Wis.LIRC ER Decision: Chaffee - September 27, 2000 - Disability discrimination -- no proof that bi-polar disorder was a factor in discharge of employe from job at youth home; no retaliation where employe never raised claim of discrimination or failure to accommodate

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JOHN A CHAFFEE, Complainant

WYALUSING ACADEMY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199704654, EEOC Case No. 26G980375

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 conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed September 27, 2000
chafjo.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, John Chaffee, petitions for a review of the administrative law judge's decision which found no probable cause to believe that the Wyalusing Academy, a home for youth with behavioral and emotional problems, violated the Wisconsin Fair Employment Act by discriminating against Chaffee on the basis of disability, by refusing to reasonably accommodate a disability or by retaliating against him for opposing a discriminatory practice.

Chaffee was employed as a youth care worker at the Academy beginning on September 15, 1997, under a 90-day probationary period. During an interview on September 12 preceding his hire, Chaffee informed Gary Adams that he had a bipolar disorder. According to Chaffee, he made a request of Adams "that things be put in writing." Adams denied that Chaffee ever made a request to put things in writing. Adams testified, however, that each time he observed a performance problem on the part of Chaffee he counseled Chaffee and informed him that a notation of the problem was being placed in his performance log, a log that employees may have access to at any time. Adams asked Chaffee if his bipolar disorder was controlled by medication and Chaffee told him that it was. Later, during the afternoon on September 12, Adams called Chaffee and hired him. Adams testified that due to several incidents of unsatisfactory work performance by Chaffee, particularly observations of Chaffee's inability to "set limits" as a means of providing structure for the youth at the Academy, and his failure to immediately contact the core staff when a youth who was on "sight precaution" turned up missing, Chaffee's employment at the Academy was terminated in November 1997.

The ALJ found that Chaffee was discharged because Adams believed his performance during the 90-day probationary period was not satisfactory, that Adams never refused any reasonable accommodation that Chaffee requested because of his bipolar disorder and that Chaffee did not complain to anyone at the Academy that he was being discriminated against because of a disability.

In his memorandum opinion the ALJ concluded that Chaffee did not meet his burden of showing that his disorder either made achievement unusually difficult or limited his capacity to perform his job, that he had a record of such an impairment, or that his employer perceived him to have such an impairment so as to qualify for coverage under the disability provision of the Act. The ALJ concluded that while Adams accepted Chaffee's statements that he had a bipolar disorder, Adams did not conclude that Chaffee's disorder made achievement (in life's major activities) unusually difficult or limited Chaffee's capacity to work since Adams understood Chaffee's disorder to be controlled by medication. The ALJ concluded that while Chaffee testified about some effects he experienced from the disorder Chaffee failed to present expert medical evidence at the hearing which supported a conclusion that his condition substantially limited any of his major life activities or his ability to do his job.

On appeal Chaffee argues that during this whole process no one has ever asked him to provide medical proof of his disability. As evidence that he is disabled Chaffee states that he is receiving assistance from the Department of Vocational Rehabilitation, which does not provide funding to individuals unless they have a diagnosed disability, that his medication is being monitored and he has access to a therapist who can provide guidance in social or work matters, and that he was seeking medical treatment from two doctors for his bipolar condition.

Chaffee may very well be correct that he was never asked to provide medical proof of his disability. Indeed, prior to the issuance of the ALJ's decision in this matter there does not appear to have been any question - or at least it appears there was an assumption - that Chaffee's bipolar condition constituted a disability. Indeed, this matter was certified to hearing to determine whether there was probable cause to believe the respondent violated the Act by "refusing to reasonably accommodate a disability, terminating the employment of the Complainant because of disability and discharging the Complainant because the Complainant opposed a discriminatory practice under that Act." (Underlining and bold text in original). Also, at the hearing itself it was never contested that Chaffee had a disability. The various features of bipolar disorders as described in the medical text, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, American Psychiatric Association, 1994, indicates that a bipolar disorder could very well substantially limit a major life activity, and/or limit Chaffee's ability to perform the job of a youth care worker.

