TINA TOBORG, Complainant

SHOPKO, 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 fourth paragraph of Finding of Fact 9. is modified to read as follows in order to correct an error:

Between late February of 2001 and mid-March of 2001, Feinstein asked Toborg approximately four times for the doctor's note.

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

Dated and mailed March 30, 2005
toborti . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

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 complainant failed to sustain this burden here.

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 requirement that the complainant take medication at regular intervals several times a day, and the dizziness and other symptoms she occasionally experienced due to her heart condition, the disability she claims here, do not rise to the level of a substantial limitation. Moreover, none of the medical documents in the hearing record, even if they qualify as competent medical evidence, establish that complainant's heart condition limited her ability to engage in a normal life function or a major life activity, or her ability to perform the duties and responsibilities of her position. Finally, the fact that these medical documents did not state any work restrictions militate against a conclusion that the respondent would reasonably have perceived the complainant to be disabled. See, Greenwood v. Ross Furniture, ERD Case No. CR200001517 (LIRC Dec. 30, 2004).

Even if the complainant had succeeded in proving that she was an individual with a disability within the meaning of the WFEA, she did not, as discussed below, prove that she was discriminated against on this basis, i.e., that she was treated less favorably than similarly situated employees, or that the respondent failed in its duty of reasonable accommodation. The medical documentation the complainant provided the respondent did not state that her heart condition required any accommodation other than permission to rest or to be excused from work when experiencing symptoms of her heart condition and, at least implicitly, time off work to seek medical treatment. The record does not show that the respondent ever denied these accommodations to the complainant. Complainant takes issue with the manner in which the respondent interpreted the letter (exhibit R-7) prepared by Dr. John Farnham (see, Finding of Fact 9., above). Complainant argues that this letter should have been interpreted to restrict the number of hours she could work each day to six. However, the respondent reasonably interpreted this letter as implying that Dr. Farnham was under the impression that the complainant's typical work shift lasted six hours, and as indicating that Dr. Farnham believed not only that the complainant was able to work a six-hour shift but also that there was no need in general to restrict her hours of work based on her heart condition. In addition, the record shows that Feinstein told the complainant that the respondent would not make any changes in the number of hours she typically worked each day unless she presented medical documentation supporting such a change, and that the complainant never presented such documentation.

The complainant failed to prove that she was treated differently than any other similarly situated employee based on race/color or disability in regard to the number and arrangement of the hours she was scheduled to work, her scheduling and use of 15-minute and lunch breaks, her use of work time or work phones to conduct personal business, or inquiries relating to the location in which she had parked her car in the ShopKo lot. The record shows that the respondent did not deviate from its written policies or typical practices in its treatment of the complainant.

Finally, the complainant claims that she was constructively discharged. To prove a constructive discharge, the complainant must show that, for a discriminatory reason, working conditions are rendered so intolerable that a reasonable person would feel compelled to resign. See, Waedekin v. Marquette University, (LIRC, March 5, 1991), citing Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 22 FEP Cases 1191 (5th Cir. 1980); Dingeldein v. Village of Cecil, ERD Case No. 199503536 (LIRC May 8, 1997), citing Bartman v. Allis Chalmers Corporation, 799 F.2d 311 (7th Cir. 1986); Froh v. Briggs and Stratton Corp., ERD Case No. 200101453 (LIRC Sept. 29, 2004). First of all, as concluded above, the complainant failed to prove that the respondent was motivated by a discriminatory animus in regard to any of the incidents she cites as the basis for her complaint. One of the primary reasons the complainant offers to support her constructive discharge claim is that Feinstein was "stalking" her by looking for the complainant's car in the ShopKo parking lot. However, Feinstein credibly testified without rebuttal that ShopKo employees were required to park in a remote area of the lot and, on May 27, 2001, when she noticed a car parked next to the store which she believed closely resembled the complainant's, she made a note of it and mentioned it to the complainant, as she had done many times with other employees. This evidence does not validate the complainant's claim that Feinstein's actions in this regard reasonably caused her to fear Feinstein and to suspect Feinstein of stalking her. The complainant also cites as a primary basis for her constructive discharge claim her assignment to work the weekend of June 23/24, 2001. The complainant first testified that this would have been the only weekend she had off that month, and then admitted that she had been off the previous weekend. Moreover, the record shows that employees similarly situated to the complainant were typically scheduled to work two or three weekends a month. Finally, the complainant cites the warning she received for "loafing" on May 27, 2001, as one of the primary bases for her constructive discharge claim. However, the record shows that the employee talked to her husband for at least 15 minutes, stood in line to pay for a drink, and then left the store to take her 15-minute break. The employee was engaging in personal business on work time and the respondent was justified as a result in issuing its warning.

cc: Attorney Michael J. Cieslewicz

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