CHARLES E CARLSON, Complainant
WISCONSIN BELL INC d/b/a AT&T, Respondent
Charles E. Carlson (hereinafter Carlson), filed two complaints against Wisconsin Bell, Inc., d/b/a AT&T (hereinafter AT&T). In the first, ERD Case No. CR201102363 (which was originally filed with the EEOC), Carlson alleged that AT&T suspended him for two and one-half months because of a disability. In the second, ERD Case No. CR201200428, he alleged that AT&T terminated his employment because of a disability and in retaliation for the filing of his first complaint. Prior to a consolidated hearing on the merits on the complaints, Carlson withdrew his retaliation claim. An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development concluded that AT&T had discriminated against Carlson on the basis of disability in both cases, and issued a decision in this matter. AT&T filed a timely petition for review.
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. Wisconsin Bell, Inc., d/b/a AT&T, is a telecommunications company that employs a workforce in various locations in Wisconsin. In 1980, AT&T hired Charles Carlson. In February 2010 AT&T suspended Carlson without pay for a period of 50 days. In May 2011 AT&T terminated Carlson's employment.
2. For a number of years prior to his suspension and termination, Carlson had multiple mental impairments-dysthymic disorder, major depressive disorder and bipolar disorder. Over time, Carlson exhibited the following symptoms of dysthymic disorder and depressive disorder: extreme sadness, a sense of hopelessness, sleep disturbance, fatigue, difficulty concentrating, difficulty with self-care, and problems with motivation. He exhibited the following symptoms of bipolar disorder: an inflated sense of himself, periods of high energy, irritability, impulsive behaviors, including impulsive speech that at times caused interpersonal difficulties, and racing thoughts. He was taking a variety of medications for his disorders, which provided some stability in his symptoms, but did not take away his symptoms entirely. Carlson's symptoms were cyclical, but his mental illness was a permanent impairment that intermittently limited his ability to perform his job, and his ability to engage in major life activities of thinking, sleeping, caring for himself and maintaining personal relationships.
3. Carlson was treated for his mental disorders by psychotherapist Edward L. Cohen, LCSW beginning in June 1997, and by psychiatrist Mark Siegel, M.D. beginning in 2002. He continued to be treated regularly by Cohen and Dr. Siegel during the period relevant to this matter.
4. AT&T hired Carlson as a telephone operator in 1980. During the period 2005 through November 2007, Carlson was a customer service representative in a Local Operations Center (LOC) in Milwaukee. His supervisor at the LOC during that period was John Reichertz. As a customer service representative at the LOC, Carlson primarily made outbound calls to local and long distance providers, and processed orders; he received few incoming calls.
5. Supervisors at AT&T had discretion to provide temporary accommodations to employees who had problems with job performance. There was no established way to document such accommodations or to communicate to anyone else in the company the fact that they had been given.
6. The practice by which supervisors gave temporary accommodations to employees who had problems with performance of their jobs was outside AT&T's structure and process for making decisions based on employees' health conditions. An entity called the Integrated Disability Service Center (IDSC) received and processed confidential health information about employees, and acted on requests for accommodations or for time off work based on that information. The IDSC maintained the confidentiality of the health information it received.
7. In 2006 Carlson told Reichertz that he had bipolar disorder and described how it affected him occasionally. Reichertz told Carlson to come to him if he experienced any problems at work due to his disorder. On about five occasions, Carlson did so. On those occasions, Reichertz took Carlson to a conference room, talked to him, and gave him an opportunity to calm down. He allowed Carlson to call his physician if he needed to. Sometimes Carlson calmed down in five to ten minutes and returned to work. Sometimes he made an appointment with his doctor, and after notifying Reichertz, left for the day.
8. Reichertz considered his allowing Carlson to take time off work when he experienced symptoms of his bipolar disorder to be a temporary accommodation. He did not document his discussions with Carlson about his condition, or the temporary accommodation he provided to Carlson, but he mentioned it to Michaela Wirtz, a supervisor who replaced him. Reichertz did not refer Carlson to IDSC because he thought IDSC handled only physical disabilities.
9. Carlson told Wirtz about his bipolar condition when she became his supervisor. Wirtz told him that she already knew about it from Reichertz.
10. In November 2007, Carlson transferred to a new position, a Tier II support representative (TSR 2) in a call center that received a high volume of incoming calls. Carlson's primary job in the Tier II call center was to provide technical assistance to AT&T customers and technicians involving the bundling of television, internet and telephone services.
11. TSR 2s respond to phone calls and electronic messages. Their work requires the ability to concentrate, get information from the customer or technician, analyze the problem, solve the problem and act professionally.
12. The call center had an internal instant messaging system called Q-chat. TSR 2s were allowed to use Q-chat for personal reasons as long as it did not interfere with customer service.
13. Within the Tier II call center, service representatives were prohibited from hitting keys on their phones in order to avoid taking calls. Nevertheless, TSR 2s were allowed, on their own initiative, to stop incoming phone calls to their desks by entering a health code into the phone system. Health code entry was permitted for bathroom breaks and illness. There was no established limit on the length of time an employee could legitimately be in health code. TSR 2s were also permitted to go into a status called "call wrap", which also stopped incoming calls. TSR 2s used call wrap status in order to document actions taken immediately after a call was finished. There was no established limit on the length of time an employee could legitimately be in call wrap. When representatives used health code or call wrap for their intended purposes they were not guilty of call avoidance.
