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

MARY ALT, Complainant

MERITER HOSPITAL INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9202941

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in this matter on October 7, 1994. A timely petition for review was filed with the Equal Rights Division, which then forwarded the file to the commission on July 5, 1995.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT

1. The complainant, Mary Alt, began working for Methodist Hospital in 1977 as a food service worker. In 1987 Methodist Hospital merged with Madison General Hospital to form Meriter Hospital, the respondent in this case. The complainant continued her employment for the respondent at the site of the former Methodist Hospital, which was renamed the Capitol site. The respondent also has a second location, referred to as the Park Street site.

2. The complainant has epilepsy, a condition which is characterized by a brief episodic discharge in the brain involving automatic muscle movements and recurrent seizures. At all material times, the complainant had a physical impairment which made achievement unusually difficult for her and which limited her capacity to work.

3. When the complainant originally applied for her position at Methodist Hospital, she noted on her application that she had epilepsy. During the course of the complainant's employment at Methodist Hospital and at Meriter, she experienced numerous seizures, sometimes several in a single day. Most of the complainant's seizures lasted between 30 seconds and a minute and, although the complainant sometimes sustained bumps and bruises from falling down during a seizure, none of her seizures ever resulted in any significant injury to herself or others. After a seizure the respondent would usually have one of the complainant's co- workers sit with her until she recovered sufficiently to return to work or would take the complainant to its Employee Health Services, which was located at the Park Street site. The respondent also instituted a practice of maintaining "seizure logs," in which it attempted to document the complainant's seizures.

4. The complainant's job duties included, but were not limited to, preparing lunch and dinner trays by placing cold preprepared food on trays, by removing plates of food from hot pellets using a tong-like device and placing them on the trays, and by pouring coffee from a large urn and placing cups of coffee on the trays; breaking down used trays by scraping the dirty dishes into a garbage disposal and running them through a dishwasher; wrapping and bagging clean silverware after it came out of the dishwasher; and delivering trays of food to patients.

5. In 1990 the respondent underwent a clinical consolidation, after which most of the food preparation was done at the Park Street site, then transported to the Capitol site. After the consolidation, the number of food service workers at the Capitol site was reduced by two-thirds.

6. In June of 1990 the complainant's neurologist moved out of state and she began seeing a new neurologist, Dr. Zerofsky. Dr. Zerofsky changed the complainant's medication and placed her on several long-term leaves of absence. The complainant was on medical leaves of absence from August 31 to September 24, 1990; from November 25, 1990 to February 21, 1991; and, most recently, from June 22 to August 30, 1991.

7. In July of 1991 Judy Peirick, the respondent's labor relations manager, Charlotte Riddle, the respondent's director of food and nutrition services, and Mary Adler, the respondent's employe health services nurse, held a meeting to discuss the complainant's seizures and leaves of absence. At this meeting Ms. Peirick indicated that staffing was getting tight at the Capitol location and that the frequency of the complainant's absences was disruptive to the respondent's operation. It was agreed that Mary Adler would contact Dr. Zerofsky to discuss the complainant's condition. On August 9, 1991, Ms. Adler called Dr. Zerofsky to ask about the prognosis for the complainant's seizure control and, additionally, about what type of work restrictions the complainant should have. Dr. Zerofsky told Ms. Adler that he was trying the complainant on a new medication and was not yet certain whether this would result in better seizure control. In response to the question about work restrictions, Dr. Zerofsky stated that the complainant should not do anything at heights or at the head of stairs, that she should not operate heavy machinery, and that she should not engage in any activity where if she had a seizure it would cause serious harm to herself or others. Dr. Zerofsky indicated that it would probably be best if the complainant did not work alone and, further, that she might do better working at a clerical job where, if she had a seizure, the risk of injury would be greatly reduced.

