JANE M WESTER, Complainant

CHARTER MEDIA/COMMUNICATIONS, 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 correction, and to more accurately reflect the commission's decision rationale:
 

Findings of Fact

The words "as an encoder" are deleted from Finding of Fact 3.

The sixth sentence of Finding of Fact 6. is modified to read as follows:

BPD affects how Ms. Wester perceives and relates to supervisors, and has resulted, and is likely to continue to result, in her being able to hold jobs for only short periods of time because of the frustration and anger that she develops with supervisors.

The words "the fall of 2000" in Finding of Fact 8 are replaced by "1999."

The second sentence of Finding of Fact 9 is deleted.

In Finding of Fact 17, the words "in August, are inserted after the word "and."

The reference to "9-13-00" at the end of the second quoted section of Finding of Fact 25 is replaced by "9-13-00-9-15-00."

The second sentence of Finding of Fact 28 is deleted.

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

Ms. Wester made no request for any accommodation, other than occasional time off, in this memo.

The word "chance" in the second paragraph of Finding of Fact 29 is replaced with the word "change."

The third sentence of Finding of Fact 30 is deleted.

Finding of Fact 33 is modified to read as follows:

On September 26, 2000, Ms. Wester came in to work and found the code on the door and passwords on the computer had been changed.

Finding of Fact 34 is modified to read as follows:

Ms. Fortune-Neu came to the Sheboygan office on September 26, 2000, to investigate recent events, including conflicts between Ms. Wester and Mr. Helbach.

In the second sentence of Finding of Fact 36, the word "they" is replaced with "he and Ms. Wester."

Finding of Fact 38 is deleted.

The words "that agreement" at the end of Finding of Fact 51 are replaced with "this discussion."

Finding of Fact 53 is modified to read as follows:

Ms. Wester did not request transfer to a particular vacancy any time after May of 2000 even though she was familiar with the process for doing so.

The word "started" in Finding of Fact 55 is replaced with "stated."

Finding of Fact 57 is deleted.
 

Conclusions of Law

Conclusions of Law 3, 4, and 5 are deleted.

Conclusion of Law 6, is modified to read as follows:

Ms. Wester failed to sustain her burden to prove that Charter violated the Wisconsin Fair Employment Act by discriminating against her because of disability as she has alleged. 
 

Memorandum Opinion

The Memorandum Opinion is deleted and the following substituted:

Procedural Issues

(1) Murty Deposition. Murty was the human resources manager who decided, after Fortune-Neu's investigation, that Wester had not been sexually harassed by supervisor Helbach as she had alleged; and engaged in a telephone conversation with Wester on October 18 in which she communicated this decision as well as her denial of Wester's request for a new supervisor, her determination that Wester's suspension would be lifted, and her tentative offer of Charter's standard separation agreement to Wester if she decided not to return to work. Wester attempted to subpoena Murty but, because she failed to include the required witness fee, Murty did not appear. Wester apparently did not bring an action to enforce the subpoena and rested her case in chief without reference to any such action. Charter intended to call Murty as part of its case when the hearing was reconvened on October 9, 2003, but indicated on that date that Murty had been hospitalized without notice and would not be appearing as a result.

Discovery in ERD proceedings is governed by Wis. Stat. Ch. 804. Wisconsin Statutes § 804.07 states as follows, as relevant here:

804.07 Use of depositions in court proceedings.

(1) Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness..

(c)1. The deposition of a witness other than a medical expert, whether or not a party, may be used by any party for any purpose if the court finds any of the following:

a. That the witness is dead.

b. That the witness is at a greater distance than 30 miles from the place of trial or hearing, or is out of the state, and will not return before the termination of the trial or hearing, unless it appears that the absence of the witness was procured by the party offering the deposition.

c. That the witness is unable to attend or testify because of age, illness, infirmity or imprisonment.

d. That the party offering the deposition has been unable to procure the attendance of the witness by subpoena.

e. Upon application and notice, that exceptional circumstances exist that make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

Wester contends, at least by implication, that unavailability due to illness connotes more, given the other bases cited, than the fact that, as here, an individual is temporarily indisposed. However, even if Wester is correct and the administrative law judge's (ALJ) ruling receiving the Murty deposition into the hearing record was erroneous, it would be harmless error since none of the commission's findings or conclusions are based on the Murty deposition.

