State of Wisconsin
Labor and Industry Review Commission
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April Dahl, Complainant PO Box 234 Kewaunee, WI 54216-0234 |
Fair Employment Decision[1] |
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Kewaunee Care Center, LLC, Respondent A 1308 Lincoln Street Kewaunee, WI 54216
Rice Health Care Facilities, Respondent B 1726 North Ballard Road Appleton, WI 54911 |
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Dated and Mailed: |
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ERD Case No. CR201203889 EEOC Case No. 443201300184C |
October 22, 2018 |
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The decision of the administrative law judge (copy attached) is affirmed, subject to modification. Accordingly, the complaint of discrimination is dismissed.
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By the Commission: |
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Georgia E. Maxwell, Chairperson |
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/s/ |
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Laurie R. McCallum, Commissioner
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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 age,[2] disability, and in retaliation for having engaged in protected opposition, 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 finding no probable cause to believe that discrimination occurred. The complainant filed a timely petition for commission review.
The commission has considered the petition and the positions of the parties, and it 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 conclusions in that decision as its own, except that it makes the following:
Modifications
1. Paragraphs 12 and 13 of the administrative law judge’s FINDINGS OF FACT are deleted and the following paragraphs are substituted therefor:
12. The complainant began suffering from stomach pain in January of 2012 and, on May 21, 2012, went to see a doctor who told her he thought she might have a stomach tumor and referred her for testing. The following day the complainant saw another doctor who diagnosed her as having possible diverticulitis. Thereafter the complainant saw several different physicians who treated her for diverticulitis. As of the date of the hearing, April 12, 2017, the complainant was continuing to treat for diverticulitis on an as-needed basis.
13. Among other symptoms, the complainant’s diverticulitis means she needs to use the bathroom nearly every hour. Her medical condition keeps her from flying on airplanes, staying overnight at friends’ homes, or engaging in any activity where prolonged/frequent bathroom use is not an option. The complainant experiences frequent pain and has difficulty sleeping at night.
14. The complainant did not tell her supervisors that she had diverticulitis and the respondent was unaware that she suffered from that condition.
2. The remaining FINDINGS OF FACT are renumbered accordingly.
3. The administrative law judge’s CONCLUSIONS OF LAW are deleted and the following substituted therefor:
1. The complainant established probable cause to believe that she is an individual with a disability, within the meaning of the Wisconsin Fair Employment Act.
2. The complainant did not establish probable cause to believe that she engaged in protected opposition, within the meaning of the Wisconsin Fair Employment Act.
3. The complainant did not establish probable cause to believe that she was discriminated against based upon her disability or in retaliation for having engaged in protected opposition, in violation of the Wisconsin Fair Employment Act.
Memorandum Opinion
To prove disability discrimination under the Wisconsin Fair Employment Act (hereinafter “Act”), a complainant must first establish that she 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).
In his decision, the administrative law judge stated that the complainant failed to produce competent medical evidence that she had any specific actual disability. The administrative law judge noted that the medical evidence the complainant presented established only that diverticulitis was a “possibility” prior to her discharge, and that a follow-up appointment showed her to have no complaints. The administrative law judge also noted that the notes from the doctor the complainant saw in May of 2012 are not clear as to whether the doctor considered the complainant’s diverticulitis to be a permanent condition at the time. The administrative law judge, therefore, concluded that the complainant failed to establish probable cause to believe she was an individual with a disability during her employment. The commission disagrees with this analysis. In order to be covered by the Act, the complainant must establish that she has a disability, that the respondent perceived her as having a disability, or that she has a record of having a disability. However, there is no requirement that the complainant establish that she was diagnosed as having a disability during her employment, nor does the Act require her to show that her doctor understood her condition to be permanent at that time. While these facts may be relevant to the determination of whether or not the respondent discriminated against the complainant based upon a disability, they are not necessary to a conclusion that the complainant is an individual with a disability and therefore entitled to the protections of the Act.