8. On August 29, 1991, Dr. Zerofsky signed a work release slip for the complainant which stated that she could return to work on September 3 and which made no mention of any work restrictions. Because the respondent believed that this work release was in conflict with Dr. Zerofsky's earlier statements to Mary Adler, it refused to allow the complainant to return to work until it received further clarification from the doctor regarding her restrictions. On September 5, 1991, members of the respondent's management team met with the complainant and explained to her that, because they were concerned about her safety as well as that of her co-workers, they would not permit her to return to work until they had more information. The respondent indicated that it would extend the complainant's leave of absence and, further, suggested that the complainant begin reviewing other alternatives in case she could not be returned to her position.

9. On September 12, 1991, Judy Peirick wrote to Dr. Zerofsky and informed him that the respondent was confused as to whether the restrictions cited by Dr. Zerofsky on August 9 still applied. In her letter Ms. Peirick stated:

"We are obviously concerned about returning Mary to work if she might present a safety hazard to herself, co-employees or members of the public. In light of this fact, Employe Health Services has continued her medical leave of absence until we can get this matter clarified.

"In order for you to have an accurate understanding of the hazards that Mary's daily work environment presents, I have enclosed a copy of the job description, a description of the work environment and the equipment that she would be working with or by on a daily basis. After reviewing these materials, I need your medical opinion as to whether or not Mary presents any risk to herself, coworkers or the general public."

Along with this letter, Ms. Peirick enclosed a daily schedule which listed the complainant's activities in very general terms, and a copy of the complainant's job description which, again, was very general. In addition, Ms. Peirick enclosed a copy of a memo that had been drafted at her request by Charlotte Riddle and which was entitled "Documentation and Background Regarding Mary Alt." That memo stated, in relevant part:

"Mary is primarily assigned to the cold food and nourishment preparation area in the kitchen and to the dishroom at the Capitol site. She does simple preparation (pouring, measuring (accuracy is essential), peeling, dicing, portioning, etc) of cold food items. She makes coffee for and works on the patient tray assembly conveyor and steam line. She performs routine cleaning assignments utilizing appropriate cleaning chemicals.

"In the dishroom Mary works in a small enclosed area with a dishmachine with 180 water temperatures as well as steam output. Mary routinely delivers, unaccompanied, nourishments to patient floors, as well as delivering food carts on an occasional basis. Mary slices on and cleans the slicing machine, operates a garbage disposal and a hot-to-the-touch three gallon coffee maker. While Mary does not cook or use heavy equipment, her work area is in close proximity to ovens, vegetable chopper, steamers and very hot (175 ) pellets, used to keep patient entrees hot. She works in area [sic] close to an assistant cook who is preparing, carrying, removing from oven or steam kettle pans of hot foods. While the kitchen floor is maintained in as clean and dry a condition as possible, there is always the potential for spills, grease, etc.

"The environment in any institutional food service is one of some stress, meeting multiple (and often conflicting) inflexible deadlines. While the current environment at Meriter Capitol Food and Nutrition is less stressful (due to less intense activity levels) than at Park, deadlines do still exist which must be met no matter what other conditions are in effect. Additionally, a much reduced staffing level places extra responsibility and reliance on those assigned to that site. Employees have significantly less supervision and fewer co-workers to rely on and must be more flexible and able to work multiple assignments. It should be noted that since consolidation there is not an Employee Health or Emergency Room located at Capitol. However, nursing assistance can be obtained and transport to the Park Emergency Room is available."

10. On October 9, 1991, Dr. Zerofsky saw the complainant and prepared a return to work recommendation form for her, which indicated that as of October 10 she could return to "light heavy work," involving a maximum of 75 pounds of lifting and with no driving. That day Dr. Zerofsky also wrote a letter to the complainant's personal physician in which he stated that he had seen the complainant and had gone through the narrative description of the complainant's job prepared by the employer. In this letter Dr. Zerofsky indicated that he felt the complainant could return to work so long as she understood that there was a "small but definite risk" that, should she have a seizure, she could injure herself. He further indicated that, with the good seizure control the complainant had had since August, he believed it would be acceptable for her to go back to her job.

11. The complainant returned to work on October 14, 1991. However, she had a seizure that day and was sent home.

12. On October 15 Dr. Zerofsky sent the following letter to Mary Adler:

"As per our discussion today, Mary Alt had another seizure at work.