14. Carlson did not have reason to expect that his managers at the Tier II call center were aware of his mental illness, or were aware of the temporary accommodation that Reichertz had given him at the LOC. Carlson did not have a reasonable basis to believe that it would be permissible at the Tier II call center to hang up on callers over a 10-minute period, even if he were experiencing an inability to perform his job due to his mental illness.
15. In 2007, 2008 and 2009 Carlson made requests to IDSC for several weeks of time off due to his mental disorders, and the requests were granted. None of Carlson's supervisors in the Tier II call center were made aware of his health condition with respect to the grants of time off work.
16. The manager of the Tier II call center at all times relevant was Jason Carl. Operations managers who reported to Carl, and to whom Carlson at times reported, included Jeannette Weber, Kristi Reidy and LaDonna Sneed-Brown. As of February 18, 2010 no one in management at the Tier II call center was aware that Carlson had a mental impairment.
17. On February 18, 2010 Weber was remotely monitoring Carlson's calls, and noticed that he was in call wrap status for about 20 minutes. Usually call wrap lasts five to ten minutes. Weber sent a message to Carlson asking what he was doing in call wrap. Carlson initially responded that he was documenting a call, but then took himself out of call wrap and opened his line to incoming calls. For the next 10 minutes, eight new calls went to Carlson's phone, and he intentionally disconnected from the callers without acknowledging them. Then he started to answer calls again, as normal. Weber observed this behavior and spoke to him about it. Carlson offered no explanation. He was put on suspension for call avoidance pending a meeting with Carl and Peggy Texeira, a labor relations manager, to determine whether his employment should be terminated.
18. Carlson's intentional disconnection from callers for 10 minutes on February 18, 2010 was an impulsive act taken without regard to negative consequences and was not characteristic of his normal conduct. It was caused by his mental illness.
19. Carlson's meeting with Carl and Texeira took place on March 4, 2010. Carlson stated that he was angry with his supervisor for questioning his time in call wrap, and he handled it by dropping the calls. He gave Carl and Texeira letters from his treating psychiatrist, Dr. Siegel, and psychotherapist, Edward Cohen, disclosing his bipolar disorder, in order to show that his conduct on February 18th was related to his mental disorder. The letter from Dr. Siegel stated: "Bipolar disorder is a condition characterized by extremes of mood that could manifest in a significant depression with or without problems associated with anxiety and irritability. Extremes of mood can occur rather quickly and often triggered [sic] by relatively minor frustrations." Carlson acknowledged at the meeting that hanging up on customers was an unacceptable way to deal with his emotional reaction to being questioned about being in call wrap. Carl and Texeira requested a search of documentation Carlson might have been working on while in call wrap and none was found. They believed that Carlson's stated reason for being in call wrap was untruthful. They also told him that it was too late for him to be excused from discipline for disconnecting calls on the basis of having bipolar disorder. Carlson was given a 50-day unpaid suspension, and was required to sign a one-year last-chance agreement as a condition of his return to work. The last-chance agreement authorized AT&T to terminate Carlson's employment in the event he had another "customer care issue" or it was determined that he had lied. Texeira advised him that if he needed an accommodation he should go to IDSC, but that AT&T would never accommodate the kind of behavior he exhibited on February 18th.
20. Carlson returned to work under the last-chance agreement on May 3, 2010.
21. Nearly a year later, in April 2011, Carlson applied for an opening in AT&T's collections department. He took a test that was required for the position, and on April 20, 2011 at about 11 a.m. he found out that he did not pass the test. Carlson became very sad and started to cry. He put himself into health code to stop incoming calls because he did not feel able to take calls. A few minutes later he approached his manager, Kristi Reidy, and told her that he was not able to work, was having a difficult time with the fact that he failed the collections test, and was thinking of leaving for the day. Reidy told him to do what he needed to do.
22. Carlson went back to his desk and engaged in Q-chatting with a number of other employees for about 40 minutes. For the most part, the subject of the Q-chats was the fact that he did not pass the collections test. His chats contained several references to his feelings-he stated that he was not doing well, that he was on the verge of tears, and that he wanted to leave work. He left for the day at about 11:49 a.m., after notifying the help-desk that he was leaving. When he got home he made an appointment with his psychotherapist for the following day.
23. Carl had Carlson's Q-chats retrieved, and reviewed them. He saw that Carlson's writing style was informal and that he used slang words and abbreviations, including LOL a couple of times. He saw that before Carlson decided to leave, he checked on the consequences of his leaving work early that day, to make sure that he would not incur a suspension for accumulated absences. Carl decided that Carlson's Q-chats amounted to gossip, and demonstrated that Carlson was able to work that day, and therefore that he had falsely used the health code and an alleged illness to avoid calls. Carl placed Carlson on suspension pending termination.
