LACARLIN A DAVIS, Complainant

CITY OF MILWAUKEE POLICE DEPARTMENT, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:

1. The second sentence in subparagraph 4 of paragraph 19 of the administrative law judge's FINDINGS OF FACT is deleted, and the following is substituted therefor:

"This was first identified in 2003 and was followed with repeat chest
x-rays demonstrating stability. A lung bleb puts him at an increased risk of developing a spontaneous pneumothorax, but since he has not had one previously, the risk is low and there is no reason for any intervention."

2. The following paragraph is inserted after paragraph 4 of the administrative law judge's ORDER:

"That the respondent shall pay to the complainant reasonable attorney fees and costs associated with responding to the respondent's petition for commission review, in the amount of $10,410.00. A check in that amount shall be made payable to Attorney Gordon R. Leech and delivered to Mr. Leech at Rose/deJong law offices."

3. Paragraph 5 of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12)."

4. The third paragraph of the administrative law judge's Memorandum Opinion (the second full paragraph on page 12 of the decision) is deleted.

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

Dated and mailed August 26, 2011
davisla . rmd : 164 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The complainant alleged that he was discharged from his job as a police officer trainee based upon a perceived disability. The respondent contended that the complainant is not an individual with a disability under the Wisconsin Fair Employment Act and, further, that he was discharged for falsifying his employment application. In an initial determination, the Equal Rights Division found probable cause to believe that discrimination occurred. The matter was certified to a hearing on the merits, after which the administrative law judge concluded that the complainant was discriminated against based upon disability. The respondent has petitioned for commission review of the adverse finding. The commission affirms the administrative law judge's decision, for the reasons set forth herein.
 

Was the complainant an individual with a disability, within the meaning of the Wisconsin Fair Employment Act?

To prove disability discrimination under the Wisconsin Fair Employment Act (hereinafter "Act"), a complainant must establish that he or she is a person 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, 119 Wis. 2d 706, 350 N.W.2d 120 (1984).

In this case, the complainant has a lung "bleb." A lung bleb is an air pocket that has no effect on lung function, but which can slightly increase a person's chances of suffering a collapsed lung. Exercise and activity do not increase the risk of lung collapse. While to a lay person a collapsed lung may sound like a very serious condition, in fact it is not life threatening and does not necessarily require medical attention. Although a lung bleb may be considered an impairment, it does not make achievement unusually difficult or limit the capacity to work. The undisputed evidence indicates that, as of the day of the hearing, the complainant had never had any physical limitations as a result of the lung bleb and had never exhibited any adverse symptomology associated with the condition. The parties agree that the lung bleb does not constitute a disability.

It seems clear, however, that the respondent perceived the lung bleb as being a disabling condition, as evidenced by the July 19, 2007, report from Administrative Lieutenant Mercedes Cowan, in which she stated, in relevant part:

. . . Recruit Davis has a history of pulmonary "bleb" and recent complaints of shortness of breath. . .

. . .[I]t appears Recruit Davis knowingly and/or purposely failed to disclose a serious pre-existing medical condition . . .

Further, at her pre-hearing deposition, Lt. Cowan testified that, although she has no medical training, she believes a lung bleb is a disorder that would cause limitations to work or exercise activity.

In addition, Sergeant Louise Schaeffer submitted a report on June 29, 2007, in which she stated, in relevant part:

Davis has a history of pulmonary "bleb" and recent complaints of shortness of breath. . .

I recommend that he be medically evaluated to ascertain his fitness for duty and released from the training program if he is unable to return to a full-time status posthaste. . .

As the administrative law judge pointed out in his decision, Sgt. Schaeffer's report suggests that she saw a connection between the shortness of breath and the lung bleb and thought it might limit the complainant's capacity to work.

Lieutenant Stephen Basting wrote a letter on July 2, 2007, which suggested that he, too, perceived the complainant as having a disability:

. . . The attached Physician's Report indicates that R.O. Davis entered the Academy with a pre-existing pulmonary condition. He is in the second week of training and his doctor ordered him to be put on limited duty and not to physically exert himself, as his medical condition could cause his lung to collapse. . .

