MARY B. CASTRO, Complainant
COUNTY OF MILWAUKEE
SHERIFF'S DEPARTMENT, 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 following:
1. The Complainant began working for Milwaukee County as a clerk-stenographer in the District Attorney's office, in the Metro Drug Enforcement Group, in 1989. In April 1994, she took a lateral transfer to the Detention Services Bureau in Jail Administration. She was promoted to a position as an executive assistant in Sheriff's Department administration in July 2000. In January 2003, her position was eliminated and she took a position as an administrative assistant at the House of Correction, in the Health Center.
2. In March, 1990, the Complainant had been physically assaulted by a man in a stairwell at work. The man was a non-employee who was known to frequent the building. He pinned the Complainant against the railing in the stairwell for around 45 seconds, and he said something to her about "rape." Eventually he released her.
3. After the incident in which the Complainant was assaulted in a stairwell at work, she began experiencing symptoms including depression, anxiety, trouble eating and sleeping. At least in part because of this incident, the Complainant began to suffer from panic attacks, depression, and post-traumatic stress disorder. In the following years, marital problems, and other job-related problems, contributed to or aggravated her condition.
4. In 1997, the Complainant first sought treatment for the symptoms she had begun experiencing after she was assaulted. She went to the Employee Assistance Program and was referred to a psychologist, who prescribed Zoloft.
5. From 1998 onward, the Complainant periodically experienced "flare-ups" in her symptoms. The "triggers" for such flare-ups included being around inmates in stairwells. This was a situation in which the Complainant would routinely find herself because of where she worked.
6. In March 2007, the Complainant saw her family doctor for sleeping and eating problems, and she was prescribed medications for sleeping problems and for depression. Then on June 19, 2007, the Complainant saw a medical doctor, Dr. Hughes. On the following day, June 20, 2007, the Complainant started a leave of absence. She never returned to work for the County after this.
7. The Complainant then began seeing Dr. Thomas Marx, a (Ph.D.) clinical psychologist, at some point in June 2007.
8. By July 20, 2007, the Sheriff's Department had been provided and had received an "FMLA Medical Certification by Health Care Provider" form pertaining to the Complainant, completed by Dr. Hughes. On the form, Dr. Hughes stated that the Complainant had a serious health condition which began in about March 2007 and was "ongoing," that he expected she could return to work on July 9, 2007, that he had seen her on June 19 and planned to see her again in the week of July 10, that he had seen her once and had prescribed drugs and a referral to another health care provider, and that the type of continuing treatment contemplated was medications and counseling. He indicated that the Complainant was not able to perform her employment duties, and that she had to be absent from work for treatment and to be able to recover. He described the medical facts relating to her condition as: "insomnia, frequent emotional stress, anxiety [illegible] to concentrating at work."
9. On July 11, 2007, the Complainant gave her supervisor, Pope-Wright, a letter saying she had a doctor's appointment scheduled for that day, and that "per my doctor, he has extended my FMLA through Friday, August 3, 2007." The County did extend her leave through August 3rd.
10. On July 25, 2007, Sheriff's Office Human Relations manager Marlo Knox gave the Complainant a memo stating that she was eligible for FMLA leave from June 20 through August 5, with a return to work date of August 6, 2007. This was Knox's response to the "FMLA Medical Certification by Health Care Provider" form.
11. Sometime before August 31, 2007, the Complainant contacted an employee of the Sheriff's Office, Sue Chase, who was with the disabilities program, to communicate that she could not return to her position at the House of Correction. The Complainant contacted Chase because was seeking to be placed in a permanent position elsewhere in the County. Chase told her she needed to fill out a "Physical Capabilities Evaluation" and give it to her supervisor and to Knox in Human Relations.
12. On August 28, 2007, the Complainant saw Dr. Marx. On August 30, 2007, Dr. Marx wrote and gave to the Complainant a letter saying "due to stress she needs to be excused from work until 9/15." The Complainant gave this letter to the County and it did extend her FMLA leave through September 12, and gave her leave through September 15.
