ROXANNE HENDON, Complainant
WISCONSIN BELL, INC. d/b/a AT&T, 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. Respondent Wisconsin Bell, Inc., d/b/a AT&T ("AT&T") is a provider of telecommunication services and has facilities in various locations including Milwaukee, Waukesha, Janesville and Appleton, Wisconsin. At the time material to these proceedings Peggy Texeira was AT&T' s Labor Relations Manager for the State of Wisconsin. Priscilla Harris worked for Sedgwick Claims Management Services, a third party administrator processing accommodation requests, as an accommodation specialist. Cindy Repech was AT&T's Associate Director of Staffing.
2. Hendon worked for AT&T from June, 2001 until August 31, 2009. Hendon began as a customer service representative, working in Milwaukee; in 2006, Hendon became a technical specialist, working in Waukesha; in May, 2008 Hendon became a design specialist, working in Janesville; on March 11, 2009 Hendon accepted a customer service position in Appleton. Hendon performed her job duties satisfactorily throughout her employment. Throughout her employment Hendon was a member of a collective bargaining unit; the terms and conditions of her employment were governed by a collective bargaining agreement.
3. When AT&T downsizes or eliminates a department or position it refers to the employees to be let go as surplused. A surplused employee has certain options with respect to finding a new job, within AT&T, within a certain period of time, normally 90 days.
4. Hendon's moves from Milwaukee to Waukesha to Janesville to Appleton were all a result of her being surplused. Each was done in accordance with the collective bargaining agreement.
5. AT&T has a procedure, administered by a third party, to provide job accommodations for employees needing them. Job accommodations can be provided in two kinds of situations. The first is for management employees who are going to have to perform hourly worker's jobs during a work stoppage (strike). In work stoppage cases there are many more positions to be filled than management employees to fill them and a specific accommodation is easier to obtain. That is, the employee is not required to provide much in the way of medical evidence; normally, only a letter from the employee's doctor is required. The other type of situation in which job accommodations can be provided involves normal job accommodation having to do with the essential job functions of an hourly employee. In this type of situation, more extensive medical information is required to support the job accommodation request.
6. In 2005 Hendon was given a provisional diagnosis by Dr. Malti Patel, a psychiatrist, of bipolar affective disorder, mixed state, with psychotic features. Dr. Patel prescribed a number of medications for her and referred her to Nora Yanchar, Ph.D., a clinical psychologist, for individual therapy. Thereafter Hendon saw Dr. Yanchar for treatment of the condition diagnosed by Dr. Patel.
7. During the time Hendon worked in Milwaukee and Waukesha she was granted short term disability leave, at least twice. During this same period, Hendon was also granted intermittent leave under the Wisconsin Family and Medical Leave Act. The fact that these periods of leave were granted was not necessarily an indication that any specific individual employed by or working for AT&T had formed a belief that Hendon had a permanent impairment making achievement unusually difficult or limiting the capacity to work. These periods of leave were granted based on the fact that Hendon had provided information from Dr. Patel and Dr. Yanchar which, if correct, would support an entitlement to leave under the program or law in question. However, the diagnosis that Hendon had bipolar affective disorder, mixed state, with psychotic features, is not supported by the preponderance of the competent medical evidence in the record in this matter
8. Shortly after she accepted the position in Appleton as described in Finding of Fact 2 above, Hendon applied for, and was granted, short term disability leave. While on leave Hendon requested a transfer to Milwaukee as an accommodation for her disability. The reason for the request was so she could be in closer proximity to her health care provider and family members.
9. Hendon first requested the accommodation in mid-April, 2009. Her request was reported as a work stoppage accommodation (only available to management employees) by mistake. The request was routed to Ms. Harris who processed it as a work stoppage accommodation and it was approved. Within a few days the mistake was discovered and Hendon was notified that she was not eligible for the accommodation.
