ROBYN A ENGLEBERT, Complainant

HUMANA INC, 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 September 28, 2010
englero . rsd : 164 : 9 

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

To prove disability discrimination under the Wisconsin Fair Employment Act (hereinafter "WFEA"), a complainant must first establish that she is an individual with a disability, within the meaning of the Act. Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980). Section 111.32(8) of the Act defines the term "individual with a disability" as 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. An "impairment" for purposes of the Act 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 concerned with the question of whether there is a substantial limitation on life's normal functions or on a major life activity. By contrast, the "limits the capacity to work" test refers to the particular job in question. Further, 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).

The complainant testified that she was being treated for stress, anxiety and depression and was diagnosed with ADHD, anxiety and depression. Certified doctor's reports support this testimony. The complainant's evidence, which the respondent does not challenge, is sufficient to establish that she has an impairment or impairments. However, the complainant failed to describe how her impairments made achievement unusually difficult for her or limited her capacity to work. The complainant testified, generally, that her work for the respondent was complicated and she could not keep her focus, but did not explain how or whether these difficulties were related to her impairments. 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. Rybicki v. DJ Convenience LLC, ERD Case No. 200800018 (LIRC August 20, 2010).

The complainant's doctor's reports do not shed any further light on the matter, as they catalog the complainant's concerns about her job and echo the complainant's own recommendations as to what type of accommodation she would like, but contain no explanation as to how or whether job-related difficulties were connected to her diagnosis of ADHD, anxiety or depression. The doctor's answers to questions posed by the respondent about the complainant's health condition are similarly unhelpful, repeating the complainant's own observations about the job without adding any insight as to how her medical condition contributed to her problems on the job. The complainant's evidence does not warrant a conclusion that the complainant had an impairment which made achievement unusually difficult or limited her capacity to work.

The complainant also failed to demonstrate that the respondent perceived her as having a disability. While the respondent was aware of her diagnosis, it repeatedly notified the complainant that it believed it lacked sufficient medication information and documentation to determine whether she had a disability that would require accommodation. Given that fact, the commission sees no reason to doubt the respondent's contention that it did not perceive the complainant as being disabled.

Even assuming that the complainant did meet her burden of establishing that she is an individual with a disability, within the meaning of the WFEA, the evidence failed to show that the respondent discriminated against her by refusing to provide a reasonable accommodation. A reasonable accommodation is one which would remove the barrier to the complainant's ability to perform the job and would effectively enable her to adequately undertake the job-related responsibilities of the job. Neitzer v. Laborers Local No. 931, ERD Case No. 200101838 (LIRC Oct. 31, 2005), citing Waldera v. Cooperative Education Service Agency #11, ERD Case No. 199901079 (LIRC Oct. 30, 2002). The complainant maintained that the claim queue to which she was primarily assigned, known as the 6NA queue, was very difficult for her. She requested as an accommodation that she be moved to one of the other claim queues, known as PVX and Ochsner, for at least half the day. The complainant contended that she had less difficulty with PVX and Ochsner queues and that she found them easier to focus on. However, the credible evidence suggests that, even if it was feasible to take the complainant off the 6NA queue, this would not have enabled her to adequately perform the job. The complainant's supervisor, who presumably had a greater level of expertise than the complainant did in processing the respondent's claims, testified that the 6NA claims were the easiest and least complicated. She testified that the most difficult claims by far were Ochsner claims, and one of the complainant's own witnesses agreed, describing Ochsner claims as "horrific." The complainant's supervisor testified that the PVX queue claims were also more difficult than those in 6NA, and provided an explanation as to why this was the case. The only evidence the complainant presented to the contrary was the opinion of a former employee, unsupported by any factual rationale, that the 6NA claims were "a bit harder" than the PVX claims.

Both of the employer's witnesses testified that there were no easier jobs to which the complainant could have been transferred and that they could not have constructed a situation whereby the complainant was given easier work. The complainant presented no competent and credible evidence to refute this. Consequently, even assuming the complainant's difficulties with the job were due to a disability, the record does not establish that a reasonable accommodation would have been available.

NOTE: In his hearing testimony, as well as in letters sent to the complainant in response to her request for accommodation, the respondent's "ADA Coordinator" repeatedly emphasized that the complainant needed to be able to perform the "essential functions" of her job and that to place her in a new position or to restructure her job duties was not an obligation under the ADA. However, this case arises under the WFEA, not the ADA (Americans with Disabilities Act of 1990). The commission and courts have consistently held that under the WFEA it is inappropriate to conclude, as a matter of law, that any particular kind of action is not required as an accommodation. It cannot be said that a job-related responsibility, even an "essential" one, need never be restructured or removed by way of reasonable accommodation. Fields v. Cardinal TG Co., ERD Case No. 199702574 (LIRC Feb. 16, 2001). Indeed, the Wisconsin Court of Appeals has specifically held that the WFEA should be broadly construed such that even the transfer of a worker who can no longer perform his job to another position might be a reasonable accommodation. McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W. 2d 830 (Ct. App. 1988). The respondent is well advised to familiarize itself with the requirements of the WFEA and not to assume that it need only comply with the requirements of the ADA.

cc:
Attorney Brian T. Flood
Attorney Daniel J. Finerty

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