13. On August 31, 2007, Dr. Marx completed the Physical Capabilities Evaluation form, stating that the Complainant was not currently capable of returning to work and further stating, "I am working with Mary in psychotherapy and I believe she suffers from post-traumatic stress which will be permanent." This was sent to and received by the County.
14. On September 8, 2007, Dr. Marx wrote and gave to the Complainant a letter stating, "I am working with Mary Castro in psychotherapy and plan to continue to do so. I believe she suffers from panic attacks, depression, and post traumatic stress disorder. I believe this was caused in part by an assault she experienced during working hours. I believe it has been significantly aggravated by her work environment. As a result I believe she cannot return to that environment at this time." This was sent to and received by the County.
15. On September 11, 2007, Dr. Marx wrote and gave to the Complainant a letter stating, "I am working with Mary Castro in psychotherapy and plan to continue to do so. I believe that, due to significant ongoing mental health issues, she needs to be excused from work from September 17, 2007 to October 12, 2007." This was sent to and received by the County.
16. On September 12, 2007, Complainant's 12 weeks of FMLA ended. She did not return to work on the following day, and at that point she began using up her sick and vacation time.
17. Around this time, the Complainant retained Attorney Knight. Following this, some contacts occurred between Knight and the County concerning the Complainant, her condition, and her needs. In one such telephone contact, Attorney Knight told the County's Corporation Counsel, Williams, that her client was a "basket case," and would really like to get back to work, and asked him what kind of accommodations could he help her with.
18. On October 10, 2007, Dr. Marx wrote a letter stating, "I am presently working with Mary Castro in psychotherapy and believe she suffers from Post Traumatic Stress Disorder. I believe there are factors that trigger this disorder in her at the House of Corrections. Therefore, I believe that she can not work at the House of Corrections. I believe she needs to work in a less stressful environment." The Complainant received this letter from Dr. Marx on October 10 and mailed it to Knox within 24 hours of having received it.
19. Even apart from the October 10, 2007 letter from Dr. Marx, by around that time Knox was otherwise aware, by virtue of having been so informed by Dr. Hughes and/or Dr. Marx in other writings, that the Complainant had a serious health condition involving "insomnia, frequent emotional stress, anxiety [illegible] to concentrating at work" which was "ongoing," that because of this condition she had been unable to perform her job since June 21, 2007, that the Complainant suffered from post-traumatic stress "which will be permanent," and that the Complainant suffered from panic attacks, depression, and post traumatic stress disorder which had been significantly aggravated by her work environment and that as a result she could not return to that environment at that time.
20. On October 11, 2007, Attorney Knight sent a letter to Attorney Williams clearly asserting that the Complainant had a disability and needed reasonable accommodation, including a transfer out of the House of Correction and placement in a permanent administrative assistant job without having to go through the civil service competitive process.
21. October 30, 2007, was Complainant's last day in pay status, and on October 31, 2007, Knox signed an "Employee Transaction/Change Report" showing the Complainant as beginning an unpaid leave of absence status from October 31, 2007 through December 31, 3007. Knox did not provide copy of this "Employee Transaction/Change Report" to Complainant.
22. On November 2, 2007, a meeting was held with Knight, Knox, Williams and Castro. At the time of this meeting, Knox knew that the Complainant wanted to work elsewhere, and she understood that the gist of the meeting was to find the Complainant another position in the County. At the meeting, the participants discussed various places where she could be put; the Department of Public Works was one office that was mentioned. The Complainant left the meeting thinking they were looking for and would contact her about a position.
23. On November 6, 2007, Dr. Marx wrote a letter stating, "I am working with Mary Castro in psychotherapy. I believe she is definitely making progress, but I believe that, due to severe anxiety and depression, she is unable to return to work at this time at her current location" Castro gave this letter to the County at some point within a couple of days of receiving it.