10. Hendon re-applied for the same accommodation, under the procedures applicable to requests by hourly employees. That accommodation request was denied because it was interpreted as relating to Hendon's drive from home to work, and driving was not a function of Hendon's position.
11. Hendon was on short term disability leave through August 25, 2009. On or about August 5, 2009 AT&T contacted Hendon and advised her that she would have to submit additional medical records for her leave to be extended beyond August 25, 2009. However, Hendon did not submit any additional medical records.
12. On or about August 19, 2009 Hendon advised AT&T that she intended to return to work on August 26, 2009. However, she did not do so.
13. By letter dated August 26, 2009, AT&T advised Hendon that she was expected to return to work by Monday, August 31, 2009, and that if she did not she would be considered to have abandoned her job.
14. Hendon did not return to work on or after August 31, 2009, and as a result her employment was considered by AT&T to have been terminated.
15. AT&T did not make any decision regarding the terms and conditions of Hendon's employment because of the diagnosis Hendon had been given by Dr. Patel, or because of any perception regarding that diagnosis. The terms and conditions of Hendon's employment were not unlike those of other AT&T employees.
16. AT&T did not make the decision to terminate Hendon's employment because of the diagnosis Hendon had been given by Dr. Patel, or because of any perception regarding that diagnosis. AT&T wanted Hendon to continue her employment. Hendon's employment ended because she stopped reporting to work.
Based on the Findings of Fact made above, the commission makes the following:
2. AT&T did not discriminate against Hendon because of disability within the meaning of the Wisconsin Fair Employment Act, either in regard to the terms and conditions of her employment, or in regard to the termination of her employment.
3. AT&T did not, in regard to its treatment of Hendon, refuse to reasonably accommodate an employee's disability within the meaning of the Wisconsin Fair Employment Act.
Based on the Findings of Fact and Conclusions of law made above, the commission issues the following:
The complaint in this matter is hereby dismissed with prejudice.
Dated and mailed
November 13, 2014
hendoro_rrr : 110 : 123.12, 123.5, 123.6
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
This case involves an AT&T employee whose employment ended when she stopped going to work at her job in Appleton because she wanted a transfer to a job in Milwaukee. She contends that she was an individual with a disability within the meaning of the WFEA, and that AT&T discriminated against her because of disability, and refused to reasonably accommodate her disability, by not giving her a transfer to a position in Milwaukee.
Applicable legal framework -
The WFEA provides:
Wis. Stat. § 111.32 Definitions
. . .
(8) "Individual with a disability" means 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.
and
Wis. Stat. § 111.34 Disability; exceptions and special cases.
(1) Employment discrimination because of disability includes, but is not limited to:
. . .
(b) Refusing to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business.
The threshold question here is whether Hendon established that she was an individual with a disability within the meaning of the statute.
Does The Record Establish Hendon Was An Individual With An Actual Disability? -
The commission has often endorsed the view that competent medical evidence is required to establish the existence, nature, extent, and permanence of an impairment, if disputed as a matter of fact. See e.g., Alamilla v. City of Milwaukee, ERD Case No. CR201002749 (LIRC, 06/28/13), citing Connecticut General Life Ins. Co. v. DILHR, 86 Wis. 2d 393, 273 N.W.2d 206 (1979).
Hendon testified, initially without any objection being made, that she was "diagnosed with bipolar with psychotic tendencies" in 2005, that she sought treatment and was treated by Dr. Patel, a psychiatrist, and Dr. Yanchar, a psychologist, and that her symptoms included "paranoia, hearing voices, suicidal," and anxiety. Then, though, after Hendon had marked a document (Ex. C1) written by Dr. Patel, and in response to a question as to whether Patel gave a diagnosis of what her illness was, the respondent objected, asserting that there was a lack of foundation for the testimony and arguing that Hendon could not start giving medical testimony. Counsel for Hendon, asked by the ALJ what her purpose was, indicated that she was intending to have the document received as an exhibit and that she was "trying to get what her diagnosis was from the doctor," to which the ALJ responded, "Well, in that case, it speaks if (sic) itself." Complainant's counsel then elicited testimony from the complainant about Dr. Patel diagnosing her with "bipolar with psychotic tendencies," about her symptoms, and about the treatment she received, including the medications she was prescribed. All of this testimony came in without any further objection by respondent's counsel.
