ROSALBA SAVAGLIO, Complainant

LEBLANC INC
DIVISION OF CONN-SELMER, 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, except that it makes the following modifications:

The following is added to the first paragraph of the decision:

By letter dated May 22, 2006, the complainant clarified that the only disability discrimination claim on which she was choosing to proceed was that relating to her October 2004 termination.

Numbered paragraph 30. on page 6 of the decision is modified to read as follows:

On Wednesday, October 6, 2004, Savaglio requested permission to take a bonus attendance day on Thursday, October 7, 2004, and a day of vacation on Friday, October 8, 2004. This request was approved. Both Montemurro and lead worker Georgette Sauceda had the authority to approve bonus attendance days and vacation days for Savaglio. Savaglio's early departure from her shift on Tuesday, October 5, 2004, was not for the purpose of attending a prescheduled medical appointment, was not required by the respondent, and did not satisfy any other exception to the applicable bonus attendance day requirements. Savaglio did not tell Montemurro or any other manager that she failed to punch out correctly on the computer clock on Tuesday, October 5, 2004, when she left work and visited the offices of her treating physician.

Numbered paragraph 4. in the CONCLUSIONS OF LAW section is deleted because the complainant waived the reasonable accommodation claim.

Numbered paragraph 5. in the CONCLUSIONS OF LAW section is deleted because the complainant waived the terms and conditions claim.

The third sentence in the MEMORANDUM OPINION section is deleted.

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

Dated and mailed January 30, 2009
savagro . rmd : 115 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

Contact information for Michelle Hammer.

Complainant contends that respondent withheld Michelle Hammer's contact information, effectively preventing the complainant from deposing Hammer.

However, Michelle Hammer left her employment with respondent on September 16, 2005. During the discussion of this issue at hearing, counsel for complainant did not reference any specific oral request he had made for this information, and admitted that he had not made a written request, either informally or through the discovery process. Counsel for complainant was necessarily aware that the discovery process provides the appropriate vehicle for requesting information from the other party, but concedes he failed to use this process to request Hammer's contact information from the respondent. Since Hammer was no longer employed by respondent at the time counsel for complainant was arranging to depose certain of the respondent's employees, counsel for respondent was not obligated to participate in arranging complainant's deposition of Hammer.

Moreover, counsel for complainant had full and fair opportunity to examine Hammer at the hearing before the ALJ, and has not explained how the inability to depose Hammer prejudiced the complainant's ability to prosecute her charge of discrimination.

Medical evidence

Counsel for complainant takes issue with the ALJ's ruling that certain documents created by complainant's treating physician, and stating the physician's diagnosis and work restrictions, were received into the hearing record solely for the purpose of establishing what information was available to the respondent during the time period relevant here, and not for the purpose of establishing the diagnosis itself.

Although the Court of Appeals, in Rutherford v. LIRC and Wackenhut Corp., 2008 WI APP 66, 309 Wis.2d 498, 752 N.W.2d 897, held that medical records could not be excluded from Chapter 227 administrative hearings simply because they were not certified, the court did not deal directly with the issue of the probative value of documents created by a medical provider and received into the hearing record but not authenticated either through certification or through the testimony of the provider. The ALJ is correct that any medical opinion stated in such a document would constitute hearsay evidence.

However, in this case, it does not appear from the respondent's litigation posture or argument that it is disputing that the complainant's treating physician diagnosed work-related carpal tunnel syndrome in both her hands/wrists, and imposed certain work restrictions as a result. Moreover, as discussed below, even if the documents were considered to have been received for the broader purpose urged by complainant, the record does not establish that the complainant qualified as an individual with a disability within the meaning of the WFEA. 
 

Disability discrimination issue

Scope of issue

In the hearing notice issued on June 12, 2006, and in the ALJ's decision, the issue is stated as disability discrimination relating to a failure of reasonable accommodation, terms and conditions of employment, and termination. However, in a letter dated May 22, 2006, counsel for complainant clarified that the complainant was choosing to proceed only on the "claim that her termination was motivated by her disability." This is consistent with the hearing evidence and the parties' arguments. As a result, in the course of these proceedings, the complainant not only waived the age discrimination claim set forth in her charge of discrimination but also that part of her disability discrimination claim relating to a failure of reasonable accommodation and terms and conditions of employment. Consequently, the only issue before the commission is whether the complainant was discriminated against based on disability when she was terminated by the respondent in October 2004.

Individual with a disability

The complainant's initial burden in a disability discrimination case is to establish that she 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 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).