"As previously discussed, I did permit Mary Alt to return to her regular job without restrictions because she had been seizure-free since August. However, given the fact that she has had another seizure, I believe there needs to be some modification in her job so that she can work with a much lower risk of injuring herself should she have another seizure.

"I am enclosing copies of two documents that you forwarded to me which I believe are descriptions of her work. The first is her daily schedule, which obviously does not give great detail concerning her activities. The major concern on that schedule would be retrieving carts or delivering nourishments to floors if she does this activity alone. If there was another employee with her, I would be less concerned.

"The second document is a narrative and my concerns would be the dish machine with 180-degree water temperature with steam output, delivering and accompanying nourishments to patient floors and delivering food carts, operating the slice machine and garbage disposal and hot to the touch three-gallon coffee maker and working in proximity to hot pellets.

"Please review this and get back to me."

13. Mary Adler received Dr. Zerofsky's letter on or about October 15, 1991. She did not get back to Dr. Zerofsky, as he suggested, and did not seek any clarification from him regarding his letter. Ms. Adler interpreted Dr. Zerofsky's letter to mean that the complainant was restricted from performing any of the tasks about which Dr. Zerofsky expressed "concerns." Ms. Adler asked Charlotte Riddle whether the "restrictions" set forth in Dr. Zerofsky's letter could be accommodated and, after meetings with Lois Richards, the complainant's direct supervisor, Ms. Riddle determined that the complainant's restrictions involved half of her job duties and that they could not be accommodated at the Capitol site.

14. The respondent concluded that the complainant could work in its food and nutrition department at the Park Street site without having to perform any tasks outside of her doctor's restrictions. It determined that it could temporarily accommodate the complainant by assigning her to the Park Street site while another food service worker was on a medical leave of absence. After this, however, the respondent concluded that it would have nothing for the complainant and that her position at the Capitol site would be posted and filled.

15. On November 5, 1991, Dr. Zerofsky drafted a letter to the respondent in which he indicated that the "restrictions" cited in his October 15 letter were still in effect and would be indefinitely.

16. On November 8, 1991, the respondent notified the complainant by letter that it would have to post her position, but that it would give her a temporary position. The complainant was subsequently notified that she would be placed temporarily at the Park Street site.

17. In November of 1991 the complainant was temporarily transferred to the Park Street site because of her handicap.

18. The complainant worked in the food and nutrition department at the Park Street site until January 20, 1992, at which time the worker she was replacing returned from her leave of absence. The respondent permitted the complainant to perform cleaning tasks at the Park Street site until January 31, 1992, and then placed her on a disability leave of absence. Pursuant to the terms of a collective bargaining agreement then in effect with the complainant's union, the complainant was permitted to retain her seniority for one year while on the medical leave of absence. At some point during her leave of absence the complainant requested an extension of the leave, but this request was denied. The complainant's employment was terminated effective January 31, 1993.

Based on the FINDINGS OF FACT made above, the commission makes the following:

CONCLUSIONS OF LAW

1. The respondent is an employer within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act").

2. The complainant is handicapped within the meaning of the Act.

3. There is probable cause to believe that the respondent violated the Act by discriminating against the complainant in the terms or conditions of her employment when it transferred her to the Park Street site because of her handicap.

4. There is probable cause to believe that the respondent violated the Act by placing the complainant on an involuntary disability leave of absence because of her handicap.

5. There is no probable cause to believe that the respondent violated the Act by denying the complainant reinstatement because of her handicap. (1)

6. There is no probable cause to believe that the respondent violated the Act by refusing to reasonably accommodate the complainant's handicap.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the Commission makes the following:

DECISION

This matter is remanded to the Equal Rights Division for conciliation pursuant to section 111.39(4)(b), Stats. with respect to those issues on which the commission has found probable cause. The remaining portions of the complaint and amended complaint are dismissed with prejudice.