Despite the fact that this testimony came in without any further objection from the respondent, it is evident that both parties were taking it as given - because of the respondent's earlier objection -- that the ALJ was not going to consider Hendon's testimony about what medical professionals had told her, as itself being sufficient as medical evidence.
Apart from her own testimony, the only evidence offered by Hendon that she had an actual disability was:
1) A March 7, 2005 psychiatric evaluation by Dr. Patel (Ex C1);
2) An April 21, 2009 letter from Dr. Yanchar (Ex C6); and
3) a "Mental Health Provider Statement" filled out by Dr. Yanchar on July 14, 2009 (Ex C9)
The respondent objected to receipt of all three of these exhibits on the grounds that they were hearsay. The complainant did not dispute that characterization of the exhibits. The ALJ stated, "Okay. I will accept the - I mean, subject to weight, received." The commission takes this as an indication by the ALJ that he would give them the weight he thought appropriate considering that they were hearsay. (1)
In addition to the evidence described above, there was direct expert medical opinion offered by respondent, through testimony of a psychiatrist (Dr. Pankiewicz), that the complainant did not have an actual disability as she claimed. Dr. Pankiewicz reviewed the records and notes from Dr. Patel and Dr. Yanchar, he viewed the video deposition of Hendon, and he was present at the deposition of Dr. Yanchar. Based on that, and on his own experience, Dr. Pankiewicz testified that he questioned the validity and accuracy of the diagnosis of "bipolar one disorder mixed with psychotic features" made by Dr. Patel and Dr. Yanchar and that he did not believe there was evidence to support that diagnosis. He stated a number of grounds for his opinion:
In her brief to the ALJ, counsel for the complainant argued that complainant was an individual with a disability because she had "a record of an impairment" within the meaning of Wis. Stat. § 111.32 (8)(b). She conspicuously did not argue that she actually "had" an impairment within the meaning of Wis. Stat. § 111.32 (8)(a). The closest she came to acknowledging the issue as to the hearsay nature of the medical evidence - and its consequent inadequacy as proof that she actually had an impairment -- was to argue alternatively that even if she were found not to have established that she had a record of such an impairment, she was clearly "perceived as having such an impairment" within the meaning of Wis. Stat. § 111.32 (8)(c).
The respondent argued to the ALJ, that the documents Hendon presented from her medical providers were hearsay and thus not competent medical evidence to establish that she had a disability and that Hendon's testimony was not enough, without more, to satisfy her burden of proof. It also argued that even assuming Hendon's testimony could be considered as some evidence of a disability, it was overcome by the evidence from the respondent's medical expert, Dr. Pankiewicz.
In his decision, the ALJ made findings of fact that "[i]n 2005 Hendon was diagnosed with Bipolar Affective Disorder with mixed psychotic features" and that she "received regular psychiatric treatment" and had "symptoms includ[ing] suicidal and paranoiac ideation." However, in apparent contrast to this, he led off his Memorandum Opinion by saying unequivocally that "Hendon did not offer any medical evidence that she has a disability." From this, it would appear that the ALJ did not give Exs. C1, C6 and C9 any weight as proof that Hendon had an actual disability, and that he rested his conclusion that Hendon was a member of a protected class solely on a "perceived disability" theory. This appears to be confirmed by his express conclusion of law that Hendon was a member of a protected class, within the meaning of the Wisconsin Fair Employment Act, "in that she was perceived as having a disability." (emphasis added). Thus it appears that the ALJ did not believe that an actual disability had been proved. Notably, in her arguments to LIRC the complainant conspicuously did not argue that she actually "had" an impairment.
