KATHY KINION, Complainant

PORTAGE COMMUNITY SCHOOLS, 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 makes the following:

1. Complainant Kathy Kinion (Kinion) began her employment with Portage Community Schools (Portage Schools) in April of 1993 as a part-time food service employee. In October of 1996, Kinion accepted full-time employment with Portage Schools, working half-time in the custodial maintenance department, and half-time as one of two secretaries for the exceptional educational needs (EEN) program. As an EEN secretary, Kinion's supervisor was Jeannine (Tammy) Cummings, Director of Special Education. Kinion's primary duties and responsibilities as an EEN secretary included maintaining special education student files and processing related documents, typing and mailing reports and notices, assuring compliance with reporting deadlines, and scheduling team meetings. In October of 1997, Kinion began working full-time in the EEN secretary position.

2. On May 11, 1999, Kinion directed a memo to Dan Pulsfus, Portage Schools Superintendent; Pete Hibner, Business Administrator; and Dyann Miller, Director of Instruction, which stated as follows, in pertinent part:

I am feeling extremely frustrated. Tammy Cummings, my immediate supervisor, has created a barrier to my success by singling me out with inappropriate actions. These include lack of professionalism, disrespect and invasion of privacy. I feel I deserve to be treated with respect and common courtesy. I receive mixed messages from Tammy causing me anxiety and frustration. This makes it difficult for me to give full attention to my job and carry out my duties effectively. I am a self starter which has been a prerequisite for this position. Very little supervision and guidance has been afforded to me. I have had to figure out many things on my own. I would like to address incidents which point out problems created by Tammy which hinder my job performance and mental well-being.

Kinion specified the following as the instances of Cummings' inappropriate treatment of her: moving her personal belongings (late April or early May of 1999), denying her request to move a desk and file cabinets (June of 1998), directing that she keep a record of how she spent her time (1998), no performance evaluation (first annual evaluation would have been completed in 1998), lack of training (1997), denial of overtime/compensatory time requests (fall 1998), denial of overtime even though worked extra hours (December 1998), failure of supervisor to acknowledge her on Secretary's Day (April 1999).

3. Kinion cites the moving of her personal belongings incident as the most serious example of Ms. Cummings' inappropriate treatment of her. This incident involved the following: Kinion had four or five shelves in her office, each six feet in length, upon which she displayed dozens of stuffed bears, bear figures, and other craft items; while she was on medical leave, Cummings and one of the special education teachers cleared one of the shelves, placing the items on different shelves, in order to set out special education forms they needed to access frequently. Cummings had requested, in two prior meetings with the complainant, that at least one shelf be cleared of her personal items so that it could be used for storage of these forms.

4. In July of 1999, Kinion began a series of medical leaves, based on at least ten consecutive excuses/requests from her medical providers. Other than her return to part-time work for three months in 2000 (See Finding of Fact 9, below), Kinion did not return to work on the return-to-work dates set forth in these requests/excuses. Kinion applied for and was granted Family and Medical Leave Act (FMLA) leave by Portage Schools. Her first application for FMLA leave was dated July 28, 1999, and included a certification from Kinion's treating physician, Elizabeth Strabel, which described her condition as "severe depression associated with panic disorder which is incapacitating her and treatment is not fully effective at this time;" which indicated that the condition began approximately July 13, 1999; and which stated that the condition would probably last six to eight weeks. Hibner was aware of the contents of this FMLA application. The FMLA application documents state that "incapacity" means inability to work.

5. In late August of 1999, Kinion requested an extension of her medical leave, and Portage Schools granted this request.

6. Portage Schools convened a meeting on September 8, 1999, to discuss the concerns Kinion had expressed in her May 11 memo. Present at this meeting were Kinion, Pulsfus, Hibner, Cummings, and Lisa Roche, a psychologist employed by Portage Schools. Each of Kinion's concerns was discussed, and a strategy developed to address it. It was apparent to those present at this meeting that Cummings and Kinion had very different styles which contributed to an uneasy working relationship, and that this added to the stress Kinion was experiencing.

7. On or around September 22, 1999, Kinion filed an application for the extension of her FMLA leave. In describing Kinion's condition in her accompanying certification, Dr. Strabel stated that, "The patient has depression and has been unable to do her current duties because of poor concentration, mood problems and unable to perform under stressful situations." Dr. Strabel changed the condition's onset date to May 15, 1999, and stated that Kinion's incapacity was likely to last until about October 15, 1999, if not longer. Portage Schools granted this request for extension of Kinion's FMLA leave.

