KATHY FIALHO, Complainant
GIRL SCOUTS OF MILWAUKEE INC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:
1. The FINDING OF FACT which appears first as number "17" is renumbered 16, and FINDING OF FACT number 16 is renumbered as 17.
2. The FINDING OF FACT which appears as number "17" a second time in the decision is deleted.(1)
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed June 15, 2007
fialhka . rmd : 125 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Kathy Fialho was employed by the respondent, Girl Scouts of Milwaukee, Inc., from July 6, 1999, until notified of the termination of her employment on September 2, 2004. Fialho last worked as a Membership & Marketing Specialist for the respondent.
Fialho was involved in an automobile accident on March 17, 2004, in which she sustained trauma to her back and neck. Fialho was unable to work due to the amount of pain she was in and took paid time off using sick days, and then vacation and personal days. On June 22, 2004, Fialho requested unpaid medical leave as a result of the injuries she sustained in the March 17 accident and indicated a possible release to return to work date of July 5, 2004. However, Fialho was still in considerable pain on July 5 and spoke to the respondent's Human Resources Administrator, Eula Thomas, about taking a Family and Medical Leave. By letter dated July 9, 2004, Thomas asked Fialho to submit a written request for her medical leave and a written recommendation for such leave from her doctor with a start and ending date. In the July 9 letter Thomas advised Fialho that the impact of the workload of the council during the leave would have to be considered in approving the length of the leave.
In a note dated July 30, 2004, Fialho's doctor stated that Fialho could return to work as of August 23, 2004, with no restrictions. Fialho returned to work on August 23 and worked that entire week, but felt terrible throughout the week due to the excruciating pain in her neck, shoulder and back. Fialho was next scheduled to work on August 30, but was still experiencing a great deal of pain so she called the respondent that morning to report she would not be in to work. Later that afternoon Fialho went in to work and told Thomas that she was not coming in to work on August 31 and was going to see her doctor. On August 31 Fialho spoke to Thomas by phone and told her she could not come back to work because of the pain she was experiencing, and again stated she was going to see her doctor. Thomas advised Fialho to bring in a letter from her doctor.
Fialho saw her doctor on the morning of September 2, 2004, who provided her a note stating that "Kathy Fialo (sic) is once again under my care for injuries sustained in an auto accident on March 17th, 2004. She will return to work on 9-30-04."
On September 2, Fialho provided the respondent with her doctor's note of that date, and her written request for an unpaid medical leave under the Federal Medical Leave Act to begin on August 30 and continue until an anticipated return date of September 30, 2004. During a meeting on September 2 with Thomas and her direct supervisor, Sarah Fuerstenau, the respondent provided Fialho a letter notifying her that the respondent was unable to approve Fialho's request for an additional four weeks of unpaid medical leave and that the respondent was terminating her employment effective as of September 3, 2004. The letter, signed by Mary Beth Malm, the respondent's Executive Director and CEO, indicated that the demands of membership staff were especially great during the beginning of the school year due to registering/re-registering of troops, recruitment and support provided for Area/School Coordinators, and that the actions of the membership staff in the fall set the stage for the entire membership year and directly affect the product sale that in turn affects the council budget. The letter further indicated, as reason for initiating the employment separation, Fialho's inability to perform because of a health condition; that she had had a total of 101 workdays out of the office due to illness from January 1 through August 20, 2004.
In a complaint filed with the Equal Rights Division on December 27, 2004, Fialho alleged that Girl Scouts of Milwaukee, Inc., refused to reasonably accommodate her disability, and terminated her employment because of her disability and age (57). An investigator for the Division issued an Initial Determination finding no probable cause (2) to believe the respondent had violated the Wisconsin Fair Employment Act as alleged by Fialho. Fialho appealed and requested a hearing. Following a hearing to determine whether there was probable cause to believe the respondent had violated the WFEA as alleged by Fialho, the ALJ issued a decision in which he concluded that Fialho had not established that she has a disability within the meaning of the Act and that there is no probable cause to believe the respondent discriminated against her, in violation of the Act, by terminating her employment because of her age, refusing to reasonably accommodate a disability and terminating her employment because of a disability. Fialho has now filed a petition for review of the ALJ's decision.
In a complaint alleging disability discrimination the complainant must initially establish that he or she has a condition that qualifies as a disability within the meaning of the Fair Employment Act. Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998). The 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 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 condition. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 759-760, 407 N.W.2d 510 (1987).
Furthermore, for a disability discrimination claim to be actionable under the WFEA, a disability must be permanent. Erickson v. LIRC and Quad Graphics, Inc., 2005 WI App 208, ¶ 16, 287 Wis. 2d 204, 704 N.W.2d 398 (2005).
Fialho's claims that the respondent violated the WFEA by terminating her employment because of a disability and by refusing to reasonably accommodate a disability fail because she has not established by competent medical evidence that she has a permanent disability within the meaning of the WFEA.
While Fialho has presented evidence showing that she was under the care of a doctor for periods of time in 2004, and has asserted that she was unable to work during those periods due to neck, shoulder and back pain, she has failed to present any medical evidence whatsoever regarding what, if any, diagnosis was made by her doctor, the nature and extent of her condition, or the permanency of such condition. Indeed, the available evidence indicates that Fialho only suffered from a temporary condition. For example, Fialho's doctor had first released her to return to work without restrictions on August 23, 2004, and then in a note dated September 2, 2004, stated she could return to work on September 30, 2004, without identifying any work restrictions as of that date. In addition, Fialho testified that she last saw her doctor in 2004 for reasons related to her auto accident, and that in October and November of 2004 she applied for jobs and did not tell any employers that she was unable to work for any reason.
Also, while the letter the respondent gave to Fialho on September 2, 2004, references Fialho's inability to perform because of a "health condition", the evidence does not support reason to believe that the respondent perceived Fialho as an individual with a disability within the meaning of the Act. First of all, none of the doctor's notes that Fialho submitted to the respondent contained any diagnosis of her condition. Also, as noted above, in the note dated July 30, 2004, which was a second note by her doctor, Fialho's doctor had stated that she could return to work as of August 23 with no restrictions, and in the final note dated September 2, Fialho's doctor had simply stated that Fialho could return to work on September 30, 2004. Furthermore, Thomas testified that she understood Fialho's condition to stem from a car accident but she did not know specifically what Fialho was suffering from and had never talked to Fialho about what she might be suffering from. Similarly, Malm, who made the decision to terminate Fialho's employment, testified that she did not know what Fialho was suffering from, although she did know that it was a health condition of some sort stemming from a car accident. In fact, Malm testified that she had asked Fialho to provide a doctor's excuse that included a description of her injuries, but Fialho did not do that. Also, Fuerstenau indicated that she had received copies of everything that Fialho had turned in to the respondent, but there is nothing in the evidence from which there would be reason to believe that Fuerstenau perceived Fialho to be an individual with a disability within the meaning of the Act.
Finally, Fialho has presented no evidence which suggests reason to believe that the respondent terminated her employment because of her age.
cc: Attorney Carolyn C. Burrell
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