CATHLEEN A LUNDSTAD, Complainant
MANAGEMENT COMPUTER SUPPORT INC, Respondent A
MANAGEMENT COMPUTER SERVICES, INC., Respondent B
DELIVEREASE, Respondent C
CHAS/AQUIDNECK, Respondent D
The complainant alleged that Management Computer Support, Inc. violated the Wisconsin Fair Employment Act by terminating her employment on the basis of disability and refusing to reasonably accommodate a disability, discriminating against her in her terms and conditions of employment on the basis of her sex and age, discriminating against her with respect to compensation on the basis of her sex and discriminating against her with respect to promotion on the basis of her sex and age. (1) An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the matter concluding that there was no probable cause to believe the complainant had been discriminated against as alleged in her complaint and dismissed her complaint.
The complainant filed a timely petition for review of the ALJ's decision. The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. For the reasons set forth below, the Labor and Industry Review Commission affirms the decision of the ALJ in part and reverses in part.
Based on its review, the commission makes the following:
1. Respondent Management Computer Support, Inc. (MCS) is located in La Crosse, Wisconsin. MCS provides computer software, along with updates, technical support and training to Public Housing Authorities (PHAs) throughout the United States. Robert Sierp has been an owner of MCS through the Sierp Family Trust since 1996 when it was created.
2. Complainant Cathleen Lundstad is a female whose date of birth is October 31, 1949. MCS's predecessor organization hired Lundstad in September 1991. Lundstad had recently graduated from Western Wisconsin Technical College with an Associate Degree in Applied Science. Lundstad majored in computer information systems and graduated with a 4.0 based on a four-point scale. Lundstad learned several programming languages including Basic, dBaseIV, CICS, C, COBOL, RMCOBOL, RPGII, RPGIII and JCL.
3. MCS sold a software package called Visual MCS at the time Lundstad began working at MCS. Visual MCS is written in COBOL. (2) COBOL was the preferred computer language at the time. COBOL is an event based or procedural programming language.
4. Sierp hired Lundstad as an entry-level COBOL programmer. Over the years her duties expanded to include telephone support, software design and analysis, upgrading of programs, and training housing authorities throughout the United States. Lundstad began to travel and train the housing authorities around 1998. In 1999, Lundstad was made a supervisor and responsible for the supervision of two employees-Kathy Degner and Jeremy Cox. Degner's date of birth is July 30, 1975, and Cox's date of birth is September 19, 1977. Degner was primarily involved with programming while Cox was primarily involved with telephone support.
5. In early 2003, MCS announced that it had decided to develop software called PHA-Web to replace Visual MCS. The programming language of PHA-Web is VisualBasic.NET, an object-oriented programming language. Unlike Visual MCS, which required the client to have equipment installed in their office to operate the software program, PHA-Web is internet-based and requires only that the client have a monitor with an internet connection.
6. MCS decided that it would develop its PHA-Web software with new people who were trained and educated in that technology. MCS hired its first two new employees in January 2003. Lundstad, Degner and Cox did not have object-oriented, web-based technical skills. Sierp advised them that there would be a transition period and that it was the intent and hope that MCS would be able to transition all of the COBOL programming and support personnel to work on the new software.
7. During 2003 Sierp and his insurance agent did an extensive analysis to determine how best to reduce the cost of health insurance. Risk factors, including age and health histories, affected the cost of health insurance. Sierp determined that the cost of health insurance could be reduced, that is, the costs paid by employees and MCS, if both he and Lundstad were moved to another insurance group. Sierp has high blood pressure and evidently was at least aware at that time that Lundstad has diabetes. Sierp and Lundstad were moved to an insurance group with DeliverEase, another company with which Sierp was associated. The new health insurance arrangement became effective January 2004.
