for the safety of the patients. T. II, 332-333. St. Denis testified that Walters told her she had spoken to Berg about Berg's performance problems but that Walters did not share anything Berg had said in response. T. II, 337-339.
Walters testified that after orienting new employees it is her routine to check in with the preceptor. Walters testified that on Berg's second day on the unit she checked with Draeger who told her: That on the previous day Berg had left a patient alone in the bathroom after being told that this particular patient needed to have someone with her in the bathroom; that Berg was not focusing on what she was being instructed or directed on; that during a patient lift while the patient was being lifted that Berg left the room; and that Berg was forgetting to lock wheelchairs and forgetting to use gait belts. Walters testified that she spoke to Berg about these concerns, telling her it's very important to focus on the directions she's given and that she shouldn't leave patients unattended. Berg denied that Walters ever explained any concerns that she had with her performance. T. II, 379.
Draeger testified that she had not spoken to Farrell or Weyker about Berg prior to Berg starting work. T. II, 344. She did testify, however, that when Berg first started work Walters stated that Berg was a brand new CNA, that she was just out of class and that sometimes Berg doesn't keep focused on what you're telling her.
Draeger testified that she discussed with Berg that a patient named Carol could not be left alone in the bathroom because she had fallen in the bathroom one time, that she and Berg together took Carol to the bathroom on Berg's first day on the unit and that in the afternoon of the first day Berg left Carol alone in the bathroom. Draeger testified that she also had to keep reminding Berg to lock the wheelchairs and to use the gait belts. Draeger testified that on Berg's second day on the unit Berg again left Carol alone in the bathroom. Draeger testified that she observed Berg sitting with another CNA at the CNA desk. Draeger testified that also on Berg's second day on the unit, she and Berg were moving a patient using a mechanical sit-to-stand lift, which the respondent requires two people to operate, and that as the patient was standing in the lift Berg left the room. Draeger testified that she and Berg had used this lift the previous day at least four or five times with this patient. Draeger testified that on Berg's second day on the unit she talked to Walters about how things were going with Berg.
Walters testified that on the third day of precepting a new employee is typically somewhat independent but that she asked Draeger to oversee Berg to a greater degree than she would have on the third day with most CNAs.
Draeger testified that on Berg's third day on the unit Berg left a patient alone in the tub room.
Walters testified that on Berg's third day on the unit Draeger told her that Berg had left a patient alone in the tub room. Walters testified that tub rooms posed safety concerns to patients and are locked so that patients can't enter them without a staff person.
Walters testified that as a result of what she heard from Draeger, if on day three Berg was unable to focus enough attention to remember she shouldn't leave a patient unattended, she had great fear of allowing Berg to be independent in the future. Walters testified that she related what had happened to her supervisor, St Denis, and a decision was made to recommend the termination of Berg's employment.
Walters testified she then spoke to Farrell, telling him of her concerns regarding the first day that she had spent with Berg, and the situations that arose on Berg's first, second and third days with Draeger, and that she and St. Denis were recommending termination.
Farrell requested to speak with Draeger after what Walters had told him. Walters was present when Farrell met with Draeger. Draeger testified that she told Farrell about the different safety problems that occurred with Berg and the patients. T. II, 355. Farrell approved the recommendation to terminate Berg's employment.
Farrell and Walters then met with Berg on October 23, 2003, and informed Berg of the termination of her employment.
Berg alleges the respondent violated the Wisconsin Fair Employment Act by refusing to hire or employ her because of a disability, by terminating her employment because of a disability, by refusing to reasonably accommodate a disability, and by discharging her because she had opposed a discriminatory practice under the Act.
Wisconsin Statute Section 111.322(1) provides that subject to ss. 111.33 to 111.36, it is an act of employment discrimination to, among other things, refuse to hire, employ or terminate from employment any individual because of any basis enumerated in s. 111.321 (e.g., disability).
Wisconsin Statute Section 111.32(8) provides that an " 'Individual with a disability' means 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 is having such an impairment."
In a disability discrimination claim under the WFEA a complainant must show that: (1) he or she is an "individual with a disability" within the meaning of Wis. Stat. § 111.32(8), and that (2) the employer took one of the actions enumerated in Wis. Stat. § 111.322 (e.g., refused to hire or employ or terminated the complainant's employment). Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, ¶ 42, 264 Wis. 2d 200, 225, 664 N.W.2d 651; Target Stores v. LIRC, 217 Wis. 2d 1, 9, 576 N.W.2d 545 (Ct. App. 1998).
