MARY A RANSON, Complainant

MILWAUKEE CENTER FOR INDEPENDENCE, 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 conclusion in that decision as its own.

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

Dated and mailed January 29, 2009
ransoma . rsd : 125 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

For financial reasons, in September 2005 the respondent decided to hire back individuals whom up until August 2004 it had employed as food service workers to prepare or serve food at various schools, at which time they became the employees of a temporary help agency but continued to perform the food service work for the respondent.

As part of the hiring process, on September 9, 2005, all of the candidates were required to undergo a drug screening test at the respondent. Express Drug Screening (EDS) collected urine samples from the candidates. The drug test performed by EDS would instantly reveal a negative test result, or detect something in the specimen that required further testing. Debra Auer collected and performed a 10-Panel drug test for EDS. Test results requiring a need for further testing were sent to Corporate Medical Services' (CMS) laboratory in Chattanooga, Tennessee.

Mary Ranson began employment with the respondent as a food service worker in January 2004, became an employee of the temporary help agency in August 2004 and then sought re-employment with the respondent in September 2005. Ranson's urine specimen revealed a need for further testing. Apparently, Auer asked Ranson if she took any prescription medication and Ranson said that she did. Ranson testified that she was told to get a doctor's note regarding her prescriptions and "fax it in".

On September 19, 2005, Dominique Santiago, a human resources associate for the respondent, received the results of the further testing on Ranson's urine specimen. The test results showed that Ranson's test was positive for opiates, and that Dr. Mark Peterson was the medical review officer for CMS.

On September 20, 2005, Santiago received a call from Ranson. Santiago informed Ranson that her drug test results came back positive. Ranson told Santiago she had a prescription for pain medication that she was taking. Santiago told Ranson that she would try to find out the steps to get the issue resolved and that she would get back to her.

In an e-mail sent to Auer at 2:43 p.m. on September 21, 2005, Santiago wrote:

Thank you for the results on Mary. Do you know if they tried to contact her to verify any prescriptions? She claims that she has a prescription for something, but she claims [she] was never contacted to verify it. I'm not sure if what she tested positive for (opiates) is even found in prescription meds. But I thought I would check b/c I don't know how any of this works. Or is there somewhere she would need to call.

On September 21, 2005, Ranson saw Dr. Eskarous at the Aurora Health Center's Mayfair location and told him about having failed her drug test. At 2:54 p.m. on September 21, 2005, Dr. Eskarous sent a fax to the attention of Santiago with a Medical Profile listing the current and past medications that had been prescribed for Ranson.

By e-mail dated Friday, September 23, 2005, Auer responded to Santiago's e-mail. Auer's e-mail states:

The Doctor tried for three days and that is why you did not get the result for so long. If she is on prescriptions, have her call the doctor at: 1-800-501-0129, have her ask for Karen.

On Monday, September 26, 2005, Santiago called Ranson. Santiago told Ranson she needed to contact the medical review officer at CMS. Santiago gave Ranson the 1-800 phone number for CMS and told her to ask for Karen. Santiago also told Ranson that CMS had tried to contact her for at least two days-on September 16 and 19, 2005. Apparently Santiago had been in contact with Karen to learn about the procedure to review drug test results and prescription information. Santiago testified that Karen told her that either the candidate or the physician could fax in the prescription information. Santiago testified that Karen also told her that she had left two messages on Ranson's answering machine on September 16 and 19, 2005, and had never received a call back from Ranson. Santiago testified that she did not think it would be valid if she forwarded information to CMS that Ranson had sent to her because Karen had said that either the candidate or the physician could fax in the prescription information. Santiago testified that Karen did not give her a fax number for Ranson to call; that she assumed Ranson would get the fax number when Ranson called Karen.

Ranson testified that she did not receive any messages on her answering machine from a CMS medical review officer asking her to contact them. Ranson testified that she called the 1-800 number for CMS that Santiago had given her and spoke to Karen. Ranson testified that Karen said that she could not help her, that she should call the respondent. Ranson testified that Karen told her that all of her "information" was at the respondent.

