SHARAL Y DΟEΡΚE-ΚLINE, Complainant

AMERITECH/SBC CORPORATION, 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 conclusion in that decision as its own, except that it makes the following modifications for purposes of clarification, and in order to more accurately and completely reflect the evidence of record:

The first sentence of Finding of Fact 5 is modified to read as follows:

Doерkе-Κlinе's claimed disability is asthma.

The word "etc." is deleted from the second sentence of Finding of Fact 16.

The first indented sentence of Finding of Fact 19 is modified to read as follows:

March 27, 2000, Doерkе-Κlinе arrived more than one hour late for her shift due to an asthma attack.

Footnote 1 is deleted.

The first two sentences of Finding of Fact 27 are deleted and the following language is substituted:

Doерkе-Κlinе left for work on March 27, 2000, some time after 7:00 a.m.

The following sentence is added to Finding of Fact 27:

It took the complainant five minutes to drive from the route she was following to work to Mercy Medical Center.

In the last sentence of Finding of Fact 28, the words "her State FMLA benefits" are substituted for the words "her self time."

The second sentence of Finding of Fact 29 is modified to read as follows:

After Doерkе-Κlinе left the emergency room, she drove to work, arriving there after 9:00 a.m.

Finding of Fact 32 is modified to read as follows:

Edbrooke, who made the decision to terminate complainant, was not aware at that time that the complainant had filed a previous complaint of discrimination.

Findings of Fact 37 through 41 are deleted.

The following Findings of Fact are added:

37. Over a period of time, supervisors monitor the quality of the calls handled by service representatives an average of approximately 50 minutes a month. In November of 1999, Doерkе-Κlinе's supervisor monitored her calls for 74 minutes, and, in December of 1999, for 60 minutes; and did not monitor her calls in January or February of 2000. The record does not specify how many minutes Doерkе-Κlinе's supervisor spent monitoring her calls in March of 2000.

38. It was not unprecedented and it was consistent with workload demands for the respondent to require Doерkе-Κlinе to serve her three-day suspension over a period of four work days.

39. Respondent was justified, given its flex time policy and the workload and staffing levels on March 27, 2000, in denying Doерkе-Κlinе's request to use flex time to cover the period of her tardiness that day.

40. In 1997, prior to her transfer to the Appleton call center, Doерkе-Κlinе was seen by Jordan Fink, M.D., a specialist in allergy and immunology. Dr. Fink primarily relied upon Doерkе-Κlinе's self-reported symptoms and health history in concluding that she had been diagnosed and treated for asthma over a period of 13 years.

41. Richard Effros, M.D., a pulmonary specialist, examined certain of Doерkе-Κlinе's medical records, including Dr. Fink's report of his 1997 examination, at the respondent's request. Dr. Effros opined that asthma can be a very mild illness or a life-threatening problem; there is no essential difference between receiving a nebulizer treatment at home or at a hospital; Doерkе-Κlinе's medical records do not establish that she had bronchial asthma; there was no record that a total pulmonary function test had ever been administered; the results of the spirometry test administered in 1997 appear to demonstrate that Doерkе-Κlinе had mild restriction of her breathing passages and that she was not putting forth her full effort in participating in the test; and his conclusion, based on the medical records that he reviewed, was that Doерkе-Κlinе suffered from chronic bronchitis probably due primarily to her lengthy history of smoking cigarettes.

41. Doерkе-Κlinе explains that her asthma restricted her life activities because she became incapacitated when she had a severe attack.

The CONCLUSIONS OF LAW section is modified to read as follows:

1. Respondent is an employer within the meaning of the Act.

2. Complainant failed to sustain her burden to prove that she was discriminated against based on disability as alleged.

3. Complainant failed to sustain her burden to prove that she was retaliated against for engaging in protected fair employment activities as alleged.

The MEMORANDUM OPINION section is deleted and the following substituted:

Disability Discrimination

The complainant's initial burden in a disability discrimination case is to establish that she is an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA). 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 (Ct. App. 1998). The WFEA defines a disabled individual 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). The inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty. AMC v. LIRC, 19 Wis.2d 706, 350 N.W.2d 120 (1984); Jones v. United Stationers, Inc., ERD Case No. 199803598 (LIRC Jan. 25, 2001).

The evidence of record does not establish that complainant's pulmonary condition, whether it is properly diagnosed as asthma or as chronic bronchitis, 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 only competent evidence in the record relating to the limitations this condition placed on complainant's life functions or activities is her testimony that, when she was experiencing a severe attack, she became incapacitated and could not perform her work, or any other activities, for significant periods of time.

First of all, the complainant's representation in this regard is contradicted by her characterization of the attack she experienced on March 27, 2000. Even though the complainant characterized this attack as a severe one, she was able, after receiving thirty minutes or less of nebulizer treatment, to drive to work and to work an entire shift.

