State of Wisconsin

Labor and Industry Review Commission

Jennifer A Berton-Train	Fair Employment Decision[1]
Complainant
Woodman’s
Respondent	Dated and Mailed:
ERD Case No. CR201401274	May 31, 2017
EEOC Case No. 26G201400923C	bertonje_rsd.doc: 164

The decision of the administrative law judge (copy attached) is affirmed.  Accordingly, the complaint in this matter is dismissed.

By the Commission:
	/s/
	Laurie R. McCallum, Chairperson
	/s/
	David B. Falstad, Commissioner

Procedural Posture

This case is before the commission to consider the complainant’s allegation that the respondent discriminated against her based upon disability, in violation of the Wisconsin Fair Employment Act.  An administrative law judge for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision.  A timely petition for commission review was filed.  The commission has considered the petition and the positions of the parties, and has reviewed the evidence submitted at the hearing.  Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own.

Memorandum Opinion

To prove disability discrimination under the Wisconsin Fair Employment Act (hereinafter “Act”), a complainant must first establish that he is an individual with a disability, within the meaning of the Act.  Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980).  Section 111.32(8) of the Act defines the term “individual with a disability” as 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.  An “impairment” for purposes of the Act 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 concerned with the question of whether there is a substantial limitation on life's normal functions or on a major life activity.  By contrast, the “limits the capacity to work” test refers to the particular job in question.  Further, the inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty.  AMC v. LIRC, 119 Wis. 2d 706, 350 N.W.2d 120 (1984).

At the hearing the complainant testified that she suffers from panic attacks, migraine headaches, neck pain, and fibromyalgia.  In support of her testimony, the complainant presented medical records showing that she has been treated for a variety of complaints including depression and anxiety, migraines, and neck pain, and that she has been prescribed medication for her panic attacks and migraine headaches.  However, while this evidence may be sufficient to warrant a conclusion that the complainant has one or more impairments, the complainant did not meet her burden of establishing that any of the claimed impairments make achievement unusually difficult for her or limit her capacity to work.[2]  The complainant presented no testimony to explain how or whether her panic attacks, neck pain, headaches or fibromyalgia affected her day-to-day functioning.  While the complainant described what a panic attack felt like, she did not offer any evidence regarding the frequency of these events or suggesting that they prevented her from performing any major life activity.  The complainant also introduced no evidence to suggest that any of the claimed impairments affected her ability to work, and agreed that she had no work restrictions related to any of her medical or psychological conditions.  Although the complainant testified that she sometimes took FMLA leave because of her migraine headaches, the mere fact that the complainant took FMLA leave on several discrete occasions, the dates and durations of which were not established at the hearing, is insufficient to warrant a conclusion that the headaches limited her ability to perform her job.  See, Besaw v. Winnebago County Landfill, ERD Case No. CR200703703 (LIRC Nov. 30, 2012)(headaches that cause occasional absences from work are not considered to be disabilities within the meaning of the Act).

The commission has also considered the question of whether the respondent perceived the complainant as having a disability, but finds no evidence to suggest this was the case.  The complainant contends that the respondent knew she had migraines and, further, that it perceived her as being emotionally unstable.  With regard to the latter, the complainant points out that in one instance she had an emotional “meltdown” in the presence of the store manager.  She also maintains that the store manager told her that if she took a specific medication it would make her “loopy,” and that on one occasion the manager remarked to another employee that the complainant was “loopy” and that she wondered what the complainant was “on.”  The commission does not find these arguments persuasive.  While it does appear that the complainant had a strong emotional reaction to being told she was going to be moved to a cashier position, this was an isolated instance that occurred approximately three years prior to her discharge, and does not warrant a conclusion that the respondent believed the complainant had a mental disability.  The store manager, Patti Frederick, denied having ever described the complainant as “loopy” or commented that she was “on” something.  Even if she made those statements—which, again, is alleged to have occurred two or three years prior to the discharge—they constituted stray remarks that, without more, would not lead to a conclusion that Ms. Fredericks perceived the complainant as having a mental disability.

The commission is also unpersuaded that the respondent perceived the complainant as having a disability related to migraine headaches.  Although the complainant contended that she discussed her migraine headaches with the store manager, Ms. Frederick denied that such conversations took place and testified that the only time migraines were discussed was when she told the complainant about her own headaches.  Nor would Ms. Frederick’s awareness that the complainant suffered from migraine headaches suggest that the respondent considered her to be an individual with a disability.  Not every medical condition amounts to a disability protected under the Act, and an employer’s knowledge of an employee’s medical condition does not necessarily give rise to an inference that the employer viewed the employee as having a disability.  Besaw, supra.  The complainant’s argument that she made a significant number of FMLA requests, which would have led the respondent to believe she had a disability, is similarly without merit.  Ms. Frederick testified credibly that she did not review the complainant’s FMLA paperwork, and it was not shown that she was aware of the medical reason or reasons why the complainant was taking FMLA leave or of the amount of time she was taking.  Moreover, as set forth above, even if Ms. Frederick knew that the complainant was taking time off from work because of migraine headaches, this would not establish that she perceived the complainant as having a disability.

Finally, even if it could be found that the complainant did establish she is an individual with a disability for purposes of the Act, she has not shown probable cause to believe that she was discriminated against on that basis.  The evidence indicated that the complainant was disciplined during the course of her employment for a variety of performance-related reasons and that she was ultimately discharged for signing on to her cash register using another checker’s identification number, a matter that was considered a “Group 1” violation under the respondent’s policies, for which the penalty may include immediate discharge.  Although the complainant testified that her actions in signing on with a co-worker’s identification were caused by a panic attack, she did not share this information with the respondent, and when asked to explain her conduct, informed it that she used her co-worker’s identification because she thought it was funny.  Moreover, while the complainant contended that the respondent was motivated to discipline and discharge her because of animus associated with her disability, there is simply no evidence to support this theory.  The complainant presented nothing to suggest that other employees engaged in similar conduct and were treated more favorably.  Further, the alleged statement that the complainant was “loopy,” made two or three years prior to her discharge, is an insufficient basis upon which to rest a conclusion that the respondent harbored discriminatory animus against her or that the non-discriminatory reasons it offered for its actions were really pretexts for discrimination.  The commission, like the administrative law judge, finds it credible that the respondent issued the various disciplinary actions based upon legitimate concerns about the complainant’s performance and that it terminated her employment because it believed she engaged in dishonest behavior.

cc:	Attorney Thomas Burke Attorney Emily Constantine

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[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision.  If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.

Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.

[2] In her Memorandum Decision the administrative law judge found that the complainant failed to present medical evidence on this point, and instead tried to rely on her own testimony and that of her husband, which was insufficient under the law.  However, while the complainant may be required to submit medical records showing the existence of an impairment, she is not required to submit medical evidence establishing that the impairment makes achievement unusually difficult or limits her capacity to work; an individual is generally competent to testify about how an impairment affects his or her ability to perform major life activities or limits the capacity to perform the job.  Notwithstanding this, the commission agrees that the complainant failed to meet her burden in this regard.