As the first step in the analytical process of determining whether an individual has a disability it must be determined whether an impairment, real or perceived, exists. City of La Crosse Police & Fire Comm. v. LIRC, 139 Wis. 2d 740, 761, 407 N.W.2d 510 (1987). An "impairment" for purposes of the statute is a real or perceived lessening or deterioration or damage to a normal bodily function, or the absence of such bodily function or such bodily condition. Id. If the individual satisfies the first step, then, as the second step, he or she must establish that the impairment either actually makes or is perceived as making "achievement unusually difficult or limits the capacity to work." Id. "Either the complainant must show that the real or perceived impairment makes achievement unusually difficult, or the complainant must show that the real or perceived impairment limits the capacity to work. An employer's perception of either satisfies this element as well." Id. Whether an impairment makes achievement unusually difficult is concerned with whether it places a substantial limitation on life's normal functions or a substantial limitation on a major life activity. 139 Wis.2d at 761. Whether an impairment limits the capacity to work refers to the particular job in question. Id.
The court in City of La Crosse then goes on to state, "In summary, the person alleging that he or she is handicapped (i.e., he or she has a disability-the Act now uses the term disability) under the Act must establish first, an actual or perceived impairment, then, second, that such condition either actually makes or is perceived as making achievement unusually difficult or limits the capacity to work." Id. at 762. (Emphasis added.) Finally, analyzing the situation presented in City of La Crosse, the court stated: "In the instant case Rusch [the complainant] had no actual impairment of his back. However, the first step is satisfied because the employer perceived that Rusch had an impairment that consisted of a weak back that portended future back problems. Inasmuch as the condition that the PFC perceived would constitute an impairment if it in fact existed, the employer's perception satisfied the first step. The second step is also satisfied; Rusch had no impairment that made achievement unusually difficult or limited his capacity to work, but the employer perceived that Rusch was limited in his capacity to perform police work. Thus, Rusch is entitled to the protections of the statute." Id. at 763-764. (1)
Berg asserts that the respondent initially refused to hire or employ her because she was perceived to be disabled because during her physical Weyker "rolled his eyes at me", made the comment, "(A)m I going to have to worry about you freaking out on the floor?" and because he asked if she was on medication. (2)
Assuming merely for purposes of argument that Berg has a condition that would constitute an impairment if it in fact existed, and apart from the credibility issue as to what was or was not said during Berg's initial pre-employment physical, Berg's assertions do not provide a sufficient basis to conclude the respondent perceived her as having an impairment which made achievement unusually difficult or limited her capacity to work. Berg herself admits that in response to Weyker's alleged comment about freaking out on the floor she told Weyker she does not have these panic attacks unless she is getting her blood pressure taken. T. I, 161. Berg obviously would not have been getting her blood pressure taken in the performance of her duties as a CNA. In addition, Berg told Weyker that she was not on any medication and that she did not need to take any medication for these panic attacks. Id.
Furthermore, as additional evidence that Berg was not perceived as having a disability within the meaning of the Act, when Weyker contacted Farrell after Berg's physical what Weyker told Farrell was that Berg was unable to complete her physical and therefore couldn't be hired. Weyker never mentioned to Farrell any concerns about Berg freaking out when working on the floor, or anything else that had occurred during Berg's physical. And while Berg cites the written notes Weyker prepared after her physical which included the comments: [Berg was] "very nervous and acting very odd. She had a great amount of [flight] of ideas and could not stay focused on one subject" that Weyker had these impressions about Berg's behavior, this is also insufficient reason to conclude that he perceived her as having an impairment which made achievement unusually difficult or limited her capacity to work. In fact, Weyker testified that the respondent employed several employees with anxiety problems, bi-polar problems, depression and anxiety, and that he had given the physicals to many of them. T. I, 98. Further, the ALJ himself indicated that his observations of Berg confirmed that "she presents herself as unfocused, confused and having 'flight of thought.' " Decision, p. 11.
Moreover, the evidence clearly shows that it is the respondent's policy that if for any reason a prospective employee fails to complete the pre-employment physical, the offer of employment is automatically rescinded. Indeed, Berg herself testified that when Farrell called to tell her the respondent was withdrawing its offer of employment because she had not completed all facets of the physical, she inquired if Weyker had told him anything and that Farrell responded, "(H)e doesn't have to tell me anything. You didn't complete the physical; you don't have a job." T. I, 163.