Moreover, the complainant failed to specify the number or length of the severe incapacitating attacks she experienced in her years of employment at the Appleton call center, i.e., after she requested and was granted a transfer to Appleton to relieve the symptoms of her pulmonary condition. Neither the frequency nor the length of those absences she attributed to asthma over this period of time would be sufficient alone to support a conclusion that a substantial limitation on her life activities or normal functions had been established. See, Gramza v. Kwik Trip, Inc., ERD Case No. CR200004205 (LIRC Feb. 20, 2003); Moller v. Metavante, ERD Case No. 200103621 (LIRC Nov. 13, 2003).

Finally, the complainant failed to offer any competent medical evidence establishing that her pulmonary condition placed a substantial limitation on her life functions or activities after her transfer to the Appleton call center. See, Thompson v. Ashley Furniture Industries, Inc., ERD Case No. CR199903292 (LIRC July 15, 2003).

The complainant also failed to show that her pulmonary condition limited her capacity to work. The occasional absences she self-reported as attributable to asthma would not be sufficient alone to support such a conclusion. See, Gramza, supra.

Complainant argues that a diagnosis of asthma alone, consistent with the ruling in Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. DILHR, 62 Wis.2d 392, 215 N.W.2d 443 (1974), supports a conclusion that the complainant was disabled. First of all, the medical evidence of record here places this diagnosis in serious question. However, even if such a diagnosis had been established, a conclusion of disability is not required. The Wisconsin Supreme Court did not state in the cited decision that every diagnosis of asthma would result in a conclusion of disability, but instead that conditions such as asthma, which, unlike physical disorders such as paraplegia, do not result in incapacity from normal remunerative occupations or require rehabilitative training, may constitute disabilities under the Wisconsin Fair Employment Act (WFEA). It would be inconsistent with the both the language and the policy underpinnings of the WFEA, for the continuum of asthma conditions to be held to be disabilities even if some did not make achievement unusually difficult or limit the capacity to work.

The record does not support a conclusion that the respondent perceived the complainant to be disabled within the meaning of the WFEA. Neither the frequency nor the length of those absences complainant attributed to asthma, without more, would reasonably have led the respondent to perceive the complainant to be disabled due to asthma.

The complainant's claim of disability discrimination must be dismissed due to her failure to prove that she is an individual with a disability within the meaning of the WFEA.

Fair Employment Retaliation

The complainant also alleges that she was retaliated against for engaging in a protected fair employment activity, i.e., the filing of an earlier discrimination complaint based on a different alleged disability, when her work was closely monitored by her supervisors; when the respondent required her to serve her three-day disciplinary suspension over a period of four days; when she was denied the use of flex time to cover her tardiness on March 27, 2000; and when she was terminated for violating the respondent's attendance policy.

The evidence of record shows that supervisors monitored the work of all service representatives, and that the quantity of time devoted to monitoring the complainant's work during and after November of 1999 did not significantly exceed the average. The record also shows that the serving of a split suspension was not unprecedented and was consistent with workload demands at the time.

The evidence of record further shows that the respondent properly and consistently applied its flex time policy when it denied the complainant's use of flex time on March 27, 2000. Specifically, the workload and staffing levels on that date would clearly not have justified allowing an additional service representative to trade off time in the early morning as the complainant requested. Although the complainant correctly asserts that another service representative was granted flex time that day, he switched his evening hours for morning hours and this action actually eased the morning workload problem rather than exacerbated it.

Finally, the record does not establish that Edbrooke, who made the termination decision, was aware or had any reason to be aware, prior to making that decision, that complainant had engaged in a protected fair employment activity by filing a prior complaint of disability discrimination.

The complainant failed to prove that she was retaliated against for engaging in a protected fair employment activity in regard to the subject terms and conditions of her employment or in regard to her termination.

Procedural Issue

Complainant argues that the administrative law judge improperly excluded the testimony of Mark Purdy, who was offered by the complainant as a rebuttal witness, and represents that Purdy would have testified that James Schley, the manager responsible for granting flex time requests, stated at the Union Review Board Meeting at which complainant's final attendance record was reviewed, contrary to his hearing testimony, that, had he been present at work on March 27, he would have granted complainant's flex time request.

The commission agrees with the administrative law judge that the complainant should reasonably have anticipated prior to hearing that this would be a matter of dispute. The primary focus of respondent's defense in relation to the flex time allegation is that it would have been inconsistent with company practice and policy, and inconsistent with the workload and staffing levels on March 27, 2000, for the FORCE unit, of which Schley was a part, to have granted complainant's request for flex time that day. Since the complainant did not notice Purdy as one of its hearing witnesses, and since Purdy's proffered testimony does not qualify as rebuttal testimony, the administrative law judge properly exercised his discretion in excluding Purdy's testimony from the hearing record.

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

Dated and mailed May 25, 2004
doepksh . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc: 
Attorney John S. Williamson, Jr.
Attorney Lisa M. Bergersen

Appealed to Circuit Court.  Affirmed December 7, 2004. Appealed to the Court of Appeals.  Affirmed August 18, 2005, sub nom. Doерkе-Κlinе v. LIRC and SBC Communications, 2005 WI App 209, 704 N.W.2d 605.
 

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