STEVEN JOHN MAEDER, Complainant
UNIVERSITY OF WISCONSIN-MADISON
UNIVERSITY OF WISCONSIN POLICE, 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 Finding of Fact 18, delete "2004" and substitute "2003" therefor.
2. In Finding of Fact 19, delete "Woolf" and substitute "Wolff" therefor.
3. In the fourth sentence of Finding of Fact 35, delete "order" and substitute "ordered" therefor.
4. In the fifth sentence of Finding of Fact 35, add a closing quotation mark after the word 'employment.'
5. Delete Finding of Fact 38 and substitute therefor the following:
38. In January of 2004, Maeder started a personal relationship with another woman who quickly became pregnant with his child.
6. In the first sentence of Finding of Fact 51, delete "hour" and substitute "hours" therefor.
7. In the third sentence of Finding of Fact 51, delete the first occurrence of the word "in."
8. In the third sentence of Finding of Fact 54, add "and" after "Riseling."
9. In the last sentence of Finding of Fact 59, insert "could" between "he" and "be."
10. In the second sentence of Finding of Fact 61, insert "Department" after "Police."
11. In the fifth sentence of Finding of Fact 67, delete "hype-manic" and substitute "hypo-manic" therefor.
12. In the first sentence of Finding of Fact 69, insert "saw" after "McMurray."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed June 28, 2013
maedest_rmd : 110 :
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
The complainant, a police detective, was discharged from his employment with the respondent, the University of Wisconsin Police Department. He alleged that he was discharged because of a disability, bipolar disorder, and that the respondent failed to reasonably accommodate his disability. The respondent denied that he had been discharged because of a disability or that it had failed to reasonably accommodate his disability. The Equal Rights Division determined that there was no probable cause to believe that the respondent discriminated against the complainant as alleged, and after hearing an administrative law judge (ALJ) agreed that there was no probable cause to find discrimination. The complainant petitioned for review.
On the question of whether the complainant had bipolar disorder and if so what effect it had on him, there was testimony and written evidence and opinions from Dr. Goldfoot, a clinical psychologist, Dr. Hodulik, a psychiatrist, and Dr. Ritchie, a clinical psychologist; there was also written evidence reflecting the opinions of Dr. McMurray, a psychiatrist. However, the expert opinions were in conflict. Goldfoot, McMurray and Hodulik opined that the complainant had bipolar disorder to some degree; Ritchie opined that the complainant did not meet the diagnostic criteria for bipolar disorder. The commission finds the opinions of Drs. Goldfoot, McMurray and Hodulik more persuasive. It finds that there is probable cause to believe that the complainant had bipolar disorder.
The question remains, however, whether there is probable cause to believe that the challenged employment action(s) taken by the respondent here were taken because of the complainant's bipolar disorder.
Discrimination against an individual "because of" disability may occur in the form of an employer acting on the basis of actual discriminatory animus against an employee because that employee was an individual with a disability; it may also occur from the employer acting on the basis of dissatisfaction with a problem with that employee's behavior or performance which is caused by the employee's disability. Fields v. UW Hospital & Clinics, ERD Case Nos. CR200302716 (LIRC, Feb. 12, 2007). If an employee is discharged because of unsatisfactory behavior which was a direct result of a disability, the discharge is, in legal effect, because of that disability. Crivello v. Target Stores, ERD Case No. 9252123 (LIRC Aug. 14, 1996), Stelloh v. Wauwatosa Savings Bank, ERD Case No. CR200700340 (LIRC, 06/19/12).
It is clear from the record here that the decision to discharge the complainant was made by Chief Riseling. There is no basis to find that Chief Riseling was motivated by invidious bias, or by any hostility or prejudice against the complainant because he had a mental health problem. On the contrary, it is clear that her actions and decisions arose from dissatisfaction with certain behavior the complainant engaged in.
This is consistent with the position taken by the complainant. His position is that his bipolar disorder caused him to engage in certain conduct, which conduct was in turn the reason that the respondent discharged him, and that he was thus discharged "because of" his disability. His position is that the duty of reasonable accommodation of disabilities required the respondent to accommodate his disability, by extending "clemency and forbearance" in the form of not disciplining or discharging him for conduct caused by his bipolar disorder.
This presents the questions, though, of (1) what behaviors the complainant was discharged because of, and (2) whether those behaviors were caused by his bipolar disorder.
The first question involves the actual subjective motivation and intent of Chief Riseling in deciding to discharge the complainant. The ALJ made specific findings about this:
87. On December 20, 2004, Chief Riseling sent a letter to Maeder, terminating his employment with UW Police. Chief Riseling ultimately decided to terminate Maeder's employment because he continued to not follow instructions that she had ordered him in writing to follow. She believed that he had been insubordinate. All of the mental health professionals who examined him in 2004 had determined that he was able to return to work. Chief Riseling determined that even assuming that the Zoloft interfered with his ability to provide monthly financial updates through July of 2004 when the Zoloft was finally out of his system, he still failed to comply with that order from August of 2004 through December of 2004. She decided that although he was able to return to work from a medical standpoint, from an ethical standpoint and an instructive standpoint, he could not return to his position with UW Police.
