LYNN M ALAMILLA, Complainant
CITY OF MILWAUKEE, 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, except that it makes the following modifications:
1. In the first sentence of the eighth paragraph under the ALJ's FINDINGS OF FACT, after the word "diabetes", add:
2. "type two, uncontrolled, and has neuropathy related to diabetes. The symptoms of her neuropathy included having cold feet at night and dropping objects."
3. Delete the last sentence of the eighth paragraph under the ALJ's FINDINGS OF FACT.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed June 28, 2013
alamily . rmd : 107 : 5
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
Proof of disability involves two steps -- first, that the complainant has a real or perceived impairment, defined as a "lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or such bodily condition." City of La Crosse Police & Fire Commission v. LIRC, 139 Wis.2d 740, 760-61, 407 N.W.2d 510 (1987); and second, that the condition makes or is perceived to make achievement unusually difficult or to limit the capacity to work. Id. at 762. The phrase "makes achievement unusually difficult" means substantially limiting life's normal functions or a major life activity. The phrase "limits the capacity to work" refers to the particular job in question. Id. at 762-64.
The ALJ accepted the complainant's statement that she suffered from diabetes, that she took insulin daily, that she had trouble doing household chores, had poor balance, foot swelling, blurred vision, and had pain, cramps, tingling and numbness in her legs, hands and feet. He also accepted as a fact that the complainant was on social security disability.
Considering the evidence that the ALJ accepted, his conclusion that the complainant was not disabled is supported. First, the fact that the complainant received social security disability benefits did not establish that she was disabled under the WFEA. The two laws have different definitions of the term disability. (1) An employee may be eligible for social security disability payments and at the same time have the capacity to perform a particular job. See, Crivello v. Target Stores, ERD Case No. 9252123 (LIRC Aug. 14, 1996), aff'd sub nom. Target Stores v. LIRC and Crivello, 217 Wis.2d 1, 576 N.W.2d 545 (Ct. App. 1998). Even granting that one's eligibility for social security disability may help to establish disability under the WFEA, because no records were put in evidence showing how the complainant's condition qualified as a disability for purposes of social security, no persuasive argument was presented for inferring disability under the WFEA based on the complainant's qualification for social security disability.
Second, a diagnosis does not establish a disability. Doepke-Kline v. LIRC, 2005 WI App 209, 287 Wis.2d 337, 704 N.W.2d 605. There must be an individualized showing that the nature of the complainant's condition is severe enough to substantially limit a major life activity or limit the capacity to work. Id. Diabetes is certainly an impairment, and it may be a disability under the WFEA (see, Tofte v. Department of Transportation, ERD Case No. 7600114 (LIRC Oct. 3, 1977); but it also may not be a disability without a competent showing of how it makes achievement unusually difficult or limits the capacity to work. See, Flores v. Amcast Corporation, ERD Case No. 9251193 (LIRC Oct. 13, 1994); Ford v. Lynn's Hallmark, Inc., ERD Case No. 200301184 (LIRC June 27, 2005). The complainant's own listing of her symptoms is not a competent showing that those symptoms were related to her impairment. 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).
In addition to the evidence that the ALJ accepted, the commission has considered the complainant's certified medical records for the purpose of determining whether the complainant had a disability. The ALJ admitted the records, but not with respect to any diagnoses or explanations of treatment contained in the records, on grounds of hearsay. The records, however, being certified, had a circumstantial guarantee of trustworthiness. See, Wodack v. Evangelical Lutheran Good Samaritan Soc., ERD Case No. 200230449 (LIRC Aug. 5, 2005); Wis. Stat. § 908.03(24). In addition, as explained in Rutherford v. LIRC, 2008 WI App 66, 309 Wis.2d 298, 752 N.W.2d 897, the hearing examiner should admit all evidence having reasonable probative value. This can even include uncertified medical records. Id. The diagnoses and other information contained in the complainant's certified medical records had reasonable probative value.