8. On or around October 13, 1999, Kinion requested an extension of her medical leave based upon a medical excuse prepared by Dr. Strabel which stated that Kinion was "unable to return to work indefinitely due to illness." Portage Schools granted this request.

9. Kinion did not return to work, after her initial request for medical leave in July of 1999, until February of 2000. On February 14, 2000, she returned to work half-time, and Portage Schools granted her accommodation requests that she be placed in an office with a door, that she no longer have to process Medical Assistance billings, and that she have work time off to attend medical appointments. Both Kinion and Portage Schools expected that Kinion would be able to return to full-time work March 1, 2000.

10. Kinion did not return to full-time work March 1, 2000. Portage Schools, based on clinical social worker Nancy Hair's (1)   written recommendations in late February and on March 24, April 6, and April 20, that Kinion remain on a schedule of four hours per day, continued Kinion on a half-time schedule through May 2, 2000.

11. During the spring of 2000, a vacancy in a secretarial position at Caledonia Grade School, within Portage Community Schools, was advertised and filled. Kinion did not apply for this vacancy because it did not offer the full scope of benefits she had been receiving in her EEN secretary position.

12. In April of 2000, Kinion purchased and opened her own business, where she worked an average of one day a week or less thereafter. During the fall of 1999 and the spring of 2000, Kinion worked taking tickets at Portage Schools athletic events.

13. On May 2, 2000, Portage Schools received a medical excuse from Barbara Center, Kinion's treating psychiatrist, stating that Kinion required a medical leave until June 5, 2000.

14. Portage Schools convened a meeting on May 4, 2000, to discuss Kinion's employment. Present at this meeting were Kinion, Cummings, Hibner, Hair, and Susan Godfrey, Portage School's disability insurance case manager. Hair indicated that Kinion's work relationship with Cummings was causing her stress, and suggested the following as possible approaches to this concern: Kinion and Cummings work in different locations; Kinion work at home; Kinion be supervised by someone else; and Kinion be transferred to a different position. Portage Schools rejected each of these suggestions. Hair indicated that it was difficult to determine how much Kinion's relationship with Cummings was contributing to her medical condition and how much other stressors in her life were.

15. Kinion had reported to Dr. Center that her working relationship with Cummings and certain logistical aspects of her job were her main stressors. Dr. Center based her diagnosis on what Kinion had reported to her about her mental health symptoms and their causes.

16. On or about May 22, 2000, Portage Schools received a medical excuse from Dr. Center, stating that Kinion required a medical leave until August 1, 2000. After receiving this request for additional leave, Cummings and Hibner recommended to Pulsfus that Kinion be terminated because it appeared that Kinion's medical leave would extend indefinitely, and because Kinion's continuing absence was creating a hardship for the exceptional educational needs program. Pulsfus accepted this recommendation and, in a letter dated June 1, 2000, notified Kinion that her employment with Portage Schools was terminated effective June 24, 2000.

17. Kinion and Cummings needed to work where the special education files were located in order to do their jobs efficiently. It would have created a hardship for Portage Schools if Kinion and Cummings worked in different locations.

18. Special education files were confidential and were not permitted to be removed from the work site. It would have created a hardship for Portage Schools if Kinion were permitted to remove these files from the work site in order to work at home.

19. Cummings was the only supervisor with sufficient knowledge of, and experience with, the exceptional educational needs program to supervise the EEN secretary positions. It would have created a hardship for Portage Schools if Kinion's EEN secretary position had been transferred to a different supervisor.

20. There was no suitable vacancy to which Kinion could have transferred between July of 1999 and June 24, 2000. It would have created a hardship for Portage Schools to create a position to which Kinion could have transferred or to have removed an existing employee from his or her position in order to create a vacant position into which Kinion could have transferred. Other than during Kinion's return on a half-time basis in February through April of 2000, she had been on medical leave for almost a year prior to her termination. During this period of leave, Portage schools had assigned the duties of Kinion's EEN secretary position on a piecemeal basis to other staff and to temporary workers. Continuing this arrangement would have jeopardized the ability of the exceptional educational needs program to meet its reporting and other requirements on a timely basis. It would have created a hardship for Portage Schools to continue Kinion's leave beyond June 24, 2000.

