SANDRA L FORD, Complainant

LYNN'S HALLMARK INC, 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 following sentence is added to Finding of Fact 11. for purposes of clarification:

Ms. LaChappelle did not consider this change in Ms. Ford's schedule problematical because two of the other sales clerks had requested additional hours.

The final sentence of Finding of Fact 15. is modified to read as follows, to more accurately reflect the record:

Mr. Radtke told Ms. LaChappelle that the only option was to let Ms. Ford go.

The second sentence of the third paragraph of the MEMORANDUM section is deleted and the following substituted, to more accurately reflect the evidence of record:

Ms. LaChappelle testified, however, that she was the only person who marked items for discount; that items had not been discounted more than 75% since 1998, when certain Christmas ornaments had been discounted 90%; and that there were no items discounted 90% in November or December of 2002. The items purchased by the complainant at a 90% discount were not Christmas ornaments, but instead ceramic snow figures.

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

Dated and mailed June 27, 2005
fordsan . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

It should first be noted in this regard that the circuit court's analysis of the probable cause standard in Gentilli does not establish binding precedent or authority for the commission, but instead may be cited or relied upon for whatever persuasiveness may be found in its reasoning and logic. Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991), aff'd, 166 Wis. 2d 623, 480 N.W.2d 494 (1992).

"Probable cause," for purposes of the WFEA, is "a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the [WFEA] has been or is being committed." Wis. Adm. Code § DWD 218.02(8).

The concept of probable cause set out in this administrative code provision focuses on probabilities, not possibilities (Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992), and lies somewhere between preponderance of the evidence and suspicion (Hintz v. Flambeau Medical Center, ERD Case No. 8710429 (LIRC Aug. 9, 1989)). The concept of the prima facie case, however, focuses on inference and presumption, which are more closely akin to possibility and suspicion than to probability. As a result, the complainant is required to establish more than a prima facie case in order to sustain his burden to show probable cause to believe that discrimination has occurred as alleged. See, also, Josellis v. Pace Industries, Inc., ERD Case No. CR199900264 (LIRC Aug. 31, 2004).

The complainant also argues in her reply brief to the commission that, in a probable cause proceeding, "disputes as to facts should be resolved in favor of the complainant." The commission disagrees. Instead, factual disputes are to be resolved by assessing and weighing the evidence offered by the parties at hearing. This evidence was offered at a contested case hearing, not as part of a summary motion on the pleadings, where resolution of material factual disputes in favor of the non-moving party may be appropriate.

Termination

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). 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 commission agrees with the administrative law judge that the record does not support a conclusion that the complainant's diabetes constituted a disability within the meaning of the WFEA, but does support a conclusion, given the medical evidence of record that, at the time of her discharge, the complainant's fibromyalgia limited her capacity to work in her sales clerk position and constituted a disability as a result. The record also establishes that, some time in November of 2002, Ms. LaChappelle became aware of the complainant's diagnosis of fibromyalgia, and the complainant communicated to her at that time that this condition interfered with her ability to work.

Complainant next has the burden to prove that she was terminated 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). Wisconsin courts, in the absence of the Fair Employment Act's (WFEA) establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, such as that advanced here, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc., v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985); Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003). As stated by the court in Puetz:

McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).

To establish a prima facie case of a discriminatory discharge, the complainant must show that: (1) she was a member of the protected group; (2) she was discharged; (3) she was qualified for the job, and (4) either she was replaced by someone not within the protected class or others not in the protected class were treated more favorably. Puetz, 126 Wis. 2d at 173.

Even though the complainant has failed to show that she was replaced by a non-disabled individual, or that those allegedly treated more favorably in regard to the application of the respondent's employee discount/purchase policy were similarly situated to the complainant, it will be assumed for purposes of analysis that the complainant succeeded in establishing a prima facie case of disability discrimination here. See, U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 31 FEP Cases 609 (1983)(the question of whether the complainant has made out a prima facie case is no longer relevant once the respondent responds to the complainant's proof by offering evidence of the reasons for the action taken); Josellis v. Pace Industries, Inc., ERD Case No. CR199900264 (LIRC Aug. 31, 2004).