On September 29, 2005, Ranson sent a fax to Santiago with a note from Dr. Eskarous dated September 29, 2005. Dr. Eskarous' note stated that Ranson was given Tylenol with Codeine #30 on July 3, 2005, and advised to take it as needed. Codeine is a substance derived from opium. Wis. Stat. § 961.14(3); § 961.16(2)(a)4.

Santiago testified that after receiving Ranson's September 29, 2005 fax, she called Ranson and told her again that the procedure was for her to call CMS because they were responsible for overturning the results and that she (Santiago) did not have the authority to overturn a positive drug screen result.

On October 5, 2005, Ranson sent a second fax to Santiago with another copy of Dr. Eskarous' note dated September 29, 2005, that she had sent to Santiago on Sept 29, 2005.

On or about October 5, 2005, after receiving Ranson's latest fax, Santiago decided that the respondent would not be able to employ Ranson as an employee because: 1) Ranson had not passed the pre-employment screening due to a positive drug test; and 2) Santiago believed that it was Ranson's responsibility to get the positive drug test overturned and that there was a failure on the part of Ranson to follow the instructions that would have given her the opportunity to overturn her positive drug test result.

Ranson alleges that the respondent violated the WFEA because it perceived her as having a disability due to her positive drug test. However, the evidence fails to provide probable cause to believe that the respondent perceived Ranson as having a disability.

First, the evidence provides reason to believe that Santiago believed it was Ranson's responsibility to get the positive drug test overturned and that Ranson had failed to follow through on instructions given her with respect to getting the positive drug test result overturned. Santiago contacted Karen at CMS to obtain information for Ranson about how to resolve the issue of her positive drug test result. Santiago testified that based on her conversation with Karen, documentation to overturn Ranson's positive drug test had to be sent to CMS directly from the person tested or their physician. Santiago testified, and Ranson agreed, that Santiago told her that only CMS could overturn a positive drug test result. Santiago testified that she was told by both Auer and Karen that CMS had tried to contact Ranson without success. Santiago testified that after receiving Ranson's September 29, 2005 fax with the note from Dr. Eskarous stating that Ranson was given Tylenol with Codeine #30 on July 3, 2005, she again told Ranson that she was responsible for overturning the drug test results and that she (Santiago) did not have the authority to overturn a positive drug screen result.

Second, and more pertinent, Wisconsin Statute § 111.32(8) provides in relevant part that an "[i]ndividual 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...or (c) is perceived as having such an impairment."

There is no evidence, aside from Ranson's positive drug test result, that Santiago had any reason to believe Ranson was even using drugs, much less that she had a disabling drug problem. A positive drug test alone is insufficient to establish that Santiago perceived Ranson as an individual with a disability. A positive drug test indicating a use of drugs by an individual fails to provide the necessary level of diagnosis as to whether the individual's use of drugs had progressed to the point that such use had become non-volitional. To constitute a disability as defined by the Act depends on whether or not the individual's drug use had progressed to the point that such use had become non-volitional, a determination which requires the expert medical opinion of a physician. See Connecticut General Life Ins. Co. v. DILHR, 86 Wis. 2d 393, 273 N.W.2d 206 (1979). As previously noted by the commission in Geske v. H. C. Prange Co. (LIRC, 12/09/03), these requirements exemplify the difficulty of applying a "perceived disability" theory in substance abuse cases for the following reason: "a complainant can not prove a 'perceived' substance abuse problem adequate to meet the statutory test unless there is direct evidence that the agents of the respondent alleged to have had the 'perception' that there was such a problem, had actually been provided (and accepted) information that what the person was suffering from was medically assessed as non-volitional and thus potentially within the Connecticut General standard for a [disabling] substance abuse problem."

The absence of evidence that the respondent had information that Ranson's use of drugs had been medically diagnosed to become non-volitional precludes any basis for concluding that the respondent perceived her as having a disability.

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