Nevertheless, Berg apparently questions whether it is the respondent's policy to automatically rescind an offer of employment when an individual fails to complete the physical because the respondent's witnesses testified they had never encountered such a situation. However, that no prospective employee had ever failed to complete all facets of the physical exam does not provide reason to question the existence of the respondent's policy.
Berg further asserts that since employees at the respondent are required to have pre-employment physicals because the respondent wants to know, prior to extending a final offer of employment, whether an employee has a disability, this supports her assertion that her offer of employment was rescinded because of her perceived disability. Berg's assertion merely begs the question, however.
As indicated above, Walters testified that after learning from Draeger that Berg had again left a patient unattended on day three of Berg's training she and St. Denis decided that out of concern for patient safety Berg's employment should be terminated and this was the recommendation that was made to Farrell. After speaking to Draeger about Berg's performance issues Farrell approved the recommendation to terminate Berg's employment.
Berg asserts the respondent terminated her because it perceived her to be disabled. Berg asserts that Walters perceived her as disabled because Walters had learned she was not hired originally because she was unable to have her blood pressure taken. Berg asserts the only logical conclusion would be that Berg believed she had "some form of mental illness" that prevented her from having her blood pressure taken. However, Berg's assertion provides no persuasive proof that Walters perceived her as having a disability since this was not the only logical conclusion that Walters could have drawn. Other conclusions that could have been drawn include, for example, that religious objections made it problematic for Berg to have her blood pressure taken, or even that Berg was subject to bruising easily from the blood pressure cuff being wrapped tightly around her arm. Furthermore, Walters specifically testified that she did not believe Berg to be disabled.
Next, Berg apparently asserts that because Weyker's notes state that during her physical she was acting "very odd" and had a "flight of ideas" (i.e., unable to stay focused), that because Walters had concerns about her inability to focus and had told Draeger that she doesn't keep focused and that Draeger reported to Walters that Berg was not always focused, that this was evidence the respondent perceived her as having a disability. This assertion fails. First of all, it is entirely possible for someone to find another person to be behaving oddly, without an accompanying automatic conclusion that the person acting oddly is disabled. Second, of particular importance is the fact that Berg has provided absolutely no evidence to show that either Walters or Draeger was aware of any medical information that resulted from her pre-placement physical. In addition, as previously noted above, the ALJ himself upon observations of Berg at the hearing concluded that she "presents herself as unfocused, confused and having flight of thought."
Berg further asserts that the respondent presented inconsistent reasons for her discharge and therefore the information is simply untrue. For instance, Berg asserts that Farrell stated she was discharged for abandoning a patient in a room, but later stated she was discharged because she had abandoned a patient in the middle of a sit-to-stand lift. Further, with respect to abandoning a patient in the middle of a sit-to-stand lift, Berg suggests that Farrell did not know about this because Farrell needed to review Draeger's written statement about her performance problems to refresh his recollection about this and because this was a document Farrell had not received from Draeger until after he made the decision to discharge. Berg's assertions again fail. Farrell repeatedly testified that Berg's discharge was related to more than one incident involving patient safety. T. I, 37, 39-40, 63, 68, 86-87. Further, Farrell's testimony clearly shows that he had learned of Berg's safety performance issue involving the sit-to-stand incident prior to making his decision to discharge her. T. I, 37, 65-66, 70, 89.
Berg further asserts that an inconsistency exists because Walters maintained that she was discharged for leaving a patient alone in a tub room and for "just generally unacceptable behavior, such as not locking wheelchairs, not using gait belts and not using lifts properly." In addition, Berg asserts there is "yet another inconsistency" because neither of the statements Draeger and Walters wrote at the time these events took place indicates that there was a problem with gait belts or locking wheelchairs. These assertions also fail. First of all, Draeger, Berg's preceptor, testified that Berg had left a patient alone in the tub room, that while she (Draeger) and Berg were using the mechanical lift to do a patient lift Berg left the room, and that quite a few times she had to instruct Berg to use the gait belt and that she had to instruct Berg all the time about locking the wheelchairs. T. II, 365-366, 369. Further, Walters testified that Draeger had reported to her that Berg had left a patient alone in a tub room, that while Draeger and Berg were doing a patient lift Berg had left the room and that Berg was not locking wheelchairs and not using gait belts. T. II, 280. Further, Walters testified that she told Farrell about the situations that had arisen on Berg's first, second and third days with Draeger T. II, 286. While Draeger's statement may not have discussed the issues regarding the gait belts and wheelchairs, it did discuss the fact that Berg had left one patient alone three times after she had told Berg never to leave this patient alone because the patient had fallen once and gotten hurt, and that Berg had left the room while they were transferring a patient using the mechanical lift. (Exhibit 6.) Furthermore, Walters' statement, in addition to specifically noting Berg's having left a patient alone and leaving the room before a mechanical lift of a patient was completed, does indirectly reference Berg's problems with the gait belts and wheelchairs through her statement, "There were several other issues related to attention span and ability to follow directions that made Cheryl [Draeger] question whether Nicki [Berg] could grasp the complexities of the CNA role." (Exhibit 15.)(Emphasis added.) Second, again of particular importance, Berg has failed to establish that Draeger's or Walters' reporting of her performance problems was motivated by concerns of a perceived disability because Berg never established that Draeger or Walters knew that she is sometimes subject to panic attacks when she has to have her blood pressure taken.