The respondent has articulated a legitimate, non-discriminatory reason for its termination of the complainant, i.e., she engaged in a violation of its employee discount/purchase policy.

The burden would then shift to the complainant to demonstrate pretext.

One of the complainant's contentions here is that the respondent, once Ms. LaChappelle learned that the complainant was contemplating leaving her employment, terminated her to avoid paying unemployment compensation. However, if this were true, it would tend to undermine, rather than support, the complainant's contention that she was terminated because of her disability.

The complainant takes issue with Finding of Fact 6. in which the ALJ found that Ms. LaChappelle was unaware at the time of the subject termination that the complainant and sales clerk Deb Warren had on occasion rung up their own purchases while Kathy Sebeney, a sales clerk not authorized to ring up purchases by other employees, observed. There is no persuasive reason to overturn this finding. It simply defies common sense that Ms. LaChappelle would authorize a practice in direct contravention of the policy articulated in Mr. Radtke's December 2000 memo. It should also be noted in this regard that counsel for complainant references exhibits C-3 and C-4 as support for this argument in his brief to the commission, but these exhibits were not received into the hearing record, or even offered by the complainant for receipt.

The complainant also argues that Ms. LaChappelle condoned the practice of employees ringing up their own purchases by doing so herself. However, Ms. LaChappelle, as the store manager, was not similarly situated to the complainant. In fact, the memo setting forth the respondent's employee discount/purchase policy (exhibit R-2) makes a distinction between the store manager and the "employees" subject to the policy. As a result, the record does not establish that it would have been reasonable for the complainant to assume that the scope of her authority or the practices she was permitted to follow would parallel Ms. LaChappelle's. The commission also notes in this regard that counsel for complainant, in his reply brief to the commission, cites to pages of a transcript which was not provided to the commission.

The complainant further contends that pretext, and respondent's discriminatory motive, are demonstrated by the fact that Ms. LaChappelle, who participated in the termination decision, became angry and upset when the complainant asked for her assistance with those tasks the complainant was physically unable to perform due to her disability, and for a reduction in her hours. In her testimony, the complainant equates Ms. LaChappelle's reaction to the redistribution of complainant's duties to her reaction to the requested reduction in the complainant's hours. However, given that Ms. LaChappelle had two other sales clerks who had been seeking additional work hours, there would have been no reason for her to have been angered by the complainant's request for a reduction in her work hours. The complainant's testimony in this regard is not credible as a result.

The complainant also argues that the fact that the four color coded items she purchased were authorized to be sold at a 90% discount demonstrates pretext. It should first be noted that the evidence of record does not establish this fact. Moreover, Ms. LaChappelle was the only individual authorized to establish the discount level of sale items, and established the color coding system for discounting items without bar codes. The administrative law judge credited Ms. LaChappelle's testimony that it was her belief at the time of the complainant's discharge that there were no items marked down by 90%, and there is no persuasive basis in the record for overturning this credibility determination. Since intent is a pertinent and necessary inquiry in a discrimination case (see, Greco v. Snap-on-Tools, ERD Case No. 200200350 (LIRC May 27, 2004)), the question of whether an employer's asserted nondiscriminatory reason is objectively correct can be considered irrelevant if it appears that the employer genuinely believed it to be true. See, Moncrief v. Gardner Baking, ERD Case No. 9020321 (LIRC July 1, 1992); Turner v. Manifold Services, Inc., ERD Case No. 200000679 (LIRC Jan. 31, 2002); Kleinsteiber, supra.  The trier of fact need only determine that the employer in good faith believed in those reasons and that the asserted reasons for the action were not a mere pretext for discrimination. See, Atkins v. Pepsi-Cola General Bottlers, ERD Case No. 199550094 (LIRC Dec. 18, 1996). As a result, even if the color coded items purchased by the complainant had been authorized to be sold at a 90% discount, the fact that the record shows that Ms. LaChappelle reasonably believed that they were not would militate against a conclusion that pretext had been demonstrated in this regard.