24. Carlson's mood and his inability to work on April 20, 2011 upon learning that he failed the collections test were caused by his bipolar disorder. The Q-chats he engaged in were reflective of his mood disorder, and were consistent with his psychotherapist's recommendation that he reach out to others for support as a means of coping with his mood. The fact that he used slang, including some humor, and checked on the consequences of his taking a medical leave, were not inconsistent with the conclusion that his mood and inability to work were a manifestation of his mental illness. He was unable to work because of symptoms of his mental illness, and appropriately used the health code and sick leave just as it was available to any sick employee.
25. Carlson attended a disciplinary review board meeting on May 26, 2011. Attending for AT&T were Carl, Texeira and supervisor LaDonna Sneed-Brown. Carlson presented a letter dated May 9, 2011 from his psychiatrist, indicating that Carlson continued to be diagnosed as bipolar, depressed type, and summarizing recent medication changes. Carl glanced at the letter and said he had "heard this before." Carlson maintained that he had become upset on April 20th when he learned he had failed the collections test, and put himself in health code because he was too upset to take calls. He said that he Q-chatted as a way to get support from his co-employees. Carl and Texeira did not believe him. Based on their own interpretation of Carlson's Q-chats, they concluded that Carlson was not sick, and they terminated his employment for faking an illness to get out of work.
26. Even though Carlson's conduct on February 18, 2010 was caused by his mental illness, his conduct was a violation of a uniform prohibition against hanging up on customers. Adherence to that requirement was essential to adequate performance, and excusing Carlson from discipline for his conduct after he had engaged in it would not have been a reasonable accommodation.
27. Carlson's conduct on April 20, 2011 was caused by his mental illness, and did not violate any attendance or performance requirement of AT&T. AT&T's suspension and termination of Carlson for this conduct was because of his mental impairment.
1. AT&T is an employer within the meaning of the Wisconsin Fair Employment Act (WFEA).
2. Carlson is an individual with a disability within the meaning of the WFEA.
3. Carlson has failed to establish by a preponderance of the evidence that AT&T violated the WFEA by discriminating against him in terms or conditions of employment or by refusing to reasonably accommodate a disability with respect to the actions it took because of his conduct on February 18, 2010. (ERD Case No. CR201102363)
4. Carlson has failed to establish by a preponderance of the evidence that AT&T violated the WFEA by discharging him in retaliation for having filed a complaint under the WFEA. (ERD Case No. CR201200428).
5. Carlson has established by a preponderance of the evidence that AT&T violated the WFEA by suspending and terminating his employment because of disability, with respect to Carlson's conduct on April 20, 2011. (ERD Case No. CR201200428).
The ALJ's decision in ERD Case No. CR201102363 is reversed, and the complaint in that matter is dismissed. The ALJ's decision in ERD Case No. CR201200428 concerning Carlson's claim that AT&T discharged him in retaliation for having filed a complaint under the WFEA is affirmed and that claim is dismissed. The ALJ's decision in ERD Case No. CR201200428 concerning Carlson's claim that AT&T suspended him and terminated his employment because of disability is affirmed, but the ALJ's ORDER is modified as follows:
1. Time within which respondent must comply with Order. The respondent shall comply with all of the terms of this Order within 30 days of the date on which this decision becomes final. This decision will become final if it is not timely appealed, or, if it is timely appealed, it will become final if it is affirmed by a reviewing court and the decision of that court is not timely appealed.
2. Forfeiture for failure to comply with Final Order. The statutes provide that every day during which an employer fails to observe and comply with any Final Order of the commission shall constitute a separate and distinct violation of the Order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12).
3. Cease and desist. The respondent shall cease and desist from discriminating against the complainant because of disability.
4. Back pay. The respondent shall make the complainant whole for all losses of pay and benefits that the complainant has suffered by reason of its unlawful discrimination by paying him the amount he would have earned as an employee of the respondent from April 20, 2011 through the date on which the complainant commences equivalent or comparable employment with the respondent, or would commence such employment but for his rejection of a valid offer of such employment. The amount of back pay shall be offset by interim earnings of the complainant during this period. Amounts received by the complainant as unemployment insurance benefits during this period shall not reduce the respondent's back pay liability, but that amount shall be withheld by the respondent and paid to the Unemployment Reserve Fund. (Reimbursement for unemployment insurance shall be in the form of a check made payable to the Department of Workforce Development and should note the complainant's social security number and the number of this case.).
5. Interest. The respondent shall pay the complainant interest on the amount in paragraph 4 of this Order at the rate of 12 percent per annum, simple. For each calendar quarter, a separate amount of back pay due shall be computed, then interest shall be computed on each quarterly amount from the last day of each calendar quarter to the date of payment.
6. Reinstatement. The respondent shall immediately make a written offer of reinstatement to the complainant which offers him a position equivalent to the position that he would have held had he not been discriminated against by the respondent in violation of the law, or if that is not possible, to a comparable position. The offer shall entitle the complainant to the wages, seniority, and benefits that he would have received had he not been discharged in 2011. The respondent shall reinstate the complainant unless, after the award in this matter becomes final, the complainant fails to reasonably report for work at a time and place which the respondent has reasonably designated in its offer of reinstatement.