It is not enough to state a diagnosis or to list symptoms. The complainant must explain through credible and competent evidence how or to what degree these symptoms made achievement unusually difficult for her. Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC August 25, 2000).  As a result, the fact that the complainant's treating physician rendered a diagnosis would be insufficient alone to establish the existence of a disability. See, Ford v. Lynn's Hallmark, Inc., ERD Case No. CR200301184 (LIRC June 27, 2005) (diagnosis of diabetes alone insufficient to establish existence of disability).

An impairment must be permanent in order to constitute a cognizable disability within the meaning of the WFEA. Erickson v. LIRC, 2005 WI App 208, 287 Wis.2d 204, 704 N.W.2d 398.

Competent medical evidence is required to establish the existence, nature, extent, and permanence of an impairment, if, as here, disputed as a matter of fact. Connecticut General Life Ins. Co. v. DILHR, 86 Wis.2d 393, 273 N.W.2d 206 (1979); Erickson, supra. See, also, Grell v. Bachmann Construction Co., Inc., ERD Case No. CR200202309 (LIRC July 15, 2005); Moller v. Metavante, ERD Case No. 200103621 (LIRC Nov. 13, 2003); Green-Brown v. Midwest Express Airlines, ERD Case No. CR200104139 (LIRC Sept. 16, 2004).

During her employment, no medical determination as to the permanence of the complainant's hand/wrist impairment was made. In fact, at the time of her termination in October 2004, the complainant had just undergone surgery on her right hand/wrist and was healing from that surgery, and was scheduled to undergo surgery on her left hand/wrist in November 2004. The work restrictions in effect on the date of termination (exhibit #21) specifically state that they were temporary restrictions.

The evidence of record shows (exhibit #14) that it was not until March 13, 2006, 17 months after the complainant's termination, that respondent had reason to be aware that complainant had been assessed a permanent partial disability rating of 7% for her right hand/wrist and 4% for her left hand/wrist. However, even if this post-termination assessment were sufficient to establish the permanence of the complainant's impairment for purposes of this matter, the evidence of record does not establish that this permanent impairment imposed a substantial limitation on the complainant's normal life functions or on a major life activity. Moreover, since the only work restriction imposed as a result of this permanent impairment (exhibit #23) related to the operation of a drill press, a work activity which the complainant had never been asked to perform either for the respondent or its predecessor, the record does not establish that the complainant's permanent impairment limited her capacity to work.

The record does not show that the complainant had an actual disability.

The complainant appears to be arguing that the evidence shows that she had a record of a disability, within the meaning of Wis. Stat. § 111.32(8)(b). However, as discussed above, the records in existence on and before the date of her termination do not establish the permanence of her hand/wrist condition, and those postdating her termination do not establish that her hand/wrist condition made achievement unusually difficult or limited her capacity to work.

Finally in this regard, the complainant contends that the respondent perceived her to be disabled as of the date of her termination However, the fact that respondent may have been aware at that time that the complainant was seeking medical treatment, and undergoing surgery, does not establish that respondent necessarily or reasonably would have perceived complainant to be disabled. Medical treatment is sought, and surgery performed, for conditions which are permanently disabling as well as for conditions which are not. See, e.g., Erickson, supra.; Moller, supra.; Lester v. Compass Group USA, ERD Case No. CR200203879 (LIRC March 22, 2005). Moreover, the work restrictions in effect on the date of termination were clearly stated to be temporary, not permanent restrictions, consistent with a post-surgery healing period.

The respondent's perception of the complainant's impairment after the date of her termination would be irrelevant.

The complainant failed to prove that she qualified as an individual with a disability within the meaning of the WFEA.

Disparate treatment

Even if the complainant had sustained her burden to prove she was disabled, she failed to sustain her burden to prove that she was discriminated against on that basis.

Wisconsin courts, in the absence of the WFEA's establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, such as that advanced here, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172-173, N.W.2d 372 (Ct. App. 1985). See, also, Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003).

As stated by the court in Puetz:

McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).

Assuming for purposes of analysis that the complainant proved a prima facie case of disability discrimination, the burden would then shift to the respondent to articulate a legitimate, nondiscriminatory reason for the termination. The respondent sustained this burden by explaining that it terminated the complainant because it reasonably believed that she had intentionally falsified her time record.

The burden would then shift to the complainant to establish that this reason was a pretext for discrimination.

It should be noted that certain of the complainant's pretext arguments are based upon a theory that the respondent did not follow optimal personnel practices in terminating the complainant. However, the test is not whether the respondent's underlying personnel practices were sound, whether the decision was a fair one, or whether there was good cause for the termination decision, but instead whether the termination action was taken for a discriminatory reason.