(2) Enforcement of subpoenas. In addition to Murty, Wester apparently served a similarly deficient subpoena on Holtz, her second level supervisor. Wester appears to be arguing that, despite these deficiencies, the ALJ should have enforced the subpoenas and compelled Murty's and Holtz's appearances at hearing. However, neither ERD nor LIRC have the authority to enforce a subpoena. Josellis v. Pace Industries, Inc., ERD Case No. CR199900264 (LIRC Aug. 31, 2004). Wester could have initiated an enforcement action in circuit court but failed to do so. Moreover, in correspondence to the ALJ dated July 9, 2003, i.e., after the first two days of hearing on June 2 and 3 but before the commencement of the third day of hearing on October 9, 2003, Wester stated as follows:

"I have agreed not to subpoena Mr. Helbach, Ms. Holtz, and Ms. Murty, as the decision whether or not they want to show up for the hearing to defend their actions will be left up to each person on an individual basis."

(3) Separation agreement. Wester argues that the ALJ should have received into the hearing record the separation agreement offered to her by Charter near the end of her employment. However, again, if this was error, it was harmless error. The record establishes that the separation agreement was Charter's standard one, and, in return for a separation payment and other consideration, the employee agrees not to bring certain types of actions before the EEOC or other agencies. Wester argues that this establishes that Charter was aware that she was disabled when they discussed this agreement with her at the end of her employment. However, this boilerplate language in a standard agreement would not establish such awareness.

(4) Wester asserts that the ALJ did not permit her to testify fully as to her working conditions. However, the evidence of record shows that, as relevant to her claim, she had full and fair opportunity to do so. The ALJ properly explained to Wester the objective person standard for determining whether an employee was constructively discharged, and that, unlike a workers compensation action, the issue in this fair employment action was not whether the work environment caused a physical or mental injury. In addition, Wester stated to the ALJ (see page 605 of transcript) that she had nothing further to add to her testimony, and (on page 726) that she rested.

(5) Discovery disputes. Wester asserts that the ALJ did not resolve, or at least did not satisfactorily resolve, all of the parties' discovery disputes. There was extensive discovery by the parties, and extensive involvement by the ALJ in the parties' discovery disputes. The general nature of Wester's assertion here, without more, is insufficient to permit meaningful review of her assertion.

(6) Cross-examination of Dr. Spierer. Wester contends that the ALJ did not give her an adequate opportunity to cross-examine Dr. Spierer. However, after listening to the ALJ's explanation of his understanding of Dr. Spierer's testimony, Wester stated (page 310) that she had no questions for this witness. The ALJ's explanation was straightforward and, as Dr. Spierer indicated, consistent with the testimony given.

(7) Holtz deposition. Wester offered Holtz's discovery deposition for rebuttal purposes. The ALJ, however, properly excluded it. Wester was clearly offering the deposition in lieu of Holtz's testimony; there was no reason, other than Wester's failure to properly compel Holtz's appearance, which prevented her from calling Holtz as a part of her case in chief; and it was not proper rebuttal.

(8) Wester deposition. Wester takes issue with the ALJ's receipt of her discovery deposition into the hearing record. However, she stipulated to its receipt at hearing.

(9) Retaliation issue. In its initial determination, ERD found no probable cause as to Wester's charges of sex discrimination and fair employment retaliation, and probable cause as to her charge of disability discrimination. Wester appealed the no probable cause determination as to the retaliation issue; a probable cause hearing was conducted by ALJ Alice DeLao on this issue, and a decision finding no probable cause and dismissing the retaliation claim was issued by ALJ DeLao. An explanation of Wester's appeal rights and relevant appeal procedures was included as a part of the ALJ's decision. Although she references the retaliation issue in her argument, there is no indication in the file that Wester ever appealed the retaliation issue to the commission, and her petition to the commission references only ALJ Schacht's decision on the disability discrimination issue.

(10) In her petition and accompanying argument, Wester references and offers information which, although apparently available at the time of hearing, did not become a part of the hearing record. This information may not be considered by the commission in rendering its decision here.

(11) Documents considered by Dr. Spierer. Wester argues that Charter's expert, Dr. Spierer, relied on certain documents which she feels should not have been provided to him or formed part of the basis for his opinion. The only ones she identifies are copies of emails she authored and a written description of certain behavior exhibited by Wester in an elevator, both of which occurred after the period of her employment by Charter. However, regardless of whether such information was properly considered by Spierer, or was relevant to the state of her mental health during the period of her employment, the record establishes that Dr. Spierer's diagnosis would have been the same even if such information had not been provided to him.

