KATHLEEN A SEVALS, Complainant

LUTHER MIDELFORT CLINIC LTD, 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.

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

Dated and mailed July 16, 2004
sevalka . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The complainant, Kathleen Sevals, tested positive for methamphetamines as a result of a random drug test on January 2, 2001. Sevals had previously signed an "Impaired Employee Return to Work Agreement" on June 12, 2000, which was later modified, agreeing to remain chemically free unless taking prescribed medication, and to submit to drug testing for up to one year. Under this agreement a positive drug test was considered grounds for immediate termination. On January 18, 2001, the respondent terminated Sevals' employment for violating her return to work agreement.

Sevals has alleged that her discharge following the positive drug test was discriminatory because the respondent perceived her as having a disability.

Sevals began her employment with the respondent in June 1989. She worked as a medical lab technician for the respondent. She began a medical leave of absence on February 21, 2000.

While still off work due to the medical leave of absence, on May 5, 2000, pursuant to a Chapter 51 proceeding, the Barron County Circuit Court issued a "Settlement Agreement and Order" requiring Sevals to undergo outpatient AODA treatment related to methamphetamine use.

The respondent became aware of Sevals' illegal drug use on or about June 7, 2000.

On June 7, 2000, Sevals had an appointment with a physician's assistant to obtain a return to work slip from her leave of absence. This same physician's assistant had been on duty in the emergency room at the Barron Memorial Hospital on May 2, 2000. On May 2 while Sevals was being transported to Cumberland Hospital by police car pursuant to the Chapter 51 proceeding, the police car was involved in an accident and the occupants of the police car were taken to the Barron Memorial Hospital. According to Sevals, on June 7 the physician's assistant told her that she had learned from a police officer on May 2 that she was being transported pursuant to a Chapter 51 proceeding. Sevals asserts that on June 7 the physician's assistant told her that she would not be given a return to work slip, that she should be an inpatient for drug abuse and that her supervisor would be told.

Sevals called the respondent's human resources specialist on June 7 and explained what had taken place because the physician's assistant had said she was going to inform her supervisor. A meeting was then scheduled for June 12, 2000. Sevals, her supervisor, the human resources specialist and the respondent's department director attended the meeting. At this meeting Sevals signed the "Impaired Employee Return to Work Agreement."

In accordance with the court's May 5, 2000 Settlement Agreement and Order that she receive outpatient AODA treatment, Sevals met with a counselor who handled the intake matters in mid-May 2000, and then she began "Individual Counseling" with a second counselor (a Certified Alcohol and Drug Counselor-Level 3, on June 14.

Apparently, sometime later in June 2000, the respondent's Employee Assistance Program counselor indicated that under the respondent's policy Sevals should be participating in an "Intensive Outpatient" program. However, at Sevals' request that she continue with the treatment she was already receiving, in conjunction with her counselor's explanation of his alternative, less intensive treatment plan, the respondent agreed that Sevals could continue with the treatment she was already receiving.

Sevals returned to work for the respondent on July 28, 2000.

Sevals last saw her counselor for her outpatient treatment program on September 21, 2000, at which time she had successfully completed that program. On or about September 28, 2000, Sevals' counselor sent the respondent a written discharge summary notifying the respondent that Sevals had successfully completed the prescribed treatment.

While Sevals contends that the respondent discharged her because it perceived her as having a disability, the evidence fails to support such contention.

First of all, it should be noted that it was Sevals' counselor's opinion that her drug use had never reached the level of addiction, dependency, or that her use of an illegal drug had otherwise been nonvolitional. Thus, Sevals has not shown that she had an actual disability.

Sevals, however, suspects that the respondent perceived her as having a disability due to her illegal drug use because the physician's assistant had told her that she should be an inpatient for drug abuse and would tell her supervisor this. Whether or not the physician's assistant had actually ever contacted Sevals' supervisor was not established. As noted at page nine of the ALJ's decision, however, there was some evidence that the respondent's EAP coordinator wanted Sevals to participate in an Intensive Outpatient Program and this arguably could indicate that the respondent perceived her to have a methamphetamine problem that rose to the level of a disability. As the ALJ further notes, however, the respondent did not require Sevals to participate in an Intensive Outpatient Program, and instead allowed her to continue treatment with the provider of her choice under a program that was less involved than the Intensive Outpatient Program its EAP coordinator had suggested.

In addition to the above, there is other evidence that refutes Sevals' claim that the respondent perceived her as having a disability; namely, that on July 28, 2000, when Sevals returned to work she returned in her same position as a medical lab technician, that on or about September 28, 2000, Sevals' counselor sent the respondent a written discharge summary notifying the respondent she had successfully completed the prescribed treatment, and that on December 15, 2000, Sevals' supervisor had completed an evaluation of her performance in which she provided Sevals with a uniformly positive evaluation.

Sevals' other primary contention has been that the respondent "blindly adhered" to its drug testing policy when it discharged her on January 18, 2001. Specifically, Sevals has questioned the validity of her positive drug test result for methamphetamines, asserting that her drug test did not meet the criteria for a test to be considered positive under the Workplace Drug Testing Guidelines which govern federally funded employers and that her test results had failed to detect a medically prescribed drug (Prozac) that she had been taking. Unfortunately, however, regardless of the merits of her assertions about the validity of her positive drug test, Sevals presented no evidence that would give reason to believe the respondent terminated her employment because it perceived her as having a disability due to illegal drug use. An outside company had performed Sevals' drug test. That company sent a report to the respondent with the results of its test which showed that Sevals had tested positive for methamphetamines. Consistent with the express terms of Sevals' Return to Work Agreement that a positive drug test would be considered grounds for immediate termination the respondent terminated Sevals' employment. In Xiong v. Hoffers, Inc. (LIRC, 05/31/00), where the complainant was discharged for a positive drug test even though the human resources manager believed his denial of having engaged in illegal drug use, the commission stated that the employer's "blind adherence" to its drug policy was both unreasonable and counterproductive, but did not amount to disability discrimination.

Aside from the above, Sevals has included assertions regarding a number of matters that are outside the scope of her complaint and/or the commission's authority. For example, Sevals apparently alleges that the respondent discriminated against her because it continued her leave of absence on March 20, 2001, as a result of her complaint about the conduct of a physician's assistant toward her as a patient during an office visit at the respondent's facility, that with respect to her May 2, 2000 emergency room visit there was a breach of confidentiality under chapter 51, and that the respondent discharged her because in August 2000 she had told the regional manager she had filed a complaint with the American Medical Association and Joint Commission of Accreditation.

Finally, the commission also notes that Sevals appears to argue that the respondent did not honor her "discovery requests" for information relating to her drug test. DWD 218.14 and chapter 804 of the Wisconsin Statutes define the procedure, scope, method and use of discovery. The record fails to disclose that the respondent had refused to honor a discovery request made by Sevals contrary to DWD 218.14 and Wis. Stat. Ch. 804.

cc: Attorney Troy D. Thompson

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uploaded 2004/07/19