If the standard of requiring competent medical evidence is applied, it is clear that the complainant did not establish that she had an actual disability. But even assuming for the sake of argument that the testimony of Hendon and the documentary hearsay she offered could be considered to be entitled to some weight as evidence that she had an actual disability, the commission would arrive at the same decision. The commission finds the testimony and opinion of Dr. Pankiewicz more persuasive on that issue. The commission credits the opinion of Dr. Pankiewicz that the complainant did not have an actual disability as she claimed. The complainant thus did not establish that she was an individual with a disability under the first prong ("has a[n]...impairment") of the definition.
Does The Record Establish Hendon Had A "Record Of" A Disability? -
The question then becomes, whether it was established that Hendon "[had] a record of such an impairment" within the meaning of the second prong of the disability definition, Wis. Stat. § 111.32 (8)(b). Hendon specifically argues that she fell under the "has a record of" part of the definition of disability because she was diagnosed with and treated for bipolar one disorder mixed with psychotic features.
A question presented in the interpretation and application of the "has a record of" prong of the disability definition, is how exactly it differs from the third prong of the definition, "is perceived as having." That question has not previously been resolved in Wisconsin. However, the Americans with Disabilities Act's definition of disability is similar to that in the WFEA, in including a virtually identical "record of such an impairment" clause. (2) The EEOC further defines an individual with "a record of such an impairment" as someone who has "a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." 29 C.F.R. § 1630.2(k) (1991).
The commission believes that the concept of "having a history of" an impairment implies actually having had that impairment in the past. Thus it might, for example, be applicable in a case in which an individual had a cancer at one point in the past which had then gone into remission. Proof that the individual actually had had a cancer in the past, would be part of the proof needed under this prong.
In this case, for the reasons discussed above, the commission found that the complainant did not actually have the impairment she asserted. For the same reasons, she did not establish that she had had that impairment in the past. It would also be anomalous to find a "has a record of" disability here based on a "misclassification" theory, when the complainant asserted (although ultimately she did not prove by competent evidence) that she was correctly diagnosed with that impairment. Thus, support for a finding of a "has a record of" disability within the meaning of § 111.32 (8)(b), is lacking here.
Does The Record Establish Hendon Was "Perceived" As Having An Impairment? -
To establish a claim for discrimination on the basis of a "perceived" disability, a complainant must show that she was perceived as having an impairment, that the impairment was perceived as making achievement unusually difficult or limiting her capacity to work; and that she was discriminated against because of her perceived disability.
Erickson v. LIRC, 287 Wis. 2d 204, 217, 704 N.W.2d 398 (WI App 2005).
The question of whether an individual is perceived as having an impairment cannot be answered without reference to the particular individuals who are allegedly doing the "perceiving." An employing entity does not have perceptions; individuals do. It is necessary to identify the individuals who made the decisions or took the actions which are being challenged, and to determine if they did so because they perceived the complainant as having an impairment.
The ALJ's decision that there was a "perceived disability" here appears to rest significantly on the fact that at various points in and after 2005 the complainant was granted periods of leave, either short-term disability leave or FMLA leave, and that at various times she had some of her medical records provided to AT&T in connection with those leaves.
While at various points AT&T received documents from Hendon's health care providers having to do with Hendon's condition, which AT&T then relied on in administering its leave and benefit program, this is not necessarily sufficient to establish the existence of a perception on the part of AT&T that Hendon had an impairment meeting the statutory standards for a disability under the WFEA. As the respondent points out in its brief, LIRC has consistently held that an employer's knowledge that an employee has been on leave for medical reasons or has received medical treatment, without more, does not equate to a perceived disability. See, e.g., Erickson v. Quad Graphics Inc., ERD Case No. CR200102388 (LIRC, May 25, 2004). This is because medical treatment is sought, and medications prescribed, for conditions which are disabling as well as for conditions which are not. Schultz v. CNH Capital Corp., ERD Case No. 200300915 (LIRC, June 8, 2006).