7. Attorney's fees and costs. The respondent shall pay to the complainant reasonable attorney's fees and costs, totaling $89,284.42, incurred in services performed relating to ERD Case No. CR201200428, before the Equal Rights Division and the commission. A check in the total amount shall be made payable to the complainant and delivered to the trust account of Attorney Robert M. Mihelich.
8. Compliance Report. Within 30 days of the date on which this decision becomes final, the respondent shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. The respondent's Compliance Report should be sent to:
Labor & Industry Review Commission
Compliance
P.O. Box 8126, Madison, WI 53708
or faxed to (608) 267-4409
or emailed to lirc@dwd.wisconsin.gov
The respondent shall mail a copy of the Compliance Report to the complainant at the same time that it is sent to the commission. Within 10 days from the date the copy of the Compliance Report is mailed to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report.
Notwithstanding any other actions a respondent may take in compliance with this Order, a failure to timely submit the Compliance Report required by this paragraph is a separate and distinct violation of this Order.
Dated and mailed
February 19, 2015
carlsch_rrr . doc : 107 : 5 123.25
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
First Factor-Proof of Disability
Proof of a disability generally requires competent medical evidence establishing the existence, nature, extent and permanence of an impairment, if the question of disability is disputed. At hearing, AT&T disputed Carlson's contention that his condition amounted to a disability, but it abandoned that argument on review to the commission. Nevertheless, the commission has reviewed the evidentiary record on this issue. It agrees with the ALJ's finding that Carlson was an individual with a disability under the WFEA. A person is an individual with a disability if he or she:
(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). The phrase "makes achievement unusually difficult" is concerned with the question of whether it causes a substantial limitation on life's normal functions or on a major life activity. City of La Crosse v. LIRC, 139 Wis. 2d 740, 761, 407 N.W.2d 510 (1987). The phrase "limits the capacity to work" refers to the ability to perform the assigned job. Brown County v. LIRC, 124 Wis. 2d 560, 572, 369 N.W.2d 735 (1985).
Carlson presented competent medical evidence from his psychiatrist and his psychotherapist identifying his mental disorders, their chronic nature, and the ways in which, over the years, they affected him. Those effects included periods described by his care providers as follows:
"debilitating sadness, lack of energy, excessive sleeping, failure to perform certain basic self-care tasks, concentration difficulties, and the resultant inability to work." (Ex. C-2).
"vegetative symptoms", "trouble getting out of the house," "crying spells," "showering only one time a week." (Ex. C-4, p. WB000759).
"His thoughts tend to race or get very slow. When he gets anxious and angry, his thoughts will speed up. When he gets into a depressed state, his energy and, uh, it can go down dramatically, and the thoughts are slow, and he can't focus his attention on details." (Ex. C-27, p. 21).
"There were some-there were periods of high energy, irritability, impulsive behaviors, um, goal-directed behaviors that were extreme in his pursuit of those things. Uh, doing various different activities that were reinforcing despite negative consequences. Impulsive speech at times interpersonally that caused difficulties. Racing thoughts were present as well." (Ex. C-23, p. 23)
On several occasions, Carlson had to take weeks of medical leave because of his impairment. He also intermittently experienced substantial limitations in his ability to carry on major life activities of thinking, sleeping, self-care and maintaining personal relationships. His impairment, then, limited his job performance and made achievement unusually difficult when he experienced symptoms. Carlson, therefore, was an individual with a disability under the WFEA.
Second Factor-Causation
The commission recognizes two ways in which an employer can take an adverse action against an employee "because of" a disability:
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 the employee's behavior or performance which is caused by the employee's disability.
Maeder v. University of Wisconsin-Madison, ERD Case No. CR200501824 (LIRC June 28, 2013). Carlson's case is built on the latter form of causation-Carlson contends that AT&T took action against him because of dissatisfaction with his behavior or performance, and that the behavior or performance was caused by his disability.
Liability based on this type of causation has a long history in Wisconsin case law. The consistent holding has been that if an employer discharges a disabled employee for some unsatisfactory conduct, and the employee is able to show that his or her conduct was caused by a disability, the discharge was "in legal effect" because of the employee's disability. (1) On this theory of causation, then, the focus can shift from whether the disability caused the discharge to whether the disability caused the unsatisfactory conduct.
The case that has set the standard for weighing this question is Wal-Mart Stores v. LIRC, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633. Wal-Mart involved an employee with obsessive-compulsive disorder (OCD), which was conceded by the employer to be a disability, who was discharged because he engaged in an angry outburst during a meeting of employees upon learning of the promotion of another employee for a position that the employee wanted. The court in Wal-Mart held that the question of a causal link between the employee's OCD and his outburst was sufficiently complex and technical to require expert testimony to support a finding that the employee's conduct was caused by his condition. Id. at �� 16-19, p. 221-224. The employee's therapist testified, but the court found her testimony to be insufficient on the crucial question of whether the employee's specific conduct was caused by his disability:
...therapist Cameron provided no direct evidence that Schneider's outburst at the staff meeting was caused by his OCD. Quite simply, she was never asked whether, in her professional opinion, Schneider's behavior on the day in question, as described by other witnesses or their statements, was caused by, or likely to have been caused by, Schneider's OCD. Cameron also gave no testimony corroborating Schneider's claim that he was obsessed with attaining a promotion, or more importantly, that a preoccupation with being promoted was in any way related to his OCD.
