KIM M RYBICKI, Complainant

DJ CONVENIENCE LLC, 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 makes the following1(1):

1. The respondent operates several gas station/convenience stores, including one in DePere, Wisconsin. James Vandeyacht (Vandeyacht) is one of the respondent's owners and a vice president. Vandeyacht has an office at the DePere location.

2. Some time prior to August 2003, complainant was diagnosed with anxiety disorder/panic attack syndrome.

3. In August 2007, the complainant was hired by the respondent as a cashier/store attendant for the DePere location.

4. In early September 2007, the complainant started crying, and asked Vandeyacht for permission to leave work. Vandeyacht granted this request, and asked the complainant what was wrong. The complainant told him she "didn't know," and "was sick."

5. Vandeyacht subsequently learned from the DePere store manager that, immediately prior to this crying incident, the store manager had counseled the complainant that her work performance was unsatisfactory.

6. When she returned to work, the complainant advised Vandeyacht that she experienced panic attacks and took medication for them.

7. On November 20, 2007, Vandeyacht counseled the complainant that her work performance was unsatisfactory.

8. Later on November 20, 2007, the complainant started crying, and asked Vandeyacht for permission to leave work. Vandeyacht told the complainant he needed her to stay, but she told him she was unable to do so because she was having a panic attack. The complainant offered to bring a medical excuse in when she returned to work.

9. On November 23, 2007, the complainant was not scheduled to work but stopped in to pick up a paycheck and to drop off a medical excuse for November 20. When she arrived at the work site, Vandeyacht told her that a decision had been made to terminate her.

10. During her employment for the respondent, the complainant failed on numerous occasions, and despite frequent counseling, to wash her hands before making food, in violation of applicable health regulations; frequently failed to perform certain of her assigned work duties, leaving them for other workers to perform; left her work station without notice, leaving the store untended; left her work station several times an hour to go outside to smoke a cigarette; acted in an unfriendly manner toward customers, resulting in complaints to the respondent; and was insubordinate to management, including on occasion directly refusing to perform assigned duties.

11. The complainant testified that she had panic attacks which caused her to cry and shake; was on medication for them, currently taking Prozac and Lorazepam; and dealt with these attacks by taking a pill and relaxing. The complainant also testified that she told the respondent, in regard to her panic attacks, that "I try and pretty much keep it under control" and "Well, sometimes it gets out of hand, but, you know, I have been dealing with it."

12. The medical evidence in the record consists of the following:

(a) An unsigned, uncertified letter (exhibit #12) dated August 18, 2003, on "Bellin Health Family Medical Center" letterhead, stating in relevant part as follows:

The following is in response to your recent inquiry regarding Kim Rybicki, birthdate 10/27/65.

She has been under my care for panic attack syndrome, depression and anxiety for some time. In my opinion Ms. Rybicki's panic attacks constitute a serious health condition as they are often disabling and quite disruptive to activities of daily living. I have seen her multiple times, too numerous to detail, since April 2000 for anxiety, depression, and panic attack syndrome. She has been treated with a number of medications with her current regimen being Fluoxetine 40 mg. daily and Alprazolam 0.5 mg. one four times a day as needed.

The most recent visit was that of 6/3/03 when she was again reevaluated for the above concerns. At that time she related a recent panic attack episode which occurred at work during which she could no longer function in her job. She stated she was harassed by coworkers and managers. I continued treatment with Prozac and Alprazolam and she continues to follow up on a regular basis.

In terms of the frequency of her panic attacks, I am unable to give an expected frequency. Unfortunately with panic attacks, they are rather unpredictable and certainly disabling and she has demonstrated the occurrence of these at work, thus, I would expect it is going to continue to occur intermittently at work and because of this, she would have difficulty continuing to work at those times.

(b) A "Return to Work" form dated November 20, 2007, ostensibly signed by a nurse (V. Zorn) for Dr. McHenry, which stated as follows:

This is to certify that Kim Rybicki...is able to return to work/school on 11/23/07.

Remarks: Patient contacted office for advice/treatment on 11/20/07. States was unable to work due to acute illness.

The section of this form in which the nature of the condition is to be identified, i.e., "has been under my care for the following," was not completed.

1. The respondent is an employer within the meaning of the Wisconsin Fair Employment Act.

2. The complainant has the burden to prove that she was discriminated against on the basis of disability when she was terminated by the respondent.

3. The complainant has failed to sustain this burden.

The decision of the administrative law judge is reversed, and this complaint is dismissed.

Dated and mailed August 20, 2010
rybicki . rrr : 115 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

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 complainant has 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 disputed as a matter of fact. Connecticut General Life Ins. Co. v. DILHR, 86 Wis. 2d 393, 273 N.W.2d 206 (1979); Erickson v. LIRC and Quad Graphics, Inc., 2005 WI App 208, 287 Wis. 2d 204, 704 N.W. 2d 398; Doepke-Kline v. LIRC and SBC Communications, Inc., 2005 WI App 209, 704 N.W.2d 605. 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).