Finally, as support for her assertion that Walters did not talk to her about performance issues prior to her discharge, Berg argues that it is difficult to believe that a corrective counseling would have taken place without Walters making a note about it. However, as noted by the respondent, "this ignores and misstates the testimony made by Ms. Walters under oath that she did in fact make notes regarding this conversation, but that she discarded them. T.II, 293. Ms. Walters explained that she had taken some notes in her planner, but that she discards sheets that she does not need any longer. T.II, 294. Ms. Walters' conversation with Ms. Berg regarding her patient care issues was not a formal discipline, and therefore it is reasonable that this would not receive formal documentation." (Emphasis in original.)
For all of the above-stated reasons the commission concludes that Berg has failed to prove by a preponderance of the evidence that the respondent refused to hire or employ her, or terminated her employment, because of a disability, i.e., because the respondent perceived her to have a disability within the meaning of the Act. As a result, the commission further concludes that it is unnecessary to decide the issue as to whether or not under the WFEA an employer who perceives an individual to be disabled must reasonably accommodate a perceived disability, and the commission hereby expressly states that it has taken no position one way or the other regarding the views expressed by the parties or the ALJ.
Under Wis. Stat. § 111.322(3), it is an act of employment discrimination to, among other things, "discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice under this subchapter..."
Berg asserts that she engaged in statutorily protected activity when she told Farrell she intended to contact an attorney over the fact that the respondent rescinded the original job offer made to her, that although the job offer was reinstated she suffered an adverse employment action in that she was discharged and that it may be inferred that her discharge was due to opposition to a discriminatory practice because the discharge took place within weeks of the notification to Farrell of her intent to contact an attorney. Further, Berg asserts that inconsistent testimony about why she was discharged by management, plus temporal proximity, lead to the logical conclusion that she was discharged for opposing discriminatory treatment. Berg's assertions fail. First, the timing of opposition to a discriminatory practice under the Act and an adverse action against the employee does not in itself establish retaliation. Kannenberg v. LIRC, 213 Wis. 2d 373, 396, 571 N.W.2d 165 (Ct. App. 1997). Second, as already noted above, Berg's assertion that there was inconsistent testimony about why she was discharged fails. The record contains substantial evidence that the respondent terminated Berg's employment due to the performance issues that arose during her training. Third, the record clearly shows that the impetus for Berg's discharge came from Draeger and Walters, individuals neither of whom Berg ever established as having any knowledge about her telephone message that she was going to get an attorney following the respondent's retraction of its initial job offer. Fourth, Farrell, who approved Walters' recommendation to terminate Berg's employment, testified that Berg's threatening them with legal action didn't faze him that much; that in his capacity as a human resources representative he had received complaints or threats of legal action based upon an employment decision more than once.
For all of these reasons, the commission concludes that Berg has failed to show by a preponderance of the evidence that the respondent discharged her because she had opposed a discriminatory practice under the Act.
NOTE: Paragraph 4 of the administrative law judge's conclusions of law has been deleted because it is not an appropriate conclusion of law. The Act's language used to define "Individual with a disability" as stated in Wis. Stat. § 111.32(8)(c), contemplates an individual as being perceived by another person as having an impairment which makes achievement unusually difficult or limits the capacity to work. The statute does not contemplate a classification or status independent of another person's perception of the individual.
Attorney Brenda Lewison
Attorney Lucinda J. Schettler
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(1)( Back ) The ALJ apparently concludes that in order to qualify as a perceived disability, the condition must be perceived as a physical or mental impairment and the condition must make achievement unusually difficult or limit the capacity to work. Decision at p. 8-9. To the extent that it does it is inconsistent with City of La Crosse.
(2)( Back ) Weyker denied making a comment about Berg freaking out on the floor and the administrative law judge found Weyker to be the more credible witness.