The records indicated that the complainant's diabetes was type two (adult onset), uncontrolled, and was first diagnosed in 1984. The records also made reference to obesity, hyperlipidemia (abnormally high levels of lipids in the bloodstream), metabolic syndrome (a combination of factors that multiply a person's risk for heart disease), depression, mood swings, and a few other issues, but did not explain how or to what degree those conditions affected her. The records also indicated that the complainant had neuropathy (defined in Webster's New College Dictionary, 3rd Ed., as a disease or abnormality of the nervous system) associated with her diabetes, which manifested itself mainly in her having cold feet at night and dropping objects. No expert opinion, however, was expressed in the records attributing many of the other symptoms the complainant described to her diabetes or neuropathy, or evaluating the severity of those symptoms in light of the definition of disability in the WFEA.
Although uncontrolled diabetes may put one at risk for complications that may involve the eyes, nerves and heart, there is little information in the medical records about the particular effects caused by the complainant's diabetes. Expert testimony must be adduced concerning matters involving special knowledge, skill or experience on subjects that are not within the realm of ordinary experience. Wal-Mart Stores v. LIRC and Schneider, 2000 WI App 272, 240 Wis.2d 209, 621 N.W.2d 633. The complainant's problems with her balance, her feet, hands and legs, and problems with her eyesight, as she described them, may all be products of her diabetes, but there was insufficient expert opinion tying her condition to those symptoms, or describing the nature and severity of her limitations on her major life activities or her capacity to work due to her condition. It is not within the knowledge and experience of a layperson to conclude that the list of symptoms described by the complainant, in particular those that would impact her typing speed, were the result of diabetes or neuropathy.
The complainant also argued that the respondent perceived her to be disabled because it did not question her need for accommodation. The respondent's human resources manager testified that the respondent "assume[s] that anybody asking for an accommodation needs that accommodation." Under City of La Crosse Police & Fire Commission v. LIRC, 139 Wis.2d 740, 764-65, 407 N.W.2d 510 (1987), in order to establish a perception of disability, it is necessary to prove that the employer perceived the complainant to have a condition that, if it really existed, would substantially limit a complainant's major life activity or limit his or her capacity to perform the job. A respondent's assumption that a requested accommodation is needed is not the same as having such a perception. There is no evidence that the respondent's human resources manager actually formed a perception that the complainant had a permanent impairment that substantially limited her ability to perform a major life activity or limited her capacity to work based on the complainant's declaration in her accommodation request that she had complications from diabetes.
In sum, the complainant's evidence is not sufficient to prove that she was an individual with a disability, and therefore she does not come within the protections of the WFEA for refusal to reasonably accommodate or refusal to hire.
NOTE: At the outset of the hearing, the ALJ stated that part of the complainant's burden would be to show that if she had had the accommodations she wanted, the complainant would have passed the typing test. The ALJ also suggested that a successful showing of this by the complainant would require evidence that she took a typing test under "controlled conditions" with the accommodations she wanted, and passed (i.e., typed 65 WPM). The complainant argued that by imposing this standard the ALJ had pre-judged the case against her. She drew a distinction between reasonable accommodation in the work setting and reasonable accommodation for a pre-employment test. Pointing to federal regulations under the Americans with Disabilities Act (ADA), the complainant argued that the goal of a testing accommodation was to remove barriers for the applicant so as to allow him or her to perform the test on an equal footing with the other applicants, not to guarantee that the applicant will pass the test,2(2) and that therefore it was improper to require the complainant to prove that she would have passed the typing test if she had had the accommodations she wanted. The commission does not agree that the ALJ had pre-judged the case by adopting this legal standard. He announced the standard at the beginning of the hearing, and did not curtail the complainant's presentation of her evidence. Nothing in the record indicates that he had determined how he was going to rule before hearing the evidence. Because the commission agrees with the ALJ that the complainant failed to establish that she was disabled under the WFEA, it is not necessary for the commission to consider the nature of the complainant's burden beyond the issue of whether she was disabled.
cc:
Attorney Kelly Lowery
Attorney Marynell Regan
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