However, assuming for purposes of argument that Chaffee's disorder actually made achievement unusually difficult or limited his ability to do his job, Chaffee still had the burden of establishing that the Academy discriminated against him on the basis of his disability. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 598, 476 N.W.2d 707 (Ct. App. 1991); Brown County v. LIRC, 124 Wis. 2d 560, 564, fn. 5, 369 N.W.2d 735 (1985). The ALJ found, and the record shows, that Chaffee's employment was terminated by the Academy due to his inability to set limits for the youths at the Academy and because of the incident where Chaffee not only failed to keep track of a youth that was on "sight precaution," but failed to follow proper procedure by immediately contacting the core staff to report the missing youth. The record contains absolutely no evidence to show that there was any connection between Chaffee's bipolar condition and the shortcomings the Academy observed in Chaffee's work performance. Indeed, with respect to setting limits, Chaffee's own testimony indicates that his difficulty stemmed from a philosophical difference in approach to handling youth at the Academy:

"I guess that's where I have the problem. Because I work under a principle where you work encouraging while enforcing a natural consequence. Setting a limit dictates an action. And I, myself, did not deem it appropriate to dictate an action to an individual. The greater longer lasting effect on an individual tends to come from their response in a more positive light, and I guess I was more raised as an educator and a businessman versus, you know, social worker, and this is a program that is very, very rigid. And when they set limits, it's you put a -- you hit somebody, you will get X amount or sub points. You - push a staff person, immediate sub points."

T. 32-33.

Furthermore, during the course of Chaffee's employment when Adams discussed Chaffee's work performance with him, at no time was reference made by Adams (or Chaffee) to Chaffee having a bipolar disorder. T. 35, 42-43, 50-51.

Chaffee's main contention appears to be that the respondent failed to accommodate his disability because he had related to Adams before hire that he was bipolar. Chaffee testified that during his interview with Adams that he requested that "things be put in writing" when he got the impression he was going to be hired. Apparently Chaffee wanted to know about anything that did not appear to be within respondent's work rules or that was not considered "normal" so that his doctor could determine mood swings or if he was "overreacting" in order to keep him on the right balance of medicine. Chaffee apparently argues that Adams should have obtained more information about his condition and what his work related needs were. On appeal Chaffee indicates that his condition is accentuated when under stress, resulting in difficulty getting eight hours sleep and increased hand tremors, and that his "thinking can become single-minded, racing and nonstopped."

First of all, the ALJ noted that Chaffee's testimony that he made the accommodation request was emphatically disputed by Adams, that while both Chaffee and Adams were credible witnesses, no one else testified, and therefore Chaffee failed to carry his burden of proof that he made this request of Adams. Furthermore, Adams testified that each time he observed a performance problem on the part of Chaffee he counseled Chaffee and informed him that a notation of the problem was being placed in his performance log, a log that employees may have access to at any time. Therefore, Chaffee had access to written information regarding any problems that may have developed in connection with his work performance. Secondly, there is no dispute that when Chaffee told Adams that he was bipolar, Adams inquired if it was under control by medication and Chaffee responded that it was. Moreover, prior to hiring Chaffee, Adams contacted some of Chaffee's references, including his previous employment where he had worked as a residential care person for developmentally disabled adults, and was advised that Chaffee was a "capable employee." Adams thus had no reason to suspect that there was anything about Chaffee's condition that warranted any particular accommodation. Finally, there is nothing in the record which indicates that the respondent was aware that any of the effects of his condition described above were occurring, or that Chaffee's work performance problems were otherwise such that the respondent should have been alerted to the fact that he required some form of accommodation because he was bipolar.

Under the circumstances presented in this case there is no reason to believe that the respondent discriminated against Chaffee on the basis of disability in violation of the Act.

There is also no reason to believe that the respondent retaliated against Chaffee for opposing a discriminatory practice under the Act. This claim arises in connection with a grievance he filed over being transferred from unit 3 to unit 2 where the youth were 3 or 4 years younger. The evidence indicates that Adams transferred Chaffee to unit 2 with the thought that Chaffee would be able to better set limits for these youth since they were younger. Chaffee failed to show that he had ever made a complaint that he was being discriminated against because of his bipolar disorder, or that his disorder had not been accommodated.

Finally, Chaffee also claims on appeal that a temporary restraining order issued against him after he had contacted the Academy's corporate office in Waukesha was a retaliatory act because he filed a complaint to get his job back. Assuming for purposes of argument that such claim would be covered under the Act, it was never made a basis of his complaint against the Academy.

cc: Kathryn A. Keppel

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