ANNETTE J MUELLER, Complainant
CHART ENERGY & CHEMICALS INC, 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 conclusions in that decision as its own, except that it makes the following modification:
At the end of paragraph four of the ALJ's FINDINGS OF FACT, add the following:
In a space on the form to indicate whether Mueller's need for intermittent leave was for the purpose of treatment, incapacity or both, Dr. Rathgaber indicated it was for treatment. In a space on the form to indicate whether Mueller's need to be absent from work was due to an inability to perform any kind of work, or an inability to perform one or more essential functions of Mueller's job, Dr. Rathgaber answered "no."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
January 15, 2015
muellan_rmd . doc : 107 : 9 123.3, 123.6, 123.12
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
In her petition for commission review, Mueller asserted that the ALJ erred as a matter of law, but provided no argument to support that assertion. She also argued that the ALJ made incomplete findings of fact, and offered a long set of factual assertions that the ALJ should have "acknowledged" or rendered a finding on.
The commission, having reviewed the hearing record, concludes that the findings made by the ALJ are supported by the evidence, and that (along with the modification to the findings noted above) they sufficiently support the conclusion that Mueller failed to show that she was an individual with a disability. The factual assertions proposed by Mueller do not call into question the ALJ's conclusion that Mueller failed to show that she was an individual with a disability under the WFEA.
The commission has established a consistent set of guidelines on the requirement that a complainant in a disability discrimination case show he or she is an individual with a disability:
The complainant's initial burden in a disability discrimination case is to establish that she is an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA). Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980); Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998)...
The WFEA defines a disabled individual in Wis. Stat. § 111.32(8) 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.
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, supra. 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); 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). See, also, Grell v. Bachmann Construction Co., Inc., ERD Case No. CR200202309 (LIRC July 15, 2005); Erickson v. Quad Graphics, Inc., ERD Case No. CR200102388 (LIRC May 25, 2004); 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).
Wucherpfennig v. Personal Development Center, ERD Case No. CR200201383 (LIRC June 29, 2006); see also Lester v. Compass Group USA, ERD Case No. CR200203879 (LIRC Mar. 22, 2005); Wodack v. The Evangelical Lutheran Good Samaritan Society, ERD Case No. CR200230449 (LIRC Aug. 5, 2005); Fields v. State of Wisconsin, ERD Case No. CR200302716 (LIRC Feb. 12, 2007). Regarding the issue of permanence, the Wisconsin court of appeals has upheld the commission's long-held requirement that a complainant demonstrate his or her impairment to be permanent. Erickson v. LIRC and Quad Graphics, Inc., 2005 WI App 208, ¶ 16, 287 Wis. 2d 204, 214-15, 704 N.W.2d 398.
Even though Mueller's burden of proof was only to show probable cause, a lower burden than she would bear in a hearing on the merits, she was 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).
During the investigative phase of this case and at the conclusion of Mueller's case-in-chief at hearing, CE&C challenged Mueller's assertion that she was an individual with a disability. Mueller had the burden, then, to show the existence, nature, extent, and permanence of her impairment by competent medical evidence. Connecticut General Life Ins. Co., supra. Mueller presented no testimony from her medical provider and no certified copies of medical records. The only evidence she offered on the nature of her impairment was her own testimony about how she felt, and hearsay about what her doctors told her (1) or wrote in a few very brief documents.
Mueller's own testimony about her symptoms was not sufficient to establish disability, because she was not competent to give an opinion about the nature, extent and permanence of her condition. Erickson, 2005 WI App 208, at ¶ 19, 287 Wis. 2d at 217. In addition, her testimony carried little weight even as corroborative evidence, because of its vagueness. She testified that in early 2010 she was experiencing abdominal pain that was bothering her a couple of days per week, which prompted her to apply for intermittent FMLA. She then testified that she started feeling very ill in November 2010 and went to the hospital at the end of November, and did not recover sufficiently to return to work before she was fired in January 2011. She offered no description of how her symptoms limited her ability to perform any major life activity, or in what way she was unable to perform her job during her absence from work.
Although she had identified her impairment in her complaint as gallbladder disease, nowhere in the hearsay evidence presented did the term gallbladder disease appear. Other than occasional medical notes in Mueller's personnel file excusing her from work for a day or two for an unidentified illness, there were only three hearsay documents purportedly from Mueller's health care providers that described a medical condition.
