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



ERD Case Nos. CR200302716, EEOC Case Nos. 26HA300037

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 to more accurately reflect the record:

The phrase preceding the first comma in the third sentence of numbered paragraph 16. of the Findings of Fact section is deleted.

In the third sentence of numbered paragraph 39. of the Findings of Fact section, the words "and 13" are deleted from the list of dates.

In the first sentence of numbered paragraph 43. of the Findings of Fact section, the word "day" is substituted for the word "week."


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

Dated and mailed February 12, 2007
fieldka . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


The complainant alleges here that she was discriminated against based on disability and retaliated against for engaging in a protected fair employment activity.

Disability Discrimination

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 (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 complainant failed to sustain this burden here.

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 her or limited her 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 that she suffered from migraine headaches, or suffered the symptoms of tendonitis, 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).

Disability discrimination-Tendonitis

At hearing, and in her appeal to the commission, the complainant identified her claimed disability as migraine headaches. However, in her complaints, she appears also to be claiming that the tendonitis she began suffering in early September of 2002 also constituted a disability and a basis for certain of the alleged acts of discrimination.

However, 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.

There is no competent medical evidence in the record as to the permanency of the complainant's tendonitis. Moreover, there was no reason for the respondent to have perceived this condition to be permanent. The work restrictions related to this condition which were imposed prior to the complainant's medical leave (10/7/02-1/8/03) were temporary ones. The respondent obviously interpreted the work restrictions which resulted in the medical leave to be temporary since it granted a medical leave, not a medical separation. Finally, the complainant returned to work without physical restrictions on January 8, 2003; the restriction on the number of hours she could work each day was stated to be a temporary one; and apparently, as of August 2003, this restriction was removed.

The complainant clearly failed to show that she qualified as an individual with a disability within the meaning of the WFEA by virtue of her tendonitis.

Disability discrimination-Migraine headaches

There is no competent medical evidence in the record as to the existence, nature, extent, and permanence of the complainant's migraine headache condition. The content of the uncertified medical evidence (e.g., exhibits R401C, R401D) which was received into the record, if considered despite its hearsay status, shows that the condition is a permanent one but, other than occasional absences and the need to take frequent short breaks and move around, does not create any restrictions "which would impede [the complainant's] ability to perform her assigned duties."

The evidence of record does not establish the type of substantial limitation on life's normal functions or on a major life activity contemplated by the WFEA. Occasional absences and the need to take short breaks to move around would not be sufficient alone to support a conclusion that the complainant's migraine headaches imposed a substantial limitation on her capacity to work. See, Gramza v. Kwik Trip, Inc., ERD Case No. CR200004205 (LIRC Feb. 20, 2003); Wucherpfennig v. Personal Development Center, ERD Case No. CR200201383 (LIRC June 29, 2006).

Finally, the complainant appears to argue that the record supports a conclusion that the respondent perceived her to be disabled by her migraine headache condition. However, the relative infrequency of the absences/tardiness attributed to the complainant's migraine headaches during the period of her employment relevant here would tend to militate against such a conclusion. Moreover, the fact that respondent was aware that the complainant was seeking medical treatment and 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 nature and extent of the medical restrictions the complainant presented to the respondent in regard to this condition would not reasonably have led the respondent to believe that the complainant suffered from a disabling impairment. See, Greenwood v. Ross Furniture, ERD Case No. CR200001517 (LIRC Dec. 30, 2004).

The complainant has failed to sustain her burden to prove that she qualifies as an individual with a disability within the meaning of Wis. Stat. § 111.32(8).

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

There are two distinct ways in which disability discrimination may occur. The first would be if the employer took an adverse action against an employee "due to a discriminatory animus against the employee because the employee was an employee with a disability." The second would be if the employer took an adverse action against an employee "because of a performance deficiency caused by the employee's disability." Gamroth v. Wisconsin Department of Corrections, ERD Case Nos. CR200303157, etc. (LIRC Oct. 20, 2006).

There are only two of the complainant's cited performance deficiencies which could possibly have been "caused" by the complainant's migraine headache condition, i.e., her attendance record and her work breaks. There is no evidence upon which to conclude that the complainant's work errors, low productivity, or excessive phone usage could have been caused by her migraine headache condition.