I request that inquiries be made to ascertain why R.O. Davis was allowed entry to the academy with this serious pre-existing condition.

Finally, in a letter to the Board of Police and Fire Commissioners dated August 22, 2007, Police Chief Nanette Hegerty wrote:

. . . Recruit Officer Davis experienced a medical incident. Recruit Officer Davis's physician did not clear him to return to recruit training until a specialist evaluated him. The specialist's report acknowledged a medical condition that was first identified in 2003, and for which Officer Davis had received on-going treatment. . . .

The written statements referenced above indicate that the respondent believed the complainant was being treated for a serious medical condition that affected his ability to perform the job, and the respondent did not bring Schaeffer, Basting, or Hegerty to the hearing to offer any testimony to the contrary. The only one of these individuals who testified on the respondent's behalf was Lt. Cowan, and she did not deny that she perceived the complainant as having a disability. Moreover, as noted above, Lt. Cowan's statement during her prehearing deposition that she considers a lung bleb to be a disorder that results in limitations to work or exercise warrants a conclusion that she perceived the complainant as being disabled.

In the brief in support of its petition for commission review the respondent argues that the perceptions of individuals other than Chief Hegerty are irrelevant, because Chief Hegerty was the only decision maker. However, as indicated above, it appears that Chief Hegerty shared the opinion of the others that the complainant had a disability. Moreover, since Chief Hegerty was acting on the recommendation of Lt. Cowan, who advised her that the complainant had a "serious pre-existing medical condition," Lt. Cowan's perception that the complainant had a disability cannot be dismissed as irrelevant. The commission agrees with the administrative law judge that the complainant presented sufficient evidence to warrant a conclusion that, although he did not have a disability within the meaning of the Act, the respondent perceived this to be the case.
 

Did the respondent have a legitimate nondiscriminatory reason for discharging the complainant?

The respondent contended that it discharged the complainant for untruthfulness, because he falsified his job application when he failed to disclose his medical condition.

When the complainant applied for the job he was asked to fill out a pre-employment medical history form. The first question on the form is, "Are you in good health?" The complainant checked "yes" and wrote "I [have] no known serious medical conditions." Later on in the form the complainant was asked a series of "respiratory and lung" questions. He checked the box "no" for each one, including, "Do you now or have you ever had limitations from work or exercise activity due to a lung or breathing disorder?" and "Have you ever had a doctor visit for chest or lung injury?" The complainant signed the form, certifying that the information he provided was true and complete and that he had not omitted any medical information.

The respondent contends that the complainant should have disclosed his lung bleb on the application. However, none of the questions on the form asked about a lung bleb and none seemed designed to lead to that disclosure. The complainant was in good health, notwithstanding the lung bleb, and accurately stated as much.

While at her deposition, Lt. Cowan, who made the recommendation to the police chief that the complainant be discharged for falsifying his application, testified that the complainant should have checked "yes" in response to the question about whether he had a limitation on his ability to work due to a lung or breathing disorder, it is undisputed that the bleb placed no limitations on the complainant's work or exercise. Lt. Cowan also testified that the complainant should have checked "yes" to whether he had had a doctor's visit for chest or lung injury. However, although the complainant had seen a pulmonologist to monitor the lung bleb (which was discovered on a pre-employment x-ray for a different job, and not because he was experiencing any symptoms), the complainant had never visited a doctor for a chest or lung injury and, prior to the incident that occurred during his training, had not experienced anything that could be characterized as a lung or chest injury. Given those factors, the complainant was justified in responding "no" to the lung and respiratory questions on the medical history form, and the commission is satisfied that the complainant did not falsify the form, as the respondent alleges.

In its brief the respondent also argues that it had a good faith belief that the complainant falsified his application which provides a defense to a finding of discrimination. The commission has in fact held that the question of whether the respondent's asserted non-discriminatory reason is objectively correct is irrelevant if it appears that the employer genuinely and in good faith believed it to be true. See, Deal v. D&S Manufacturing, ERD Case No. CR200501152 (LIRC June 20, 2008), and cases cited therein. Thus, even if the complainant did not falsify his application, the respondent can escape liability if it demonstrates that it discharged the complainant because it genuinely and in good faith believed this to be the case.