21. Kinion received disability benefits through Portage School's disability insurer from July 15, 1999, through June 14, 2001. After her termination, Kinion did not work or search for work for a year because she "didn't feel good." As of June 20, 2001, Dr. Center had not yet released Kinion to return to work. On a worker's compensation "Practitioner's Report" form dated and signed on August 16, 2000, Dr. Center indicated that, at that time, Kinion was "not able to work." In a worker's compensation hearing application completed on or around August 16, 2000, Kinion indicated that she was totally disabled as of July of 2000.

1. Complainant Kathy Kinion is an employee within the meaning of the Wisconsin Fair Employment Act (WFEA).

2. Respondent Portage Community Schools is an employer within the meaning of the WFEA.

3. Complainant Kinion sustained her burden to prove that she is an individual with a disability within the meaning of Wis. Stat. § 111.32(8).

4. Complainant Kinion did not sustain her burden to prove that respondent Portage Community Schools discriminated against her based on disability in regard to certain terms and conditions of her employment.

5. Complainant Kinion sustained her burden to prove that respondent Portage Community Schools terminated her employment based on disability.

6. Complainant Kinion's disability was reasonably related to her ability to adequately undertake the job-related responsibilities of her position with respondent Portage Community Schools within the meaning of Wis. Stat. § 111.34(2)(a).

7. Respondent Portage Community Schools sustained its burden to prove that if did not refuse to reasonably accommodate complainant Kinion's disability within the meaning of Wis. Stat. § 111.34(1)(a).

8. Respondent Portage Community Schools did not engage in prohibited disability discrimination within the meaning of the WFEA.

Dated and mailed September 19, 2003
kinioka . rrr : 115 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The complainant in a disability discrimination case must show that she is an individual with a disability, and that the employer took the allegedly discriminatory action based on disability. Once the complainant has made these showings, the employer must show either that a reasonable accommodation would pose a hardship, or that, even with a reasonable accommodation, the employee "cannot adequately undertake the job-related responsibilities." Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980); Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998).

Individual with a disability

The WFEA defines an individual with a disability in Wis. Stat. § 111.32(8) as one 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 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); Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC Aug. 25, 2000).

The medical evidence essentially consists of two applications for FMLA leave, a worker's compensation "Practitioner's Report," and the testimony of Kinion's treating psychiatrist, Barbara Center. Dr. Center testified that she recalled generally that Kinion had issues with her moods and depression; that Kinion identified work, including her relationship with her supervisor and some logistical issues, as her main stressor; that Dr. Center based her diagnosis on what Kinion reported to her about her psychiatric symptoms and their causes; that she placed Kinion on medical leave at some point in time; and that she started treating Kinion in April of 2000. On a worker's compensation "Practitioner's Report" form dated and signed August 16, 2000, Dr. Center stated that Kinion's mental disability was "major depression, severe;" that the work exposure to which Kinion attributed her condition was "severe stress with boss, communication difficulties;" that, in her opinion, this exposure was a "major contributing factor" to the condition's onset or progression; that the disability from work began "approximately one year ago," and that Kinion was, at the time the form was completed, "not able to work." The FMLA certifications were completed and signed by Kinion's family physician Elizabeth Strabel on July 28, 1999, and September 22, 1999, and identified Kinion's condition as "severe depression associated with panic disorder which is incapacitating her" and as "depression and inability to do her current duties because of poor concentration, mood problems, and inability to perform under stressful situations." The commission concludes that this evidence is sufficient to support a conclusion that Kinion, during the time period relevant here, suffered from a mental impairment which limited her capacity to work in her job as an EEN secretary. Moreover, given that Portage Schools was aware that Kinion was unable to perform her job for an extended period of time because she was suffering from severe depression, the record also supports a conclusion that Portage Schools perceived Kinion to be disabled. See, Jones v. United Stationers, Inc., ERD Case No. 199803598 (LIRC Jan. 25, 2001).  This is buttressed by the fact that Kinion requested and was granted long-term disability benefits from the Portage Schools beginning on July 15, 1999, and continuing until July 14, 2001, and Hibner was aware of this. The parties' citation to Seventh Circuit authority in regard to this issue is not persuasive since the Americans with Disabilities Act, which the court was interpreting in those cases, generally focuses on limitations on an individual's ability to perform a class of jobs whereas the WFEA focuses on an individual's ability to perform a particular job.