8. Lundstad's main value to MCS in 2004 was in training clients on COBOL. She did very little COBOL programming at this time. In March 2004, Lundstad was in Massachusetts to conduct training and experienced chest pains. When Lundstad returned to the office on March 15, 2004, she notified Dan McIntyre, the business manager of MCS, and saw her doctor that afternoon. McIntyre sent an email to Sierp on March 15 to notify him of what had occurred while Lundstad was in Massachusetts. In the email, McIntyre stated that Lundstad had experienced "severe chest pains". He also stated that Lundstad's mother and brother had both had bypass surgery and that her dad had passed away at age 45 from heart problems. Further, McIntyre advised Sierp that "diabetes promotes heart problems, particularly artery clogging." See Exhibit C-3. McIntyre stated that he and Scott Gleason, the vice-president of MCS, were discussing contingency plans for Lundstad's absence. Id. Sierp was spending the winter in Arizona at the time of McIntyre's email.
9. Lundstad underwent a heart catheterization procedure on March 19, 2004, and then open-heart surgery on March 23, 2004. After three weeks in the hospital, Lundstad was discharged to go home; however, her recovery was complicated by a sternal wound infection.
10. During Lundstad's absence, Degner handled the COBOL programming that needed to be done and Cox handled the telephone support, with both reporting to Gleason.
11. By April 8, 2004, Lundstad had exhausted all of her potential paid leave time (vacation, sick days and floating holidays). MCS provided Lundstad with a few extra days of sick leave and let her borrow time from the vacation she would earn during 2005.
12. In an email dated April 14, 2004, McIntyre notified Sierp that Lundstad was planning to return to work on a part-time basis, starting on April 26, 2004.
13. Sierp returned to La Crosse around April 25, 2004. Sometime between April 25 and 28, 2004, Sierp made the decision to eliminate Lundstad's position. Sierp testified that a combination of reasons led to the decision to eliminate Lundstad's position. He testified that the business plan was to replace COBOL with PHA Web. Further, Sierp testified that with Lundstad's extended absence, it became clear that MCS could do all of its support functions on the COBOL side with two employees instead of three.
14. On April 29, 2004, Sierp visited Lundstad at her home. Sierp did not inform Lundstad that he had decided to terminate her employment. Lundstad was hooked to an oxygen tank and had a vacuum system for her wound. Both devices being used by Lundstad were portable. At some point during his visit, Sierp told Lundstad that she would receive no more pay from MCS while she was off work and he asked Lundstad how much she needed to live on per month. Lundstad said, "roughly $1,000." Lundstad testified that Sierp, referencing her oxygen tank and vacuum system for her wound, stated that he "could not let me come back to work with all that stuff on me." Lundstad's son, Gregory, lives with Lundstad. Gregory testified that he was in the dining room when Sierp was meeting with his mother in the living room. Gregory testified that he heard Sierp say that his mother could not come back to work with her oxygen tank and wound bag and that his mother explained that those items were portable and would not interfere with her job.
15. On May 6, 2004, Sierp again visited Lundstad at her home. Sierp told Lundstad that her full-time employment (40 hours per week) was being eliminated and that he was offering her a part-time position working at home doing PHA Web documentation, which did not require any programming skills. Sierp admitted under adverse-examination that he probably discussed the training and travel that Lundstad was not going to be doing and that he expressed concerns about Lundstad's ability to travel. Sierp testified that he was concerned about Lundstad's ability to travel "[b]ecause traveling is a tiring, stressful ordeal, particularly the kind of travel we do, and I didn't want to put any more stress on her, on her health."
16. The PHA Web documentation position Sierp offered Lundstad was for 20 hours per week, at $12.50 per hour, which was approximately one-half of her previous wage rate, and included health insurance benefits. Lundstad, with a home to pay for and two of her children living with her, testified that she was in total shock and accepted the position.
17. Subsequent to May 6, 2004, MCS continued to provide COBOL Services. Sierp testified that "[s]ome of Ms. Lundstad's duties continued to be performed by Ms. Degner, Mr. Cox and Mr. Gleason." He also testified that "[m]any of the duties that Ms. Lundstad performed before March 2004 continued to be performed by MCS" and that those "duties are still performed even to this date [i.e., November 7, 2006, the date of the probable cause hearing]."
