TINA M RYBAK, Complainant
WISCONSIN PHYSICIANS SERVICE, 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
May 31, 2013
rybacti . rmd : 107 : 5
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ Robert Glaser, Commissioner
/s/ C. William Jordahl, Commissioner
It appears, however, that part of the complainant's purpose in detailing her exchanges with the respondent over FMLA was to support her claim of disability discrimination in two respects-to show that she was disabled under the WFEA, and to show that the respondent failed to reasonably accommodate her disability. To that extent, the commission has considered the complainant's FMLA evidence.
Existence of a Disability
The first element of a claim of disability discrimination is proof that the complainant is within the protected class. The WFEA protects against discrimination in employment on the basis of disability. An individual with a disability is defined 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.
Wis. Stat. § 111.32(8).
As explained by the commission in Rybicki v. DJ Convenience, LLC, ERD Case No. 200800018 (LIRC Aug. 20. 2010):
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 v. LIRC, 217 Wis.2d 1, 576 N.W.2d 545 (Ct. App. 1998). 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).
Even though the complainant's burden of proof at this stage of the case is to show probable cause, a lower burden than she would bear in a hearing on the merits,(2) the complainant is not relieved of the burden to show, consistent with the above guidelines, that she was an individual with a disability, to the degree necessary to support a determination of probable cause. See, Schultz v. CNH Capital Corporation, ERD Case No. 200300915 (LIRC May 8, 2006).
The complainant testified that she was diagnosed as having a panic disorder and paralyzing anxiety disorder. She did not offer any testimony from a treating medical expert regarding this diagnosis. As for expert documentation of her health condition, the complainant offered: (1) two medical records, both from her treating obstetrical and gynecological physician, Dr. Danielle Bridge; (2) two certifications in support of FMLA requests; (3) (3) a set of medical records from Prevea Health (Exhibit M); and (4) a letter dated March 17, 2008 from Bonnie Lee, MSW (Ex. A, p. 129). The first two sets of documents were admitted; the last two were not. The complainant asked the commission to consider admitting the last two. The commission concludes that the ALJ reasonably excluded the Prevea Health records because they were not properly authenticated-the numbers of pages in the exhibit did not match the number stated in two certifications attached to the exhibit. In any case, much of the exhibit consisted of a second copy of the two reports of Dr. Bridge, which had already been admitted. The commission also concludes that the ALJ reasonably excluded the letter from Ms. Lee for lack of authentication and hearsay.
The earliest of the admitted documents was an FMLA certification form signed by a Bonnie M. Lee, MSW, dated April 19, 2007. The complainant's condition was described by the author as "chronic anxiety disorder which can result in panic attack and anxiety reactions." It was indicated on this form that the complainant was not incapacitated, and was not unable to perform any essential function of her job. The only leave requested was for attendance at therapy sessions one to two times per month.
On September 7, 2007, Dr. Bridge completed an FMLA certification for the complainant. It stated that her condition required office visits every two to three weeks through the end of 2007, and it requested that she be allowed to attend these during work time. It indicated that the complainant was not incapacitated, and was not unable to perform any essential function of her job. Dr. Bridge also provided a letter for the complainant to take to the respondent, recommending not only that the complainant attend her appointments during work hours, but also that the complainant not be required to be at work before 9 a.m.
Also dated September 7, 2007 was a progress note from Dr. Bridge, giving a diagnostic impression of "history of anxiety, chronic." The note indicated that the complainant had been on a medication, fluoxetine, for anxiety, that she complained of drowsiness, and that she had a concern that she might have a panic attack, although she had not had a "full-fledged" panic attack since 2004. The complainant described that she experienced shortness of breath if she had a bad meeting at work. The complainant noted that she was concerned about working outside her normal working hours, and what effect that might have on her functioning. Dr. Bridge recommended a change in medication from fluoxetine to Lexapro.
There was a second progress note from Dr. Bridge, based on a visit on December 5, 2007. It was noted that the complainant's anxiety symptoms seemed nicely controlled. The complainant reported some continuing drowsiness during the day, but there was no treatment recommended in addition to therapy and continued use of a new medication, Lexapro.
These documents do not show that the complainant's panic and anxiety disorder caused the degree of limitation necessary to be considered a disability under the WFEA. There is no indication of a substantial limitation on a major life activity, and there is no indication of a limitation on the complainant's capacity to perform her work. There is no evidence that the complainant's occasional drowsiness and episodes of stress and shortness of breath at work prevented her from performing her job. In fact, the medical opinion was that the complainant was able to perform all the essential functions of her job. See,
Seil v. Dairy Farmers of America, ERD Case No. 200204104 (LIRC Aug. 26, 2005);
Larson v. Social Development Commission, ERD Case No. 200302652 (LIRC Oct. 28, 2008).
Lay testimony of several witnesses was also offered concerning the complainant's condition. This testimony could not have served the function of proving the complainant's disability, since laypersons are not competent to connect observations of the complainant's functioning to a particular mental health condition. Wal-Mart Stores v. LIRC, 2000 WI App 272, 240 Wis.2d 209, 621 N.W.2d 633. Even so, the lay opinion of several witnesses concerning the complainant's level of functioning, consistent with the medical documents in evidence, was that the complainant maintained the ability to perform her job, even while having a condition they understood to be anxiety and panic disorder.