Discrimination based on disability

Kinion next has 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).

In regard to the terms and conditions allegation, the significant incidents of harassment/disparate treatment alleged by the Kinion, i.e., moving her personal belongings (late April or early May of 1999), denying her request to move desk and file cabinets (June of 1998), directing that she keep a record of how she spent her time (1998), no performance evaluation (first annual evaluation would have been completed in 1998), lack of training (1997), denial of overtime/compensatory time requests (fall 1998), denial of overtime even though worked extra hours (December 1998), failure of supervisor to acknowledge her on Secretary's Day (April 1999)] could not have been based on Kinion's disability since they occurred or commenced prior to the date that Portage Schools would have had reason to be aware of Kinion's disability, i.e., July 28, 1999, the date of the earlier FMLA request.

The next issue relates to Kinion's termination. Portage Schools concedes that Kinion was terminated because she had been on medical leave for an extended period of time; and because they had no reliable indication that she would be able to return to work in the foreseeable future. Although Portage Schools argues that it was not aware at the time of Kinion's termination that the cause of her continuing absence from work was her disability, i.e., the mental health condition disclosed in the FMLA certifications, this is disingenuous. In July of 1999, Portage Schools was aware that Kinion was suffering from severe depression. Although one of Kinion's medical excuses after July 28, 1999, references that the absence from September 10-20, 1999, related to "surgery," Portage Schools was aware, based on the FMLA certification from this same time period as well as subsequent communications from the office of Kinion's treating psychiatrist, that Kinion's continuing absences were primarily attributable to her mental health condition. It is concluded as a result that the complainant's termination was based on her disability.

Reasonable accommodation

The burden would then shift to the employer on the issue of accommodation. Portage Schools must show either that a reasonable accommodation would pose a hardship, or that, even with a reasonable accommodation, the employee "cannot adequately undertake the job-related responsibilities." Target Stores, supra.

The accommodations at issue are the following: separating Kinion and Cummings by (1) assigning them to work in different locations, (2) allowing Kinion to work at home, (3) assigning Kinion's position to a different supervisor, (4) transferring Kinion to a different position.

There are two separate steps to the "reasonable accommodation" analysis: (1) to determine whether the accommodation is a reasonable one, i.e., whether it effectively enables the disabled individual to perform the job-related responsibilities of his employment; and (2) to determine whether it imposes a hardship on the employer. McMullen v. LIRC , 148 Wis. 2d 270, 434 N.W.2d 830 (Ct. App. 1988); Target Stores, supra.

The record does not support a conclusion that separating Kinion and Cummings would have enabled Kinion to continue working for Portage Schools, since it shows that Kinion was unable to work even after Cummings was no longer her supervisor. Kinion testified at the hearing on the issue of liability (June 20, 2001) that she had not worked after her termination and had not yet been released to return to work by Dr. Center; and, at the deposition which became part of the record on the issue of remedy (September 26, 2002), that she continued on long- term disability through July 14, 2001, and did not look for work between the date of her termination (June 24, 2000) and July 14, 2001, because she "didn't feel good." In addition, Dr. Center certified on August 16, 2000, that complainant, as of that date, was "not able to work;" and the complainant indicated in her worker's compensation hearing application that she was totally disabled as of July 2000 and for an indeterminate time thereafter. (2)   The record does not establish that separating Kinion from Cummings would have been a reasonable accommodation, i.e., that it would have enabled Kinion to continue working for Portage Schools.

Even if separating Kinion and Cummings had been a reasonable accommodation, the record establishes that each of the subject strategies for accomplishing this would have imposed a hardship on Portage Schools. The record shows that both Kinion and Cummings needed to work where the special education files were located in order to do their jobs efficiently; that special education files on which Kinion worked in her EEN secretary position were required to be maintained at the work site because they contained confidential student information; and that Cummings, as the director of Portage Schools' special education program, was the only supervisor with sufficient knowledge and experience to supervise the EEN secretary positions. As a result, it would have posed a hardship on Portage Schools to assign Kinion and Cummings to work in different locations, to allow Kinion to work at home, or to assign Kinion's position to a different supervisor.

