Wis.LIRC ER Decision: Garlie - June 29, 1998 - Disability discrimination - case by case evaluation of disability

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

SANDRA R. GARLIE, Complainant

SAINT FRANCIS HOME IN THE PARK, Respondent

FAIR EMPLOYMENT DECISION
ERD Case Nos. 199600290, 199602595
EEOC Case Nos. 26G960600, 26G961501

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.

DECISION

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

Dated and mailed: June 29, 1998
garlies.rsd : 101 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant asserts that the respondent discriminated against her on the basis of disability (1 ) in violation of the Wisconsin Fair Employment Act. No live testimony was taken at a hearing before ALJ Gary L. Olstad; instead the parties agreed to submit stipulated facts and exhibits as a basis for decision. ALJ Olstad concluded the complainant had a handicap, or perceived handicap, but that the respondent did not unlawfully discriminate against the complainant. The complainant appeals.

In this case, the parties agree that the complainant was hired as a registered nurse following a pre-employment physical by Robert Sellers, M.D. Her duties included providing professional nursing care to the residents of the respondent's facility. In response to a health history questionnaire completed during orientation after she began work, the complainant noted that she had been diagnosed with epilepsy, but that the diagnosis had been changed to "psycho. seizures." The respondent requested information about the complainant's symptoms, how she was being treated, and how she would manage her symptoms with respect to the safety of the respondent's residents.

Thereafter, the complainant and the respondent's resident care administrator, Karen Mokros, Ph.D., discussed both the complainant's condition, and the complainant's belief that some of the information the respondent requested concerning the complainant's condition violated the Americans with Disabilities Act (ADA). Nonetheless, Dr. Mokros continued to request information about the complainant's condition. While the complainant provided information about the ADA, and may have offered Dr. Mokros information about non-epileptic events generally, she refused to provide specific, written information from a treating doctor about her condition. Instead, the complainant suggested that Dr. Mokros and her coworkers attend a seminar on seizure disorders and the ADA. Dr. Mokros continued to request information about the complainant's seizures in writing.

Dr. Mokros eventually suspended the complainant for failing to provide the information. Dr. Mokros temporarily ended the suspension, stating that the complainant had partially complied with Mokros's demand for information by stating that she did not request accommodation. However, at the same time, Dr. Mokros indicated she would again suspend the complainant if she did not provide the requested information about her condition. Thereafter, Dr. Mokros wrote to the complainant's attorney asking him to provide Dr. Sellers with the name of the physician who had treated the complainant and a release, so Dr. Sellers could determine how the seizure condition affected her ability to care for residents in the respondent's facility. The complainant's attorney responded by stating the complainant would be happy to provide the information if the respondent provided a written indication of the need for the release. Correspondence in similar vein continued, and the complainant continued to refuse to provide the information. Ultimately, the respondent discharged the complainant as of February 1, 1996.

The complainant's position on appeal is that the request for disclosure of confidential medical information from an employe's personal treating physician is so intrusive that it must require an absolute showing by the employer that there is substantial evidence that the individual's medical condition or potential condition renders the employe unable to adequately perform the job, or presents a substantial future risk of hazard. On this point, the complainant notes that Dr. Sellers had performed a medical examination, and had access to the health history questionnaire, yet Dr. Sellers personally did not request further information. The complainant's position is that, after she assured the respondent she did not need accommodations for her condition, the respondent was required to provide something akin to an expert opinion from Dr. Sellers explaining why further information regarding the complainant's medical history and treatment was necessary.

The commission does not agree that such a statement from Dr. Sellers or another medical doctor was necessary in this case. The respondent's concerns about the present or future safety of the complainant with respect to her duties as a registered nurse are supported by the stipulation of the parties that:

"Whether or not a particular individual with any type of seizure disorder poses a risk to the safety of employees or residents, must be determined on a case- by-case basis, as there is a wide variance as to symptoms, causation, and treatment."

Stipulated Facts and Documents, paragraph no. 34.

In order to make such a case-by-case determination, the respondent in this case requested additional medical information, including treatment history, from the complainant's treating doctor. The respondent was not required under the facts of this case to accept the complainant's recital of her treating doctor's ultimate medical conclusions, or to accept the complainant's belief of what that conclusion would have been with respect to the complainant's job with the respondent. Rather, the respondent reasonably demanded that additional information regarding the prior symptoms and treatment be provided by a medical doctor to allow the respondent to evaluate the complainant's ability to undertake the job-related responsibilities of the complainant's job as registered nurse. (2 ) When the complainant hindered that determination by refusing to provide the demanded information after several requests, the respondent did not violate the Wisconsin Fair Employment Act by discharging the complainant.

cc: William C. Stewart, Jr.
Marna M. Tess-Mattner

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Footnotes:

(1)( Back ) The obsolete term "handicap" in the Wisconsin Fair Employment Act has been replaced generally with the term "disability" by recently-enacted remedial legislation. 1997 Wis. Act 112.

(2)( Back ) The complainant argues that a "presumption of danger" against individuals who have ever been diagnosed with a seizure condition contravenes the public policy underlying anti-discrimination legislation generally. However, this is not a case where an employer simply discharges a complainant because of handicap, or even imposes work restrictions to accommodate a handicap, based on an unfounded presumption of danger. Rather, given the stipulation of the parties, the employer was justifiably concerned about the effect of the complainant's condition on her ability to perform her job duties safely, and was reasonably trying to obtain information to address those concerns. As the respondent points out, the commission has previously held that: "[A]n employer ... also has the right to know if an employe has a handicap (at least until the new Americans with Disabilities Act may provide otherwise) so that the employer can determine whether the handicap is `reasonably' related to the ability to undertake job responsibilities. Bucyrus Erie Co. v. ILHR Department, 90 Wis. 2d 408, 423, 280 N.W.2d 142 (1979)(the WFEA is not intended to `force an employer into the position of aiding a handicapped person to further injury, aggravating the intensity of the handicap or creating a situation injurious to others.')." Karen Haynes v. National School Bus Service, Inc., ERD case no. 8751901 (LIRC, Jan. 31, 1992). In sum, the respondent's "right to know" in this case includes some kind of right to investigate, and the respondent's actions in this case were consistent with that right. Neither the complainant's brief, nor the commission's research, indicates that the ADA precludes the inquiry made by the respondent in this case. See 29 CFR �1630.13 and 1630.14(c); respondent's brief, pages 14 and 15; and 9 Larson, Employment Discrimination, � 154.07 (MB 2d ed., 1998).