18. On July 29, 2004, Lundstad notified Sierp that she was quitting the part-time position. Lundstad stated "I know I have not been successful in producing documentation for PHA-Web....It broke my heart when ever I tried to do it. I cried, I got a stomach ache, and rapid transit as my family calls it. It has been the hardest thing I've ever had to do. I loved my job at MCS, I loved working with the PHA's...I just could not look at a piece of software I wasn't to be a part of. You shattered my life and my dreams. You also broke your promise to me."
19. Rustin Johnson, who worked as a computer programmer on MCS's PHA-Web project from September 2003 to April 2005, testified that in a meeting in August or September 2004 Sierp told him and other employees that the reason for Lundstad's termination was that her physical condition was a problem for the company and that it was too expensive or difficult to get health insurance. Johnson testified that another employee specifically asked if there had been any problem with Lundstad's work, to which Sierp replied, "No."
20. Sierp testified that he did not recall the meeting Johnson testified about and that to the best of his knowledge he never made the statement attributed to him by Johnson about Lundstad to any employee; that it is not his practice to discuss issues such as health insurance premiums or other management decisions with employees outside of management.
21. No evidence was adduced to show that Lundstad's sex was a factor in her compensation or that her age or her sex was a factor in the terms and conditions of her employment. During her employment with MCS there was no promotion available for which Lundstad asked to be considered. Throughout her employment with MCS Lundstad did not require, or request, any sort of accommodation.
Based upon the above FINDINGS OF FACT, the commission makes the following:
1. MCS is an employer within the meaning of the Wisconsin Fair Employment Act.
2. Lundstad is a member of a protected class within the meaning of the Wisconsin Fair Employment Act in that she is female, over the age of forty and is perceived by MCS to have a disability.
3. There is probable cause to believe that MCS terminated Lundstad's employment because it perceived her to have a disability.
4. There is no probable cause to believe that MCS discriminated against Lundstad by refusing to reasonably accommodate a disability.
5. There is no probable cause to believe that MCS discriminated against Lundstad in her terms and conditions of employment or by denying her a promotion because of her age or sex.
6. There is no probable cause to believe that MCS discriminated against Lundstad by compensating her less because of her sex.
Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission therefore issues the following:
1. Insofar as the decision of the administrative law judge concludes that there is no probable cause to believe that MCS violated the Wisconsin Fair Employment Act by refusing to reasonably accommodate a disability and by discriminating against Lundstad on the basis of age and sex with respect to her terms and conditions of employment and promotion, and on the basis of her sex with respect to her compensation, the administrative law judge's decision is affirmed.
2. The administrative law judge's determination that there is no probable cause to believe that MCS perceived Lundstad as having a disability and no probable cause to believe that it violated the Wisconsin Fair Employment Act by terminating Lundstad's employment on the basis of disability is reversed and remanded to the Division for a hearing on the merits.
Dated and mailed December 26, 2008
lundsca . rpr : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
While in her petition for review Lundstad challenges each of the ALJ's no probable cause conclusions, in her briefs to the commission what she argues is that she was discriminated against on the basis of disability "and age" with respect to her termination of employment. The termination on the basis of age issue is not properly before the commission. This allegation was not alleged in Lundstad's complaint, not noticed for hearing and the ALJ's decision does not address this issue. (3) Also, MCS notes that at the hearing Lundstad withdrew her claim of sex discrimination and that she failed to present any evidence on the issues of discrimination in compensation and promotion. The Summary of Proceedings prepared in this matter does not reflect that Lundstad withdrew her claim of sex discrimination. However, Lundstad has not asserted that she did not withdraw her claim of sex discrimination. The Summary of proceedings does reflect that Lundstad failed to present evidence on the issues of sex discrimination with respect to compensation and age and sex discrimination with respect to terms and conditions of employment and promotion. It also shows that Lundstad testified that she did not need any accommodation. In view of the above, the discussion below is limited to Lundstad's claim of discrimination on the basis of disability with respect to her termination of employment.
