SHERI GRAMZA, Complainant

KWIK TRIP INC, Respondent

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 conclusions in that decision as its own, except that it makes the following modifications:

The following Finding of Fact is added:

21. Complainant's medical leave was discussed by staff and management at one of the Oshkosh store's regularly scheduled meetings some time between April and July of 2000. Complainant was not present at this meeting. Staff initiated the discussion to determine what impact complainant's absences would have on their schedules. Management did not reveal details about complainant's medical condition or encourage staff to try to get complainant to quit during this meeting. During the course of her employment at the Oshkosh store, complainant felt that there was not enough air circulation because certain air vents were closed. Complainant propped the door open and this relieved the air circulation problem for her. Complainant also had the opportunity to adjust the air vents. When complainant brought her concern to management's attention, management posted signs reminding store staff to leave the vents open, and adjusted the vents. Complainant was not discriminated against based on her medical condition in regard to these or any other terms or conditions of her employment.

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

Dated and mailed February 20, 2003
gramzsh . rmd : 115 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

(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 WFEA 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 whether there is a substantial limitation on life's normal functions or on a major life activity. Target Stores, supra. By contrast, the "limits the capacity to work" test refers to the particular job in question. Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985) (1)

The evidence of record does not establish that complainant's medical condition, whether you accept Dr. Hiebert's diagnosis of asthma, environmental allergies, or hyperreactive airway disease, or Dr. Levy's diagnosis of possible vocal chord dysfunction, exogenous obesity, poor physical conditioning, and emotional lability (instability), placed a substantial limitation on complainant's normal life functions or on a major life activity. It is not enough to state a diagnosis or to list symptoms. The complainant must explain through credible and competent evidence how or to what degree these symptoms made achievement unusually difficult for her. Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC August 25, 2000) The complainant failed to do this here.

The parties have focused the dispute as to the existence of a WFEA disability on whether complainant's pulmonary condition limited her capacity to work in her third shift clerk position at the Kwik Trip store in Oshkosh. There is conflicting medical evidence in this regard. Where there is conflicting medical evidence, the commission conclusively determines which view of the evidence it will accept. Valadzic v. Briggs & Stratton Corp., 92 Wis. 2d 583, 286 N.W.2d 540 (1979). The record supports both the respondent's and the commission's reliance on the medical opinion of Dr. Levy, a pulmonary specialist who functioned here as an independent medical examiner, rather than Dr. Hiebert, an internist who was complainant's treating physician.

Dr. Hiebert recommended two accommodations for complainant's pulmonary condition, her claimed disability here, i.e., that she be transferred to a store closer to her home in Redgranite, and that she be assigned to work the first (day) shift. The suggestion as to work location was based on complainant's representation to Dr. Hiebert that she could only get to a hospital quickly in an emergency if she worked close to her home in Redgranite, and depended on her husband or other family member to transport her there. However, the evidence of record shows that there is a hospital closer to the Oshkosh store where complainant worked than to the Kwik Trip store in Redgranite; and that complainant, when she had an opportunity to have a supervisor or co-worker transport her to the hospital when she was feeling ill on April 5, 2000, or to have them call 911, chose instead to wait for an hour and a half for her husband to get off work and take her there. Dr. Hiebert suggested the first (day) shift for complainant, because, in his opinion, this "would correspond to circadian rhythm and reduce chance of asthma attack." However, Dr. Hiebert admitted in his hearing testimony that the circadian rhythm affecting the adrenal glands would adjust over time to shift work.

Reliance upon Dr. Levy's opinion is further justified by the fact that his examination of complainant was more thorough than Dr. Hiebert's, relied to a significantly greater extent on diagnostic testing, and resulted in a more complete report. In contrast, Dr. Hiebert, an internist with no specialty in pulmonary disease, relied to a greater extent than Dr. Levy on complainant's self-reported symptoms and representations as to her work needs in fashioning his diagnosis and recommendations.

Dr. Levy concluded that complainant's pulmonary function tests were entirely within normal limits, and that the factors limiting her ability to work were her obesity, poor physical conditioning, and emotional instability, not a lung condition. Complainant has not claimed obesity, poor physical conditioning, or emotional instability as disabilities here and the record would not support such a finding. The only limitation imposed by Dr. Levy on complainant's work was that she should have two consecutive days off for every five days she worked, which was not inconsistent with complainant's typical work schedule and which was consistently effected by respondent after receiving Dr. Levy's report.