Wal-Mart, supra, at � 23, p. 226-227.
Turning to this case, the complainant provided expert testimony in the form of two depositions, one from his psychiatrist, Dr. Mark Siegel, and one from his psychotherapist, Edward Cohen. Dr. Siegel was a board-certified psychiatrist who had been treating Carlson since 2002 and had been seeing him approximately every three months. Cohen was a licensed clinical social worker. He had been seeing Carlson approximately every two weeks since 1997. They gave far more detailed evidence than the expert in Wal-Mart gave.
The question of causation relates to two incidents in this case--Carlson's hanging up on callers for 10 minutes on February 18, 2010, and his putting himself in health code for 40 minutes and going home for the day on April 20, 2011. As to the first incident Cohen and Dr. Siegel gave the following opinions:
Deposition of Edward L Cohen, 09/14/2012:
Q: You indicated there were times that he disregarded social norms. Can you give me an example of that?
A: Well, social norms are work norms, and a perfect example of that would be in the incident in February in 2010 at work where he hung up on, uh, or disconnected calls. That would be contrary to social norms in that typically he is very compassionate for people and wouldn't disconnect a call, and it was also against the norm of the workplace.
...
Q: And how do you know if somebody's doing it because they are angry or frustrated versus having some sort of, um, reaction?
A: That's an excellent question. Based on patterns of behavior and the specific behaviors that are going on at the time, and how those behaviors compare with typical behaviors by that individual.
Mr. Carlson I've known for 15 years. He's the patient that I've had the longest of any, and that's indicative of the severity of his mental illness and disability. As I said before, I know him quite well and have listened to information about his interactions with other people for many years. I've heard on many different occasions how customer service is something that he prides himself on and wanted to do everything he can to help customers.
And in this particular occasion he disconnected calls, and it wasn't in what some people might call a temper tantrum or a fit of anger. It was impulsive behavior that was for a specific purpose, which was to just hang up the call without regard to the negative consequences that occur as a result of that in the employment workplace. And after the situation was finished and I spoke to him in the days or weeks that followed, he understood that what he did was wrong, and that he would not have done that under normal circumstances.
p. 29-30.
***
Q: ...I'm wondering if you know, when he says he's having a bipolar episode, what he means when he says that, not what clinically it might mean, but what does he mean?
A: Specifically related to the incident that occurred in February of 2010. When we talked about it after that, he had discussed that idea of it being a bipolar episode, and the context was that his thoughts were racing, that what he did was impulsive without thinking about the consequences of his actions, that his reaction was an extreme reaction to his emotional state. He was quite stressed at that moment and felt a high level of stress internally and then reacted within a relatively short period of time and then returned to a better level of functioning after it was over, so it was aberrant reaction, an aberrant period of time for him.
p. 62.
Deposition of Mark Siegel, 09/14/2012:
Q: Do you have an opinion as to whether what he did on that occasion was related to symptoms being associated with his condition, as opposed to some other deliberate act?
A: Well, my understanding of how he has performed over the period of time on his job is being a competent employee, and what he did was out of character for him. And as a result I would assume that it had something to do with his emotional state, being overwhelmingly upset, angry, anxious, sad; certainly angry, and that it wasn't typical of him, and that it was out of character for him.
...
Q: But you can't say with any kind of certainty whether what he did as far as hanging up on those customers was in fact due to some mood instability versus just normal anger and frustration at a boss calling you out on something you shouldn't have been doing?
A: Anger and frustration normally might repeat itself over a long period of time in a place of employment, so in my mind it would be, does this happen other times in other ways? Then I would consider it maybe more normal, but if it's something unusual, it might be more due to his mood being more off because ordinarily he would have better judgment.
p. 35-37.
***
Q: Did you have an opinion whether Mr. Carlson's behavior in hanging up on these callers in February of 2010, as he described it, was caused by or is likely due to have [been] caused by his bipolar disorder?
A: It's the kind of thing that would happen if a person gets overwhelmed with anxiety and anger, and in a bipolar state he might well do something like that that he wouldn't ordinarily do if his mood was stable.
p. 58-59.
Although neither Cohen nor Dr. Siegel gave unequivocal opinions that Carlson's behavior on February 18, 2010 was caused by his mental illness, both testified that his behavior was outside his normal pattern of behavior, and was consistent with several of the symptoms of his illness-impulsivity, anxiety, racing thoughts, and acting without regard to negative consequences. Considering the unusualness of Carlson's behavior, and the fact that it aligned with typical symptoms of his condition, the commission finds that his hanging up on callers for 10 minutes was caused by his mental illness.
With respect to the incident, AT&T challenged the idea that a person with bipolar disorder could have a bipolar episode lasting only 10 minutes. Dr. Siegel and Cohen both acknowledged that the term "bipolar episode" did not apply to the incident in February 2010, but that acknowledgement did not mean that they thought the incident was unconnected to the disorder. Cohen instead referred to the incident as "exhibiting bipolar symptoms within the context of his bipolar illness." (Deposition, p. 63). Dr. Siegel testified that the incident could be described as "mood instability that would be due to the bipolar disorder." (Deposition, p. 17). The brevity of the incident does not make the causal connection incredible.