Dated and mailed March 27, 1996
altmary.rrr : 164 : 9

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant's burden of proof in a handicap discrimination case is to show that she is handicapped within the meaning of the Wisconsin Fair Employment Act and that there was an adverse employment action based upon that handicap. See Copus v. Village of Viola (LIRC, December 10, 1987). It is undisputed that the complainant had a handicap, epilepsy, and that she was involuntarily transferred to an alternate work site and later placed on a disability leave of absence as a result. Thus, the complainant has met her burden in this case.

The burden then shifts to the respondent to prove that the complainant's handicap is reasonably related to her ability to adequately undertake the job-related responsibilities of her employment and, further, that no reasonable accommodation is available which will not pose a hardship on the respondent's business. Id. In other words, the respondent is first asked to justify its alleged discrimination under the exception set forth in sec. 111.34(2), Stats. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991). That exception provides:

111.34 Handicap; exceptions and special cases.

(2)(a) . . . it is not employment discrimination because of handicap to refuse to hire, employ, admit or license any individual, to bar or terminate from employment, membership or licensure any individual . . . if the handicap is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment, membership or licensure.

(b) In evaluating whether a handicapped individual can adequately undertake the job-related responsibilities of a particular job . . . the present and future safety of the individual, of the individual's coworkers and, if applicable, of the general public may be considered. However, this evaluation shall be made on an individual case-by-case basis . . . ."

The first question to resolve, then, is whether the complainant's epilepsy was reasonably related to her ability to adequately undertake the job-related responsibilities of her employment. It has never been argued that the complainant was physically unable to perform her job, and no testimony or evidence was presented to suggest that the complainant's epilepsy prevented her from adequately performing her job duties. To the contrary, the record indicates that the complainant had been performing satisfactorily in the position for nearly fourteen years prior to her separation from employment. Thus, any finding that the complainant's handicap was reasonably related to her ability to adequately perform the job would have to be made under section 111.34(2)(b), Stats., the portion of the statute which addresses an employe's ability to safely perform the job. If the evidence shows that the complainant has a present ability to physically accomplish the tasks which make up the job duties, the respondent must establish to a reasonable probability that, because of the complainant's physical condition, employment in the position would be hazardous to the health or safety of the complainant or to others. Bucyrus-Erie Co. v. ILHR Department, 90 Wis. 2d 408, 424, 280 N.W.2d 142 (1979). The respondent has failed to make such a showing in this case.

The appropriate test is not whether an employe suffers from epilepsy or whether she may experience a seizure on the job, but whether the continued employment of the employe in her present position poses a reasonable probability of substantial harm. See Jansen v. Food Circus Supermarkets, 1 AD Cases 1305, 1309 (N.J. 1988). In arriving at a decision as to whether the employe can perform the job safely, the employer should rely on adequate medical reports and on relevant records, such as the employe's work and medical histories. Id. at 1310. Here, while the record clearly demonstrated that the complainant was likely to experience seizures while at work, the evidence does not warrant a conclusion that such a seizure would present a risk of harm to the complainant or others.

The respondent presented no expert testimony to establish to a reasonable probability that the complainant's seizures posed a risk of injury to herself or others. Indeed, the only evidence in the record which might arguably suggest that the complainant could not perform her job safely is the varied correspondence and notes written by Dr. Zerofsky. However, Dr. Zerofsky's opinion as to whether the complainant could perform her job safely underwent numerous permutations over time, and was vague and unreliable. First, in response to the respondent's initial inquiry about work restrictions, Dr. Zerofsky indicated that the complainant should not perform work at heights or at the head of stairs, that she should not operate heavy machinery, and that she should not engage in any activity which could cause serious harm to herself or others. Dr. Zerofsky also posited that it would probably be best if the complainant did not work alone and that she might do better at a clerical job. Dr. Zerofsky did not prohibit the complainant from performing any of the duties associated with her job and did not advance any opinion as to whether the complainant was likely to sustain an injury should she continue to do so. His musings that the complainant might do better at a desk job fall well short of establishing a reasonable probability of injury at her current position.