24. On November 29, 2007, Attorney Williams sent an e-mail to Attorney Knight which read:
Marlo Knox told me she has not received updated medical information regarding Ms. Castro. Also, the Sheriff's Office is anxious to have Ms. Castro return to work or hire a replacement if she does not return. Given the budget situation, it is difficult to assure Ms. Castro of another position. Please provide Ms. Knox and/or me with the updated information we discussed at our meeting and let me know what your client wants to do regarding her position at the Sheriff's office.
Knight never received this e-mail, because Williams used an incorrect e-mail address to send it.
25. During the period of time which followed the November meeting described above, the Complainant had no understanding that the County expected anything further from her, and she was waiting to hear from the County about what other positions, if any, they had found for her.
26. By its terms, the unpaid leave of absence status on which Knox had put the Complainant as of October 31, 2007, expired on December 31, 2007. When December 31 came and went and Knox had not heard anything from or on behalf of the Complainant, she did not extend the unpaid leave of absence, but she did determine that the Complainant was eligible for two weeks of FMLA leave under state law. Beginning with January 2, 2008, the day the Complainant would otherwise have been expected back at work, that covered a period through January 15.
27. January 15, 2008, passed without the Complainant returning to work and without any contact by or on behalf of the Complainant with the County.
28. On January 21, 2008, Knox telephoned the Complainant. In this call, Knox first asked the Complainant if her doctor had given her a return to work date, and the Complainant responded by saying that he had not, and that she was still under her doctor's care. The Complainant told her that she had retained an attorney and that Knox should speak to her; Knox said something to the effect that Attorney Williams had tried to contact Attorney Knight and got no response. This was presumably a reference to the mis-addressed e-mail.
29. Knox then told the Complainant that because she had been unable to provide her with a return to work date, Knox would be submitting the paperwork that would result in the Complainant being "resigned in absentia" pursuant to Sheriff's Department rules. Knox completed and submitted the paperwork, which effectively discharged the Complainant from employment with the Respondent, and sent the Complainant a letter confirming this.
30. Knox discharged the Complainant because the Complainant was not able to perform her job due to a condition which was, and was understood by Knox to be, a disability, and because Knox was not willing to further accommodate the Complainant's disability by trying to find her another position outside of the House of Correction and allowing her to continue her employment in an unpaid leave status while searching for such another position.
Based on FINDINGS OF FACT made above, the commission makes the following:
1. The Respondent, County of Milwaukee Sheriff's Department, is an employer within the meaning of the Wisconsin Fair Employment Act.
2. The Complainant, Mary B. Castro, is an employee, and an individual with a disability, within the meaning of the Wisconsin Fair Employment Act.
3. There is probable cause to believe that the Respondent discriminated against the Complainant in regard to refusing to reasonably accommodate a disability, within the meaning of Wis. Stat. § 111.321, 111.322(1), and 111.34.
4. There is probable cause to believe that the Respondent discriminated against the Complainant by discharging her because of disability, within the meaning of Wis. Stat. § 111.321, 111.322(1), and 111.34.
5. Apart from filing a previous complaint against the Respondent under the Wisconsin Fair Employment Act, the Complainant had not opposed any discriminatory practice under that Act, and there is no probable cause to believe that the Respondent discharged or otherwise discriminated against the Complainant because she had done so, within the meaning of Wis. Stat. § 111.322(3).
6. There is no probable cause to believe that the Respondent discharged or otherwise discriminated against the Complainant because she had made a complaint, testified or assisted in any proceeding under the Wisconsin Fair Employment Act, within the meaning of Wis. Stat. § 111.322(3).
Based on FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:
1. Insofar as the complaint in this matter alleges that the Respondent discriminated against the Complainant in violation of the Act by discriminating against her because she opposed a discriminatory practice under or made a complaint, testified or assisted in any proceeding under the Act, the complaint is dismissed.
2. Insofar as the complaint in this matter alleges that the Respondent discriminated against the Complainant in violation of the Act by refusing to reasonably accommodate a disability and by discharging her because of disability, the complaint is remanded to the Equal Rights Division for hearing on the merits.
