KEVIN G LARSON, Complainant

SOCIAL DEVELOPMENT COMMISSION, Respondent

Two decisions were issued in this matter by administrative law judges (ALJ) of the Equal Rights Division of the Department of Workforce Development. In the first, issued on July 21, 2005, ALJ DeLaO held that no probable cause existed to believe that the complainant had been discriminated against on the basis of disability as alleged. In the second, issued on April 26, 2007, ALJ Wasserman held that the complainant had not been discriminated against on the basis of race or color as alleged.

A timely petition for review of these decisions was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ's. Based on its review, the commission agrees with the decisions of the ALJ's, and it adopts the findings and conclusions in those decisions as its own, except that it makes the following modifications to ALJ Wasserman's April 26, 2007, decision:

The first sentence of the quoted section in numbered paragraph 46. on page 11 of the decision is modified to read as follows:

I have reviewed the information you presented in your letter of January 20, 2003.

The decisions of the administrative law judges (copies attached), as modified, are affirmed.

Dated and mailed October 28, 2008
larsoke . rmd : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

On July 21, 2005, ALJ DeLaO issued a decision finding no probable cause to believe that the complainant had been discriminated against on the basis of disability when he was discharged by the respondent. The notice accompanying this decision stated as follows, as relevant here:

The no probable cause finding may be appealed to the Labor and Industry Review Commission, but only after the Equal Rights Division has issued a final decision on the entire case. You will be sent a notice of appeal rights when a final decision on the entire complaint is issued.

On April 26, 2007, ALJ Wasserman issued a decision concluding that the complainant had failed to sustain his burden to prove that he had been discriminated against on the basis of race or color when he had been discharged by the respondent. The notice accompanying this decision stated as follows, as relevant here:

Any party who is dissatisfied with the attached Decision and Order of the Administrative Law Judge or with earlier nonfinal decisions, may file a written petition for review by the Labor and Industry Review Commission.

In an appeal dated May 12, 2007, the complainant requested a briefing schedule and requested that the commission "set aside the final decision and order of the Administrative Law Judge in ERD Case No. CR200302652."

In the briefs he filed as part of his appeal, the complainant referenced only the issue of race/color discrimination addressed in the decision issued by ALJ Wasserman on April 26, 2007, and not the issue of disability discrimination addressed in the decision issued by ALJ DeLaO on July 21, 2005.

Although this appeared to suggest that the complainant was only appealing ALJ Wasserman's decision, the commission, in correspondence dated and mailed to the complainant on May 14, 2008, stated as follows:

[I]t appears that your intent was to appeal only the decision issued by ALJ Wasserman, and not the decision issued by ALJ DeLaO.

The commission intends to process your appeal in this manner unless advised to the contrary on or before Friday, May 30, 2008.

By phone on May 16, 2008, the complainant clarified that he intended his appeal to encompass both decisions. 
 

Race/color discrimination-merits

It is the complainant's burden to prove that he was treated less favorably by respondent than black/African-American persons, or other persons of color, because he is white.

However, all but one example of less favorable treatment he cites with sufficient particularity to permit a meaningful comparison, involve sleeping on the job, physical interactions with children, or similar incidents. These are not situations comparable to that at issue here which relates to the complainant student teaching in a public school during a period of time he was on approved medical leave from his SDC teaching position.

The one potentially relevant example cited with sufficient particularity by the complainant relates to leave taken by Debora Taylor. However, Taylor testified without rebuttal that she used four weeks of accrued vacation leave to take a trip to Africa in January of 2003, and that the only medical leaves she took were from August 2001 to March 2002, and another many years prior to 2001. The record, as a result, does not show, as complainant has alleged, that Taylor traveled to Africa while she was on an approved medical leave.

The complainant also appears to be arguing that, because neither the state nor the federal acts requires that an employee be unable to work in order to qualify for FMLA medical leave, the fact that he was student teaching during the fall of 2002 was not necessarily inconsistent with the fact that he was on FMLA medical leave at that time and did not, as a result, justify his discharge by the respondent.

However, the federal Family and Medical Leave Act (FMLA) requires that an employee be "unable to perform the functions of the position" from which he is requesting medical leave in order to qualify. 29 USCS § 2612(a)(1)(D). The state FMLA requires that an employee have a serious health condition which "makes the employee unable to perform his or her employment duties" in order to qualify for medical leave. Wis. Stat. § 103.10(4)(a).

As a result, by requesting and using FMLA medical leave during the fall of 2002, the complainant was representing that he was unable, due to a serious health condition, to function as a teacher at that time. The complainant concedes, however, that, during this period of time, he was student teaching in a public elementary school. The record shows that, although student teaching may include some level of observation and assistance to a lead teacher, it also entails independent and critiqued classroom teaching. This circumstance provided sufficient and reasonable justification for the complainant's discharge. 
 

Disability discrimination-probable cause

A probable cause standard was applied to the analysis of this issue.

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 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). See, also, 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 the existence of a disability is 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).

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. See, Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC Aug. 25, 2000).

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, 704 N.W.2d 398.

The complainant has identified his claimed disabilities as generalized anxiety disorder and adjustment disorder with anxious mood.

Although the complainant established through competent medical evidence that his generalized anxiety disorder is a permanent mental health impairment, which he controls through the prescription medication Paxil, the record does not show to what extent the symptoms of this condition, i.e., depressed mood, difficulty concentrating, fatigue, make achievement unusually difficult for him. In addition, the record does not show that this impairment limited the complainant's capacity to work in his floater teacher position with the respondent. The respondent had no reason to perceive the complainant as disabled by this condition since no member of management had reason to be aware of it prior to the date of the subject discharge decision.

In regard to his adjustment disorder, the complainant failed to establish that this condition was a permanent one. Moreover, since, on January 10, 2003, the complainant was released to return to work without restriction after a medical leave for this condition, there was no reason for respondent to have perceived the complainant to be permanently disabled by this condition when the discharge decision was made on or around January 17, 2003. See, Greenwood v. Ross Furniture, ERD Case No. CR200001517 (LIRC Dec. 30, 2004).

As a result, the complainant failed to sustain his burden to prove that he qualified as an individual with a disability within the meaning of the WFEA, and failed to show probable cause to believe that he was discriminated against based on disability as a result.

Finally, the commission notes that the complainant, in his appeal to the commission and supporting argument, offers facts not of record. The complainant was represented by counsel before and during both the probable cause hearing on the disability discrimination issue and the hearing on the merits of the race/color discrimination issue, and was provided full and fair opportunity to present his case. He has provided no persuasive reason for permitting further hearing on either issue. The commission has, as a result, considered only the evidence of record in reaching its decision here. See, Butler v. City of Madison, ERD Case No. 199704815 (LIRC Nov. 27, 2000).

cc: Attorney F. Thomas Olson 

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2008/11/14