In regard to the transfer accommodation, the record shows that there were no suitable vacancies to which Kinion could have transferred between July 28, 1999, the earliest date on which the accommodation duty could have arisen, and June 24, 2000, the effective date of Kinion's termination. By deciding not to apply for the secretarial position at Caledonia Grade School in the spring of 2000 because it did not offer benefits which fit her needs, Kinion implicitly concedes that this position was not one to which she should have been transferred as an accommodation. Moreover, Portage Schools was not required to create a new position for Kinion or to remove another employee from his or her position to create a vacancy into which Kinion could have transferred. See, Macara v. Consumer Co-op of Walworth County, ERD Case No. 8802872 (LIRC Feb. 14, 1992) (there were no open positions to which the complainant could have been transferred after the expiration of her medical leave and it would have posed a hardship to require the employer to create a new and unnecessary position for her or to discharge another employee to make room for her).

Kinion also argues that Portage Schools' duty of accommodation required it to place her on indefinite leave until a suitable transfer vacancy became available. The commission disagrees. Although a temporary leave to permit medical treatment over a relatively short period of time may be a reasonable accommodation, the period of indefinite leave suggested here would not, particularly given the fact that the employer had already granted a series of medical leave requests spanning nearly a year's time period, none of which had enabled Kinion to return to work, and the fact that vacancies in positions to which Kinion would have been eligible to transfer occurred relatively infrequently. See, Target Stores, supra (a temporary leave to permit medical treatment over a relatively short period of time, which, if successful, will remove the difficulty in performing job-related responsibilities, may be a reasonable accommodation); Janocik v. Heiser Chevrolet, ERD Case No. 9350310 (LIRC Nov. 21, 1994) (a reasonable accommodation does not include keeping a job open for an employee who has been unable to work for an extended period of time and for whom there is no foreseeable return to work date); Lewandowski v. Galland Henning Nopak, Inc., ERD Case No. 199603884 (LIRC Jan. 28, 1999) (while a reasonable accommodation may entail holding a job open for a disabled employee who is away from the workplace on a medical leave of absence, an employer cannot reasonably be expected to hold a job open indefinitely when there is no indication the employee will ever be able to return to work). The commission concludes that it would have been a hardship to place Kinion on a period of indefinite leave to wait until a suitable transfer vacancy occurred.

Portage Schools, as a result, sustained its burden to show that separating Kinion and Cummings was not a reasonable accommodation, and, even if it were, that the strategies posited to accomplish this separation would have imposed a hardship on the school district. If Portage Schools had failed to sustain this burden, it would have had to prove that, even with a reasonable accommodation, the employee "cannot adequately undertake the job-related responsibilities."

Portage Schools sustained this burden as well. As concluded above, the record does not support a conclusion that separating Kinion and Cummings would have enabled Kinion to continue working for Portage Schools, since it shows that Kinion was unable to work even after Cummings was no longer her supervisor, i.e., that, even after Ms. Cummings was no longer in the picture, the complainant was not able to work, was not released to return to work, continued to qualify for disability benefits, did not search for work, and did not work.

NOTE: The commission notes that it consulted with the administrative law judge before reversing his decision in part. This reversal does not rest on a different assessment of the credibility of witnesses. Instead, the commission modified certain findings of fact to more accurately reflect the evidence of record, decided the terms and conditions discrimination issue which the administrative law judge's decision failed to do, and reached a different legal conclusion in regard to the transfer as accommodation issue.

cc: 
Attorney Linda L. Hale
Attorney Ronald J. Kotnik

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(1)( Back ) Hair was an associate of psychiatrist Barbara Center, M.D., and Hair's written correspondence with Portage Schools appeared on stationery with a "Counseling and Psychotherapy Associates, Inc." letterhead.

(2)( Back ) Although the respondent would not have been aware of this at the time of the termination, such evidence may properly be considered by the commission in such a context, particularly where, as here, the diagnosis upon which the accommodation request rests relies primarily if not exclusively upon the complainant's self-reported symptoms and theory of causality. See, Staats v. County of Sawyer, et al., ERD Case No. 9500906 (LIRC Oct. 27, 1997) (evidence which postdates the personnel transaction in question and which may have no relevance to the issue of the employer's intent at the time of the transaction, may have relevance to issues such as the employee's capacity to perform and accommodation); Charles v. Milwaukee Board of School Directors (LIRC, June 23, 1993).

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