The fact that Hendon was on some occasions found eligible for short-term disability leave provided by her employer, also does not necessarily demonstrate that the individuals who approved that leave had the perception that Hendon had an impairment of a kind which would fall within the WFEA's definition of disability. As the commission has found, it appears that these periods of leave were granted based on the fact that Hendon had provided written information from Dr. Patel and Dr. Yanchar which, if correct, would support an entitlement to leave under the program or law in question. The fact that persons charged with reviewing leave requests found that certain documents appeared sufficient for that purpose, does not necessarily show that they formed a perception that the individual involved actually had an impairment constituting a disability.
The commission finds persuasive the respondent's point, that there was no evidence that any of Hendon's managers knew of any medical treatment Hendon was receiving or the reason for her absences from work, and that AT&T wanted Hendon to continue doing her job and did not believe that further leave was supported. These things counter any supposition that AT&T perceived Hendon as unable to work.
For the foregoing reasons, the commission concludes that the complainant failed to establish that she was "perceived as having" a disability, within the meaning of Wis. Stat. § 111.32 (8)(c).
Accommodation Of "Perceived" Disability -
Because Hendon failed to show that she actually "ha[d]" the disability she contended, within the meaning of Wis. Stat. § 111.32 (8)(a), or that she had "a record of" having that disability, within the meaning of Wis. Stat. § 111.32 (8)(b), the conclusion that she also failed to show that she was "perceived as having" that disability, within the meaning of Wis. Stat. § 111.32 (8)(c), requires dismissal of her complaint. However, AT&T has also argued in its brief to the commission that even if Hendon was "perceived as having" the disability she contended, there was no obligation on its part to accommodate that "perceived" disability. In her response brief, Hendon did not respond to this argument.
The question raised by this argument is: does the duty to reasonably accommodate an employee's disability apply when the employee's disability has been shown to exist only as a "perceived" disability under Wis. Stat. § 111.32 (8)(c) ?
This question has arisen and been recognized by the commission in the past.
In Green-Brown v. Midwest Express Airlines, ERD Case No. CR200104139 (LIRC, Sep. 16, 2004) the complainant proved only a "perceived" disability. The commission concluded that for other reasons, in the particular circumstances there the respondent had not unreasonably refused accommodation. However, it also noted:
This assumes that a reasonable accommodation issue would even be presented in a case such as this, where there was no competent proof of an actual disability and the applicability of the disability discrimination protections of the Act thus depended entirely on a perceived disability theory. It is difficult, to say the least, to see how the concept of reasonable accommodation could be applied in a case in which there was no evidence that any condition which could be accommodated actually existed.
The question was again noted in Mateski v. Nuto Farm Supply, ERD Case No. CR200200727 (LIRC, Feb. 15, 2005), and then in Grell v. Bachmann Construction, ERD Case No. CR200202309 (LIRC, Jul. 15, 2005). In each case, though, the commission expressly chose not to decide the issue.
The commission's reluctance to take up this question in Mateski and Grell occurred in the context of unsettled law. The commission noted in Mateski, that under the federal Americans with Disabilities Act "the federal courts are not in complete agreement on whether or not the duty of reasonable accommodation is limited to plaintiffs who have an actual disability." That was an understatement. Four circuits - the 5th, 6th, 8th and 9th -- held that the reasonable accommodation requirement does not apply to "regarded as" (i.e., "perceived") disabilities. (3) Three circuits - the 3rd, 10th, and 11th -- held that the reasonable accommodation requirement does apply to "regarded as" (i.e., "perceived") disabilities. (4) Two other circuits acknowledged but expressly did not decide the issue; (5) one issued a decision which may be read to assume that accommodation is required in these cases but has no express holding to that effect. (6)
Deferral of the question made sense when there was still a prospect that the question would at some point be definitively resolved by the Supreme Court. However, that prospect has disappeared, because judicial resolution of the question is no longer necessary. Amendments to the ADA in 2009 have made it clear that, under that statute as it now stands, employers need not provide reasonable accommodation to a "regarded as" disabled individual. See, Majors v. General Electric Co., 714 F.3d 527, 535 (7th Cir. 2013). (7)
It continues to be difficult to see how the concept of reasonable accommodation could sensibly be applied in cases in which the evidence has been found insufficient to establish that there was an actual disability. The premise of the reasonable accommodation requirement is that where there is a disability that is reasonably related to the complainant's ability to adequately undertake the job-related responsibilities of their employment, a reasonable accommodation might allow the employee to successfully perform that job. But where the disability is not real but only imagined, this premise is not present.