The evidence also fails to show that the respondent perceived the complainant to have a disability under the WFEA. Management knew that the complainant went to therapy sessions and took medication for anxiety, but the only restrictions it was aware of that were attributable to her condition were her need to attend her therapy sessions during the work-day, and her need to start her work-day no earlier than 9 a.m. The evidence points to the conclusion that the respondent considered her to have a health condition that imposed minor and occasional restrictions on her work, but did not consider her to have a condition severe enough to be a disability under the WFEA.
Alleged Discrimination
In her petition for review, the complainant focused on her allegations of disability discrimination and retaliation, and did not make a specific argument in support of her allegations of discrimination on the basis of sexual orientation. Nevertheless, the commission has reviewed the record to determine whether there was probable cause to believe any of the adverse actions suffered by the complainant, including alleged harassment by a co-worker and inequality of pay, were motivated by the complainant's sexual orientation. The commission agrees with the findings and conclusions of the administrative law judge that the complainant did not show probable cause to believe that the respondent discriminated against her on the basis of sexual orientation, and adopts those findings and conclusions as its own.
The complainant's claims of discrimination on the basis of disability ranged from allegations about the imposition of various adverse terms or conditions on her (including subjecting her work to close scrutiny, downgrading her performance in evaluations, holding her to unrealistic work expectations, and scrutinizing her requests for time off), to the allegation that the respondent paid her unequally for her services. The complainant cannot prevail on these claims of discrimination without showing that she was an individual with a disability under the WFEA. Even setting aside the complainant's failure to prove disability, however, the commission does not find probable cause to believe that the respondent's treatment of the complainant was motivated by its knowledge of her anxiety and panic disorder. The respondent articulated plausible non-discriminatory explanations for treatment of the complainant. As to evaluations of the complainant's performance, it offered evidence that the complainant's supervisor, Patti Lower, based her opinions on objective performance measures, such as the percentage of calls answered by the complainant's unit in 50 seconds or less, the percentage of calls abandoned, and the number of monthly audits of the unit the complainant completed. As to subjecting the complainant's work to close scrutiny, the respondent offered evidence that it did not single out the complainant, but treated her and another manager, Jean Halstdad, similarly based on similar appraisals of their performance. As to not providing sufficient resources to allow her staff to meet their standards, the respondent presented evidence that it provided opportunities for the complainant to add to her staff, but she did not take full advantage of those opportunities, and that it counseled her to more effectively manage her staff's requests for time off, but she did not apply that advice. As to requiring the complainant to start work before 9 a.m., the evidence shows that although the respondent's business hours began at 8 a.m., the respondent no longer scheduled the complainant for meetings beginning before 9 a.m. once it received a request from the complainant's doctor advising that she not be required to attend work until 9 a.m. As to the respondent's requiring the complainant to get approval for paid-time-off, the respondent provided evidence that this requirement was imposed for business reasons, and was not imposed only on the complainant. As to alleged pay inequality, the respondent presented evidence that in June 2005 it paid the complainant essentially the salary she requested, and that the reason the complainant's salary was less than that of other member services managers was because she supervised far fewer employees than those managers did. The complainant was unable to show that the respondent's
non-discriminatory reasons for its treatment of her were pretexts for discrimination based on her health condition.
The complainant also alleged that the respondent refused to reasonably accommodate her disability. Again, setting aside the complainant's failure to prove disability, the evidence does not show that that the respondent refused to accommodate the complainant's requests related to her health condition. The complainant had regularly taken time off work to see a doctor or therapist related to her anxiety and panic disorder, and she chose to take that time as personal time off. The complainant failed to show that the respondent ever refused a request for time off for these appointments in the knowledge that the reason for the request was health-related. When the complainant presented a note from her doctor requesting that the complainant not be required to be at work prior to 9 a.m., the respondent honored that request. Insofar as the complainant's requests for flexibility in her work schedule related to her health concerns, the respondent did not refuse the requests.
Retaliation
In addition to claiming discrimination on the basis of disability, the complainant alleged that in retaliation for opposing discrimination and having filed complaints with the ERD, the respondent placed her under increased surveillance by sending her weekly to-do lists, mis-characterized a previous successful evaluation as unsuccessful, judged her performance more harshly, and ultimately terminated her employment. The filing dates of the pre-termination complaints were July 5, August 22 and October 31, 2007. The respondent denied any connection between the complainant's opposition to perceived discrimination, including her filing of complaints, and any adverse action it took against the complainant. The complainant's supervisor acknowledged that in the summer and fall of 2007 she sent to-do lists to the complainant, but testified that because it was a busy time of year she wanted to remind staff of a variety of duties. Many of the tasks listed did not impose deadlines, and such lists were not sent to the complainant only. The complainant did not show that the to-do lists were in retaliation for the filing of any of her complaints. It is true that in two e-mails in the fall of 2007 Mike Chester, Lower's supervisor, mis-characterized the complainant's mid-year evaluation in November 2006 as "needs improvement" when it was actually "achieves expectations," but there is no evidence to support the contention that the mis-characterization was in retaliation for her having filed a complaint with the ERD, or that it was even intentional. Furthermore, there is no evidence of any adverse consequence from the mis-characterization. The complainant's immediate supervisor, Lower, correctly characterized the complainant's November 2006 evaluation in her memo of February 11, 2008, in which she recommended the termination of the complainant. (Ex. 149). The respondent relied heavily on the complainant's continued failure to meet her unit's goals of answering 85% of calls within 50 seconds and maintaining a call abandonment rate of less than 4%, and her failure to consistently complete monthly quality assurance audits. The complainant failed to show that the respondent's conclusions were false or were used by the respondent as a pretext for a retaliatory termination.
cc:
Attorney Holly Jensen
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