Dated and mailed
December 20, 2011
castrom : 110 :
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
Disability discrimination -- The Complainant was an individual with a disability. There is credible and competent evidence that this disability made her unable to continue in her position. The Respondent was subject to a duty to reasonably accommodate the Complainant's disability. The substantive issue here is whether the actions the County took were sufficient to satisfy that duty, and whether the discharge of the Complainant in January 2008 because she had not returned to work was a discriminatory discharge because of disability.
The case is here on appeal from an ALJ's decision that there was no probable cause to believe that any discrimination occurred. As such, the Commission's review is limited to determining if probable cause exists. A complainant's burden in a probable cause proceeding is a lesser one than in a case on the merits. The burden of proof at a probable cause hearing has been described as "low." See, Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992). It is somewhere between a preponderance and a suspicion. Hintz v. Flambeau Medical Center (LIRC Aug. 9. 1989). Under the probable cause standard, a complainant's burden is to show a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that discrimination occurred. Herling v. Dealers Office Equip. (LIRC Feb. 18, 1987).
Reasonable accommodation of a disability can include transfer to another position. McMullen v. LIRC, 148 Wis. 2d 270, 275-6, 434 N.W.2d 830, 833 (Ct. App. 1988). It can also include "clemency and forbearance" in the enforcement of work expectations to allow for treatment to be pursued. Target Stores v. LIRC, 217 Wis. 2d 1, 16-17, 576 N.W.2d 545 (Ct. App. 1998)
The ALJ concluded that the County "exercised reasonable forbearance in allowing [the Complainant] leave from June 20, 2007 until January 16, 2008, to attempt to stabilize her condition." That was unmistakably a reference to the notion of "clemency and forbearance" recognized in Target Stores. He also concluded, however, that the Complainant failed to establish probable cause to believe that the County violated the Act by refusing to reasonably accommodate a disability. The implication from the contrast between these two conclusions, is that the ALJ concluded that as of January 16, 2008 the duty of reasonable accommodation had been satisfied and that no further accommodation would be reasonable. Judging from his finding of fact that "Dr. Marx determined that Ms. Castro was permanently disabled on or about June 5, 2008," it appears he was also accepting Knox's explanation about the difference between an opinion that a condition "will be permanent" (something Marx told the County by September, 2007) and that it "is permanent." For the reasons described below, the Commission disagrees and concludes that the record here establishes probable cause.
The Commission believes that the appropriate analysis here is that the Complainant demonstrated that she was an individual with a disability which made her unable to continue at her then-job, that by at least the fall of 2007 the County had been made fully aware of this (including the fact that the condition would be permanent) and of the fact that the Complainant was seeking the reasonable accommodation of being transferred to a position elsewhere than in the House of Correction, and that the County had the duty to explore whether that or any other reasonable accommodation was available, and also had the duty to exercise "clemency and forbearance" with respect to the Complainant's inability to do her job at least while the interactive process of exploring the possibility of accommodation proceeded.
The Commission further believes that as of January 21, 2008 the County had not satisfied its duty to explore the possibility of reasonable accommodation. And, when the County discharged the Complainant on January 21, 2008, it acted contrary to its responsibility to exercise "clemency and forbearance" with respect to the Complainant's inability to do her job. The County still owed a duty of reasonable accommodation to the Complainant in January, 2008, and reasonable accommodation of the Complainant's disability required such clemency and forbearance just as much on January 21 and the days following, as it did on the days before.
The Commission simply did not believe the contention of the County, that at the November 2, 2007 meeting, an expectation of further medical documentation arose and was communicated to the Complainant. The Complainant testified that there was no statement that submission of further medical documentation was expected. The Commission credits this. It found the contrary testimony of Knox to be unreliable. A major reason for this credibility assessment was that Knox's testimony about her claimed understanding as to whether the Complainant's condition was permanent, was simply unbelievable. The fact that Knox took refuge in semantic game-playing based on a supposed difference between saying that a condition "is" permanent or "will be" permanent, left the Commission with doubts about her credibility generally. While the County also argues that the content of Attorney Williams' e-mail demonstrates that after the November 2 meeting the County was waiting for some additional medical documentation, the Commission does not find it persuasive enough to cause it to disbelieve the Complainant's express and specific testimony that it was not communicated to her at that time that starting this process of looking into positions was contingent on any additional medical information, or that the continuation of her employment was contingent on any additional medical information.