In this case, it is clear that the complainant began experiencing symptoms of diverticulitis in January of 2012, during which time she was still employed by the respondent, and that she was first treated for the condition prior to her discharge on May 25, 2012. The complainant’s testimony, which is supported by medical records, indicates that she continued to be treated for diverticulitis thereafter and that, as of the date of the hearing, in April of 2017, the complainant still suffered from this condition. The complainant presented testimony regarding the ways in which her diverticulitis affects her daily life and the limitations it poses on her personal activities. Based on all the evidence, the commission is satisfied that the complainant established she has a permanent impairment which constitutes a disability, within the meaning of the Act and, further, that she had the disability during her employment with the respondent, whether or not there was a definitive diagnosis made at the time.
The question to decide, then, is whether the respondent’s decision to terminate the complainant’s employment was related to her disability. The commission agrees with the administrative law judge that it was not. The complainant did not tell the respondent she had diverticulitis and there is no evidence to indicate that the respondent was aware this was the case. Nor was it shown that the respondent believed that the stomach pain for which the complainant treated in May of 2012 constituted a disability. While the complainant maintains that she told the respondent she might have a stomach tumor, the respondent’s witnesses denied having been so informed. Even assuming that the complainant did inform the respondent of the possibility she might have a stomach tumor, this fact alone would not lead the commission to conclude that the respondent perceived her as having a disability. A stomach tumor might well be considered a temporary condition from which an individual would be likely to recover after surgery, and the complainant does not contend that she provided the respondent with any information that would have led it to believe otherwise.
In addition to the above, the complainant maintains that the respondent perceived her as having a mental disability. The complainant’s evidence for this is her testimony that the respondent’s administrator, Noreen Jonet, made negative comments to her about her mind and her inability to effectively learn new tasks. However, even if such remarks were made, the commission does not believe they would be sufficient on their own to warrant a conclusion that Ms. Jonet perceived the complainant as having a mental disability, and, indeed, Ms. Jonet credibly testified that she did not believe this was the case. Moreover, it must be noted that Ms. Jonet was out on medical leave at the time the complainant was discharged and played no role in the decision to terminate the complainant’s employment.
Finally, the commission is unpersuaded that the complainant’s complaints about the manner in which Ms. Jonet supervised her can be construed as protected conduct, within the meaning of the Act. The complainant told Tammy Steppke, the respondent’s director, that she believed Ms. Jonet’s management style was too harsh and that Ms. Jonet had made insensitive comments to her, but did not put Ms. Steppke on notice that she believed she was being discriminated against by Ms. Jonet based upon a disability. A finding of retaliation depends upon the employer’s intent; absent any reason to believe that the employer understood the complainant was raising some type of claim that discrimination was occurring, there can be no basis to conclude that it was motivated to take retaliatory action against her. See, Cangelosi v. Robert E. Larson and Associates, Inc., ERD Case No. 8821554 (LIRC Nov. 9, 1990). It is also worth noting that the recommendation to discharge the complainant came from a third party, Jolene Aude, the Director of Nursing, and not from either Ms. Steppke or Ms. Jonet. Thus, there is no reason to believe that the complainant’s complaints about Ms. Jonet’s supervision played any role in the respondent’s decision to terminate her employment.
It is clear from the record that the respondent was dissatisfied with the complainant’s work performance. Although the complainant disagrees with this assessment and maintains that the progressive discipline she received leading up to her discharge, as well as the ultimate discharge, was unwarranted and unreasonable, the commission is unpersuaded that this was the case. Further, and more importantly, because the complainant has not presented any evidence to suggest that the individuals who made the discharge decision were aware that the complainant had a disability or perceived her as being disabled, nor any evidence to suggest that they believed she had opposed a practice of discrimination, there can be no basis to conclude that they were motivated to discriminate against her because of a disability or in retaliation for opposing a practice of discrimination. Accordingly, the commission agrees with the administrative law judge that the complainant has failed to show probable cause to believe that she was discriminated against in the manner alleged.
Attorney Ann Barry Hanneman
[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] At the hearing the complainant’s attorney indicated that the complainant was withdrawing her claim of age discrimination. The commission, therefore, makes no findings with respect to that allegation.