(12) ALJ bias. Wester argues that ALJ Schacht is biased because he has a friendship with Jeff Hynes, an attorney who represented Wester during part of these proceedings. She fails to explain, however, how the ALJ's friendship with her attorney would operate to her detriment.

Substantive Issues

At hearing, Wester stated the following as the actions she was claiming were taken by Charter because of her disability: exclusion from meetings and conference calls (2/00), changing procedures without her input (7/00), failure to promote (7/00), 3/28/00 write-up, 5/15/00 write-up, 8/14/00 write-up, 8/3/00 verbal warning, 8/8/00 verbal warning, 9/18/00 final warning, 9/26/00 suspension, 9/26/00 changing door code and computer passwords without prior notice.

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 (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); Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC Aug. 25, 2000).

It should be noted that Wester specifically indicated at hearing that she was not claiming that she was discriminated against because she exhibited behaviors or engaged in conduct caused by her disability (page 238 of transcript).

Dr. Spierer essentially testified that, in his expert opinion, the employee's borderline personality disorder would limit her capacity to work in any job. The ALJ accepted this opinion as the most persuasive of those offered, and the commission agrees since it incorporated the most thorough analysis, was based on tools in addition to the self-reporting of symptoms, and best explains Wester's behavior.

The commission concludes on this basis that Wester was an individual with a disability during the period of her employment by Charter.

Complainant 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 order to prove such discrimination, Wester would have to show that the alleged discriminators would have had reason to be aware that she was disabled, or to have perceived her to be disabled, at the time the allegedly discriminatory actions were taken. The record supports a conclusion that none of these individuals had any reason to develop an awareness that Wester had any type of mental health impairment prior to reading the email transmitted by Wester on September 19, 2000, in which she states that she had been advised by her physician to inform her employer of the fact that she had been struggling with depression for 25 years. Wester argues that her mention to supervisor Helbach, during a dispute with him on September 13, 2000, that she was going to take a "mental health day," would have put him on notice of her mental disability. The commission disagrees given that this is a phrase used in common vernacular by disabled and nondisabled employees to refer to a day free from the universal stressors of work. Wester also contends that, since Holtz was aware in 1998, due to her review of an insurance form Wester completed at the time, that Wester suffered from depression, Holtz had reason to be aware of Wester's disability at all times relevant here. However, on this insurance form, Wester stated that she had depression from "11/92-9/97." As a result, Holtz would have had no reason to be aware from this form that Wester's depression had continued into the period of her employment by Charter.

Wester alleges that she was harassed based on her disability. The only incident of alleged harassment specifically referenced by Wester which occurred on or after September 19, 2000, was that in which she and co-worker Rehm had a dispute over a tape and Rehm allegedly stated, while they were physically struggling over it, "Give me the damn tape." This single incident would not be sufficiently severe or pervasive to support a conclusion that illegal harassment had occurred, even if the other elements of proof and liability were present. Wester also generally alleges that supervisor Helbach engaged in a pattern of daily harassment against her since October of 1999, that she had daily confrontations with co-worker Rehm during the last month of her employment, that unit head Mark Zimmerman did not treat her well, that unit head Travis Wichman had harassed her, and that Holtz had not supported her after June of 2000. However, Wester failed to provide sufficient details in regard to these allegations to determine whether harassment actually occurred as alleged. Moreover, Wester has contended throughout these proceedings that she was harassed in the same manner prior to September 19, 2000, as she was after that date. As a result, such harassment, even if it occurred as alleged, would not have been due to Wester's disability.

Wester also contends that Charter discriminated against her based on disability when the door code and computer passwords were changed on September 26, 2000; when she was suspended on September 26, 2000; and in the manner in which the investigation of her allegations of sexual harassment were handled.

The change in the door code and computer passwords, however, affected most if not all of the Charter employees at Wester's work site, not just Wester. Moreover, Wester testified (page 660) that, when this had occurred on another occasion prior to September 19, she had been informed of the change when she arrived at work, which is the same procedure which was followed on September 26. As a result, Wester failed to show that this action was taken by Charter due to her disability.