In a disability discrimination claim under the Wisconsin Fair Employment Act a complainant must show that: (1) he or she is an "individual with a disability" as defined in Wis. Stat. § 111.32(8), and that (2) the employer took one of the actions enumerated in Wis. Stat. § 111.322 (e.g., terminated the complainant's employment) because of the disability. 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).
The Act 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 as having such an impairment." Wis. Stat. § 111.32(8).
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. City of La Crosse Police & Fire Comm. v. LIRC, 139 Wis. 2d 740, 761, 407 N.W.2d 510 (1987).
Under the first step of the analysis a complainant alleging that he or she has a disability must establish an actual or perceived impairment and that such condition either actually makes or is perceived as making achievement unusually difficult or limits the capacity to work. City of La Crosse Police & Fire Comm., 139 Wis. 2d. at 762. By establishing an actual or perceived impairment and that such condition either actually makes or is perceived as making achievement unusually difficult or limiting the capacity to work, a complainant establishes that he or she is an individual with a disability.
Should the complainant establish that he or she is an individual with a disability, as the second step of the analysis the complainant must then establish that the employer took one of the actions enumerated in Wis. Stat. § 111.322 against him or her because of the disability. Satisfying the first and second steps of the analysis would then cause the burden to shift to the employer to prove a defense under Wis. Stat. § 111.34.
Since the hearing held in this matter was on the issue of probable cause, the standard of proof required to be met by Lundstad is not the preponderance of evidence standard required at a hearing on the merits, but a showing of a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the Act probably has been committed.
Lundstad argues that she was diagnosed with conditions determined to be disabilities in previous cases filed pursuant to the Act, citing cases in which individuals with diabetes were found to be "handicapped", such as Carter v. Wisconsin Electric (DILHR, 12/20/76) and Seim and Hammer v. Fraser Shipyards (DILHR, 12/18/75), and cases in which individuals who suffered from heart disease were found to be "handicapped", such as Eggers v. Soo Line R.R. (DILHR, 12/19/75) and Colovic v. Wisconsin Electric (08/30/78). Lundstad argues that the ALJ found that she suffered from both diabetes and heart disease and that her diabetes caused complications with her heart condition and subsequent surgery for her heart problems, yet nonetheless found she did not have a disability as defined by the Act, citing the fact that her "heart surgery" was a temporary condition. Lundstad argues that it is "ludicrous to suggest that heart surgery is not a part and parcel of heart disease" and that "Such a perverted analysis, dissecting treatment from the condition, is both unsupported and unreasonable."
MCS asserts, however, that:
"Based on the evidence presented at the hearing, what appeared to remain of [Lundstad's] original claims was...alleged discrimination on account of age and disability or perceived disability due to heart surgery. Interestingly, based on her post-hearing briefs, the Complainant appears to have added heart disease (as opposed to only heart surgery and recovery) and diabetes as bases for a disability/perceived disability although no evidence was presented on those conditions at the hearing."
To the extent Lundstad's claim is based on her heart surgery and her recovery therefrom, those are temporary conditions and not considered to be disabilities under the WFEA. Greco v. Snap-On Tools Corp., ERD Case No. 200200350 (May 27, 2004). Indeed, Lundstad's medical records show that her cardiologist, Dr. Christopher Leach, considered her to have fully recovered from her heart surgery on August 23, 2004. See Exh. C-1
However, MCS's assertion that what was presented as evidence at the hearing was limited to claims that Lundstad was discriminated against on account of disability or perceived disability "due to heart surgery" is inaccurate. The record shows that the parties stipulated to the admission of Exhibit C-3, the March 15, 2004 email that McIntyre sent to Sierp after Lundstad reported having suffered chest pains and which discusses Lundstad's family history of "heart bypasses" and "heart problems" and the fact that diabetes promotes heart problems, apparently an acknowledgement that MCS already knew that Lundstad has diabetes. Furthermore, as noted by Lundstad, "[t]here is no reason for any individual to undergo open-heart/bypass surgery other than heart disease."