It could be argued that accepting the reasonable accommodation requirement as applicable to perceived disabilities would have a salutary preventative effect. The reasoning behind such an argument would be that employers should be required to err on the side of attempting to accommodate individuals who may have disabilities which may present problems with job performance, because this will help prevent actual violations of the statute in some cases - specifically, the cases in which it happens that the disability is real. However, such an argument overlooks the potential burden on employers from being expected to modify job and staffing practices in more cases than are actually necessary.
Furthermore, such an approach would effectively undercut any serious attempt to make a reasoned decision as to whether a particular accommodation would in fact have the effect of allowing the employee to adequately undertake the job-related responsibilities of their employment notwithstanding the limitations created by their disability. This is because, where it is not established that there was a disability, or limitations, or performance difficulties stemming from such limitations, any such analysis would be entirely artificial and speculative.
The 9th Circuit's explanation in Kaplan v. City of N. Las Vegas, supra, summarizes well the rationale found most persuasive by the commission on this issue:
If we were to conclude that "regarded as" plaintiffs are entitled to reasonable accommodation, impaired employees would be better off under the statute if their employers treated them as disabled even if they were not. This would be a perverse and troubling result under a statute aimed at decreasing "stereotypic assumptions not truly indicative of the individual ability of [people with disabilities]." 42 U.S.C. § 12101(a)(7). Dispelling stereotypes about disabilities will often come from the employees themselves as they demonstrate their capacity to be productive members of the workplace notwithstanding impairments. Were we to entitle "regarded as" employees to reasonable accommodation, it would do nothing to encourage those employees to educate employers of their capabilities, and do nothing to encourage the employers to see their employees' talents clearly; instead, it would improvidently provide those employees a windfall if they perpetuated their employers' misperception of a disability. See Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 196 (3rd Cir. 1999) (not deciding the issue but noting that "it seems odd to give an impaired but not disabled person a windfall because of her employer's erroneous perception of disability"). To require accommodation for those not truly disabled would compel employers to waste resources unnecessarily, when the employers' limited resources would be better spent assisting those persons who are actually disabled and in genuine need of accommodation to perform to their potential.
For the foregoing reasons, the commission concludes that the requirement of reasonable accommodation does not apply to situations in which a complainant is determined to be an individual with a disability based solely on being "perceived as having ... an impairment" under Wis. Stat. § 111.32 (8)(c).
NOTE: The commission did not contact the ALJ to obtain any impressions as to witness credibility he may have acquired, because its disagreement with the result reached by the ALJ did not hinge upon witness credibility. See, Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, �4, 264 Wis. 2d 200, 206, 664 N.W.2d 651. There were no material disagreements about the facts in this case. The commission reached a different result than the ALJ because it disagreed as a matter of law that the evidence of record was sufficient to establish that the complainant was "an individual with a disability" on any of the bases provided for in Wis. Stat. § 111.32 (8).
cc:
Felicia Miller-Watson, Attorney for the Complainant
Jennifer Ciralsky, Attorney for the Respondent
Aff'd, Hendon v. LIRC, Milwaukee Co. Cir Ct.., 08/12/2015.
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