As to Carlson's putting himself in health code for 40 minutes, then going home for the day on April 20, 2011, Cohen opined unequivocally that the conduct was caused by Carlson's mental illness:
Deposition of Edward L Cohen, 09/14/2012:
Q: Was there any reason, medical reason, that Mr. Carlson could not have continued to work after engaging in this messaging to get support?
A: He was exhibiting depressive symptoms. His ability to work was compromised. He was making an effort to try to manage his emotions so that maybe he could stay at work. He realized that he wasn't able to, evidently, and left work and was trying to find out what the consequences of leaving work would be because at that time, evidently, he felt that the only way to manage himself was to actually take a medical leave that day.
p. 91-93.
Q: ...do you have an opinion whether Mr. Carlson's behavior taking himself off of calls and sending "Q-chats" to coworkers after he was informed that he was not getting a different job as described by Mr. Carlson was caused by or likely to have been caused by Carlson's bipolar disorder?
A: And I would say that my professional opinion would be that those actions were caused by his bipolar 1 disorder and were consistent with his bipolar 1 disorder.
Q: Can you explain the basis for your opinion?
A: The symptoms that he exhibited when he found out that he had not gotten that position were consistent with the diagnosis, consistent with patterns that I've seen along the way, the sadness that he felt, the sense of shame that he felt, the sense of hopelessness that he felt, the difficulty that he had concentrating on his job, um, performing his work duties. They were all consistent with the diagnosis that he has, that's bipolar 1 disorder, and barring a definitive brain test that may be done in the future, it would be very difficult to say absolutely that that was related to it, but clearly, a professional opinion based on objective measures that are listed in the diagnostic and statistical manual, symptoms that I observed from him since-well, for many years now, my professional opinion is that it was directly related to his bipolar 1 disorder.
p. 97-98.
Dr. Siegel's testimony was less certain on causation than Cohen's was, but it does not contradict Cohen's opinion, and in fact is supportive of it. Cohen's more definitive opinion is credible; that it is more definite than Dr. Siegel's is attributed to the fact that Cohen had more frequent contact with Carlson than Dr. Siegel did.
The employer's challenge to the April 2011 incident being caused by bipolar disorder essentially is based on the lay opinion that someone who is truly unable to work due to a mental condition would not be capable of sending chatty messages for 40 minutes, or checking on the consequences of his taking a partial day off. But Cohen rejected the idea that Carlson's Q-chats and attendance inquiry were inconsistent with his claim that he was unable to work. (2) AT&T presented nothing but a lay opinion to the contrary. That was not sufficient. It easily could have retained its own expert to offer opinions that differed from Dr. Siegel's and Cohen's, but it did not do so.
The weight of the evidence on this issue, which is technical and scientific and calls for expert testimony, favors a finding that Carlson's conduct on the two occasions was caused by his bipolar disorder.
Third Factor-Whether Carlson's Disability Prevented Adequate Job Performance
There is no question that Carlson's conduct on February 18, 2010, hanging up on eight callers in a 10-minute period, was not adequate job performance. Carlson never contended that he should have been allowed to hang up on callers as an accommodation for his disability, and such an accommodation would not have been reasonable for two reasons-first, hanging up on callers would be the antithesis of performing the job of a customer service representative, and second, service representatives at the Tier II call center had the alternative of stopping calls by entering a health code, and Carlson was aware of this alternative. Carlson never contended that he was unable to place himself into health code on February 18th instead of hanging up on callers. There is also the fact that the two people who disciplined Carlson for his conduct on February 18, 2010, Carl and Texeira, were unaware of his mental illness until after he engaged in his unacceptable conduct. In general, a reasonable accommodation is always prospective. "An employer need not excuse past misconduct as a reasonable accommodation for an employee with a disability." Accommodating Misconduct under the Americans with Disabilities Act, Timmons, 57 Fla.L.R. 187, 283 (April 2005). AT&T was not obligated to excuse Carlson from its normal discipline against Carlson for his unsatisfactory job performance of hanging up on callers, because such an accommodation would not have been reasonable, and because the decision-makers had no knowledge of his medical condition before he engaged in the conduct. (3)
By the time of Carlson's conduct on April 20, 2011, Texeira and Carl knew that Carlson had bipolar disorder, and knew the content of Dr. Siegel's letter, which Carlson had presented to them at the time of his suspension a year earlier. In part that letter said:
I am writing this letter at your request in order to identify your current diagnosis, which is bipolar disorder-depressed type. Bipolar disorder is a condition characterized by extremes of mood that could manifest in a significant depression with or without problems associated with anxiety and irritability. Extremes of mood can occur rather quickly and often triggered [sic] by relatively minor frustrations. Your mood state has fluctuated at least several times a year to a significant degree requiring adjustments in your medication and/or work schedule...