The Commission does not agree with the County's argument that it never received any medical documentation to support the Complainant's claim that her work environment somehow aggravated her condition so that a change was necessary as an accommodation and that identified the factors in her work environment that triggered her condition. The County received several professional opinions which supported the Complainant's claim that a change in her work environment was necessary as an accommodation. Repeated communications beginning with the July, 2007 "FMLA Medical Certification" form completed by Dr. Hughes and continuing with the September 8, 2007 letter from Dr. Marx made it clear that the Complainant could not return to her old job or to any job at the House of Correction; this obviously entailed a change in her work environment.
The only arguable justification for the County to discharge the Complainant on January 21, 2008, was that it had suddenly become a hardship for it to not discharge her. That simply cannot be maintained, however. The County bears the burden of establishing hardship, and it failed to do so here. While it alluded to the need to have a regular, permanent employee in the Complainant's position, it did not explain how simply keeping the Complainant on the same unpaid leave of absence status she had been on, and continuing the process of trying to find her a position somewhere else, would have been a hardship. It could have filled her old position permanently with someone else, if that was the problem; after all, the Complainant herself was contending that she could not return to that position.
The County argues that "although 'clemency and forbearance' is required and was provided, an indefinite leave of absence is not required." That is a straw man argument. The Complainant was not
seeking an "indefinite" leave, and the Commission does not hold in this case that an indefinite leave was required. The question is whether, in the specific circumstances here and given the history of the parties' contacts regarding the possibility of an accommodation, a decision to discharge the Complainant
on January 21, 2008, can be considered consistent with the duty to reasonably accommodate. The Commission believes that it cannot. Although the County emphasizes the length of time the Complainant had been off work, what is at issue is the reasonableness of the accommodation effort. The Complainant had reached out to start the kind of interactive process that is contemplated by the law, in October. The process really only got started with the early November meeting. The County bears at least some responsibility for the "stall" in the process over the next couple of months, considering its error in e-mailing with the Complainant's counsel, and also considering that in the November 2 meeting it had mentioned the matter of budgeting causing some delay, thereby possibly leading the Complainant to think the delay was expected. For the County to have the very next step be Knox's discharge of the Complainant on January 21, essentially delivered as a
fait accompli, without so much as a heads-up to the Complainant's counsel, seems to the Commission to have been inconsistent with what is required by the spirit of the reasonable accommodation requirement.
Retaliation -- In addition to allegations about refusal to reasonably accommodate a disability and discrimination because of disability, the complaint in this case included the allegation that the County retaliated against the Complainant for her opposition to discriminatory practices and her having filed a previous complaint with the ERD.
These allegations were investigated and addressed in the initial determination, and they were mentioned in the notice of hearing. However, at the hearing there was virtually no mention of the retaliation claim. In the parties' post-hearing briefs to the ALJ, the focus was entirely on the claims of refusal to reasonably accommodate a disability and discrimination because of disability. Complainant's brief to LIRC expressly stated that she appealed only the disability claims, and its focus was entirely on those claims.
It thus appears that the Complainant is no longer pursuing the retaliation issue. Because this has not been directly confirmed, though, the Commission believes it is best in the circumstances to address the issue expressly.
There was no evidence that the Complainant engaged in any action constituting opposition to any discriminatory practice, other than filing a previous discrimination complaint with the Equal Rights Division. There was also no evidence that the fact that the Complainant had filed that complaint, played any part in the County's motives here. The ALJ's decision that there was no retaliation is thus clearly justified by the record. The Commission has modified the wording of the ALJ's conclusions of law regarding the retaliation issue, solely in order to draw a clearer distinction between the "opposition" and "participation" elements of that issue.
cc:
Mark A. Grady, Principal Assistant Corporation Counsel
Tricia L. Knight, Attorney at Law
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