The complainant first argues that pretext is demonstrated by the fact that, in terminating the complainant, the respondent did not follow its policy of long standing that isolated errors in recording employee time were addressed informally by management.

However, ownership had been transferred in August 2004. G. LeBlanc's policies of long standing were not necessarily those of the respondent. There was new management, and a new human resources director, Michelle Hammer, the decision-maker here. The record shows that respondent's policy, uniformly applied since August 2004, was to deal informally with those time reporting errors brought promptly to management attention by an employee and presumed as a result to have been unintentional. This, however, was not the nature of the circumstance presented by complainant's time reporting failure on October 5, or that of Anita Camarena, both of whom were terminated by the respondent. In those two circumstances, the only ones of their type cited in the record, the employee did not alert management after failing to clock out and in for a medical visit during scheduled work hours.

The complainant also contends that pretext is demonstrated by the fact that she was terminated despite having provided notice to supervisor Tony Montemurro on October 6 that she had forgotten to clock out and in on October 5 when she left and then returned to the work site, and he had agreed to correct it for her.

The ALJ did not credit the complainant's testimony to this effect and the commission agrees.

Montemurro, who was clear and consistent in his testimony, denied that the complainant had provided this notice to him or that he had agreed to change her time record. In contrast, in her testimony, the complainant generally proved herself to be a poor historian, and testified inconsistently as to the circumstances of this request .

Complainant argues that Montemurro's testimony should not be credited because he also did not include in his version of the conversation discussion of complainant's request for an attendance bonus day and a vacation day, both of which required Montemurro's approval, and yet these leave days were in fact authorized. However, the record shows that these leave days could be approved by either Montemurro or Georgette Sauceda, complainant's lead worker. In fact, the complainant testified that it was Sauceda who provided the request forms to her.

Complainant also appears to be asserting that Montemurro is not credible because he denied that he had any conversation with the complainant the morning of October 6. However, this does not accurately reflect the evidence of record. Montemurro did not deny that such a conversation took place. His testimony was, however, that the only matter discussed in this conversation related to complainant's physician transmitting updated work restrictions to the respondent.

Finally in this regard, it should be noted that, despite her testimony that she had provided notice to Montemurro of her time reporting failure, the complainant did not mention this in her discharge meeting. The record shows that the complainant had not been shy about raising concerns with management, including Hammer and Ito-Pitsch, in the past. Moreover, although the complainant testified that she mentioned the notice quietly in the discharge meeting, given the consistent testimony of Montemurro, Hammer, and Ito-Pitsch that this did not occur, this testimony is not credited.

Complainant also argues that complainant had no reason to misrepresent her time because she would have obtained no benefit from doing so. However, not only did her failure to accurately report her work time result in the accrual of 21 minutes of overtime, but it also permitted her to accrue an attendance bonus day, which she took as leave on October 7. Complainant contends that she would have qualified for the bonus attendance day even if she had accurately reported her departure from work on October 5, but the evidence of record does not support this contention. Specifically, while an absence from work for a prescheduled medical appointment, or, presumably, when required by the respondent, do not result in an attendance bonus disqualification, the complainant's absence was not for either of these purposes.

Complainant further argues that pretext is demonstrated by the fact that the "falsification of a document" work rule set forth in the handbook in effect in October 2004, and relied upon by the respondent to terminate the complainant, does not specifically apply to the circumstances at issue. However, this general provision could reasonably be interpreted to apply to an intentional failure to accurately complete a time record. Moreover, the complainant does not cite a more specifically applicable work rule in force at the time of the discharge. Although the complainant, in her reply brief, cites exhibit #7 as respondent's "most recent" handbook, in fact, exhibit #7 was replaced by exhibit #6 effective June 2004.

Finally, complainant argues that respondent's offer of reinstatement to complainant in 2006 establishes that respondent was not actually concerned about complainant's honesty in her time reporting, and shows pretext as a result. However, a litigation strategy designed to stop the accrual of back liability does not reveal or even suggest the intent of the decision-maker at the time the termination decision was made.
The complainant did not sustain her burden to show that the reason offered by the respondent for her termination was a pretext for discrimination, and, consequently, even if the complainant had proved she qualified as an individual with a disability within the meaning of the WFEA, she failed to prove that she had been discriminated against on this basis when she was terminated by respondent in October 2004.

cc:
Attorney Peter J. Fox
Attorney Joshua D. Holleb

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