Carlson's explanation for his conduct on April 20, 2011 was that he became very disappointed upon discovering that he had not passed the test for the collections job; that he started to cry; that he could not perform his job; that he put himself into health code, which he had the discretion to do; that he notified his supervisor that he was not handling his disappointment well and that he may have to go home; and that his supervisor told him to do what he needed to do. Carlson's conduct was consistent with Dr. Siegel's and Cohen's descriptions of the symptoms of his bipolar disorder.
Carlson did not request an accommodation on April 20, 2011. He simply declared that he was too ill to work that day, and took advantage of two benefits of his employment, putting himself in health code and taking a partial sick day, that were available to him on the same basis that they were available to any other sick employee. He only required the employer to recognize the fact that he was too ill to work on a single day-that was not a request for accommodation.
At the meeting of May 26, 2011, when Carl and Texeira decided to discharge Carlson, they knew that he was asserting that he was unable to work on April 20, 2011 because of his bipolar disorder. They simply chose to disbelieve that assertion, and to believe instead that Carlson was only pretending to be unable to work on April 20th.
In its brief, AT&T cites the principle that a "complainant cannot prevail if the respondent honestly believed in the nondiscriminatory reason it offered, even if this reason is foolish or trivial, or even baseless." Fink v. Sears & Roebuck & Co., ERD Case No. 200404227 (LIRC Mar. 1, 2007). It characterizes its belief that Carlson falsely claimed he was unable to work on April 20th as an honestly held non-discriminatory reason for termination. To be relieved of liability on that basis, however, the employer's good faith must involve reasonable reliance on incorrect information, not on assumptions and stereotypes. Davis v. City of Milwaukee Police Department, ERD Case No. CR200703169 (LIRC Aug. 26, 2011). The employer's choice to ignore Dr. Siegel's opinion about the manifestations of Carlson's disorder in favor of its own uninformed opinion that a person who sends chatty sounding messages must not be suffering from a mental health condition, is not acting in good faith. The employer's lack of good faith is reinforced by the evidence that Carl either did not read, or read but did not take seriously, a second letter from Dr. Siegel, presented by Carlson at the May 26th meeting. This same employer unsuccessfully made this argument in Smith v. Wisconsin Bell, Inc. (AT&T), ERD Case No. CR200800434 (LIRC Apr. 9, 2012):
In the instant case, the respondent relied upon the personal observations of Mr. Sanfilippo, who concluded that the complainant could have worked for the respondent while on FMLA leave. It is questionable whether it was ever reasonable for the respondent to rely on Mr. Sanfilippo's personal observations, unsupported by any medical evidence, as a basis to recommend discharging the complainant. However, once the respondent learned that it was operating under incorrect assumptions about the complainant's medical condition and its effect on his ability to work, the respondent's decision to proceed with the discharge no longer enjoyed a presumption of "good faith."
As in Smith, it was not an act of good faith for Texeira and Carl to proceed with termination on the assumption that Carlson was lying about his ability to work on April 20th, in the face of the information that Carlson had presented to them from his doctor and therapist about his bipolar disorder as a cause for his conduct.
Finally, AT&T argues that the ALJ did not act as a fair and impartial adjudicator, based on comments and findings he made about IDSC. AT&T is troubled by the ALJ's belief that medical information confidentially disclosed to IDSC should be imputed to management decision-makers, and that IDSC is a "subcontractor" of the employer, for which the employer is liable. These statements about IDSC are without foundation in the record, but they do not reflect any bias against the employer. The role of IDSC in this case is minimal, and the commission's decision does not rely on a finding that information given to IDSC was imputed to the employer as a whole or to any specific managers, or on the rationale that the employer was liable for acts of IDSC.
Attorney's Fees
When the complainant prevailed in this matter before the ALJ, he requested attorney's fees and costs totaling $112,705.32. The ALJ reduced the award to $101,059.07. The complainant did not petition for commission review of the ALJ's reduction in the fee award; the respondent alone petitioned for review, and asked for reversal of the ALJ's finding of liability. In briefing before the commission, the complainant did not raise the issue of attorney's fees, other than to indicate that the ALJ's award of fees and costs was appropriate. After the commission issued its non-final decision, the complainant renewed his original request for fees incurred through the administrative hearing proceedings, as well as requesting additional fees and costs pertaining to the commission review.
Although a timely petition for review by any party gives the commission the authority to review any and all aspects of a decision below, it generally will not exercise that authority to address issues that were not expressly or implicitly raised by a petition for review. Dude v. Thompson, ERD Case No. 8951523 (LIRC Nov. 16, 1990); Neuman v. Hawk of Wisconsin, Inc., ERD Case No. 9130945 (LIRC Mar. 12, 1993); Crosby v. Intertractor America Corporation, ERD Case No. 8851622 (LIRC May 21, 1993). Crosby was similar to the present case in that the commission was asked to entertain a request by a complainant's attorney to review an ALJ's reduction in a fee award, even though the issue had not been raised by a petition for review as contemplated by Dude v. Thompson, supra. The commission declined to do so. Although the commission has occasionally made an exception to its general practice, it has done so on the basis that review of the issue brought to the commission by a timely petition inevitably led the commission to inquire into the issue that was not raised in a petition. Valentin v. Clear Lake Ambulance Service, ERD Case No. 8902551 (LIRC Feb. 26, 1992); Mattocks v. Village of Balsam Lake, ERD Case No. CR201100355(Sep. 14, 2014). The commission's review in this case of the issue of the respondent's liability did not inevitably lead to any consideration of the ALJ's reduction in the fees requested by the complainant, therefore the commission declines to review that reduction.