In regard to the September 26 suspension, Wester argues that she was treated differently than Helbach who was also under investigation at the time due to Wester's allegations of sexual harassment. However, the record supports a conclusion that Wester and Helbach were not similarly situated, i.e., Helbach, unlike Wester, had not been recently issued a final disciplinary warning; and Helbach, unlike Wester, had not manifested an uncooperative attitude to the investigator. As a result, the record does not support a conclusion that Wester and Helbach were treated differently based on disability.

Finally, in regard to the manner in which the investigation was conducted by Charter, Wester admits in her testimony (page 411) that she had no evidence that Fortune-Neu conducted the investigation of Wester's allegations in a different manner than she had conducted any other investigation.

Wester also contends that, due to her disability, she was constructively discharged by Charter. In order to demonstrate this, however, Wester would have to show that the unfavorable treatment which she believed justified her decision to resign resulted from her disability. As discussed above, Wester has failed to demonstrate this. Even if she had made this showing, Wester would also have to demonstrate that this allegedly unfavorable treatment was so intolerable that a reasonable person would feel that she had no reasonable option but to resign. The incidents cited by Wester, considered as a whole, even if proved, do not come close to meeting this standard. Finally, it is not even clear that this allegedly unfavorable treatment was the basis for Wester's decision to resign, i.e., Wester stated to the Equal Rights Division in May of 2001 (page 665) that she had decided not to continue in her employment with Charter because she was embarrassed about allegations made by a female co-worker that Wester had sexually harassed her.

Complainant has failed to sustain her burden to prove that she was harassed, treated less favorably in regard to the terms and conditions of her employment, or constructively discharged because she was disabled.

Assuming for purposes of analysis that Charter had a duty of reasonable accommodation, the record supports a conclusion that Charter did not fail to fulfill this duty.

In her September 22 email (exhibit C9) to Holtz and Helbach, Wester indicates the subject matter as "time off," and states as follows:

"This is to inform you that because of my medical condition, Depression, I may require some time off occasionally. This condition is one that is recognized by the ADA, and does require that an employer make appropriate accommodations upon the request of the individual (Jane Wester). At this time I am making the following statement. The effects of the Depression increase due to added stress. Over the past several months, the stress factor at Charter Media has gotten to a level that I can hardly cope with."

Wester goes on in this email to reference complaints she had made about Helbach, and, as the source of her stress at work, problems with current tape handling procedures. Complaints made by Wester to Charter involving Helbach related to disagreements as to work responsibilities and procedures, and allegations of sexual harassment.

The only accommodation Wester ever linked to her mental health impairment was her occasional need for time off, which Charter provided. It was reasonable for Charter to conclude, based on the language of the September 22 email in which Wester sets forth her understanding of her responsibility to request those accommodations she requires due to her mental health impairment, that time off was the only accommodation she required and the only one she was requesting. The record further supports a conclusion that Charter was reasonably justified in concluding that Wester's request for a new supervisor/position was made solely within the context of her complaint that Helbach had been sexually harassing her.

In addition, Wester failed to show that her request for a new supervisor/position would have been a reasonable accommodation for her disability. The record shows that the only condition from which Wester suffers which was proved to be a disability, i.e., her borderline personality disorder, would prevent her from working effectively with any of the supervisors at the Charter Media Center. Dr. Spierer testified that, once Wester develops a negative view of a supervisor, this view would not change and she was unlikely to have a positive relationship with this supervisor in the future. Wester testified that, in regard to the slate of supervisors at the Media Center, she had been harassed by Helbach and Wichman while she had been supervised by them; Holtz had not been supportive of her since June of 2000 and she had sued Holtz for violence in the workplace and defamation; and she disagreed with the manner in which Quackenboss, who she did not in fact mention as an appropriate alternative supervisor, handled certain of his job responsibilities and had expressed this disagreement.

Finally, in her petition, Wester takes issue with the ALJ's finding that she was not credible. However, given her admission that she had lied several times to Charter during the period of her employment, as well as the numerous inconsistencies between her hearing and discovery deposition testimony, there is no persuasive reason to overturn the ALJ's finding in this regard.

The commission concludes that the record here does not support a conclusion that Wester was discriminated against based on disability as she has alleged.

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

Dated and mailed October 15, 2004
westeja . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc: Attorney Sharon Mollman Elliott

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