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 her or limited her capacity to work. Erickson, supra; Doepke-Kline, supra. See, also, Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC Aug. 25, 2000); Ford v. Lynn's Hallmark, Inc., ERD Case No. CR200301184 (LIRC June 27, 2005) (diagnosis of diabetes alone insufficient to establish existence of disability).

The return to work form, which does not even identify the medical condition upon which the form was based, and the complainant's testimony as to the diagnosis and symptoms of anxiety disorder/panic attack syndrome and the medication prescribed for it, would be insufficient to establish the existence, nature, extent, and permanence of the claimed impairment.

The only other medical evidence is the unsigned, uncertified 2003 letter set forth in finding 12., above.

Uncertified medical records are admissible in WFEA proceedings. Rutherford v. LIRC and Wackenhut Corp., 2008 WI App 66, 309 Wis. 2d 498, 752 N.W.2d 897. However, although the 2003 letter is admissible, the weight to be accorded it in analyzing whether the complainant has sustained her burden to prove the existence of an actual disability is diminished by the following:

• This letter is unsigned and unauthenticated.
   
• This letter purports to have been created in August 2003, four years prior to the complainant's employment by the respondent, so it could not describe the status of her medical condition during the time period relevant here. 
   
• This letter does not address the permanence of the subject medical condition or the frequency with which it manifests itself, and specifies only that its impact upon the complainant is the occasional inability to perform her work duties
   
• This letter, the only evidence of record upon which the type of finding required to support a conclusion of disability could be based, constitutes uncorroborated hearsay evidence. An ultimate or crucial finding of fact may not be based solely on uncorroborated hearsay evidence. See, Merta v. Johnson Controls, Inc., ERD Case No. CR200000928 (LIRC Oct. 30, 2003), citing Village of Menomonee Falls v. DNR, 140 Wis. 2d 579, 412 N.W.2d 505 (1987); Cappelletti v. Ocean Spray Cranberries, ERD Case No. 200600147 (LIRC Feb. 15, 2008). Since a finding as to the existence of a disability would be an ultimate or crucial finding here, this 2003 letter would be insufficient to support such a finding.

The record does not show that the complainant sustained her burden to prove that she has an actual disability.

The remaining question then is whether the record shows that the respondent perceived the complainant to be disabled.

The commission concludes that it does not. Even crediting the complainant's testimony that she told the owner that she suffered from panic attacks for which she took medication, the following militate against a conclusion that the respondent had reason to perceive her as disabled:

• The only manifestations of this condition of which respondent had reason to be aware were two days of partial absence from work over a period of almost four months. This would not reasonably communicate to an employer that a worker suffered from a permanent condition which limited her capacity to work in any significant way. See, Schultz v. CNH Capital Corporation, ERD Case No. 200300915 (LIRC May 8, 2006)(complainant's attribution of infrequent work absences to her panic disorder militates against a conclusion that respondent would reasonably have perceived her to be disabled); Schlesner v. Cooper Power Systems, ERD Case No. 200501177 (LIRC April 16, 2007)(fact that complainant off work on medical leave not sufficient to establish actual or perceived disability). 
  
• The complainant, as she testified, downplayed to the respondent's owner/vice president the impact of her condition on her life or work activities. Specifically, as set forth in finding 11., above, the complainant testified that she stated to the owner "I try and pretty much keep it under control" and "Well, sometimes it gets out of hand, but, you know, I have been dealing with it." 
  
• The fact that the respondent was aware that the complainant was under a physician's care and taking prescription medications does not establish that the respondent necessarily or reasonably would have perceived complainant to be disabled since medical treatment is sought and medications prescribed for conditions which are disabling as well as for those which are not. See, Schultz, supra.; Moller v. Metavante, ERD Case No. 200103621 (LIRC Nov. 13, 2003).
  
• The complainant never presented any work restrictions to the respondent based upon her anxiety/panic attack disorder. See, Greenwood v. Ross Furniture, ERD Case No. CR200001517 (LIRC Dec. 30, 2004); Schultz, supra. (fact that complainant never presented any work restrictions to respondent based upon her panic disorder militates against a conclusion respondent would reasonably have perceived her to be disabled).

The complainant, who has been represented by counsel throughout these proceedings, failed to sustain her burden to prove that she qualifies as an individual with a disability within the meaning of the WFEA, and failed, as a result, to sustain her burden to prove disability discrimination.

Since the decision has been reversed as a matter of law, the commission did not conduct a credibility conference with the administrative law judge.

cc:
Attorney Thomas S. Burke
Attorney Jodi L. Arndt

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(1)( Back ) In reversing the administrative law judge's decision, the commission did not overturn any of his credibility determinations or findings of fact. The commission notes that some of the administrative law judge's conclusions of law were stated in his decision as findings of fact.

uploaded 2010/09/21