It should also be noted that, even if the commission had concluded that reliance upon the opinion of Dr. Hiebert was more reasonable, he had opined that complainant was only limited in her capacity to work when she was having an acute attack of hyperreactive airway disease. However, complainant refers specifically to only two such attacks in the record, one in May of 1998 and the other in April of 2000. In both of these instances, the record shows that complainant did not require immediate medical treatment and, in fact, that she remained at the store for some period of time to wait until her husband got off work and could pick her up. In May of 1998, her husband simply took her home, and in April of 2000, he took her to the hospital where the attending physician noted that she was not in acute distress. This would not be sufficient to support a finding that a lung condition limited complainant's capacity to work in her clerk position with respondent.

The commission concludes that complainant failed to sustain her burden to prove that she was a disabled individual within the meaning of the WFEA.

If complainant had sustained this burden, she would then have had the burden to prove that she was terminated or treated less favorably in regard to the terms and conditions of her employment because she was disabled. Target Stores, supra.; Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991). Complainant has failed to sustain this burden as well.

In regard to complainant's termination, the commission agrees with the ALJ that the preponderance of the credible evidence supports the conclusion that complainant was terminated due to her uncooperative attitude, not due to a lung condition. In regard to the terms and conditions of employment allegation, complainant is apparently contending that she was harassed based on disability when her medical condition was discussed at a meeting attended by supervisors and co-workers, when management encouraged staff at this meeting to try to get complainant to quit, and when co-workers closed air vents in the store and prevented her from opening them. However, to qualify as harassment, unwelcome conduct must be directed at the individual. Complainant was not present at the subject meeting. Moreover, the record shows that respondent did not reveal details about complainant's medical condition or encourage staff to try to get complainant to quit at this meeting. In addition, the record shows that, if it got too warm or stuffy during her shift, complainant would simply prop open the door and this would take care of the problem; and that it would have been possible for complainant to adjust the air vents even if the knobs had been removed as she alleged. Clearly, complainant has failed to show that she was subjected to an actionably hostile work environment based on a lung condition.

Complainant also contends here that respondent failed in its duty of reasonable accommodation. However, in order for this duty to arise, complainant would have had to prove that she had a disability within the meaning of the WFEA, and that she was discriminated against based on this disability, which, as concluded above, she has failed to do. However, even if complainant had sustained these burdens, the record supports a conclusion that respondent reasonably accommodated her. As concluded above, respondent was justified in relying upon the medical opinion and recommendations of Dr. Levy. Dr. Levy recommended that complainant be given two consecutive days off for every five days she worked. The record shows that respondent effected this recommendation. Moreover, the record reflects that respondent had accommodated complainant frequently during her employment in other ways, e.g., by granting her leave, by prohibiting smoking in the store, and by refraining from strictly enforcing its attendance/absence notification policy against her. Finally, even if the commission had concluded that it was more reasonable to rely upon the medical opinion of Dr. Hiebert, complainant has failed to show that Dr. Hiebert's two recommended accommodations were reasonable ones, i.e., the record does not show that transfer to the Redgranite location would have improved complainant's ready access to emergency medical care, or that transfer to the day shift was necessary to achieve the proper rhythm for the optimal functioning of complainant's adrenal glands.

Complainant failed to specify in her petition the basis for this appeal of the ALJ's decision. Many of the ALJ's findings of fact rely on credibility determinations he rendered after observing the demeanor of witnesses and reviewing the evidence of record. The commission has conducted a thorough and independent review of the record in this matter, and concludes that there is no reason to set aside any of the ALJ's credibility determinations, findings of fact, or conclusions of law.

cc: 
Attorney Linda L. Hale
Attorney John D. Thompson

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(1)( Back ) Complainant argues that whether complainant qualifies as a disabled individual within the meaning of the WFEA is not an appropriate matter for resolution here because the statement of the issue for hearing "does not question whether complainant has a disability." However, a review of the record shows that neither the statement of the issue for hearing nor the history of the dispute between the parties evidences, either expressly or by implication, that respondent has conceded that complainant is disabled, or that a determination of the disability issue has already been rendered.

uploaded 2003/03/03