Subsequently, Dr. Zerofsky indicated that the complainant could safely perform her job as long as she avoided lifting more than 75 pounds and did no driving. At this point Dr. Zerofsky explained that there was a "small but definite risk" the complainant could hurt herself should she have another seizure. While the phrase "small but definite" is somewhat ambiguous, it cannot reasonably be interpreted as suggesting that the risk of injury to the complainant should she undergo continued seizures was reasonably probable. Finally, Dr. Zerofsky issued a letter stating that he believed the complainant's job needed modification so that she could work with a lower risk of injuring herself and explaining that there were certain aspects of the complainant's job about which he had concerns. However, Dr. Zerofsky never advanced any opinion as to whether or not it was reasonably probable that the complainant would be injured on the job should she continue working under the present conditions. To the contrary, Dr. Zerofsky concluded by asking the respondent to contact him for further discussions on the topic. Thus, Dr. Zerofsky's October 15 letter, like his other correspondence contained in the record, was insufficient to meet the respondent's burden of proof in this matter.

The commission further notes that, to the degree it could be found that Dr. Zerofsky expressed any opinion about the complainant's ability to safely perform her job, that opinion was rendered less than reliable by the fact that it was based upon certain fundamental mischaracterizations of the complainant's job duties. The evidence presented at the hearing established that the respondent's description of the "hazards" of the complainant's job included references to duties for which she was not responsible and conditions to which she was not likely to be exposed. For instance, although the narrative job description prepared by the respondent stated that the complainant slices on and cleans a slicing machine and that she delivers carts of food, at the hearing the respondent's witnesses acknowledged that the complainant was not required to use the food slicer and was not regularly assigned to deliver carts. Moreover, while the complainant did utilize the garbage disposal, the respondent neglected to explain to Dr. Zerofsky that the disposal had a safety device on it, so that the likelihood of the complainant's sustaining an injury from using the garbage disposal was slim to nonexistent. Similarly, while the performance of her duties did require the complainant to utilize a dishwasher with 180 water temperature, the respondent failed to point out that this was the temperature inside the machine and not the temperature to which the complainant was actually exposed. Finally, and most significantly, the respondent neglected to mention to Dr. Zerofsky that the complainant had performed her duties for fourteen years without significant injury, a factor which would have been very relevant to any determination of whether or not the complainant could safely perform her job. For all of these reasons, Dr. Zerofsky's October 15 letter cannot be considered reliable evidence on the question of whether or not the complainant's continued employment would have posed a reasonable probability of harm.

The only other evidence in the record addressing the question of the complainant's ability to safely perform her job duties is the testimony of the respondent's witnesses on that subject. The complainant's supervisor, Lois Richards, testified that, although it had never happened, she felt the complainant could have burned herself on the dishwasher, which emitted hot steam, or on the hot spigot from the coffee urn. Charlotte Riddle, the director of food services, also indicated that she was concerned about the complainant's sustaining injury while using the coffee maker because it is very hot to the touch and because there is a potential for the spray arm to spray hot water. Ms. Riddle also stated that the complainant could potentially fall against the coffee urn while moving her hand under the spigot. In addition, the respondents' witnesses mentioned that the complainant worked with pellets heated to 175 , although there is nothing in the hearing record which explains where these pellets were located or how the complainant could possibly fall against them. In essence, although the respondent demonstrated that the complainant worked near hot equipment and posited that she could potentially sustain a burn during the course of a seizure, it did not present reliable evidence to establish to any reasonable probability that its concerns were legitimate. Moreover, the fact that the complainant performed the same job duties for fourteen years without sustaining any significant injury, in spite of the fact that she experienced numerous seizures during this time, suggests that they were not.

In its brief to the commission the respondent argues that this case is not about safety, and that section 111.34(2)(b) of the statute should not be considered. The respondent contends that this is strictly a reasonable accommodation case. However, the reasonable accommodation provision of the statute only comes into play once it has been established that the complainant has a handicap which is reasonably related to her ability to efficiently and safely perform the functions of her job. Thus, the threshold question of the complainant's ability to perform is always present. Here, because the respondent failed to establish that the complainant's handicap is reasonably related to her ability to efficiently and safely perform the functions of her job, there is no need to reach the accommodation issue.