The record shows that the respondent provided the complainant FMLA leave for those absences she specifically related to her migraine headache condition, and did not consider them in reviewing the sufficiency of her attendance record. The record also shows that the complainant's other absences clearly exceeded what the respondent reasonably considered to be an acceptable attendance record, i.e., fewer than three unexcused absences during a 12-week period. For example, in the approximately 12-week period between January 18 and April 18, 2002, the complainant had 17 absences, only three of which she specifically attributed to migraine headaches. Even if the complainant's absences due to dental appointments could be attributed to her migraine headache condition  (1),  only seven of her 17 absences during this period could then be considered to have been "caused by" her claimed disability.

In addition, the record shows that the respondent did not cite the complainant for taking the type of work break contemplated by the restriction imposed by her chiropractor, i.e., that she take frequent short breaks to change positions, stretch, and do spinal exercises throughout the course of her work day, but instead that the respondent was reasonably justified in citing the complainant for taking unfair advantage of this restriction to take frequent and lengthy smoking breaks.

The complainant failed to establish that these performance deficiencies, as characterized and relied upon by the respondent in evaluating the complainant, were caused by the complainant's migraine headache condition.

The question would then become whether the record shows that the respondent was motivated by a discriminatory animus as alleged.

The record shows instead that the complainant's unfavorable performance evaluations, discipline, placement on a performance improvement plan, and discharge were reasonably justified by her failure to meet reasonable productivity and other performance expectations; and by her continuing failure, despite numerous opportunities, to improve her attendance record, to reduce the number of her outgoing personal telephone calls, and to otherwise conform her conduct to the respondent's reasonable expectations.

The complainant admits that the respondent was reasonably justified in removing her from the duty rotation due to her frequent absences from work. The record shows that, once the complainant achieved the reasonable objective established by the respondent that she report to work each day for a two-week period, she was placed back in the rotation. Although the complainant objected to the amount of keying she was assigned when she was out of the duty rotation, the record shows that keying was the primary duty of the cashier positions; that the complainant was assigned other duties at that time; and that the respondent honored those work restrictions relating specifically to keying functions, i.e., those imposed for the first time on October 7, 2002, restricting reaching or grasping.

The record also shows that the respondent was reasonably justified, and not motivated by a discriminatory animus, in its decision not to appoint complainant to the vacant payroll specialist position for which she applied in August of 2002. The complainant was not entitled to a contractual transfer to that position, and failed to complete the required application materials. Moreover, in order to establish the existence of a discriminatory animus, it must first be established that the decision-maker was aware or had reason to be aware of the complainant's protected status. Here, the record does not show that the individual responsible for screening the application materials would have had any reason to be aware of the complainant's claimed disability.

The complainant failed to show, as she has alleged, that the respondent misrepresented the circumstances of her separation in regard to her claim for unemployment insurance. The record shows instead that the respondent simply provided copies of the complainant's suspension and discharge notices, and that these notices accurately reflected that the complainant was discharged for alleged misconduct.

The commission also notes, in regard to the complainant's disparate treatment claim, that she failed to establish that employees with work records comparable to hers were treated more favorably.

Finally, in regard to her disability discrimination claim, the complainant alleges that the respondent failed in its duty of reasonable accommodation. The record, however, shows that the respondent carefully implemented each of the work restrictions it received from the complainant's treating health care professionals, including approving FMLA and other leave for related absences. The record also shows that, when it reasonably concluded that it could not accommodate the complainant's restrictions on reaching and grasping, the respondent approved medical leave for her until such restrictions were removed. The complainant failed to show that her cashiering duties did not require frequent reaching and grasping and, in fact, attributed her tendonitis to reaching for, grasping, and turning documents with her left hand; and failed to show that there were any other duties she was qualified to perform which did not require reaching and grasping.

The complainant failed to sustain her burden to show probable cause to believe that she was discriminated against based on disability as alleged.

Fair Employment Retaliation

The complainant also attributes those adverse employment actions occurring in and after January 2003 to retaliation for her filing of WFEA charges with the Personnel Commission/Equal Rights Division in January 2003, March 2003, and April 2003.

However, even though the proximity in time between the filing of these charges and the occurrence of these actions could create an inference that they were causally related, as discussed above, these actions were reasonably justified given the complainant's work performance and conduct.

The complainant has failed to show that probable cause exists to believe that she was retaliated against for engaging in a protected fair employment activity as alleged.


cc: Attorney Ellen S. Hughes

Appealed to Circuit Court. Affirmed August 31, 2007.

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(1)( Back ) Although certain of the complainant's testimony could be interpreted to support such a finding, the more persuasive evidence of record shows that the complainant was searching for other work and wanted to get extensive dental work completed before she started a new job, and that, if anything, this dental work was not the result of, but instead resulted in, headaches for the complainant.

uploaded 2007/02/12