The first was a Certification of Health Care Provider form, used to support Mueller's request for family and medical leave. The request was for intermittent leave during the period January 11, 2010 through January 10, 2011. The form shows that it was completed by a Dr. Scott Rathgaber, gastroenterologist. The health condition was characterized as a chronic condition requiring treatment, and the description provided was "abdominal pain of unclear cause." The treatment needed was described as medical therapy and prescription drugs. It was noted that intermittent absences from work were required for treatment, not because of an inability to perform work.
The second was a handwritten note, purportedly from a Dr. Bryant Cliverson, dated December 2, 2010, which included the following statement:
Annette Mueller hospitalized 11-29 - 12-2. Unable to work until follow-up with GI MD - and then GI MD will determine when she can return to work. Annette will be following-up with GI MD in 1 week.
The third was a letter dated January 12, 2011, purportedly from a Dr. Kenneth S. Horth, which stated in relevant part:
Ms. Mueller is a patient of mine who is recovering from a protracted illness. She should be able to return to work on January 24, 2011.
Please excuse her from work on December 27, 2010, to January 7, 2011. When she does return to work she may need to work at a reduced level until her strength returns.
Even setting aside the problem of the hearsay nature of these three documents, they do not add up to a coherent description of a disabling impairment. The purpose of the first document, supporting a request for intermittent leave, was to get time off work for periodic treatment for abdominal pain. The request contained no assertion that the condition limited a major life activity, and denied that the condition prevented Mueller from performing any particular function of her job. The unnamed condition, although chronic, was not shown by this document to be severe enough to meet the definition of disability under the WFEA.
The handwritten note from a second doctor, because it indicated a hospitalization for several days, suggested that Mueller began to suffer from some acute medical condition, unlike the condition for which Mueller only needed periodic office treatments. Although Mueller's attorney asserted that the two conditions were related, there is no competent medical opinion supporting that assertion. The note about hospitalization provided no diagnosis, history or progression of a condition that might have linked the hospitalization to the condition for which Mueller had been getting occasional treatment. Also, the note made no statement that the condition for which Mueller was hospitalized would cause any permanent limitation. Just the opposite, it suggested that Mueller would be able to return to work after she was seen by a GI doctor in a week or so.
The letter, from a third doctor, again failed to name any medical condition that Mueller had, other than to call it a protracted illness. Because the letter was written during the period of Mueller's continuous absence from work beginning with her hospitalization, it is fair to infer that the illness was related to her hospitalization, but it is not known what that illness was, or if it related to the condition for which Mueller had been getting occasional treatment. Also, instead of asserting that the illness would have permanent effects, the doctor predicted that Mueller would be able to return to work on January 24, 2011, after, perhaps, a period of work at a reduced level until her strength returned.
If a complainant's evidence is insufficient to establish the existence of an actual disabling impairment, it might nevertheless be sufficient to show that the employer perceived the complainant to be disabled. Grell v. Bachmann Construction Co., Inc., ERD Case NO. CR200202309 (LIRC July 15, 2005). Here, management at CE&C, and specifically Robert Halfmann, CE&C's manager of human resources and the individual who made the decision to terminate Mueller's employment, had received the three documents described above prior to making his decision to terminate Mueller's employment. Halfmann, who testified, denied having any knowledge of the nature of Mueller's impairment, and denied ever discussing her medical condition with her. He testified that he only knew that Mueller had taken intermittent FMLA leave in 2010, that she had been hospitalized in late 2010, and that she subsequently was eligible for short term disability. The ALJ credited Halfmann's testimony, and the commission, having no reason to question that determination, adopts it. It is quite plausible that a person in possession of the information that Halfmann had about Mueller would not have perceived her as having a disability that meets the definition in the WFEA. Awareness that someone was seeking medical treatment and taking prescription drugs does not establish a perception of disability. Medical treatment is sought, and medications are prescribed, for conditions that are not disabling as well as for conditions which are disabling. See, e.g., Fields v. State of Wisconsin, ERD Case No. CR200302716 (LIRC Feb. 12, 2007). In addition, knowledge of one's hospitalization and recovery does not necessarily cause a perception of disability. See, e.g., Falk v. WIPC, LLC, ERD Case No. CR200200400 (LIRC Dec. 18, 2003). Given that the documentation concerning Mueller's hospitalization and continued illness thereafter spoke of her recovery and return to work, and gave no indication of any permanent or chronic limitation on her ability to work, there is no reason to conclude that Halfmann perceived Mueller as disabled.
Because Mueller has not shown that she was an individual with a disability under the WFEA, it is not necessary to consider the question of whether CE&C's action was caused by disability.
cc:
Attorney Jessica T. Kirchner
Attorney Brent P. Smith
[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]