The respondent has not made such a showing here. "Good faith" contemplates a situation in which an employer reasonably relies upon information that turns out to be incorrect. However, the respondent had no information to indicate that the complainant was not in good health at the time he filled out his application, that he had been given prior work restrictions related to the lung bleb, or that he had ever previously treated for a lung injury. To the contrary, the respondent ignored medical evidence indicating that the complainant had been truthful in his answers, and relied instead upon its own prejudices and assumptions in deciding otherwise. The respondent did so without talking to the complainant or his doctor. An employer who discharges an employee for untruthfulness should have a compelling reason for doing so, and one that goes beyond its own stereotypes and assumptions. Where, as here, the respondent can offer no such compelling reason, the commission agrees with the administrative law judge that the respondent did not act based upon a genuine, good faith belief that the complainant falsified his application.

In a letter to the respondent dated July 13, 2007, Dr. Zouras stated, in relevant part:

Mr. Davis also has a left lung bleb. This was first identified in 2003 and was followed with repeat chest x-rays demonstrating stability. A lung bleb puts him at an increased risk of developing a spontaneous pneumothorax, but since he has not had one previously, the risk is low and there is no reason for any intervention.

I believe that Mr. Davis can safely resume training the police academy. He should use Allegra-D daily and an albuterol inhaler prior to exercise. These measures should be sufficient for him to resume training without further problems. However, I have advised Mr. Davis that if symptoms continue on this treatment, he should return to clinic so that we can adjust his therapy.

Dr. Zouras' letter confirms that the complainant's lung bleb did not constitute a serious health condition and that he could safely perform the job. However, after reading Dr. Zouras' letter, Lt. Cowan prepared a report in which she stated, in relevant part:

While Recruit Davis' condition may have slightly exacerbated itself during his first week of physical training at the Academy, there is no doubt his continued participation places his well-being in a critical position.

This statement is contrary to Dr. Zouras' report, in which she specifically indicated that the complainant could return to work with no restrictions related to his lung bleb, and with the use of an inhaler for exercise induced asthma. Without mentioning that the complainant's doctor had released him to return to work, Lt. Cowan went on to recommend the complainant's discharge.

The administrative law judge concluded that, ignoring all evidence to the contrary, the respondent decided the complainant had a disability that was related to his ability to perform the job, and discharged him for that reason. The commission agrees. The respondent's actions in discharging the complainant because he was perceived as having a disability that he did not, in fact, have, amounted to discrimination.
 

Attorney fees

The complainant is entitled to additional attorney fees associated with responding to the respondent's unsuccessful petition for review. The complainant's attorney has requested an additional award of $10,410, representing 34.7 hours of work at $300 per hour, for time spent reviewing the respondent's brief, researching and writing his responsive brief, and preparing his fee affidavit. The respondent has not raised any objection to this fee request, although afforded an opportunity to do so. The administrative law judge previously decided that $300 was a reasonable hourly rate for the services of the complainant's attorney, and his itemized billing statement showing 34.7 hours of work does not appear on its face to be excessive or unreasonable. The commission has, therefore, awarded $10,410 in additional attorney fees.

NOTE: The respondent has argued that the administrative law judge was not a fair, even-handed, and neutral decision-maker in this case. The commission disagrees. The commission, which has conducted an independent, unbiased review of the same evidence that was before the administrative law judge, believes that the respondent received a full and fair hearing, and that the decision reached was warranted by the evidence in the record and was not the result of any bias on the part of the administrative law judge.

The commission has modified the administrative law judge's decision to correctly set forth the text of Dr. Zouras' letter, a portion of which was erroneously omitted from the administrative law judge's decision, and to delete the administrative law judge's observations regarding the respondent's untruthfulness, which the commission considers not fully accurate and unnecessary to the decision. The commission has also modified the decision to include payment of attorney fees for the time spent responding to the petition for commission review.

cc:
Attorney Leonard Tokus
Attorney Gordon Leech

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