The commission agrees with this finding. It is persuaded that when it came to the final decision to discharge the complainant, the specific reason for Chief Riseling's decision was that he had persisted for months in disobeying the written order she had given him, on February 12, 2004, to meet face-to-face with Captain Bridges on a monthly basis to provide him with updates on his personal finances. He had stopped complying with that order after April, 2004. Even after July 2004 when his behavioral symptoms were no longer being exacerbated by Zoloft, he continued to disregard that order. While the complainant had engaged in a number of other acts of misconduct, financial and otherwise, and had engaged in dishonesty and been non-compliant with stated expectations of superior officers in a number of respects apart from the matter of not complying with the monthly financial report order, the commission finds it most probable and believable that (as the ALJ found), the complainant's cessation of compliance with the monthly financial report order was what motivated Riseling to decide to discharge him.
The second question, as noted above, is whether the behaviors that were the cause for the discharge (i.e., failure to comply with the order to provide monthly financial updates to Captain Bridges") were in turn caused by the complainant's bipolar disorder.
Whether an individual's bad behavior is caused by a mental disorder from which the individual suffers is a question of medical/scientific fact on which expert testimony is required. Wal-Mart Stores v. LIRC and Schneider, 2000 WI App 272, ?16, 240 Wis. 2d 209, 621 N.W.2d 633. From the fact that such expert opinion is required, it is clear that it cannot simply be presumed that every act of bad behavior engaged in by a person with a mental disorder is caused by that mental disorder. It may or may not have been; the question is to be resolved by weighing the expert evidence which is found in the record on that question.
Based on its review of the testimony and opinions of the experts in this case, the commission finds that it was not established, even to the degree necessary to support a finding of probable cause, that the complainant's persistent failure after April 2004 to comply with the Chief's order that he make monthly financial reports was caused by his bipolar disorder.
A principal reason for this finding is that, while there was evidence from experts here as to the general nature of the behavior that may be caused by bipolar disorder, none of the complainant's experts offered the specific opinion that his failure to comply with the monthly financial report order from May 2004 until the point of his discharge in December 2004, was caused by his bipolar disorder. Where there is no expert testimony establishing that the behavior for which an employee was fired was caused by his mental illness, the commission errs in finding termination because of disability. Wal-Mart Stores v. LIRC and Schneider, supra.
In addition, the opinions offered by Dr. Goldfoot and Dr. Hudolik were that the complainant was essentially asymptomatic after he stopped taking Zoloft. Yet there was a period of months after the complainant was no longer on Zoloft, during which he was failing to comply with the order to make monthly financial reports. If in their expert opinion the complainant was not evidencing symptoms of bipolar disorder during this period, then his failure during this period to comply with the monthly financial report order can not be a symptom of his bipolar disorder.
The commission also considered, that the characterizations of the symptoms of bipolar disorder which were offered by the experts seemed to point in a different direction than what would be involved in a continuing failure to perform a positive duty. Describing typical symptoms of bipolar disorder, both Dr. Goldfoot and Dr. Hodulik repeatedly and prominently mentioned "making impulsive decisions" and "poor impulse control." A recurring failure to perform a required act, though, is of a different character than engaging in an act impulsively.
It is true that there was evidence that "poor decisions" are also a symptom of bipolar disorder. And, it was undoubtedly a very poor decision on Maeder's part to simply stop complying with a specific, written order which had been issued to him by the Chief. Yet making poor decisions is not something exclusive to persons with mental illnesses. People without mental disorders may, in the exercise of their own native powers of judgment and their own moral agency, make poor decisions. The commission is persuaded that, in this case, the complainant's decision to not comply with the Chief's order was his own choice.
For the same reasons as those discussed above, the commission also finds no failure of reasonable accommodation.
In cases in which an employer discharges an employee because of bad performance which is caused by the employee's disability, an issue of reasonable accommodation can be considered to arise. This is because in such a case the disability is reasonably related to the complainant's ability to perform the job adequately, (1) since it actually causes the bad performance which becomes the reason for discharge. In such a case, a reasonable accommodation might be a change in job methods or duties, or "clemency and forbearance" towards the problem behavior. See, e.g., Stelloh, supra.
However, as discussed above the ALJ found and the commission agrees that the reason the complainant was discharged was his failure to comply with the monthly financial report order, and it was not established that that failure on his part was caused by a disability. There is thus no disability-caused problem with ability to perform the job adequately which needs to be accommodated.
NOTE: Although it adopts the findings and conclusion of the ALJ (as modified) as its own, the commission does not adopt the rationale described in the ALJ's Memorandum Opinion. The commission's rationale, which led it to arrive at the same ultimate conclusion as the ALJ, is as described in its Memorandum Opinion set out above.
cc:
Sally A. Stix, Attorney for Complainant
John C. Dowling and Brian D. Vaughan, Attorneys for Respondent
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