In addition, it was not just the complainant's purchase of four items at an unauthorized 90% discount which concerned Ms. LaChappelle. It was also the complainant's purchase of two beanie babies, for which she should have paid ten dollars but instead paid one dollar. The complainant attributes this to a good faith mistake on her part. However, given the manner in which she recorded the discount, the administrative law judge did not credit this explanation, and the commission finds no persuasive reason in the record for overturning this credibility determination.

The complainant also argues that she was treated less favorably in regard to the circumstances of her termination than non-disabled employees, and this disparate treatment establishes pretext. However, the employee conduct underlying the examples of less favorable treatment offered by the complainant is not comparable to that at issue here.

The complainant first points to the fact that other employees and Ms. LaChappelle continued to place items on layaway after Mr. Radtke's December 2000 notice (see Finding of Fact 5., above) prohibited this practice, but, unlike the complainant, they were not terminated. However, the complainant was not terminated for placing items on layaway, and it was reasonable for a different consequence to attach to a violation of the layaway policy than to a violation of the employee discount/purchase policy, i.e., placing an item on layaway for future purchase, unlike purchasing an item at an inflated discount, does not permanently deprive the respondent of income to which it is entitled.

The complainant next offers the example of the employee who charged a customer the full price for an item rather than the sale price. However, this circumstance is not comparable to that at issue here because this conduct, unlike the complainant's, would not have resulted in any personal benefit to the employee.

The only incident described in the record which could be considered comparable to the complainant's violation of the respondent's employee discount/purchase policy is that relating to Deb Warren. The respondent concluded that items missing from its inventory had been taken by Ms. Warren and terminated her as a result. Ms. Warren testified that she was not disabled, and there is no evidence in the record that the respondent perceived her to be disabled. The termination of Ms. Warren, as a result, tends to undermine the complainant's contention that she was terminated because of her disability rather than because the respondent believed that she had effectively engaged in a theft.

Finally, the complainant argues that the proximity in time between her termination and her notice to Ms. LaChappelle that she had been diagnosed with fibromyalgia and that this condition interfered with her ability to work, establishes pretext. However, although proximity in time may be a relevant factor, it would not, under the circumstances present here, be a dispositive one. The complainant also asserts that the fact that Ms. LaChappelle and Mr. Radtke discussed her request for a reduced work schedule as an accommodation for her disability in the same conversation in which they discussed her termination, establishes pretext. However, the record shows that, although their discussion of these matters, like the underlying events, occurred in close proximity in time, it did not necessarily occur in the same conversation. Moreover, again, although this would be relevant, it would not be dispositive.

Pretext, even considering the applicability of the less rigorous probable cause standard, has not been demonstrated here.

Reasonable accommodation

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 her 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.

However, before those steps can be undertaken, evidence must exist that a request for an accommodation was made, or a need for an accommodation was apparent. Although the complainant contends that she was denied reasonable accommodation of her disability, it is not apparent what potential accommodation she is referencing. The complainant testified that her request for assistance performing the more physically demanding tasks of her sales clerk position, and her request for a reduction in her work hours, were both granted by the respondent, and she fails to specify any other accommodation associated with her disability of fibromyalgia.

The record does not support a conclusion that there is probable cause to believe that the complainant was denied reasonable accommodation of her disability.

Finally, the commission notes that the hearing summary prepared by the department was not entirely accurate. As a result, the commission reviewed the tape recording of the hearing in reaching its decision here.

cc:
Attorney Guy-Robert Detlefsen, Jr.
Attorney Cari L. Westerhof

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