Further, in spite of the parties' characterization of Dr. Zerofsky's October 15 letter as imposing work restrictions on the complainant, the commission does not believe that there were ever any restrictions to accommodate. Although Dr. Zerofsky's letter stated that he believed there needed to be some modifications to the complainant's job and identified certain areas of concern, the letter never went so far as to set forth any actual restrictions and never directed that any specific actions be taken. In contrast to Dr. Zerofsky's response to Ms. Adler's August 9 inquiry, in which he expressly prohibited the complainant from performing work at heights, at the head of stairs, or involving heavy machinery, the October 15 letter dealt only with potential restrictions. That the letter set forth no actual restrictions is further evidenced by Dr. Zerofsky's repeated use of the word "concerns" and by the fact that he requested that the respondent get back to him to discuss the matter further. (2)

The respondent also contends that it had a right to rely on the restrictions imposed by the complainant's own physician. This might be a compelling argument if the complainant's doctor had issued any actual restrictions, but, for the reasons set forth immediately above, the commission concludes that he did not. Further, even if Dr. Zerofsky's October 15 letter could be reasonably viewed as imposing work restrictions, the evidence establishes that those restrictions were based upon the respondent's mischaracterization of many of the complainant's job duties and, further, that the doctor had not been apprised of the fact that the complainant was able to perform the duties in question for fourteen years without injury.

Moreover, it is well-established law that an employer cannot insulate itself from liability simply by relying on a medical opinion. See, for example, Leach v. Town of Pleasant Prairie Fire Dept. (LIRC, April 23, 1991); Bucyrus-Erie, supra, at 424. An employer may not rely on a deficient report to support its decision to fire a handicapped worker. Jansen, supra, at 1310. Although in its brief the respondent emphasizes the fact that the medical opinion in this case came from the complainant's own physician rather than a company doctor, the fact remains that the correspondence from Dr. Zerofsky was vague and indefinite. Further, because Dr. Zerofsky's letter was based upon the respondent's less-than-fully-accurate description of the complainant's job duties, the commission does not believe that the respondent was justified in relying upon that letter to curtail the complainant's fourteen-year employment.

Credibility Note: The commission did not consult with the administrative law judge (hereinafter "ALJ") regarding witness credibility or demeanor. The commission's reversal of the ALJ's decision is not based upon any differing assessment of witness credibility, but upon reaching a different legal conclusion when applying the law to essentially the same set of facts as that found by the ALJ. Indeed, there are only two factual findings made by the ALJ with which the commission expressly disagrees. First, the commission disagrees with the ALJ's finding that the complainant experienced increased seizure activity after Dr. Zerofsky changed her medication in June of 1990. (See ALJ's decision, paragraph 7.) The hearing synopsis contains no witness testimony in support of this finding, and the "seizure logs" submitted by the respondent, to the extent they can be considered at all reliable, do not demonstrate that the complainant experienced more frequent seizures in 1990 or 1991 than she had in 1989. The commission also finds no support in the record for the ALJ's finding that the complainant's transfer to the Park Street site was due, in part, to a temporary shoulder injury unrelated to her epilepsy. (See ALJ's decision, paragraph 17.) Because no witness testimony was presented on either of these points, the commission's disagreement with these factual findings is not dependent upon an assessment of witness credibility. Thus, no credibility conference with the ALJ was necessary pursuant to Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272, 195 N.W.2d 656 (1972).

cc:
JOHN H. ZAWADSKY
MICHAEL J. WESTCOTT

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

Footnotes:

(1)( Back ) Although the complaint alleged a discriminatory denial of reinstatement, no evidence on this claim was presented at the hearing.

(2)( Back ) As set forth in Finding of Fact #15 of the commission's decision, the commission is aware that Dr. Zerofsky subsequently characterized the letter in question as having imposed restrictions on the complainant. However, Dr. Zerofsky's after-the- fact characterization of his letter is not entitled to controlling weight in this matter and does not alter the plain fact that the letter set forth no actual work restrictions.