The fees and costs now under consideration, then, are those that were awarded by the ALJ, $101,059.07, plus $10,546.46 requested by the complainant for services provided during in the commission review (total--$111,605.53).
The starting point for determining a reasonable fee is the number of hours reasonably spent on the litigation multiplied by a reasonable rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The respondent has not challenged the rate requested by the attorney and his paralegal.
The respondent's challenge to the fee request is based on the fact that the commission has reversed one of the two claims brought by the complainant, namely, the claim that the 50-day suspension without pay in 2010 violated the WFEA. The respondent has not attempted to identify specific hours devoted to the unsuccessful claim and to ask that those hours be stricken from a calculation of a fee award, but instead has asked for a simple reduction by half of the fees and costs requested, on the grounds that the complainant has prevailed on only one of two claims.
The commission has consistently held that it is appropriate to reduce an attorney fee award where the complainant has achieved only partial success. Foust v. City of Oshkosh Police Dep't, ERD Case No. 9200216 (LIRC Apr. 9, 1998); Roden v. Federal Express, ERD Case Nos. 8802134, 8802863 and 8900131 (LIRC June 30, 1993); Cangelosi v. Robert E. Larson & Assoc., ERD Case No. 8821554 (LIRC Nov. 9, 1990).
The commission considers this a case in which the complainant achieved partial success. The partial nature of the success is reflected in the reduction of the complainant's remedy-he is not entitled to back pay for the 50-day suspension. This case is distinguished, then, from those in which a fee reduction was inappropriate because the complainant received the full remedy he or she was seeking despite losing one issue. See Nunn v. Dollar General, ERD Case No. CR200402731 (LIRC Mar. 14, 2008). Here, the one issue that the complainant lost did have a negative impact on the remedy.
The commission has recognized that if a complainant has achieved partial success on related claims, the focus should be on the significance of the overall relief obtained in relation to the hours reasonably expended on the litigation. Charles v. Welsing and Associates, ERD Case No. CR201103017 (LIRC Feb. 28, 2014); Foust v. City of Oshkosh Police Dep't, ERD Case No. 9200216 (LIRC Apr. 9, 1998), citing Hensley v. Eckerhart, supra. Clearly, the complainant here has prevailed on the claim that produced the more significant relief, back pay and reinstatement for having been terminated from employment. That is sufficient reason for rejecting the respondent's proposal that the award should simply be split in half. The complainant, however, offered a mere 3.8% reduction in the fees requested, based on a calculation that the remedy attached to the suspension issue was 3.8% of the remedy attached to the termination issue. The figures used for the calculation, however, are not in the evidentiary record, and there is no precedent for letting such a calculation determine the fee award. The commission, therefore, also rejects that proposal. In terms of the result achieved by the complainant, this case is somewhat similar to Mateski v. Nuto Farm Supply, ERD Case No. CR200200727 (LIRC Feb. 15, 2005). In Mateski, the complainant did not prevail on a claim that she should be awarded back pay as of November 2001, when she was placed on layoff, but did prevail on her claim that she should be awarded back pay as of April 2002, when she was not called back from layoff; thus, as in this case, the complainant lost a claim for several months of back pay, but won the more significant claim for an indefinite period of back pay plus a right of reinstatement. The commission considered a fee reduction of 20% to be appropriate. Consistent with Mateski, the commission has reduced the complainant's fee award by 20%. (4)
A 20% reduction is also more accurate than the 50% reduction proposed by the respondent and the 3.8% reduction proposed by the complainant, when one considers the amount of time spent proving the termination claim as a share of the time spent on the entire case. Even when significant relief is obtained, an attorney's time spent on an unsuccessful claim, to the extent that it can be separated from the successful claim, should not be considered time spent in pursuit of the ultimate result achieved.
Hensley, supra, at 439. In this case, time spent on the nature of the complainant's impairment was necessary, and would not have been reduced if the unsuccessful claim had not been pursued; and time spent on the incident that led to the complainant's suspension would have been relevant to the termination issue because it was through that incident that the individuals responsible for eventually terminating the complainant learned about the complainant's impairment. But a considerable portion of time spent on the suspension issue was not helpful to proving the termination issue-for instance, time spent supporting the argument that as a matter of reasonable accommodation the complainant should have been spared any discipline relating to his hanging up on callers. This includes time spent on the complainant's informal permission to take breaks when he was in a different department, where the working environment was distinguishable from the environment he later faced at the call center. The time spent on elements of the case that were relevant only to the unsuccessful claim was considerably more than the 3.8% reduction proposed by the complainant, and considerably less than the 50% reduction proposed by the respondent. Consideration of this factor lends further support to a fee reduction of 20%, from $111,605.53 to $89,284.42.
cc:
Attorney Robert Mihelich
Attorney Laura Lindner
Appealed to Circuit Court.
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