While no medical evidence was presented to establish whether Lundstad's diabetes and heart disease in fact made achievement unusually difficult for her or limited her capacity to work, clearly, diabetes and heart disease can be disabilities since they are medical conditions that constitute a "lessening or deterioration or damage to a normal bodily function." Thus, the issues presented on appeal to the commission in this case are whether Sierp perceived Lundstad to have a disability due to her diabetes and heart disease and whether for that reason he decided to eliminate her position.
Based on the record in this case, sufficient evidence exists to conclude that there is probable cause to believe Sierp perceived Lundstad as having a disability. Several reasons support this conclusion. The evidence shows that effective January 2004, Sierp had transferred Lundstad and himself to another insurance group, apparently due to their age and because he has high blood pressure while Lundstad has diabetes. Furthermore, as evidenced by Exhibit C-3, it is clear that by March 15, 2004, after Lundstad had returned from a training trip during which she had experienced "severe chest pains", Sierp had also learned that both Lundstad's mother and brother had had bypass surgery, that Lundstad's dad had passed away due to heart problems at age 45 and that diabetes promotes heart problems. Moreover, in addition to testimony that when Sierp visited Lundstad at her home on April 29, 2004, he told Lundstad he would not let her come back to work with an oxygen tank and wearing a wound bag, Sierp himself admits that when he visited Lundstad at her home on May 6, 2004, to tell her about the elimination of her position that he probably discussed the training and travel that Lundstad was not going to be doing and that he was concerned about Lundstad's ability to travel "[b]ecause traveling is a tiring, stressful ordeal, particularly the kind of travel we do, and I didn't want to put any more stress on her, on her health."
The record also contains sufficient evidence to conclude there is probable cause to believe that Sierp decided to eliminate Lundstad's position because of his perception of her disability. Several reasons support this conclusion.
MCS asserts that Lundstad's position was not eliminated for any reason other than business reasons. MCS asserts that it had known since 2003, when MCS began developing a new product called PHA-Web utilizing VB.NET that all of the COBOL functions and related jobs were going to be eliminated, that Lundstad had neither training nor experience in VB.NET and that during Lundstad's "extended absence" it became clear that MCS could handle all of the support functions on the COBOL side with two employees instead of three. However, Sierp testified that "[s]ome of Ms. Lundstad's duties continued to be performed by Ms. Degner, Mr. Cox and Mr. Gleason." He also testified that "[m]any of the duties that Ms. Lundstad performed before March 2004 continued to be performed by MCS" and that those "duties are still performed even to this date [i.e., the date of the probable cause hearing held on November 7, 2006]." Further, Sierp admitted in his deposition testimony that training on the new software was something that would be eventually necessary and that that was something Lundstad possibly could have done. Deposition transcript, p. 61. Furthermore, as noted above, Sierp testified he was concerned about Lundstad's ability to travel "[b]ecause traveling is a tiring, stressful ordeal, particularly the kind of travel we do, and I didn't want to put any more stress on her, on her health." Finally, the evidence also shows that like Lundstad, neither Degner nor Cox had any object-oriented, web-based technical knowledge. Thus, even assuming for purposes of argument that MCS had discovered during Lundstad's absence for heart surgery that it could handle all of the COBOL support functions with just two employees, MCS has presented no explanation as to why it chose to terminate Lundstad, the most senior and most experienced employee, rather than Degner or Cox.
cc:
Attorney James G. Birnbaum
Attorney Jessica T. Kirchner
Attorney Cheryl M. Gill
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